Dinesh Kumar vs The State Of Jharkhand
2023 Latest Caselaw 3720 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            (Criminal Appellate Jurisdiction)

                      Acquittal Appeal (DB) No. 18 of 2022
(Against the judgment of acquittal dated 12th April 2022 passed by the learned District &
Additional Sessions Judge-1st, Godda in S.T. Case No. 57 of 2021)

Dinesh Kumar, aged about 44 years, son of Puneshwar Prasad Singh, resident
of village Shantinagar Godda, PO Godda, PS Godda (T), District Godda
                                                    .... ....... Appellant

                                           Versus
1.The State of Jharkhand
2.Ashok Tiwary @ Munna Tiwary, aged about 53 years, son of Bhagwan Pd.
Tiwary, resident of Mouza Laheri Tola (Sardar Patel Nagar), PO Godda, PS
Godda Town, District Godda                      .......... ...... Respondents

CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                         ------
For the Appellant   : Mr. Suraj Singh, Advocate
                      Mr. Akshay Kumar, Advocate
For State           : Mrs. Priya Shreshtha, Spl. PP
For Respondent No.2 : Mr. Purnendu Kumar Jha, Advocate

                                JUDGMENT

C.A.V on 29/09/2023                                    Pronounced on 05/10/2023
Per Shree Chandrashekhar, J.

Ashok Tiwary @ Munna Tiwary who was put on trial in ST Case No.57 of 2021 on the charge under sections 364-A, 365, 386, 379 and 307 read with section 34 of the Indian Penal Code has been acquitted of the aforesaid criminal charges by a judgment dated 12th April 2022 rendered by the District and Additional Sessions Judge-I, at Godda.

2. Dinesh Kumar @ Dinesh Singh who is the informant of Godda (Town) PS Case No.235 of 2019 being aggrieved of the judgment dated 12 th April 2022 passed in ST Case No.57 of 2021 has filed the present acquittal appeal by virtue of proviso to section 372 of the Code of Criminal Procedure, 1973.

3. A First Information Report was lodged on 14th September 2019 under sections 364-A, 365, 386, 379 and 307 read with section 34 of the Indian Penal Code against Ashok Tiwary @ Munna Tiwary, Chikku 2 Acquittal Appeal (DB) No. 18 of 2022

Choudhary, Sonu Choudhary, Annu Singh, Rahul Sah, Amit Tiwary, Abhay Kumar and Pappu Jha. In the written report given to the officer-in-charge of Godda (Town) PS, the informant made serious allegations of his abduction and assault with the butt of a pistol by Munna Tiwary and an attempt by the other accused to strangulate him with gamcha. According to the informant, Munna Tiwary called him at his house on 6th August 2019 and inquired and asked him about Rs.2 crores. He and the other accused tortured him the whole night and took his signature over a blank cheque-book and 15 blank letter- heads. In the morning, Munna Tiwary dumped him in a red-color Bolero and brought him to the house of Pappu Jha and made a call to his daughter at mobile no. 9661648273 and asked her to discuss with her family about payment of ransom. Munna Tiwary made a call from mobile no. 7008472800 to his wife also at her mobile no. 6201617741 and demanded Rs.50 lakh as ransom. He brought him to Godda on 7th August 2019 and released him around 08.00 PM the same evening. In his written report, the informant claimed that his Bolero bearing no. JH01 BG8201 was forcibly retained by Munna Tiwary and, that, he was in possession of the call recordings of the conversation with Munna Tiwary. The informant further stated that he was so frightened that he did not come out of the house for about one month and, in the meantime, Munna Tiwary took away all vehicles, machines, trailers, etc.

