State of Madhya Pradesh vs Nand Kishore and Another

U.C. Maheswari, J.—On behalf of the State of M.P. this appeal is preferred u/s 378 of Cr.P.C. being aggrieved by the judgment dated 17.6.1994 passed by the Judicial Magistrate, 1st Class, Betul in Criminal Case No. 3828/1993 extending acquittal to the respondent no. 1, so also the respondent no. 2 (since deceased) from the charge of Section 435 of IPC and Section 33 (1) (d) of the Indian Forests Act, in short "The Act". The facts giving rise to this appeal in short are that on dated 8.4.1990 at about 8 o''clock in the night in the Reserved Forests of village Padhar with some fire took place, on which with the assistance of some Panch witnesses the respondents were caught hold from the place of such Incident of fire. The statement of concerning Panchs as well as of the respondents were recorded by the official of the Forests Department. Some Panchanama were also prepared and after registering the POR in respect of the forest offence, a report in writing for registration of the offence was sent to SHO, P.S. Ranipur, district Betul, on which a Crime No 12/90 was registered at such Police Station against the respondents for the offence of Sections 435, 447 of IPC and Section 33 (1) (d) of the Act. After holding investigation the respondents were charge sheeted for the aforesaid offence. On framing the charge of Section 435 of IPC and Section 33 (1) (d) of the Act against the respondents, they abjured the guilt, on which the trial was held, in which as many as eight prosecution witnesses were examined. On appreciation the respondents were acquitted from the alleged charge, on which the State has come forward this Court with this appeal.

Shri Rakesh Kesharwani, learned appearing counsel on behalf of the State, after taking me through the record of the trial court including the evidenced by the prosecution as well as defence argued that the prosecution has successfully proved its case against the respondents setting fire by them in the Reserved Forests, and thereby the property of the Forests Department has been damaged and destroyed. But contrary to such evidence, the respondents been acquitted by the trial court. In continuation he said that on proper appreciation of the same, the respondents ought to have been convicted by the trial court in the alleged offence. He based his arguments mainly on the depositions of Chandrabhan (PW-1), Shamlu (PW-2) and Rammi, (PW-3), so also on documents, Panchanama, (Ex. P-i), seizure memo, (Ex.P-2) and POR, (Ex. P-3) registered by Chandrabhan (PW-1) under the Act regarding offence of the forests property and prayed to convict the respondent no. 1 by setting aside the impugned judgment of acquittal by allowing this appeal.

On the other hand, responding the aforesaid arguments by justifying the impugned acquittal the respondents'' counsel, Shri Subodh Kathar said that the same being based on proper appreciation of evidence, does not require any interference at this stage. In continuation he said that taking into inter se inconsistencies between the depositions of the departmental witnesses of the Foresits Department and the independent witnesses, the respondents have been acquitted by the trial court and there is no occasion at this stage to interfere in such findings by this Court. He said that as per settled proposition of the criminal law whenever and* wherever on appreciation of the evicence if two views are possible, out of them one goes in favour of the prosecution while another goes in favour of the accused, then the Court should adopt the view which is favourable to the accused and extent its benefit to him. With these submissions prayed for dismissal of this appeal.

Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial court including the evidence led by the prosecution, so also the marked papers of the charge sheet along with the impugned judgment.

True it is that as per available evidence on the date of the incident some fire took place in the alleged Reserved Forests, in which some property of the Forests Department has been damaged. In order to prove the case against the respondents the appellant -prosecution agency has examined the departmental witness, Chandrabhan, (PW-1), who in his deposition categorically stated that initially at about 8 o''clock on the date of the incident, he saw the alleged fire In Reserved Forests some check post. Thereafter he accompanied with the Watchman Santosh, Gajraj Singh and some other villagers went to the site of fire and saw the respondents there while they were setting such fire. On which he brought the respondents to the check post, from where the deceased respondent no. 2 fled away while a matchbox was recovered from the possession of the respondent no. 1. He also said that after preparing the Panchanama, (Ex.P-1) and Seizure Memo, (Ex.P-2), a POR No. 21253/8 (Ex.P-3) with respect of the Forests Offence was registered against the respondents by him. On scrutinizing the depositions of in chief of this witness. It is apparent that he went to the place of fire after seeing the same from the check post and, therefore, before reaching this witness to the place of the Incident, the alleged fire had already taken place. So it could not be assumed that in presence of this witness the respondents or any of them were setting fire in the Forests. So the deposition of this witness does not say specifically whether he saw the first fire in the Forests which had already taken place or he saw the respondents while they were setting such fire in the alleged Forests. Mere on seizure of the matchbox from the respondent no. 1, although such seizure memo has not been proved by the independent witnesses of the same, no inference could be drawn against the respondents or any of them that the alleged fire was made by them. So in such premises mere on the testimony of this witness, the respondents could not be convicted for the alleged offence. So far other examined prosecution witnesses Samli, (PW-2) and Rammi, (PW-3) are concerned, any of them has not made any direct allegation against any of the respondents saying the alleged fire was set by any of them. Even otherwise the depositions of these witnesses are also on the same line as the deposition of Chandrabhan. So such evidence of said Forests Officials, should not be said to be sufficient to hold conviction against the respondents.

