Chattisgarh High Court
State Of Chhattisgarh vs Indranil Dey on 29 November, 2022
1
Acquittal Appeal No. 219 of 2010
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No. 219 of 2010
State Of Chhattisgarh Through The Police Station Golbazar, District
Raipur, Chhattisgarh.
---- Appellant
Versus
1. Indranil Dey S/o Dipendra Nath Dey @ Santu Aged About 32 Years R/o
Jamshedpur P.S. Telku Jharkhand, At Present Gitanjali Nagar, Sector -2
House No. 64, Raipur (C.G.)
2. Surendra Patwa S/o Tulsiram Aged About 37 Years Ashwani Nagar, Near
Tiwari Kiraya Bhandar P.S. Puranibasti Raipur (C.G.)
3. Dheeraj Mohali S/o Yuvraj Mohali Aged About 27 Years R/o Naveda
Gautampur (U.P.) At Present Gitanjali Nagar, Sector -2 Civil Line Raipur
(C.G.)
4. Mohan Vishwakarma S/o Baijnath Vishwakarma Aged About 50 Years
R/o Badhai Para, Near Jhanda Chowk, Thana Ganj, Raipur (C.G.)
5. Pratap Singh S/o Devisingh Aged About 32 Years R/o Jugyani, District
Tisa (Himanchal Pradesh) At Present House No. 1961, Lodhipara, Near
Jaihind Chowk, Pandari Raipur (C.G.)
6. Probir @ Praveer Benerjee S/o Paritosh Benerjee Aged About 43 Years
R/o Anupam Nagar, 1/9 P.S. Mowa, District Raipur (C.G.)
---- Respondents
For Appellant/ State : Shri Ashish Tiwari, G.A.
For Respondents No.2,4,5 & 6 : Shri Keshav Dewangan, Advocate.
For Respondents No.1 & 3 : None.
DB: Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
29.11.2022
Rakesh Mohan Pandey, J.
The appeal is heard on admission.
1. This appeal has been preferred by the State against the judgment
of acquittal dated 29.04.2009 passed by the learned Eighth
Additional Sessions Judge, F.T.C., Raipur in Sessions Trial No. 233
Acquittal Appeal No. 219 of 2010
of 2006, whereby the respondents/accused persons have been
acquitted of the charges under Sections 120B, 419, 365 and 395
read with Section 34 of the Indian Penal Code.
2. The case of the prosecution, is that, on 19.03.2006, Pradeep Singh
(PW-1) and Jitesh Prajapati (PW-2) stayed in Room No. 305 of
Vinayak Hotel, Malviya Road, Raipur and they were carrying
Diamond, Ruby and other jewels for sale worth Rs.10,00,000/-. On
the same date, at about 10:00 pm, four persons entered into their
room. Respondent No.6 - Probir @ Praveer Banerjee
impersonated as CBI Officer and they informed the complainant
and his companion that they have come for enquiry regarding the
smuggling of the diamonds. Thereafter, the complainant and his
companion were taken near Kotwali Police Station and all jewels
were looted from their possession. On a written complaint (Ex.P/6)
of Jitesh Prajapati (PW-2), First Information Report (Ex.P/7) was
registered. The Diamond Businessman i.e. Pradeep Singh (PW-1)
was abducted. After due investigation, the police arrested present
respondents vide (Ex.P/21 to Ex.P/26), Identification Parade was
conducted vide (Ex.P/1 to Ex.P/5), memorandum statements were
recorded vide (Ex.P/7A to Ex.P/13), Diamond, Yamaha Motorcycle,
Hero Honda Motorcycle, I-Card, one Nokia Mobile and one Bajaj
Caliber Motorcycle were seized vide (Ex.P/14 to Ex.P/20). The
statements of the witnesses were recorded. The purchase receipts
of the diamond were seized vide (Ex.P/30 to Ex.P/36). After
completion of investigation, the police filed charge-sheet before
learned Judicial Magistrate First Class, Raipur and the same was
committed to the learned Sessions Court for deciding the case on
Acquittal Appeal No. 219 of 2010
merits. Learned trial Court framed charges for the offence
punishable under Sections 120B, 419, 365 and 395 read with
Section 34 of the IPC. The respondents/ accused abjured the guilt
and took the plea that they have not committed any offence and
they have falsely been implicated in the case.
3. The statements of the accused persons under Section 313 of
Cr.P.C. were recorded and one defense witness, Safdar Ali
(DW-1), was examined by the accused persons.
