RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.206 OF 2001 (OLD NO.1672 OF 1998) State of Uttarakhand ……… Appellant Versus Gyan Singh and another ……… Respondents Dated: October 21, 2010 Mr. T.C. Agarwal, Addl. GA for the State Mr. U.P.S. Negi, Advocate holding brief of Mr. G.S. Negi, Advocate for the respondents HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 26.11.1997 passed by Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No.1287 of 1995, State v. Gyan Singh and another, whereby the learned C.J.M. acquitted the respondents from the charges levelled against them. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 28.7.1994 Rajendra Singh lodged a First Information Report before Patti Patwari Kandarsyu IV stating therein that the respondents are residents of Village Tilla where a Pulia was being constructed by Village Panchayat Pauri and in which wheat was to be distributed along with cash to the labourers. For this work, about 40 quintals of wheat was given to the respondent Gyan Singh who had a fair price shop at Village Tilla. It is alleged that the respondents distributed wheat without obtaining coupon from the concerned department. It is further alleged that the respondents has misused government wheat by distributing them without coupon. With these averments, the FIR was lodged by Rajendra Singh, Executive Engineer, that FIR is Ext.Ka-6. On the basis of this FIR, chik FIR of the case was prepared, i.e. Ext.Ka-7 and necessary entries were also made in the G.D. copy of which is Ext.Ka-8. The investigation of the case was conducted by Kundan Singh Patti Patwari Kandarsyu-IV (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). During the course of investigation, the I.O. prepared the site-plans i.e. Ext.Ka-9 and Ka-10 and recorded the statement of witnesses and on completion of investigation, filed the charge sheet against the respondents, i.e. Ext.Ka-13. 4. On 4.3.1997, learned C.J.M., Pauri framed the charge of offence punishable under Sections 409 and 468 of IPC against the respondents. The charge was read over and explained to the respondents, who pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has examined PW1 Ramakant Bhatnagar, PW2 Rajendra Singh Bisht, PW3 Vijay Singh, PW4 Sobat Singh and PW5 Kundan Singh. 6. Thereafter the statement of the respondents were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who has denied the allegations made against them. However, 2 they have not produced any oral or documentary evidence in defence. 7. PW1 Ramakant Bhatnagar was posted as District Supply Officer at Pauri from the period 1992 to August 1996. In examination-in-chief, he has supported the contents of FIR. However, in cross-examination, he stated that the respondent had not used wheat for his own purpose. 8. PW2 Rajendra Singh is the complainant of the case. He has reiterated the contents of FIR in his examination-in-chief. In cross-examination, he stated that neither he had annexed the list of labourers with the FIR nor he had told their names to I.O. He also stated the wages of the labourers have been paid and the same were paid before Village Pradhan. He further stated that he had not enquired whether the wheat was given to labourers or not. He further stated that no arrear of the labourers are due on the department. He further stated that the coupons were departmental and were not filed in records. 9. PW3 Vijay Singh has stated that his wife had also worked in the said project and she had not received any coupon. He also stated that wheat in the ratio of 30 kilograms/per person was distributed to the labourers before the Villagers. This witness has not supported the prosecution case and was declared hostile. 10. PW4 Sobat Singh has also not supported the prosecution case and was declared hostile. 11. PW5 Kundan Singh is the I.O. of the case. During the course of investigation, he recorded the 3 statement of witnesses, prepared the site-plans and after completing the investigation, filed the charge sheet against the respondents. In cross-examination, he stated that neither he has received any inquiry report nor the coupon issued by Jila Parishad were given to him and nor the list of labourers was given to him, during investigation. 12. Sri T.C. Agarwal, learned Additional Government Advocate for the State/appellant argued that the impugned judgment and order passed by court below is not correct and justified as per the evidence produced by the prosecution. Per contra, Sri U.P.S. Negi, learned counsel appearing for the respondents, while supporting the impugned judgment and order, argued that the prosecution has not proved its case beyond reasonable doubt against the respondents. I find force in the argument put forth by learned counsel for the respondents due to following reasons:- a) That it is alleged that wheat was not distributed to those labourers who were entitled for it. But neither PW1 Ramakant Bhatnagar nor PW2 Rajendra Singh have disclosed the names of those laboureres who were in fact entitled to get that wheat. They have also not supplied the list of labourers to the Patwari during investigation and even there is no iota of evidence on record which can show that wheat was distributed to wrong persons by the respondents. b) That PW5 Kundan Singh, I.O. of the case has also stated that neither he has received any inquiry report nor the coupons issued by Jila Parishad were given to him and nor the list of labourers was given to him during investigation. 4 c) That PW1 Ramakant Bhatnagar has also stated in his cross-examination that wheat was not used by the respondents for their own use. d) There is no evidence on record that the coupons were distributed to the respondents by the department. e) That PW2 Rajendra Singh has stated in his cross- examination that wages were paid to the labourers. He also stated that he is not aware of the fact whether wheat was distributed to labourers or not. Besides this, he also admitted that no wage of the labourers was due on the department and even the labourers never made any complaint for wheat. f) PW3 Vijay Singh and PW4 Sobat Singh who were declared hostile by the trial court have stated that wheat was distributed to the persons who had worked as labourers in that Pulia. g) PW5 Kundan Singh has also admitted that during investigation nobody has complaint to him that he has not received wheat. 13. Besides the above, it is settled law that where two views are possible and one of the view is possible which was taken by the trial court, then the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly 5 unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be released forthwith if not required in connection with any other case. 14. On the basis of the evidence discussed above, I am of the view that the prosecution has been miserably failed to prove its case against the respondents beyond reasonable doubt. Further, when one view is also possible which was taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the interference with the judgment of the trial court at this stage is not warranted. The trial court was correct and justified in acquitting the respondents under the aforesaid sections and I also concur the view taken by the trial court. 15. Resultantly, the appeal preferred by the State lacks merit and is hereby dismissed. The judgment and 6 order dated 26.11.1997 passed by Chief Judicial Magistrate, Pauri Garhwal in Criminal Case No.1287 of 1995, State v. Gyan Singh and another, needs no interference by this Court and is hereby made affirmed. 16. Let the lower court record be sent back. (Dharam Veer, J.) 21.10.2010 RG 7