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Judgment
This appeal under Section 378 of the Code of Criminal Procedure, 1973 has been filed by the appellant/State assailing the judgment and order of acquittal dated 19.7.2022 passed in RCT No.300930/2015 (State of M.P. vs. O. P. Dubey) by the learned Judicial Magistrate First Class, Panna (M.P.), whereby the respondents (hereinafter referred to as 'the accused persons') have been acquitted of the offence under Sections 269, 270 of IPC.
Briefly stated, the prosecution case is that The prosecution case in brief is as follows, that the complainant Ram Lakhan Tripathi filed a complaint in court to the effect that he resides at Hariram Indrapuri, Ward No. 03, Panna, and is engaged in the profession of advocacy, and he has water connection No. 3640 from Municipal Council Panna, the bill for which he pays on time every month. The accused O.P. Dubey is posted as Chief Municipal Officer in Municipal Council Panna. The administration of the municipality vests in the Council. The accused is the principal executive of Municipal Council Panna; therefore all officers and employees of the Council are subordinate to him, and the executive powers related to the purpose of executing all works of the municipality are vested in him, , which, subject to the general control of the President, he is bound under the Municipal Act to supervise the finances and administration of the Council. The accused Mohanlal Kushwaha is the President of Municipal Council Panna; therefore, since the administration of the Council vests in him, he has control over the financial and executive matters of the Council, and in emergency cases, for the execution of any such work. He is bound by duty to take action in relation to it. Since the responsibility of supplying clean drinking water to the citizens in Panna city lies with the municipal administration, it is upon the accused persons. The duty and responsibility to arrange for the supply of drinking water is imposed on them by law. In this regard, the accused persons have administrative and financial powers. For the past one month continuously, the supply of drinking water that is being made in Panna is absolutely dirty, insect-laden, and muddy water, the sole reason for which is that without adding the required and appropriate quantity and without filtering the pond by putting necessary and suitable quantity of alum going and Nirpat Sagar, Lokpal Sagar and Dharamsagar from where water is being supplied, where people go towards Disha Maidan (Latin), cattle dung kept entering the water but they are being well aware about the aforesaid fact has supplied the water in a very carelessness manner, on these premises, the matter was preferred before the learned Trial Court which vide order dated 06.6.2015 directed to register criminal case pursuant thereto criminal case No.1186/2015 was registered under Section 269, 270 & 34 of IPC.
After completion of investigation, charge-sheet was filed in the court of JMFC, Panna.
4 . The learned trial Judge on going through the evidence available in the charge sheet framed charges against respondent for the offences punishable under Sections 269, 270 of IPC, which he denied and claimed for trial.
5 . In order to bring home the charges, the prosecution has examined as many as 11 witnesses, namely, Ramlakhan Tripathi (PW-1), Shravan Kumar (PW-2), Lokesh Sharma (PW-3),Ashok Kumar (PW-4), Manish Kumar (PW-5), Subhash Kumar Khare (PW-6), R. S. Shukla (PW-7), Hariprasad Tyagi (PW-8), Brujmohan Jadia (PW-9), G.P. Tiwari (PW-10), Ramkishan (PW-11). In defense, appellant has examined himself. Prosecution placed Ex.P/1 to P/17 and Ex.D/1 to D/2, the documents on record.
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 charges under Sections 269, 270 of IPC. Hence, this appeal.
Learned counsel appearing on behalf of the appellant/State contended that despite ample evidence available on record, including the report of the Central Laboratory, Delhi (Exhibit P/16), the learned trial Court has erroneously disbelieved the prosecution case. It is submitted that the water sample was collected from a public tap and was subsequently sent for examination to the concerned laboratories at Panna, Bhopal, and the Delhi Water Board. Upon scientific analysis by the respective laboratories, the sample was found to be unfit for human consumption and unsafe for drinking purposes. Therefore, the prosecution has duly established the offence alleged against the accused. It is further contended that the learned trial Court, on the ground that the sample was not of sterling quality, was not properly sealed, and was not shown to have remained in the same condition till its examination, has extended the benefit of doubt to the accused, which is contrary to law and the evidence available on record. The findings recorded by the learned trial Court are thus perverse and unsustainable in law. In view of the aforesaid submissions, it is prayed that the impugned judgment of acquittal passed by the learned trial Court be set aside, the present appeal be allowed, and the respondent/accused be convicted and sentenced in accordance with law.