4. The learned trial Court after appreciating the oral and documentary
evidence available on record, acquitted all the accused persons,
who are respondents in this acquittal appeal vide judgment dated
29.04.2009 assigning the reasons in paragraph No.36 of the
judgment, which are as under:
"[email protected]& 'ks"k vfHk;qDrx.k bUnzuhy Ms] eksgu fo'odekZ ,oa
izksohj mQZ izksfcj csuthZ ds laca/k esa izLrqr lk{; ds fo'ys"k.k
mijkar lkf{k;ksa ds dFku esa vU; NksVs&eksVs folaxfr;ksa
dks ;fn utj vankt Hkh dj fn;k tk, rks eq[; fojks/kkHkk"k
vkSj folaxfr tks nf'kZr gksrh gS og fuEu gS %&
1& iznhi flax dqy fdruh jkf'k dher ds ghjs
tokgjkr fdlds ikl ls ysdj vk;k Fkk og
larks"ktud lk{; ls izekf.kr ugha gSA
2& izkFkhZ iznhi flax ds miyC/k jgus ds ckn Hkh
izn'kZ ih&7 dh izFke lwpuk fjiksVZ ftrs'k iztkifr ls
fy[kok, tkus ls ?kksj lansg dh fLFkfr fufeZr gksrh gSA
3& izkFkhZ iznhi flax rFkk ftrs'k iztkifr ds dFku
rFkk iqfyl c;ku vkSj foospd ds dFku vkSj dk;Zokgh
esa iznhi flax ds ikl ;fn dksbZ ghjs tokgjkr Fks rks
Acquittal Appeal No. 219 of 2010
mudh dher ds ckjs esa xaHkhj fojks/kkHkk"k ekStwn gSA
4& foospd us izn'kZ ih&34] ih&35] ih&36 ds ftu
nLrkostksa dks iznhi ds ghjksa dk fcy crk;k gS mDr
fcy tkjh djus ds laca/k esa daiuh ls iwNrkN dj mUgsa
xokg Hkh ugha cuk;k gS rFkk iznhi flax foospd dks
mDr fcy nsus ckcr~ dksbZ dFku ugha djrk gS cfYd
og tkaxMcqd ykuk dgrk gS ftls vfHk;qDr izchj }kjk
QkM+ fn;k tkuk dgrk gS tks ?kksj lansg dks tUe nsrk
gSA
5& izn'kZ ih&6 vkSj ih&7 dh fjiksVZ esa ftl ijs'k
HkkbZ ds ikl ls iznhi flax ghjs ysdj vk;k Fkk ;g
mYysf[kr gS ml ijs'k HkkbZ dks ugha tkuuk iznhi flax
us dgk gS rFkk vfHk;kstu mDr dfFkr ijs'kHkkbZ dks
crkSj lk{kh U;k;ky; esa is'k djus esa lQy ugha jgk
gSA
6& tIrh vkSj eseksjs.Me ds lkf{k;ksa us foospd ds
dFku rFkk dk;Zokgh dk leFkZu ugha fd;k gSA
7& foospd us tIr'kqnk ewY;oku laifRr dks fdl
vfHk;qDr ls tIr dj jgk gS ;g n'kkZrs gq,
vyx&vyx lhycan ugha fd;k gSA
8& foospd us tIr'kqnk mDr ewY;oku ghjs] tokgjkr
dks Fkkuk xksycktkj ds eky[kkus esa j[kokuk tks dgk gS
og lgh ugha gS ;g izekf.kr gks pqdk gSA
9& foospd us fcuk fdlh rLnhd ds tIr'kqnk laifRr
igpku dk;Zokgh djkus okys dks fn;k rFkk fcuk fdlh
rLnhd ds mDr laifRr okil izkIr fd;kA
10& laifRr dh igpku dk;Zokgh ds Bhd igys gh
tIr'kqnk okguksa dks tIrhdrkZ us Fkkus esa ns[k fy;k FkkA
11& ghjs tokgjkrksa dh ftudh igpku dk;Zokgh
Acquittal Appeal No. 219 of 2010
djk;h x;h Fkh mUgsa ,d lkFk feykdj ugha j[kk x;k
Fkk cfYd mUgsa vyx vyx FkSys esa j[kk x;k FkkA
12& 28 rkjh[k dks vfHk;qDrx.k dh igpku dk;Zokgh
gksus ds igys gh 25 rkjh[k dks izkFkhZ iznhi flax o
ftrs'k iztkifr dks Fkkus esa vfHk;qDrx.k dk fn[kkdj
crkuk fd tks ?kVuk mlds lkFk gqbZ gS mlds
vfHk;qDrx.k fxj¶rkj gq, gS ;g izekf.krdrkZ gS fd
foospuk ,tsalh us idM+s x, yksxksa dh f'kuk[rh djus
ds fy, izkFkhZ dks ck/; fd;k gSA
13& U;k;ky; esa izLrqr laifRr ds laca/k esa izkFkhZ
dk ;g Li"V dguk gS fd og mlls ywVh x;h laifRr
ugha gS ;g izekf.kr ugha gksrk gS fd vfHk;qDrx.k ls
izkFkhZ ls ywVh x;h laifRr tIr dh x;h gSA
14& foospd ,l0,u0 flnkj Lo;a gh bl ckr ij
fuf'pr ugha gS fd U;k;ky; esa vfHk;sktu }kjk tks
laifRr is'k dh x;h gS vFkkZr~ vkfVZdy&,&1 ls 9 ogh
ghjs gS ;k ugha tks mlus tIr fd;k FkkA
15& laifRr tIrh mijkar foospd us fdlh Hkh fo'ks"kK
ls mldk ijh{k.k vkSj ewY;kadu ugha djk;k gS cfYd
O;kikfj;ksa ls iwNrkN vankt ls mldk ewY; fy[kuk
dgk gS ;g fLFkfr Hkh vfHk;kstu ds izdj.k ij izfrdwy
izHkko Mkyrh gSA
16& tIr'kqnk vkfVZdy&Mh dh eksckbZy dh
bZ0,e0vkbZ0 uacj ds laca/k esa foospuk ,tsalh
ds }kjk ;g lk{; ,df=r ugha fd;k x;k gS fd mDr
bZ0,e0vkbZ0 uacj dk eksckbZy iznhi ds uke ij FkkA
17& izkFkhZ iznhi flax ftl fjD'ks esa okil Fkkus vk;k
Fkk ml fjD'ks okys dks Hkh xokg ugha cuk;k x;k gSA
Acquittal Appeal No. 219 of 2010
18& lkf{k;ksa ds dFku ds fojks/kkHkk"k vkSj foospuk esa
cjrh x;h ykijokgh crkSj vU; cgqr lkjs NksVs&eksVs
folaxfr vkSj fojks/kkHkk"k ekStwn gS tks vfHk;kstu ds
izdj.k ij izfrdwy izHkko Mkyrs gSA"
5. Learned counsel for State/appellant submits that the learned trial
Court has mis-appreciated the evidence on record and has come to
an erroneous finding that the possession of looted diamonds was
duly not proved by the prosecution beyond reasonable doubt.
Further, the prosecution version was duly proved by the evidence
of Pradeep Singh (PW-1) and Jitesh Prajapati (PW-2) and the
learned trial Court has given credential to the minor discrepancies.
The learned trial court has not appreciated oral and documentary
evidence properly before arriving at the findings recorded in para
36. Learned State counsel prays for setting aside the order passed
by the learned trial Court and to convict the respondents.
6. On the other hand, learned counsel for respondent No. 2, 4, 5 & 6
submits that the looted articles were not seized in accordance with
the procedure contemplated in the Cr.P.C. The Malkhana register
was not produced before the learned trial Court and the same was
not maintained properly. He further submits that the memorandum
and seizure witnesses have not supported the case of the
prosecution and the Test Identification Parade conducted by the
prosecution is vitiated as the accused persons were shown to
Pradeep Singh (PW-1) prior to Test Identification Parade and the
police party was also present at that time. He prays for dismissal of
the acquittal appeal.
Acquittal Appeal No. 219 of 2010
7. The law with regard to deciding and disposing of the criminal
appeal against the acquittal has been elaborately dealt with by the
Hon'ble Supreme Court in the case of Guru Dutt Pathak vs. State
of Uttar Pradesh, reported in (2021) 6 SCC 116, in paragraphs 15
to 20, which is as under:-
"15. In Babu v. State of Kerala (2010) 9 SCC 189, this Court
has reiterated the principles to be followed in an appeal
against acquittal under Section 378 Cr.P.C. In paragraphs 12
to 19, it is observed and held as under:
"12. This Court time and again has laid down the
guidelines for the High Court to interfere with the
judgment and order of acquittal passed by the trial court.
The appellate court should not ordinarily set aside a
judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be
the more probable one. While dealing with a judgment of
acquittal, the appellate court has to consider the entire
evidence on record, so as to arrive at a finding as to
whether the views of the trial court were perverse or
otherwise unsustainable. The appellate court is entitled
to consider whether in arriving at a finding of fact, the
trial court had failed to take into consideration
admissible evidence and/or had taken into consideration
the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be
a subject-matter of scrutiny by the appellate court. (Vide
Balak Ram v. State of U.P (1975) 3 SCC 219,
Shambhoo Missir v. State of Bihar (1990) 4 SCC 17,
Shailendra Pratap v. State of U.P (2003) 1 SCC 761,
Narendra Singh v. State of M.P (2004) 10 SCC 699,
Budh Singh v. State of U.P (2006) 9 SCC 731, State of
U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama
Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v.