Apart the above the other examined prosecution withnesses namely Mannelal, (PW-5), Hannu, (PW-6), Bhagga, (PW-7) and Munna (PW-8) on recording their deposition any of them have not supported to the prosecution case. One official of the Forests Department, namely Tulsi Das Dubey, (PW-4) has also not made any direct allegation against any of the respondents for setting alleged fire by them in the Reserved Forests.

True it is that with respect of the alleged Forests Offence a POR, (Ex.P-3) under the Act was registered by Chandrabhan but subsequently what happened of the case of such POR has not been proved on record. Whether any of the respondents was held guilty under such offence or not. Thus, merely on the basis of POR (Ex. P-3), no inference could be drawn against any of the respondents.

On going through the impugned judgment, it is apparent that considering the aforesaid all circumstances, the trial court has after holding that the prosecution has utterly failed to prove the case against the respondents beyond reasonable doubt, acquitted them. In the available circumstances, as discussed above, such approach does not appear to be contrary to available evidence or any existing law.

It is settled proposition of law that on appreciation of evidence if two views are possible and out of them, if view favourable to the accused has already been adopted by the trial court, then in routine manner by appreciation of the evidence the another view should not be replaced by the appellate courts laid down by the Apex Court in the matter of Rukia Beeum Vs. State of Karnataka with Rukia Begum Vs. State of Karnataka, in which it was held as under:-

8.....................It is trite that where two views on the evidence are reasonably possible and the trial court has taken a view favouring acquittal, the High Court in an appeal against acquittal should not disturb the same merely one the ground that if it was trying the case, it would have taken an alternative view and convicted the accused. The High court while hearing appeal against the judgment of acquittal is possessed of all the power of appellate court and nothing prevents it to appraise evidence and come to a conclusion different than that of the trial court but while doing so it shall bear in mind that presumption of innocence is further reinforced by acquittal of the accused by the trial court. The view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. There must be compelling and weighty reason for the High Court to come to a conclusion different than that of the trial court. The view taken by the trial court was justified in the facts and circumstances of the case and a possible view and, therefore in our opinion, the High Court erred in setting aside their acquittal.........

The aforesaid view has been further reiterated by the Apex court in the matter of Bhaiyamiyan @ Jardar Khan and Another Vs. State of Madhya Pradesh, in which it was held as under:-

At the very outset we must remark that the High Court''s interference in an appeal against acquittal is somewhat circumscribed and if the view taken by the trial court was possible on the evidence, the High Court should stay its hands and not interfere in the matter in the brief that if it had been in trial court, it might have taken a different view. In other words if two views are possible and the trial court has taken one, the High Court should not interfere in the judgement of the trial court.

So in view of the aforesaid principle also the impugned judgement is not found to be faulted.

Apart the above, if apparent inconsistency is found in the deposition of the witness recorded in the trail as one stage he has stated something about such fact and at other stage of the same deposition, he stated contrary to such earlier version, then the deposition of such witness is not safe to hold the convition against the accused as laid down by the Apex Court in the matter of Suraj Mal Vs. State (Delhi Administration), , in which it was held as under-

..................it is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two states, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no convition can be based on the evidence of such witnesses..............

In view of the aforesaid on examining the case at hand, it is apparent that Chandrabhan, (P W-1) has made contradictory statement at different stage of same deposition, as discussed above, then in view of the cited case the deposition of this witness could not be a foundation to hold the conviction against the respondents. In view of the aforesaid, I have not found any perversity, infirmity or any illegality in the impugned judgment of the trial court extending acquittal to the respondents from the charge of aforesaid offence. Consequently by affirming the judgment of the trial court, this appeal being devoid of any merits, is hereby dismissed.