4. A chargesheet was laid after the investigation against the above- named accused persons and vide Chargesheet No.70 of 2020 dated 30 th April 2020 and the supplementary Chargesheet No. 426 of 2020 dated 5th December 2020 they were sent up for trial. The learned Magistrate took cognizance of the offence under sections 436-A, 365, 386, 379, 307 read with section 34 of the Indian Penal Code and by an order dated 20th July 2021 committed to the Court of Sessions for trial. As the trial proceedings would reveal, the records were received in the Court of Sessions on 27th July 2021 and made over to the Court of Additional Sessions Judge-V for framing of the charge. On 11th January 2022, the record of Munna Tiwary was separated as the other accused were found absconding. On the same day, charges on five counts viz. under section 364-A read with section 34, section 365 read with section 34, section 386 read with section 34, section 379 read with section 34 and section 307 read with section 34 of the Indian Penal Code were framed and the contents 3 Acquittal Appeal (DB) No. 18 of 2022

of the charges were read over and explained in Hindi to the accused, who pleaded not guilty and claimed trial.

5. Six witnesses were produced by the prosecution and the statement of Munna Tiwary was recorded on 6th April 2022. The defense set up by Munna Tiwary is that he spoke to the informant for business purposes and such conversations were used to fabricate a false case against him. He laid documentary evidence such as a certified copy of Godda (Town) PS Case No.270 of 2019 vide Ext. A, a certified copy of Godda (Town) PS Case No.258 of 2020 vide Ext. B, the attendance report vide Ext. X of Kumari Juli Jha from 1st August 2019 to 28th September 2019, to demonstrate that a false case was foisted upon him. According to the defense, the informant issued a cheque drawn on 16th July 2019 for Rs.10 lakh in favor of Munna Tiwary which was dishonored on 13th September 2019 and, in this connection, Godda (Town) PS Case No.270 of 2019 was lodged on 22nd October 2019 against the informant and a chargesheet has been laid against him. To establish his defense that the informant's allegation that the men of Munna Tiwary were keeping surveillance at his house was false, the attendance register of the school vide Ext. X was produced to show that the informant's wife had regularly attended school in the months of August and September, 2019.

6. The trial Judge disbelieved the story of abduction of the informant who was examined as PW4. The trial Judge found that the accusations of abduction and torture for the ransom of Rs.50 lakh and the accused tying the hands, legs and mouth of the informant were not proved by producing cogent evidence. The trial Judge further found that the Investigating Officer did not seize rope or gamcha which allegedly was used in the occurrence, no independent witness spoke about ransom calls and CDRs were not produced in the Court to prove that the accused had made ransom calls.

7. The learned trial Judge disbelieved the testimony of related witnesses and held as under:

"26. From perusal of oral evidences of P.W.1, 2, 3 and 4, it is clear that they do not clearly deposed that where the accused persons leave the informant on 07.08.2019. According to informant accused persons leave near the Radhika Printing press in Bypass road of Bhagalpur-Pirpainti and the house of informant is 1 k.m. away but P.W.1 and P.W.2 deposed that accused persons leave at their house at Shanti Nagar, Godda, so all witnesses deposed contradictory to each other and the Ext.A clearly shows that informant already issued a cheque in the name of accused 4 Acquittal Appeal (DB) No. 18 of 2022

Munna Tiwar amount Rs.10 lakh, which dishonour and issued certificate on 13.09.2019 to the Munna Tiwary and next day informant lodged a case against Munna Tiwary and others co-accused that they abducted him on 06.08.2019 but he never informed to any other persons relating to abduction, so the statement of informant and others prosecution witnesses, court found that are not trustworthy and prosecution side badly failed to prove the allegation that accused Munna Tiwary abducted to informant Dinesh Kumar on 06.08.2019 and tortured to the informant and demand the ransom of Rs.50 lakh from the wife of informant. In the absence of injury report no any offence proved U/s 307 I.P.C. against accused Munna Tiwary and others co-accused. Similarly no any single evidence relating to vehicle which theft by the accused Munna Tiwary and court found that prosecution side badly failed to proved the alleged charge of abduction by the accused and threatened to commit the murder of informant and similarly theft the vehicle of informant. After perusal of oral and documentary evidences as on record, court found that the accused Ashok Tiwary @ Munna Tiwary has working partnership with the informant Dinesh Kumar and Dinesh Kumar issued a cheque of Rs.10 lakh to Ashok Kr. Tiwary, which is bounce by the bank and issued certificate on 13.09.2019, so accused Ashok Kr. Tiwary @ Munna Tiwary fully deserved the benefit of doubts in his favour and court found that prosecution side badly failed to prove the alleged charges against accused Ashok Tiwary @ Munna Tiwary. In the ends of justice the following order is passed.

ORDER In ST case no. 57/2021 alleged charges U/Ss 364A, 365, 386, 379, 307 read with section 34 I.P.C against accused Ashok Kumar Tiwary @ Munna Tiwary are not proved beyond reasonable doubts successfully on behalf of prosecution side and court found that accused Ashok Tiwary @ Munna Tiwary deserve benefit of doubts, who implicated in this case, due to business partnership, enmity relating to money and court found and held that Ashok Tiwary @ Munna Tiwary is innocent and acquitted from above all alleged charges. Accused is in judicial custody during the trial, so O/C is directed to issue a release order immediately in favour of above accused in this case."

8. PW1 is the wife and PW2 is the daughter of the informant who himself tendered evidence in the Court as PW4. These witnesses are intimately related to each other and their close relationship has been set up as a ground to challenge their testimony actuated with a motive to falsely implicate Munna Tiwary. The relationship of witnesses with the victim of the crime is a relevant fact but not a determining factor in deciding the admissibility or otherwise of the evidence tendered by a related witness. In a series of judgments, the Hon'ble Supreme Court has held that relationship is not a ground to discard the testimony of a witness in toto, and all that is required while scrutinizing the testimony of a related witness is to keep in mind that the witness may be interested in prosecution of the accused. A situation like the present one, where the Court has to deal with the testimony of a related witness, puts the Court on guard. As observed by the Hon'ble 5 Acquittal Appeal (DB) No. 18 of 2022

Supreme Court in "Masalti"1 mechanical rejection of evidence of partisan or interested witnesses on the sole ground that it is partisan would invariably lead to failure of justice. The Hon'ble Supreme Court has observed thus:

"14. ... There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ............... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

9. This is a story of the business relations turning sour and that was the reason the informant and Munna Tiwary filed criminal cases against each other. After having examined the prosecution evidence with the care and caution as indicated in "Masalti"1, we find that the defense put forth by the accused that Godda (Town) PS Case No. 235 of 2019 was lodged as a countermeasure to put pressure on him not to press the cheque bouncing cases against the informant is probablised through admissions of PW1, PW2 and PW4. The witnesses admitted business relations of the informant with Munna Tiwary but made malicious accusations against him in the Court that he was involved in the present occurrence. PW1 accepted in the cross-examination that Munna Tiwary was on visiting terms, he used to come to her house and was present at Babadham temple on the occasion of mundan of her child. PW2 accepted in the Court that her father is a contractor, and the informant also admitted in the Court that Munna Tiwary is a friend and he has a contract license and a company is registered in his own name. Notwithstanding such admissions, these witnesses endeavored to deny business relations with Munna Tiwary, existence of the construction company which was awarded contract work in which Munna Tiwary had pumped in money, transfer of huge sums of money in the bank account of PW2, and the bouncing of cheque given to Munna Tiwary. Apparently, such was the nature of evidence tendered by

"Masalti v. State of U.P." AIR 1965 SC 202 6 Acquittal Appeal (DB) No. 18 of 2022

the prosecution witnesses that an obvious doubt would come to the Court's mind as regards the veracity of the prosecution case.

