Union of India by Inspector Vs Sri K. Selvam

P.O., SPL. COURT FOR ECONOMIC OFFENCES, BANGALORE IN C.C.NO.766/2003 -ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.3(a) OF THE RP(UP) ACT, 1966.

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THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The State has preferred this appeal against the judgment of acquittal passed by the Presiding officer, Special Court for Economic Offences at Bengaluru in C.C No.766/2003 dated 26.09.2012.

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For the sake of convenience, the parties herein are referred to as per their status before the trial Court.

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The brief facts leading to this appeal are that the Inspector of RPF, Bangalore Cantonment Bangalore has laid the charge sheet against accused No.1 and 2 for the offence punishable under Section 3(a) of the RP(UP) Act, 1966.

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It is alleged by the prosecution that on 26.12.2002 at about 06:10 hours, the complainant along

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with his staff were on confidential watch duty at Kogilu

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Cross, Near NH-7 Road, Yelahanka, Bangalore. During that

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time, the Accused No.1, was going towards Eastern side from Southern side with an aluminum sheet folded in his left shoulder armpit. On suspicion, he was detained and during the enquiry, the accused No.1 was questioned about his identity and how he came in possession of Railway Property. He revealed his name as K.Selvam, working as Track-Man, Gang No.8, Yelahanka, under the control of P.W.1, Yelahanka. Further, the accused No.1 has stated that he was taking Aluminum Reflective Board to dispose in the scrap shop for monetary benefits and also confessed that he had committed theft of similar type of materials in the premises of Old PW1/O/YNK and he volunteered to point out the spot where he had stolen Railway Reflective Boards and the scrap shop in which he

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had disposed off stolen Railway Materials. On further enquiry, the accused No.1 failed to give satisfactory explanation regarding the possession of the said properties

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and he has not produced any bill or voucher for such property. Thus, the accused has committed the alleged offence.

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After filing the charge-sheet, the case was registered in C.C No.766/2003, the charges were framed by the trial Court and same were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

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To prove the case of prosecution, in all, 9 witnesses were examined as PWs1 to 9 and 25 documents were marked as Exhibits P1 to P25 and three Material Objects were marked as MOs.1 to 3. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded.

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The accused totally denied the evidence of prosecution witness but have not chosen to lead any defence evidence on their behalf.

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Having heard the arguments on both the sides,

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the trial Court acquitted the accused. Being aggrieved by

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the judgment of acquittal, the State has preferred this appeal.

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The Learned High Court Government Pleader Sri Rangaswamy.R submitted that the impugned judgment and order of acquittal passed by the Court below is contrary to law. Evidence and materials were placed on record. PW1 and PW5 categorically deposed before the Court that they recorded the statement of accused No.2 and the confessional statement of accused No.1, and on

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the said confessional statement the police have searched the shop of accused No.2 and conducted mahazar in the presence of panchas and recorded the statement which clearly establishes that both the accused have committed the alleged offence. The trial Court has not properly appreciated the evidence on record in accordance with law and facts and sought for allowing this appeal.

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Sri.Desu Reddy, learned counsel for respondent No.2, remained absent and unrepresented. Hence,

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arguments on behalf of the respondents is taken as nil.

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Having heard the arguments of learned High Court Government Pleader and on perusal of materials, the following points would arise for my consideration:

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1. Whether the State has made out a ground to interfere with the impugned judgment of acquittal passed by the trial Court?

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2. What order?

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Regarding Point No.1:

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Before adverting to the actual facts of the case

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and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal.

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12. In the case of MOTIRAM PADU JOSHI & OTHERS

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v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE

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SC 676, at paragraph 23 of the judgment, it is held thus:

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“23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-

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“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:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(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 questions of fact and of law.

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(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

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“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.

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(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.

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(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. ”

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In the case of MUNISHAMAPPA & OTHERS v.

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STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:

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“ 16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere

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with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. … ”

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In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:

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“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that

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those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the misappreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.… ”

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In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:

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“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”

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In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:

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“12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, re-appreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.”

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In the case on hand, I have carefully examined materials placed before this Court.

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It is an admitted fact that the people were

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moving at the time of detention of the accused, but, none of the independent witnesses supported the official testimony. As to the drawing of mahazar, seizure of railway property from the possession of the accused, the independent witnesses turned hostile. This is clearly leading to doubt the prosecution's case as to the recovery.

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Under these circumstances, it is difficult to hold

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that the accused are having intent to sale or had the possession of the property. It is also not proved that the

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accused is having the unlawful possession of railway property by the way of theft or stealing.

