Sher Singh vs Rajinder Singh and Others

Sabina, J.—Respondents had faced trial qua commission of offence punishable u/s 379 of the Indian Penal Code, 1860 read with Section 39 of the Electricity Act, 2003. The Trial Court vide judgment dated 15.12.2010 acquitted the respondents of the charges framed against them. Hence, the present application u/s 378(4) of the Code of Criminal Procedure, 1973 for grant of leave to file appeal by the complainant. Case of the complainant, in brief, is that he was owner of Ambey Ice Factory. Electricity to the factory was disconnected about two years prior to occurrence and the said factory was lying closed. Complainant had purchased one generator to run the said ice factory. Accused in collusion with the owners of other ice factories had forcibly entered the premises of the complainant on 27.04.2001 and had taken away two motors with a view to cause loss to the complainant.

I have heard learned counsel for the applicant and have gone through the record available on file carefully.

The Trial Court, while acquitting the respondents of the charges framed against them has held that a raid was conducted on receipt of information that the factory was being fun directly from the pole erected near the factory. The low tension line was found connected to the low tension main line. Photographs in this regard had been taken. A criminal case was got registered against Jitender, son of complainant with regard to theft of electricity. In these circumstances, the Trial Court held that no intention of commission of offence of theft could be attributed to the respondents. Further, the complaint had been filed after 26 days. Apparently, the same had been filed to pressurize the officials of the Electricity Department with regard to the FIR registered against the son of the complainant.

Although son of the petitioner was acquitted in the criminal case registered against him but the fact remains that no attribution of intention to commit theft can be made to the respondents. At the time of raid, it was found that the factory was being run directly from the pole erected near the factory.

Thus, the reasons given by the trial court, while acquitting the respondents of the charges framed against them are sound reasons. Learned counsel for the applicant has failed to point out any misreading of evidence on record by the trial Court which would warrant interference by this Court.

Their Lordships of the Supreme Court in Allarakha K. Mansuri Vs. State of Gujarat, , held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.

A Division Bench of this Court in State of Punjab Vs. Hansa Singh while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

To the same effect is the ratio of the judgments of the Supreme Court in State of Goa Vs. Sanjay Thakran and Another, and in Chandrappa and Others Vs. State of Karnataka,

Similarly, i Mrinal Das and Others Vs. The State of Tripura, Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:

8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed.