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Judgment
Heard on I.A. 21671/2023 an application for condonation of delay The appeal is time barred by 31 days. On due consideration, I.A. is allowed and the delay of 31 days in filing the appeal is hereby condoned.
Heard on I.A. No.20739/2023, an application seeking grant of leave to appeal under Section 378(III) Cr.P.C. against the judgment and order of acquittal dated 26.04.2023 passed in S.T. No.521/2019 (State of M.P. vs. Anil Janvjal and another) by the learned Fifth Additional Sessions Judge, Bhopal (M.P.), whereby the respondent (hereinafter referred to as 't he accused') has been acquitted of the offence under Section 392 of IPC.
The prosecution case in brief is that on receiving information on 19-05-2018, Inspector Upendra Singh Bhati posted at MP Nagar police station reached HQ No. 93/45 Tulsi Nagar to verify the information where complainant Arvind Sheele got a Dehati Nalishi Ex.P-1 registered to the effect that he is an editor of Swadesh newspaper. On the night of 16-17/05/2018 at around 03:00 am, he left for home from his office in his car No. MP-04-CB-1540, when two boys on a black motorcycle came from the left side of the car on the main road in front of Makhanlal Chaturvedi Journalism University. They knocked on the mirror and signalled him to stop. When he got off, they asked him how he was driving, saying he had hit the car. Meanwhile, a fat boy asked him to pay compensation. He said nothing had happened to his car. Then the fat boy put his hands in his pant pockets and pinned him to his car. He took 1100 rupees from his right pocket, a handkerchief from his left pocket, and his mobile phone from his shirt pocket. He immediately snatched his mobile phone back and pushed him, causing the boy to fall. The other boy, a tall, thin boy, began threatening him with a knife. He immediately started his car and drove home to find the two boys chasing him, all the way to the garage in front of his house. As soon as he called out to his son to get off, they ran off to the right of the intersection. He then called Dial 100 and went to Betul for work. He is now reporting, saying he will identify the two boys when they appear. He is presenting a hand-drawn sketch of both boys. After the complainant got the said rural complaint registered, on returning to the police station, FIR No. 305/2018 under Section 392 of the Indian Penal Code was registered against two unknown boys and the case was taken into investigation.
After completion of investigation, charge-sheet was filed in the competent court which on its turn committed the case to the court of Sessions and from where it was received by the trial court for trial.
4 . The learned trial Judge on going through the evidence available in the charge sheet framed charge against appellant for the offence punishable under Sections 392 of IPC, which he denied and claimed for trial.
5 . In order to bring home the charges, the prosecution has examined as many as 05 witnesses, namely, Arvind Sheele (PW-1), Dulare Khan (PW-2), Kalyan Singh Raghuvanshi (PW-3), Upendra Singh Bhati (PW-4) and Faeem Siddiqui (PW-5) and placed Ex.P/1 to P/9 and Ex.D/1, the documents on record. In the examination of the accused under Section 313 of Cr.P.C., he said that the complainant has a grudge against him and Vishal. Vishal had told that the complainant had met with an accident with Vishal due to which he had a grudge against Vishal. He has been falsely implicated, he is innocent. In defence, the respondent/accused did not choose to examine any witness.
The learned Trial Court having analyzed and marshalled the testimonies of witnesses and the evidence available on record found that the prosecution has failed to prove its case beyond all reasonable doubts and eventually acquitted the accused of the charge under Section 392 of IPC. Hence, this appeal.
It is submitted by the learned Government Advocate for the appellant/State that despite there being ample evidence on record in respect of loot committed by the accused the learned Trial Court on the anvil that nothing has been seized from the possession of accused has acquitted him which is erroneous. Since there is ocular evidence of victim on record that the accused has committed loot of Rs.1100/- along with a handkerchief and he along with co-accused also tried to loot his mobile and such statement of the complainant has been further substantiated by the FIR as well as the identification memo Ex.P/4 and P/5, therefore the learned Trial Court has committed a grave error in acquitting the accused. In view of the aforesaid, it is contended that the judgment of acquittal passed by the learned trial Court is erroneous and unsustainable in law. Accordingly, it is prayed that the present appeal be allowed, the impugned judgment of acquittal be set aside and the respondent/accused be convicted and sentenced in accordance with law.
I have heard the learned counsel for the appellant and perused the record meticulously.
The star witness for the prosecution, Arvind Sheele (PW-1), has supported the prosecution story in his examination-in-chief. However, various contradictions and omissions have emerged from his testimony vis-à-vis the Dehati Nalishi (Ex. P/1) and his police statement (Ex. D/1). The source of light at the time of the incident is not mentioned in his police statement. There is also variation regarding the time of lodging of the Dehati Nalishi. Further, material omissions and inconsistencies have been revealed concerning the physique and attire of the person carrying the sword, the words allegedly spoken or threats extended by him, the manner in which the accused persons stopped his car, what they were saying, and the manner in which they fled after the incident. There are also contradictions regarding the registration number of the motorcycle allegedly used by the accused persons, the reason for not noticing the said number, and the fact that the witness allegedly pushed one of the accused persons, causing him to fall on the ground. No satisfactory explanation for these contradictions and omissions has been brought on record.