10. As to the object, value and use of the First Information Report it is well settled a proposition that the main object of the First Information Report is to set the criminal law in motion and to incorporate the basic facts about the crime. Regarding the delay in lodging the First Information Report, in "Ram Jag"2 the Hon'ble Supreme Court has observed that the prosecution cannot be called upon to explain every hour of delay and a common-sense view has to be taken in ascertaining whether a First Information Report was lodged after due deliberations. A mere delay in lodging the First Information Report may not be a ground for rejecting the entire prosecution case, and there may be situations and circumstances which the prosecution may produce to explain delayed information to the police. However, wherever a plea is taken by the defense that the delay in lodging a report with the police was on account of some oblique motive or the delay provided ample opportunity for the informant to concoct a false story, the Court is required to seek an explanation for the delay and carefully examine the truthfulness of the prosecution story. As a legal proposition, it cannot be said that in no case delay in lodging the First Information Report is a material fact. Rather, on the contrary, unexplained delay in lodging a First Information Report creates serious doubt on the prosecution version. In the cross-examination, the witnesses admitted such facts which completely demolished the informant's excuse for lodging a First Information Report about 38 days after his alleged abduction for ransom and attempt to murder him.

11. PW1 admitted that she was a teacher in a school at Godda at Gangwara and her parents were living at Professor Colony, Godda. In paragraph no. 58, PW1 admitted that adjoining to her house there were hundreds of houses in the Mohalla. She further admitted that she did not inform her neighbors about the occurrence. She has five brothers and sisters and one of her brothers, namely, Ratan Prakash Jha was living at Saketpuri which was just a walking distance from the Mahila College. She has three children and two brothers of her husband were living together in Shanti Nagar at Godda. She also admitted in the Court that there were three licensee rifles

"Ram Jag v. The State of U.P." (1974) 4 SCC 201 7 Acquittal Appeal (DB) No. 18 of 2022

in the house. She further admitted that on 6th August 2019 she had gone to the school around 8:00 am and came back around 4:00 pm; she was in possession of a mobile phone on 6th August 2019 and; she went to school on the next day also. Now the aforementioned admissions of PW1 run counter to the stand that Munna Tiwary and his associates were keeping a watch over the informant's family and that was the reason for the delay in informing the police about the occurrence. In "Kali Ram" 3 the Hon'ble Supreme Court observed that if a witness professes to know about a gravely incriminating circumstance against the accused and the witness keeps silent for a considerable period regarding the said incriminating circumstance, his statement is bound to lose most of its value.

12. The admissions made by PW2 in her cross-examination were to the effect that she was taking coaching classes near DC Bungalow at Godda; there were 50-60 students in the coaching class and; she attended the coaching class on 7th August 2019. She did not inform her grandparents about the occurrence and said in the Court that she informed her mother after she returned from her school. She also admitted that her house was situated in a big Mohalla and the coaching center was within walking distance from her house. She further admitted that all the family members were in possession of their own mobile phones and her mother had two mobile numbers. PW3 who is a friend of the informant deposed in the Court that he met the informant in his house on 8th August 2019 around 8:00 am in morning and at that time the informant told him that Munna Tiwary had abducted and assaulted him. Though, Ext.-B disclosed that PW3 was a partner in Unic Construction Company with Dinesh Kumar and Binod Mahto but in the Court he denied that he was working with Dinesh Kumar in Unic Construction Company. He was an accused in Godda (Town) PS Case No. 305 of 2019 but made another false statement in the Court that he met Munna Tiwary for the first time in Godda jail.

13. The neighborhood where the informant lived with his family was a thickly populated area and his near relatives were also living near his colony. This is the evidence of PW1 and PW2 that they were regularly going out to attend the classes/coaching classes. Evidently, the explanation offered by the informant for lodging a report with the police about 38 days after he was

"Kali Ram v. State of Himachal Pradesh" (1973) 2 SCC 808 8 Acquittal Appeal (DB) No. 18 of 2022

allegedly abducted, assaulted and threatened does not seem to be truthful. In "Ravi Mandal"4 the Hon'ble Supreme Court disbelieved the testimony of a witness who gave his statement to the police about three and a half month after the occurrence. In "Ravi Mandal"4 the said witness had offered an explanation for the delay in making his statement before the police that he felt threatened.