State (2009) 10 SCC 206, Perla Somasekhara Reddy v.
Acquittal Appeal No. 219 of 2010
State of A.P (2009) 16 SCC 98 and Ram Singh v. State
of H.P (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor , 1934 SCC OnLine
PC 42, the Privy Council observed as under:
"... the High Court should and will always give
proper weight and consideration to such matters as
(1) the views of the trial Judge as to the credibility of
the witnesses; (2) the presumption of innocence in
favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at
his trial; (3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses."
14. The aforesaid principle of law has consistently been
followed by this Court. (See Tulsiram Kanu v. State AIR
1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC
216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC
200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450,
Sambasivan v. State of Kerala (1998) 5 SCC 412,
Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 and
State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC
415, this Court reiterated the legal position as under:
'42. ... (1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
Acquittal Appeal No. 219 of 2010
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes
of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to
curtail the power of the court to review the evidence
and to come to its own conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
Court reiterated the said view, observing that the appellate
court in dealing with the cases in which the trial courts
have acquitted the accused, should bear in mind that the
trial court's acquittal bolsters the presumption that he is
innocent. The appellate court must give due weight and
Acquittal Appeal No. 219 of 2010
consideration to the decision of the trial court as the trial
court had the distinct advantage of watching the
demeanour of the witnesses, and was in a better position
to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the
Court again examined the earlier judgments of this Court
and laid down that:
'20. ... an order of acquittal should not be lightly
interfered with even if the court believes that there is
some evidence pointing out the finger towards the
accused.'
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court
gave certain illustrative circumstances in which the Court
would be justified in interfering with a judgment of acquittal
by the High Court. The circumstances include: State of
U.P. v. Banne, (2009) 4 SCC 271
'(i) The High Court's decision is based on totally
erroneous view of law by ignoring the settled legal
position;
(ii) The High Court's conclusions are contrary to
evidence and documents on record;
(iii) The entire approach of the High Court in dealing
with the evidence was patently illegal leading to grave
miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust
and unreasonable based on erroneous law and facts
on the record of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in
Acquittal Appeal No. 219 of 2010
interfering with a case when both the Sessions Court
and the High Court have recorded an order of
acquittal."
A similar view has been reiterated by this Court in
Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to
the effect that in exceptional cases where there are
compelling circumstances, and the judgment under
appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court
should bear in mind the presumption of innocence of the
accused and further that the trial court's acquittal
bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible
should be avoided, unless there are good reasons for
interference."
16. When the findings of fact recorded by a court can be held
to be perverse has been dealt with and considered in
paragraph 20 of the aforesaid decision, which reads as
under: [Babu v. State of Kerala, (2010) 9 SCC 189]
"20. The findings of fact recorded by a court can be
held to be perverse if the findings have been arrived
at by ignoring or excluding relevant material or by
taking into consideration irrelevant/inadmissible
material. The finding may also be said to be perverse
if it is "against the weight of evidence", or if the finding
so outrageously defies logic as to suffer from the vice
of irrationality. (Vide Rajinder Kumar Kindra v. Delhi
Admn (1984) 4 SCC 635, Excise and Taxation Officer-
cum-Assessing Authority v. Gopi Nath & Sons 1992
Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE
1994 Supp. (3) SCC 665, Gaya Din v. Hanuman
Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10
Acquittal Appeal No. 219 of 2010
SCC 206 and Gamini Bala Koteswara Rao v. State of
A.P (2009) 10 SCC 636)."
It is further observed, after following the decision of
this Court in the case of Kuldeep Singh v.
Commissioner of Police (1999) 2 SCC 10, that if a
decision is arrived at on the basis of no evidence or
thoroughly unreliable evidence and no reasonable
person would act upon it, the order would be
perverse. But if there is some evidence on record
which is acceptable and which could be relied upon,
the conclusions would not be treated as perverse and
the findings would not be interfered with.
17. In the decision of this Court in the case of Vijay Mohan
Singh v. State of Karnataka (2019) 5 SCC 436, this Court
again had an occasion to consider the scope of Section
378 Cr.P.C. and the interference by the High Court in an
appeal against acquittal. This Court considered catena of
decisions of this Court right from 1952 onwards. In
paragraph 31, it is observed and held as under:
"31. An identical question came to be considered
before this Court in Umedbhai Jadavbhai (1978) 1
SCC 228. In the case before this Court, the High
Court interfered with the order of acquittal passed by
the learned trial court on reappreciation of the entire
evidence on record. However, the High Court, while
reversing the acquittal, did not consider the reasons
given by the learned trial court while acquitting the
accused. Confirming the judgment of the High Court,
this Court observed and held in para 10 as under:
(SCC p. 233)
'10. Once the appeal was rightly entertained against
the order of acquittal, the High Court was entitled to
reappreciate the entire evidence independently and
Acquittal Appeal No. 219 of 2010
come to its own conclusion. Ordinarily, the High Court
would give due importance to the opinion of the
Sessions Judge if the same were arrived at after
proper appreciation of the evidence. This rule will not
be applicable in the present case where the Sessions
Judge has made an absolutely wrong assumption of a
very material and clinching aspect in the peculiar
circumstances of the case.'