1 0 . The identification parade was conducted vide Ex.P/4 and Ex.P/5. However, it is pertinent to note that the officer who conducted the said parade was not examined on behalf of the prosecution. In this regard, Faheem Siddique (PW-5) stated that the Naib Tehsildar, Mumtaz Ali, was suffering from cancer and was therefore unable to depose before the Court. The witness identified the signature of Naib Tehsildar Mumtaz Ali on Ex.P/4; however, he did not identify the signature of Mumtaz Ali on Ex.P/5, for reasons best known to him or to the prosecution. Moreover, the mere identification of the signature on Ex.P/4 is not sufficient to prove the said document beyond reasonable doubt. No medical document or record pertaining to the alleged ailment of cancer suffered by Mumtaz Ali was produced before the Court to substantiate the statement of the witness in this regard.
Apart from this, it is also pertinent to note that the star witness, Arvind Sheele (PW-1), who identified the accused persons through memorandums Ex.P/4 and Ex.P/5, has categorically admitted in paragraph 23 of his cross-examination that, after the accused persons were apprehended by the police, news of their arrest was published in the newspapers alongwith their photos, which he had seen, and that the police had also informed him that the accused persons had been arrested. The aforesaid testimony of the witness clearly reveals that he had seen the accused persons prior to the identification parade, which, as admitted by Arvind Sheele (PW-1) in paragraph 12, was conducted after two to three months. Therefore, the identification parade, as well as documents Ex.P/4 and Ex.P/5, cannot be said to have been proved beyond reasonable doubt.
It is pertinent to mention that the star witness, Arvind Sheele (PW-1), has stated that the accused persons looted Rs.1,100/- from him and also attempted to snatch his mobile phone, though they failed to do so. He further deposed that accused Anil was armed with a sword, which he brandished while threatening to kill him. However, no incriminating article was seized from the possession of the accused persons, as admitted by ASI Kalyan Singh Raghuvanshi (PW-3) during his cross-examination. Had any robbery in fact been committed, the looted articles ought to have been recovered and seized from the possession of the accused persons. Likewise, the alleged weapon of offence, i.e., the sword purportedly used in the commission of the offence, was also not seized. This serious lapse on the part of the prosecution raises considerable doubt regarding the genuineness and veracity of the prosecution story.
1 3 . It is admitted by Arvind Sheele (PW-1) in his cross-examination that the assailants were alleging that he had hit their vehicle and, on that basis, demanded compensation. The admission made by Arvind Sheele (PW-1) in paragraph 7 clearly indicates that the incident pertained to an alleged vehicular collision followed by a demand for compensation, and not to an act of robbery, as has rightly been observed by the learned Trial Court in the impugned judgment. Further, the denomination of the allegedly looted currency notes has not been specified in the documents produced by the prosecution. Although, in paragraph 18, Arvind Sheele (PW-1) stated that two currency notes of Rs.500/- each and one note of Rs.100/- were allegedly looted, he failed to explain why this material fact was omitted from the prosecution documents. In paragraph 20, Arvind Sheele (PW-1) also admitted that the place of occurrence is a busy road where traffic continues even during the night hours. However, the prosecution has failed to explain why no independent witness was examined or included in the case as a witness. Moreover, the FIR was lodged after a delay of two days. When questioned regarding the delay, Arvind Sheele (PW-1) stated that he had gone to attend his duty. However, in the ordinary course of human conduct, if a person is subjected to an incident of robbery, he would naturally lodge the report promptly at the concerned police station. The unexplained delay of two days in lodging the FIR, for which no satisfactory explanation has been placed on record, creates a serious doubt regarding the veracity of the testimony of Arvind Sheele (PW-1) and the prosecution story as a whole.
The observation of learned Trial court in the above factual scenario and attending facts and circumstances of the case cannot be said to be perverse or illegal. The view taken by the learned Trial Court is quite plausible one and in the appeal against acquittal that cannot be interfered with. It is well-settled that an appellate Court ought not to interfere with an order of acquittal unless the findings recorded by the trial Court are perverse, manifestly erroneous, or wholly unreasonable.
In H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 , the Hon’ble Supreme Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8 . 3 . The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
(Emphasis Supplied)
In Babu Sahebagouda Rudragoudar Vs. State of Karnataka, 2024 SCC Online SC 561, the Hon’ble Supreme Court, after referring to relevant precedents, has observed as follows:-
“39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
(Emphasis Supplied)
In case of Sadhu Saran Singh vs. State of U.P., (2016) 4 SCC 397 , the Hon'ble Supreme Court has held that:-
"20.Generally, an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, in Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320] has held : (SCC p. 415, para 7)
“7.The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.”
21.This Court, in several cases, has taken the consistent view that the appellate court, while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded. If the appellate court, on scrutiny, finds that the decision of the court below is based on erroneous views and against settled position of law, then the interference of the appellate court with such an order is imperative."
Similar, in case of Harijan Bhala Teja vs. State of Gujarat , (2016) 12 SCC 665, the Hon'ble Supreme Court has held that:-
"12.No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544, the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as :
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
In the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned trial Court in the impugned judgment are not found to be faulty. The learned trial Court on proper appreciation of evidence available on record has rightly acquitted the respondent/accused. There is no ground for interference with the findings of the trial Court.
Resultantly, I.A. No.20739/2023 - application seeking grant of leave to appeal under Section 378(III) Cr.P.C. is dismissed. Consequently, Criminal Appeal also stands dismissed.