14. The defense set up by the accused cannot be brushed aside and admissions of PW1, PW2 and PW4 in the cross-examination should be given due consideration while testing the veracity of the evidence tendered by them. Section 155 of the Indian Evidence Act provides that the testimony of a witness can be impeached through cross-examination and his conduct and character as well. PW1 was extensively cross-examined from paragraph nos. 8 to 15 as regards criminal cases lodged against her husband. In paragraph nos. 42 and 43, PW1 was specifically suggested that her husband was involved in serious cases of cheating and misappropriation of money. In the cross-examination, it was put to PW1 that her husband was accused in Godda (Town) PS Case No. 580 of 2014, Godda PS Case No. 263 of 2018, Special Case No. 94 of 2017, Meharma PS Case No. 177 of 2019, Meharma PS Case No. 102 of 2020, Godda (Town) PS Case No. 270 of 2019, Godda (Town) PS Case No. 258 of 2020, Latehar PS Case No. 116 of 2016, Belhar PS Case No. 348 of 2019 and Mahuwa Tanr PS Case No. 22 of 2014. It was also suggested to PW1 that the informant had abducted and solemnized marriage with her and in this connection a First Information Report was lodged by her father under section 366-A of the Indian Penal Code which, of course, she denied. PW2 admitted that her father was in judicial custody, and PW3 also stated about the informant going to jail in connection to Godda (Town) PS Case No. 305 of 2019. As PW4, the informant himself admitted that there were as many as 12 criminal cases lodged against him. It was also put to him that he was remanded in judicial custody in connection to Latehar PS Case No. 116 of 2016 which was lodged on an allegation that he furnished a forged bank guarantee and misappropriated Rs. 1,67,07,154/-; and a cheque bouncing case vide Godda PS Case No. 580 of 2014 was also lodged against him. He admitted that he was involved in Godda PS Case No. 263 of 2018

"Ravi Mandal v. State of Uttarakhand" 2023 SCC Online SC 651 9 Acquittal Appeal (DB) No. 18 of 2022

lodged under sections 307, 384, 354-B, 452, 427 and 506 of the Indian Penal Code and Godda (Town) PS Case No. 262 of 2017 for land grabbing. He was also involved in Belhar PS Case No. 348 of 2019, Godda PS Case No. 235 of 2019, Godda PS Case No. 263 of 2018 and Special Case No. 94 of 2017. Now the question that comes to our mind is whether the Court should place implicit reliance on such a witness who has a long criminal history. In "Sat Paul"5 the Hon'ble Supreme Court observed that where the witnesses have poor moral fiber and to their discredit a load of bad incident and a possible motive to harm the accused, it would be hazardous to accept the testimony of such witnesses without corroboration on crucial points from independent sources.

15. There is another substantial reason to doubt the truthfulness of the prosecution witnesses. In the trial, PW1, PW2 and PW4 made improvements in the Court and admitted in their cross-examination that they did not make important revelations to the Investigating Officer during the investigation. PW1 and PW2 further admitted in the Court about their not making many important and relevant facts in the statement recorded under section 164 of the Code of Criminal Procedure. The explanation to section 162 of the Code of Criminal Procedure provides that an omission to state a fact or circumstance may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. However, every omission in the testimony of a witness in the Court cannot be termed as a contradiction. There may be several reasons for an omission in the previous statement of the witness which he may clarify if his previous statement is shown to him. Burn, J.6 has said that 'omission' and 'contradiction' can never be identical. This is also clear from the explanation to section 162 that every omission shall not amount to contradiction, and whether or not any omission amounts to a contradiction is a question of fact which can be decided having regard to the peculiar facts and context.

16. Section 162 of the Criminal Procedure Code, 1973 is extracted below:

"162. Statements to police not to be signed : Use of statements in evidence.-- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to

"Sat Paul v. Delhi Administration" (1976) 1 SCC 727

"Re Ponnuswami Chetty" (1933) ILR 56 Mad 475 10 Acquittal Appeal (DB) No. 18 of 2022

writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

17. Section 145 of the Evidence Act provides that a witness may be cross-examined as to his previous statements made in writing or reduced into writing without such writing being shown to him, or being proved. However, if the defense intends to cross-examine a witness intending to contradict him by the writing his attention must be drawn to that part of the statement which is intended to be used for the purpose of contradicting him. If the witness admits to having made such a statement or statements before the police there is no need to prove his police statement and then that shall be read while appreciating his testimony in the Court. But when the witness denies having made a part of the police statement, it becomes necessary to elicit from the investigating officer that the witness had in fact made such a statement before him and then only the effect of denial by the witness having made such a statement or statements can be considered by the Court.