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC
412, the High Court reversed the order of acquittal
passed by the learned trial court and held the
accused guilty on re-appreciation of the entire
evidence on record, however, the High Court did not
record its conclusion on the question whether the
approach of the trial court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable. Confirming the order passed
by the High Court convicting the accused on reversal
of the acquittal passed by the learned trial court, after
being satisfied that the order of acquittal passed by
the learned trial court was perverse and suffered from
infirmities, this Court declined to interfere with the
order of conviction passed by the High Court. While
confirming the order of conviction passed by the High
Court, this Court observed in para 8 as under: (SCC
p. 416)
'8. We have perused the judgment under appeal to
ascertain whether the High Court has conformed to
the aforementioned principles. We find that the High
Court has not strictly proceeded in the manner laid
down by this Court in Ramesh Babulal Doshi v. State
of Gujarat (1996) 9 SCC 225 viz. first recording its
conclusion on the question whether the approach of
the trial court in dealing with the evidence was
patently illegal or the conclusions arrived at by it were
Acquittal Appeal No. 219 of 2010
wholly untenable, which alone will justify interference
in an order of acquittal though the High Court has
rendered a well-considered judgment duly meeting all
the contentions raised before it. But then will this non-
compliance per se justify setting aside the judgment
under appeal? We think, not. In our view, in such a
case, the approach of the court which is considering
the validity of the judgment of an appellate court
which has reversed the order of acquittal passed by
the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the evidence
was patently illegal or conclusions arrived at by it are
demonstrably unsustainable and whether the
judgment of the appellate court is free from those
infirmities; if so to hold that the trial court judgment
warranted interference. In such a case, there is
obviously no reason why the appellate court's
judgment should be disturbed. But if on the other
hand the court comes to the conclusion that the
judgment of the trial court does not suffer from any
infirmity, it cannot but be held that the interference by
the appellate court in the order of acquittal was not
justified; then in such a case the judgment of the
appellate court has to be set aside as of the two
reasonable views, the one in support of the acquittal
alone has to stand. Having regard to the above
discussion, we shall proceed to examine the judgment
of the trial court in this case.'
31.2. In K. Ramakrishnan Unnithan v. State of Kerala
(1999) 3 SCC 309, after observing that though there
is some substance in the grievance of the learned
counsel appearing on behalf of the accused that the
High Court has not adverted to all the reasons given
by the trial Judge for according an order of acquittal,
this Court refused to set aside the order of conviction
Acquittal Appeal No. 219 of 2010
passed by the High Court after having found that the
approach of the Sessions Judge in recording the
order of acquittal was not proper and the conclusion
arrived at by the learned Sessions Judge on several
aspects was unsustainable. This Court further
observed that as the Sessions Judge was not justified
in discarding the relevant/material evidence while
acquitting the accused, the High Court, therefore, was
fully entitled to reappreciate the evidence and record
its own conclusion. This Court scrutinised the
evidence of the eyewitnesses and opined that
reasons adduced by the trial court for discarding the
testimony of the eyewitnesses were not at all sound.
This Court also observed that as the evaluation of the
evidence made by the trial court was manifestly
erroneous and therefore it was the duty of the High
Court to interfere with an order of acquittal passed by
the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in
para 5, this Court observed and held as under: (AIR
pp. 809-10)
'5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one
of acquittal, the High Court should not have set it
aside on mere appreciation of the evidence led on
behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was
perverse. In our opinion, it is not correct to say that
unless the appellate court in an appeal under Section
417 CrPC came to the conclusion that the judgment
of acquittal under appeal was perverse it could not set
aside that order.
It has been laid down by this Court that it is open to
the High Court on an appeal against an order of
Acquittal Appeal No. 219 of 2010
acquittal to review the entire evidence and to come to
its own conclusion, of course, keeping in view the
well- established rule that the presumption of
innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed by
the trial court which had the advantage of observing
the demeanour of witnesses whose evidence have
been recorded in its presence.
It is also well settled that the court of appeal has as
wide powers of appreciation of evidence in an appeal
against an order of acquittal as in the case of an
appeal against an order of conviction, subject to the
riders that the presumption of innocence with which
the accused person starts in the trial court continues
even up to the appellate stage and that the appellate
court should attach due weight to the opinion of the
trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping
those principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited
at the Bar, namely, Surajpal Singh v. State AIR 1952
SC 52; Wilayat Khan v. State of U.P AIR 1953 SC
122) In our opinion, there is no substance in the
contention raised on behalf of the appellant that the
High Court was not justified in reviewing the entire
evidence and coming to its own conclusions.'
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC
355, this Court has observed that where the trial court
allows itself to be beset with fanciful doubts, rejects
creditworthy evidence for slender reasons and takes a
view of the evidence which is but barely possible, it is
the obvious duty of the High Court to interfere in the
interest of justice, lest the administration of justice be
Acquittal Appeal No. 219 of 2010
brought to ridicule.
18. In the case of Umedbhai Jadavbhai (supra), in
paragraph 10, it is observed and held as under:
"10. Once the appeal was rightly entertained
against the order of acquittal, the High Court was
entitled to re-appreciate the entire evidence
independently and come to its own conclusion.
Ordinarily, the High Court would give due importance
to the opinion of the Sessions Judge if the same were
arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case
where the Sessions Judge has made an absolutely
wrong assumption of a very material and clinching
aspect in the peculiar circumstances of the case."
19. In the case of Atley v. State of Uttar Pradesh AIR 1955
SC 807, this Court has observed and held as under:
"5. It has been argued by the learned counsel for the
appellant that the judgment of the trial court being one
of acquittal, the High Court should not have set it
aside on mere appreciation of the evidence led on
behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was
perverse. In Our opinion, it is not correct to say that
unless the appellate court in an appeal under Section
417, Criminal P. C. came to the conclusion that the
judgment of acquittal under appeal was perverse it
could not set aside that order.
It has been laid down by this Court that it is open to
the High Court on an appeal against an order of
acquittal to review the entire evidence and to come to
its own conclusion, of course, keeping in view the well
established rule that the presumption of innocence of
the accused is not weakened but strengthened by the
Acquittal Appeal No. 219 of 2010
judgment of acquittal passed by the trial court which
had the advantage of observing the demeanour of
witnesses whose evidence have been recorded in its
presence.
It is also well settled that the court of appeal has as
wide powers of appreciation of evidence in an appeal
against an order of acquittal as in the case of an
appeal against an order of conviction, subject to the
riders that the presumption of innocence with which
the accused person starts in the trial court continues
even up to the appellate stage and that the appellate
court should attach due weight to the opinion of the
trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping
those principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited
at the Bar, namely, Surajpal Singh v. The State 1952
CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR
1953 SC 122. In our opinion, there is no substance in
the contention raised on behalf of the appellant that
the High Court was not justified in reviewing the entire
evidence and coming to its own conclusions."
20. In the case of K.Gopal Reddy v. State of Andhra
Pradesh (1979) 1 SCC 355, this Court has observed that
where the trial Court allows itself to be beset with fanciful
doubts, rejects creditworthy evidence for slender reasons
and takes a view of the evidence which is but barely
possible, it is the obvious duty of the High Court to
interfere in the interest of justice, lest the administration of
justice be brought to ridicule.'
8. In the case of Anjanappa vs. State of Karnataka, reported in 2014
Cri LJ 368, the Hon'ble Supreme Court while dealing with the law
Acquittal Appeal No. 219 of 2010
with regard to deciding and disposing of the criminal appeal against
acquittal held as under:-
"9. It is well settled that an order of acquittal is not to
be set aside lightly. If the view taken by the trial court
is a reasonably possible view, it is not to be disturbed.
If two views are possible and if the view taken by the
trial court is a reasonably possible view, then the
appellate court should not disturb it just because it
feels that another view of the matter is possible.
However, an order of acquittal will have to be
disturbed if it is perverse. We have examined the trial
court's order of acquittal in light of above principles.
We are of the considered opinion that the High Court
was justified in setting it aside as it is perverse."
9. In the case of Shriniwas vs. State of U.P. and Ors., in Criminal
Misc. Application under Section 372 of the Cr.P.C. (Leave to
Appeal) No.150 of 2014, it has been held by the Allahabad High
Court in paragraphs 10 & 11 as under:-
"10. In the case of Babu vs. State of Kerala
(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the
Hon'ble Apex Court has observed that while
dealing with a judgment of acquittal, the
appellate court has to consider the entire
evidence on record, so as to arrive at a finding as
to whether the views of the trial Court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider whether in
arriving at a finding of fact, the trial Court had
failed to take into consideration admissible
evidence and/or had taken into consideration the
evidence brought on record contrary to law.
