State of Himachal Pradesh vs Subhash Chand

Sanjay Karol, J.—Record perused and returned.

In relation to FIR No. 27/2006, dated 29.01.2006, registered at Police Station, Palampur, accused Subhash Chand, Gopal Singh and Harish Kumar were sent to face trial for having committed offences punishable under the provisions of Sections 379 read with Section 34 of IPC and accused Baldev Raj was sent to face trial for having committed offences punishable under the provisions of Section 411 of IPC.

Vide judgment dated 19.11.2008, passed by Judicial Magistrate, 1st Class (I), Palampur, District Kangra, H.P., titled as State of H.P. Versus Subhash Chand & others, accused Subhash Chand and Gopal Singh were convicted and sentenced to undergo rigorous imprisonment for a period of one year each and to pay fine of Rs. 5000/- each and in default of payment of fine to further undergo simple imprisonment for one month for commission of offences punishable under the provisions of Section 379 read with Section 34 of IPC. Whereas, accused Baldev Raj and Harish Kumar were acquitted.

In an appeal preferred by the convicts, such judgment stands reversed and as such, both the accused stand acquitted. Undisputedly no appeal against the judgment of acquittal of co-accused Baldev Raj and Harish Kumar was filed by the State.

Assailing the judgment passed by Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, H.P., on 31.03.2015, in Cr. Appeal No. 61-I/X/13/08, titled as Subash Chand Versus The State of Himachal Pradesh, whereby accused Subhash Chand and Gopal Singh stand acquitted, State has filed the present leave to appeal under the provisions of Section 378(3) of the Code of Criminal Procedure, 1973.

The issue which arises for consideration is as to whether prosecution has been able to establish, beyond reasonable doubt, that accused Subash Chand and Gopal Singh, in furtherance of their common intention committed theft of bundles of electricity wires owned by Himachal Pradesh State Electricity Department or not. Allegedly Subhash Chand, Harish Kumar and Gopal Singh after committing theft sold the same to co-accused Baldev Raj.

The finding with regard to acquittal of co-accused Harish Kumar and Baldev Raj is not the subject matter of this leave to appeal or for that matter State is not aggrieved of the same.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, I am of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417 , Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417 , Criminal P.c. in an appeal from an order of acquittal has been stated in - Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , in these words:

"Sections 417 , 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

Record reveals that prosecution examined Ms. Kanchan (PW. 2), who only saw accused Subhash Chand on the spot, at the time when alleged theft took place, which led to the filing of the complaint on 29.01.2006, at about 5.30-6.00 PM. One observes that there is contradiction in the statement of independent witness Ms. Kanchan (PW. 2), Kishori Lal (PW. 3) and Prem Chand (PW. 4). None of these witnesses could state with certainty as to which of the accused was present on the spot. Though Ms. Kanchan does record presence of accused Subhash Chand, but then she is not certain as to whether theft was committed by him or not. It is the case of prosecution that accused persons had fled away from the spot. Admittedly Ms. Kanchan did not know accused Subhash Chand from before and no test identification parade was conducted by the police. It is under these circumstances prosecution case of accused having committed theft is rendered to be doubtful.

One further notices that witnesses to the recovery of the stolen bundles of electricity wires have also not fully supported the prosecution. In fact, Suresh Kumar (PW. 5) goes to state that recovery stood already effected by the police and he was simply asked by the police that he had to visit Malan, place from where the alleged recovery was effected.

Court does not find prosecution to have proved its case, beyond reasonable doubt, that accused persons in furtherance of their common intention committed theft of bundles of electricity wires, by leading clear, cogent, convincing piece of evidence

The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of the lower Appellate Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused persons have had the advantage of having been acquitted by the lower Appellate Court. Keeping in view the ratio of law laid down by the Apex Court in Sheo Swarup and Others vs. The King-EmperorAIR 1934 227 (Privy Council) , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present leave to appeal, being devoid of merit, is dismissed, so also the pending application(s), if any.