Per contra, learned counsel appearing on behalf of the respondent/accused submitted that the very same water sample was sent for examination to laboratories at Bhopal, Delhi, and Panna. It is contended that as per the report of the Panna Water Testing Laboratory (Exhibit P/12), the water sample was found fit and suitable for drinking purposes, whereas the reports exhibited as Exhibit P/16 and Exhibit P/17, obtained from the Delhi laboratory, indicate that the water was not fit for human consumption. Thus, there are material contradictions in the scientific reports placed on record. It is further submitted that in view of such conflicting reports, the sample ought to have been referred for examination to a third independent laboratory for proper verification, which admittedly was not done by the prosecution. Learned counsel also submitted that the learned trial Court has rightly taken note of the procedural irregularities in collection and preservation of the sample, particularly that the sample was not kept in a properly sealed condition, thereby creating serious doubt regarding the sanctity and authenticity of the sample examined. Accordingly, it is contended that the learned trial Court has rightly appreciated the evidence available on record and extended the benefit of doubt to the respondent/accused. No illegality, perversity, or infirmity is made out in the findings recorded by the learned trial Court warranting interference by this Court in the present appeal. Hence, it is prayed that the appeal filed by the appellant/State deserves to be dismissed.
I have heard the learned counsel for the parties and perused the record meticulously.
The entire prosecution case rests upon the report of the Central Laboratory Water Works, Delhi, marked as Exhibit P/16, which indicates that the water sample was unfit for drinking purposes. However, in order to prove the said report beyond reasonable doubt, it was incumbent upon the prosecution to establish that the sample was collected in a sterilized bottle strictly in accordance with the prescribed procedure and that the same was duly sealed at the spot, kept in safe custody, and thereafter transmitted to the concerned laboratory without any possibility of tampering. From the prosecution story, it is evident that the water sample collected by the Investigating Officer, G.P. Tiwari (P.W.10), was sent for examination to laboratories at Panna, Bhopal, and Delhi. However, out of the said laboratories, only the analysis report of the Water Testing Laboratory, Panna, has been brought on record as Exhibit P/12, and the reports of the Delhi laboratory have been exhibited as Exhibit P/16 and Exhibit P/17. Significantly, the report of the laboratory at Bhopal has not been filed before the Court, nor has any explanation been furnished by G.P. Tiwari (P.W.10) regarding the non-production of the said report, despite his deposition in this regard.
G.P. Tiwari (P.W.10), who had collected the water sample from the public tap, has admitted in his cross-examination that he is unable to state in front of whose house the concerned tap connection was situated from where the sample was collected. The Panchnama prepared in this regard, marked as Exhibit P/9, also does not indicate that the plastic containers in which the samples were collected were either sterilized or properly cleaned prior to collection of the samples. Further, the said Panchnama does not reflect that the samples were sealed immediately after its collection, inasmuch as no seal impression has been mentioned in Paragraph 13 of Exhibit P/9. A similar infirmity is apparent in the seizure memos, Exhibit P/14 and Exhibit P/15, through which the samples were allegedly seized. G.P. Tiwari (P.W.10), in his examination-in-chief, has nowhere stated that the samples were sealed at the spot after collection. On the contrary, in his cross-examination, he categorically admitted that the bottles used for collection of the samples were not sterilized, as he had no knowledge regarding the same. It is further evident from the testimony of the said witness that there is no explanation as to where the samples collected on 19.06.2015 and 24.06.2015 were kept prior to their examination, nor has it been established that the samples remained in safe and proper custody till their analysis by the Panna Laboratory on 13.07.2015 and by the Delhi Laboratory on 27.07.2015.
It is pertinent to note that the report of the Panna Laboratory (Exhibit P/12), which has been proved through the testimony of R.S. Shukla (P.W.7), clearly indicates that the water sample was fit for drinking purposes. The said report runs contrary to the prosecution case. Despite this, the prosecution neither properly relied upon nor explained the contradiction arising therefrom. Exhibit P/16 and Exhibit P/17 were prepared by Ramkishan (P.W.11), who has supported the prosecution case in his examination-in-chief. However, during cross-examination, he admitted that the sample was received in the laboratory only on 27.07.2015 and that he was unaware as to where and in what condition the sample had been kept prior to its receipt in the laboratory. He further admitted that if a water sample is collected in a plastic bottle, bacteriological examination cannot be properly conducted after 48 hours. He also admitted that if sterilized bacteriological bottles are not used for collection of the sample, the result of the bacteriological test would not be reliable. Significantly, he further admitted that Exhibits P/16 and P/17 do not disclose that the sample had been received by the laboratory in a sealed condition. The aforesaid admissions made by the prosecution witnesses create serious doubt regarding the sanctity of the sample, the chain of custody, and the reliability of the laboratory reports, thereby rendering the prosecution case doubtful.
It is also not established by the prosecution beyond reasonable doubt that accused is solely responsible for supply of water. No document in this regard has been submitted on behalf of the prosecution about the form of duties and responsibilities of the accused as Chief Municipal Officer.
Considering the aforesaid factual scenario, the observation of learned trial Court of giving benefit of doubt to the accused cannot be said to be erroneous, perverse or illegal. Since the view taken by the learned Trial Court is a plausible one, the same does not warrant interference in an appeal against acquittal. 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.
Ex. consequenti, while affirming the findings of acquittal of present respondents/accused by the learned trial Court, the appeal being bereft of merit is hereby dismissed.