Paragraphs 12, 13, 16 & 17 of the aforesaid
Acquittal Appeal No. 219 of 2010
judgment are quoted as under:-
"12. This court time and again has laid down
the guidelines for the High Court to interfere
with the judgment and order of acquittal
passed by the Trial Court. The appellate
court should not ordinarily set aside a
judgment of acquittal in a case where two
views are possible, though the view of the
appellate court may be more, the probable
one. While dealing with a judgment of
acquittal, the appellate court has to consider
the entire evidence on record, so as to
arrive at a finding as to whether the views of
the trial Court were perverse or otherwise
unsustainable. The appellate court is
entitled to consider whether in arriving at a
finding of fact, the trial Court had failed to
take into consideration admissible evidence
and/or had taken into consideration the
evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof
may also be a subject matter of scrutiny by
the appellate court. (Vide Balak Ram v.
State of U.P. AIR 1974 SC 2165; Shambhoo
Missir & Anr. v. State of Bihar AIR 1991 SC
315; Shailendra Pratap & Anr. v. State of
U.P. AIR 2003 SC 1104; Narendra Singh v.
State of M.P. (2004) 10 SCC 699; Budh
Singh & Ors. v. State of U.P. AIR 2006 SC
2500; State of U.P. v. Ramveer Singh AIR
2007 SC 3075; S. Rama Krishna v. S. Rami
Reddy (D) by his LRs. & Ors. AIR 2008 SC
2066; Arulvelu & Anr. Vs. State (2009) 10
SCC 206; Perla Somasekhara Reddy &
Ors. v. State of A.P. (2009) 16 SCC 98; and
Ram Singh alias Chhaju v. State of
Acquittal Appeal No. 219 of 2010
Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup and Ors. King Emperor
AIR 1934 PC 227, the Privy Council
observed as under:
"...the High Court should and will always
give proper weight and consideration to
such matters as (1) the views of the trial
Judge as to the credibility of the witnesses,
(2) the presumption of innocence in favour
of the accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial, (3) the right of the
accused to the benefit of any doubt, and (4)
the slowness of an appellate court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses...."
16. In Ghurey Lal v. State of Uttar Pradesh
(2008) 10 SCC 450, this Court re-iterated
the said view, observing that the appellate
court in dealing with the cases in which the
trial courts have acquitted the accused,
should bear in mind that the trial court's
acquittal bolsters the presumption that he is
innocent. The appellate court must give due
weight and consideration to the decision of
the trial court as the trial court had the
distinct advantage of watching the
demeanour of the witnesses, and was in a
better position to evaluate the credibility of
the witnesses.
17. In State of Rajasthan v. Naresh @ Ram
Naresh (2009) 9 SCC 368, the Court again
examined the earlier judgments of this Court
and laid down that an "order of acquittal
Acquittal Appeal No. 219 of 2010
should not be lightly interfered with even if
the court believes that there is some
evidence pointing out the finger towards the
accused."
11. In Achhar Singh vs. State of Himachal Pradesh
(2021) 5 SCC 543 reiterating the law, Supreme
Court held that it is fundamental in criminal
jurisprudence that every person is presumed to be
innocent until proven guilty and it is obligatory on
the prosecution to establish the guilt of the accused
save where the presumption of innocence has been
statutorily dispensed with, for example, under
Section 113-B of the Evidence Act, 1872. It was
further held that it is well crystallized principle that if
two views are possible, the High Court ought not to
interference with the trial court's judgment.
However, such a precautionary principle cannot be
overstretched. It is well settled that there is no bar
High Court's power to reappreciate evidence in an
appeal against acquittal."
10. Now reverting to the facts of the present case and in light of the
judgments passed by the Hon'ble Supreme Court in the above
cited decisions, Pradeep Singh (PW-1) has admitted that he was
carrying 9 pieces of diamond worth Rs.1,75,000/- only and the
complaint was not lodged by him. He has further admitted the fact
that the jewels were not insured and in the register of the hotel, he
had not shown himself as the Diamond Businessman. In paragraph
19, he has admitted that at the time of Test Identification Parade,
the police personnel were present whereas, in the FIR, worth of the
diamond was narrated as Rs.10,00,000/- and therefore, learned
trial Court has rightly held that Pradeep Singh (PW-1), owner of the
Acquittal Appeal No. 219 of 2010
diamond has not given satisfactory evidence regarding the worth of
the diamond which he was carrying.
11. The reason assigned by the learned trial Court with regard to
registration of FIR, which was lodged by Jitesh Prajapati (PW-2),
who was in company of Pradeep Singh (PW-1) is that it is not in
dispute that the owner of the diamond was Pradeep Singh (PW-1)
and though he was present but FIR was lodged by Jitesh Prajapati
(PW-2) and in the evidence, neither Pradeep Singh (PW-1) nor
Jitesh Prajapati (PW-2) has explained the reason for not lodging
the FIR by Pradeep Singh (PW-1). From evidence of Pradeep
Singh (PW 1) it is apparent that he has not assigned any reason for
not lodging the FIR himself, therefore, learned trial Court has rightly
recorded this finding.