18. Section 145 of the Evidence Act which shall be applied for contradicting a witness provides as under:

"145. Cross-examination as to previous statements in writing.--A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

11 Acquittal Appeal (DB) No. 18 of 2022

19. In "V.K. Mishra"7 the Hon'ble Supreme Court has explained the manner in which contradiction can be elicited from a witness, as under:

"19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross- examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."

20. PW1 was cross-examined with reference to her statements recorded under section 161 of the Code of Criminal Procedure and she made evasive answers from paragraph nos. 102 to 129 as to her failure to state before the police several material and relevant facts in respect of which she later on made improvements in the Court. The statement of PW2 was also recorded under section 164 of the Code of Criminal Procedure and was cross-

examined from paragraph nos. 36 to 45 with reference to her previous statements made under section 164. This witness has also made evasive replies and feigned ignorance in the Court about the making of such statements which according to the defense were improvements made by her in the Court. PW2 was cross-examined with reference to her statements which she had failed to disclose before the Investigating Officer, such as, the ransom call received by her, the information given by her to mother and even demand of Rs. 50 lakhs by Munna Tiwary. PW2 was also put to searching questions as regards money transfers in her bank account on several occasions to demonstrate that the informant had dishonestly transferred the money

"V.K. Mishra v. State of Uttarakhand" (2015) 9 SCC 588 12 Acquittal Appeal (DB) No. 18 of 2022

received from a partnership business into the account of his daughter and misappropriated the same. She admitted lots of transfers made into her account but could not give any satisfactory explanation for huge money transfers in her bank account. The omissions in the police statements of PW1 and PW2 are significant and relevant in the circumstances of this case. There is no explanation by these witnesses for such omissions in their statements under section 161 of the Code of Criminal Procedure. The improvements made by PW1 and PW2 in the Court make them unreliable witnesses who had failed to inform the police about the most vital aspects of the case necessary for implicating Munna Tiwary in the crime. If yet is there any doubt, the unexplained delay in lodging information with the police about the abduction and assault upon PW4 would provide a good ground for discarding the testimony of PW1 and PW2. As noticed above, PW3 also made false statements in the dock and PW4 with loads of criminal antecedent brought a situation where the Court shall not be inclined to place reliance on his evidence to convict the accused. The trial Judge might have made certain not- so-perfect observations but the final conclusion arrived at by him is correct. No doubt the powers of the High Court under section 378 of the Code of Criminal Procedure are very wide and acting as an appellate Court the High Court may reappreciate the evidence, record its independent findings and may come to a different conclusion. However, before the Appellate Court decides to interfere with a judgment of acquittal, it is required in law to record a finding that there are compelling reasons arising out of overlooking some vital evidence on the record that warrants interference with the judgment of acquittal.

21. In "Chandrappa" 8 the Hon'ble Supreme Court held that the Appellate Court should not ordinarily interfere with a judgment of acquittal in a case where two views are possible even though the trial Court's view may not appear 'more probable one'.

22. In "Chandrappa"8 the Hon'ble Supreme Court has held as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (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,

"Chandrappa v. State of Karnataka" (2007) 4 SCC 415 13 Acquittal Appeal (DB) No. 18 of 2022

restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on 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."

23. In summation, the testimony of the prosecution witnesses which suffer from serious infirmities and improvements in the Court was rightly rejected by the trial Judge. We also do not find any compelling reason to take a contrary view.

24. Consequently, Acquittal Appeal (DB) No. 18 of 2022 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 05th October 2023 R.K/Tanuj/ .A.F.R.