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The RP(UP) Act, does not attach more authenticity to the official witnesses. It only states that the I.O. is entitled to enquire the matter and record the statement u/s.9 of the RP(UP) Act and that could be relied in evidence. Unlike, the confessional statement in

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police cases, some reliance could be placed on the accused. But, that is not the sole basis to take the proof of the guilt of the accused beyond reasonable doubt. The statement and evidence of official testimony should withstand the vigor of the cross-examination and it should be consistent in order to be appreciated and relied upon.

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In this case, the nature of the property belongs to railways and its identity and the fact that it is missing from concerned department, is not established with documentary evidence, apart from, inconsistent oral testimony of P.W.1 to 9. The absence of independent corroboration also casts doubt to place reliance on official testimony alone under the facts and circumstances of the case.

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However, in this case, the official testimony inter-se is not corroborative in order to rely upon, beyond all reasonable doubt, as to the railway property found in unauthorized possession of the accused. The burden is

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more, when it is alleged that the accused is the Railway Employee and the material objects are found within the premises of Railways.

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Therefore, it is not safe to rely upon the official testimony alone. It is admitted that there are employees to safe guard the railways property, and the railway employees are deployed for protecting the property for the accountability. The manner in which the property was taken and whether any person was present while seizing the materials is not substantiated with connecting circumstantial evidence. Hence, the benefit of doubt is conferred in favour of the accused.

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The complainant/RPP has relied the decisions reported in 1979 Cr.L.J., 1193 (SC), 1973 Cr.L.J., Page No.1098 (Allahabad), 2001 Cr.L.J., Page No.58 (Bombay), 2001 Cr.L.J., Page No.3828 (Caluctta HC), 1975 Cr.L.J., Page No.952 (AP), 1974 Cr.L.J., page No. 1240 (Allahabad HC) Evidence of Official witnesses are to be

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believed, 2003(4) Crime page 217(SC), Railway Servant Acting as Panch, 1976 Crl.L.J., Page No. 1859 (Bombay HC), Minor Discrepancies to be over looked. 1978 Crl.J. page 1612 (SC) PARA-B. The principles laid down in the above said decisions are also observed while assigning the reasons. The neighboring witnesses who corroborated the proceedings are not examined to prove the observation mahazar. The property was within the possession of accused and it is unlawfully obtained and it belonging to the railways is not shown through records. Even the ancillary documents are not produced in order to prove the seizure.

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The learned counsel for the accused has further relied upon the decisions reported in 1) 1995 Cri.L.J., 3962 (Orissa High Court), 2) 1993(1) Crimes, 416 (Madras High Court), 3) 1982 Cri.L.J., 2253 (Gauhati High Court), 4) 1998 Cri.L.J., 2109, 5) Criminal Appeal in CC.No.272/1992, 5) Criminal. Revision Petition No.671/1989, 6) 1993 Crl.L.J.,2609 (Supreme Court), 7)

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IV(2002) CCR 419 8) 2006 Crl.L.J. 660 (Orissa High Court), 9) 1979 Crl.L.J., 287 (Calcutta High Court), 10) 1991 Crl.L.J., 3065 (Allahabad High Court), 11) Judgement copy of Hon'ble High Court, dated: 2nd Dec.2011 passed in Crl.A.No.679/2011 &12) 2002 Crl.L.J., 1090 (Patna High Court). The principles laid down in the above said decisions are aptly applicable to the case on hand and the facts and circumstance enunciated therein is to be adopted.

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The principles laid down in the above said decisions are appreciable and confession statement of the accused though reliable, should be corroborated by the official testimony and it is authenticity. But, in this case, there is inconsistent official testimony, which defeats reliability of the statement. Hence, benefit of doubt is conferred in favour of the accused & the prosecution has failed to establish that the properties are the railway properties and it was found in unlawful possession of the accused and it has been seized out of the possession of

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the accused. Therefore, I hold that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubts.

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The trial Court has properly appreciated the evidence on record in accordance with law and facts and the trial Court has also rightly come to the conclusion that, though the case is corroborated by the official testimony, there is no consistency in the evidence of official witnesses, which defeats the relevancy of the statement and accordingly benefit of doubt was given to the accused and acquitted the accused. Therefore, on reappreciation of the evidence on record, I do not find any error/illegality in the impugned judgment of acquittal passed by the trial Court. Considering the facts and circumstances of the case and also keeping in the mind of the aforesaid decisions, I am of the opinion that the State has made out a ground to interfere with the impugned judgment of acquittal. Accordingly, I answer point No.1 in the Negative .

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