12. With regard to third reason assigned by the learned trial Court, it is
apparent that Pradeep Singh (PW-1) has stated in his evidence
that worth of jewels was Rs.1,75,000/- whereas, in the FIR, Jitesh
Prajapati (PW-2) has stated the worth of the jewels was
Rs.10,00,000/- , thus there is contradiction in the statement of both
the witnesses and same goes to the root of the case and it also
creates a doubt on the prosecution story.
13. Pertaining to reason No.4 recorded by the learned trial Court,
where it is held that (Ex.P/34, P/35 & P/36) the bills issued in
favour of Pradeep Singh (PW-1) regarding purchase of the
diamonds, it is apparent that the Proprietor Chetan S. Doshi,
Diamond Manufacturer & Commission Agent has not been
examined. It is well-settled principle of law that until and unless
Acquittal Appeal No. 219 of 2010
author of the document is examined before the Court of law, the
very document cannot be proved and admitted in the evidence.
14. Pertaining to reason No.5 recorded by the learned trial Court,
wherein it is quite vivid that the report (Ex.P/6) and FIR (Ex.P/7)
were lodged by Jitesh Prajapati (PW-2) where he has stated that
the diamonds were purchased from Paresh Bhai but Paresh Bhai
has neither been cited as a witness nor been examined.
15. Pertaining to reason No.6 assigned by the learned trial Court, it is
crystal clear from the testimony of memorandum and seizure
witnesses, Lakeshwar Mahanand (PW-5) and Prem Kumar (PW-
14), that they have not supported the case of the prosecution.
Particularly they have not supported the seizure which makes the
prosecution version doubtful.
16. Pertaining to reason No. 7 & 8, S.N. Sidar (PW-17), Investigating
Officer of the case has admitted that the seized articles were not
sealed separately. It is further found by the learned trial Court that
the seized articles were not kept in safe custody, therefore, the
learned Trial Court has rightly recorded findings in this regard.
17. Pertaining to reason No.9, the seized articles were handed-over for
Test Identification Parade without making any enquiry and same
was again taken into custody without any enquiry. It is also
admitted that the articles were not sealed and were not kept in safe
custody. It makes it manifest that the Police has not complied with
the procedure properly while keeping the seized articles in safe
custody.
Acquittal Appeal No. 219 of 2010
18. Pertaining to reasons No.10, 11, 12, 13 & 14, regarding
identification of seized vehicles and the jewels, S.N. Sidar
(PW-17), the Investigating Officer has admitted that there is no
specification in the register as to which property was seized from
which accused. The articles were not sealed and the diamonds
were kept in separate packets. Sunil Vandre (PW-11) has admitted
that the packets were opened by the police and they were not
mixed properly. He has further admitted in paragraph 6 that the
articles were identified on account of pressure given by the police.
Pradeep Singh (PW-1) has stated that the property which was
shown during identification was not his property and the same was
not sealed. Sunil Vandre (PW-11) has admitted that the seized
vehicles were shown to him prior to Identification in the police
station. From the above piece of evidence, it is crystal clear that
the learned trial Court has rightly held that the identification of
articles and vehicles was not in accordance with law.
19. Pertaining to reason No.15 assigned by the learned trial Court with
regard to S.N. Sidar (PW-17), Investigating Officer who has
admitted that the seized articles were neither verified nor valued by
any of the experts and the price of the articles was mentioned in
the charge sheet after getting oral assessment from local persons,
therefore, the learned trial Court rightly held that such a process is
fatal to the prosecution.
20. Pertaining to reason No.16 assigned by the learned trial Court, it is
not established that the seized mobile belongs to Pradeep Singh
(PW-1) and there is no such evidence.
Acquittal Appeal No. 219 of 2010
21. Pertaining to reason No.17 assigned by the learned trial Court, it
has been held that the prosecution has not cited or arrayed
rickshaw owner who dropped Pradeep Singh (PW-1) to the police
station. From the charge-sheet, it appears that the rickshaw driver
has not been arrayed as a witness; therefore, the finding recorded
by the learned trial Court in this regard is just and proper.
22. From the above finding recorded by the learned trial Court and after
appreciating the entire evidence of the case and in light of the
judgments passed by the Hon'ble Supreme Court, we are of the
conclusion that the learned trial Court has not committed any
illegality in passing the order of acquittal in favor of the
respondents, therefore, the acquittal appeal is held to be devoid of
merits and is liable to be and is hereby dismissed at the stage of
admission itself.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nimmi
