Crl.A. 71/2010 BEFORE THE HON’BLE MR JUSTICE B.D. AGARWAL The gauhati high Court (the high court of assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & aruna chal Pradesh) (PRINCIPAL SEAT AT GUWAHATI) cRL. APPEAL no. 71 of 2010 Shri Santosh Kumar More, Son of late Nagarmal More, Resident of Khutikhatia, Haibargaon, Dist.- Nagaon, Assam. & & & & & & &.Appellant. -Vs- 1. Shri Pawan Kumar More, Son of Late Tarachand More, Resident of Khutikhatia, Haibargaon, Dist.- Nagaon, Assam. 2. The State of Assam. & & & & & &.Opposite Par s. BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL. For the appellant : Mr. G.N. Sahewalla, Sr. Advocate, Mr. Pran Kumar Bora, Md. Aslam, Mr. B. Sarma, Ms. K. Katia, Advocates, For the Opposite Parties : Mr. M.H. Choudhury, Ms. L.N. Choudhury, Mr. N. Islam Khan, Advocates, for R/ No. 1. Mr. B. S. Sinha, Addl. P.P. for R/No. 2. Date of hearing : 30.03.2011 & 31.03.2011. Date of judgement : 31.03.2011. JUDGEMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 1 0.2.2010 passed by the learned Chief Judicial Magistrate, Nagaon, Assam in C.R. Case No. 1877/2007. [2] By this impugned judgment, the learned Magistrate has acquitted the accused/ opposite party No. 1 from the offence under Section 379/427 of the IPC. Hence, this appeal is at the instance of the complainant. [3] Heard Mr. Pran Kumar Bora, learned counsel for the appellant and Mr. MH Choudhury, learned counsel for the respondent/ Opposite Party No. 1. Als o heard Mr. B.S. Sinha learned Addl. P.P. for the State respondent/ opposite Par ty No. 2. [4] The appeal was heard yesterday and today to find out whether the appeal has any merit to be admitted. In this regard Shri Bora, learned counsel for the appellant submitted that since leave has been granted by this court, th e appeal has to be admitted as a matter of right. In my opinion, at the time of granting leave, the court examines the case for limited purpose to ascertain whe ther there is any material to review the legality and correctness of the judgmen t of acquittal. However, when the appeal is taken up for admission and that too after hearing the learned counsel for the accused, the court can go a little dee p in the facts and circumstances of the case, even before admitting the appeal. In this way, I am of the view that the admission of the appeal is not automatic just because leave has been granted to the appellant. Even then, for the satisfa ction of the learned counsel for the appellant, I have gone through all the docu ments like complaint petition, judgment of the trial court and also evidence pre ferred on behalf of the complainant, placed before me during the course of admis sion hearing. [5] Admittedly, this appeal is against the judgment of acquittal. Th e law with regard to interference of the High Court against the judgment of acqu ittal is well settled. Nearly six decades ago, in the case of Surajpal Singh Vs . State, reported in 1952 Crl. L J 331 (MANU/ SC/0033/1951), it was held that p resumption of innocence of the accused is further reinforced by his acquittal by the trial court and such order of acquittal could be reversed only for very sub stantive and compelling reasons. This view has also been reiterated by the Apex Court in a series of judgments. [6] In the case of Chandrappa & Ors Vs. State of Karnataka, reporte d in (2007) 4 SCC 415, the Hon’ble Supreme Court was called upon to examine cont ours of High Courts power to review a judgment of acquittal by way of reapprecia ting evidence on facts. After surveying various authorities on the issue the ape x court laid down the following principles, while dealing an appeal against acqu ittal: 29. Recently, in Kallu v. State of M.P. MANU/SC/0271/2006: 2006 Crl. L. J.799, this Court stated, While deciding an appeal against the acquittal, the p ower of the Appellate Court is not less than the power exercised while hearing a ppeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acq uittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plaus ible. It will not reverse the decision of the trial court merely because a diffe rent view is possible. The appellant court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should a ssign reasons for differing with the decision of the trial court (Emphasis supplied) 30. From the above decision, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal agai nst an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or cond ition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, ’substantial and compelling reasons’, ’go od and sufficient grounds’, ’very strong circumstances’, ’distorted conclusions’ , ’glaring mistakes’, etc. are not intended to curtail extensive powers of an ap pellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ’flourishes of language’ to emphasize the reluctance of an appellate Court in interfere with acquittal than to curtail the power of the Court to revi ew the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, t here is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurispru dence that every person shall be presumed to be innocent unless he is proved gui lty by a competent court of law. Secondly, the accused having secured his acquit tal, the presumption of his innocence is further reinforced, reaffirmed and stre ngthened by the trial court. (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. [7] In the case of Johar and Ors Vs. Mangal Prasad & anothers, repor ted in (2008) 3 SCC 423, the Hon’ble Supreme Court has again observed that on gi ven facts if two views are possible, the view going in favour of the accused sho uld be accepted. Their Lordships have further held that if the trial court’s jud gment is not found to be a perverse one, the High Court should not interfere in its revisional jurisdiction. [8] In the case before me, both parties are brothers and they have a boundary dispute. The complaint was lodged by the petitioner alleging that the accused had demolished the complainant’s boundary wall and also took away 10 (te n) quintals of iron rod, causing loss of Rs. 50,000/- (Rupees fifty thousand) on ly. It may be mentioned here that not only a criminal proceeding under Section 1 45 of the Cr.P.C. was pending at the relevant time but a civil suit was also pen ding, involving the complainant and the accused. In this way, there appears to b e a dispute about the title and possession of a strip of land. This fact has bee n taken into consideration by the learned Chief Judicial Magistrate, while recor ding the judgment of acquittal. [9] Apart from the pendency of proceeding under Section 145 of the C r. P.C. and the civil suit, there are scores of other deficiencies and discrepan cies in the present case, on the basis of which the impugned judgment deserves t o be affirmed. Some of the salient features of the present case are noted below. [10] Apparently, the instant dispute took place in between 6-30 to 7. 00 a.m. on 14.7.2007 but the complaint was lodged on 16.7.2007. In the complaint itself, an explanation has been given about the delay by stating that during th e intervening period, the court was closed. However, in his cross-examination, t he complainant (PW-1) has admitted that the Police Station was situated at a dis tance of half a kilometer from the disputed site. Besides this, according to the complainant the demolition of the wall took more than 1 (one) hour. Under such circumstances, it is not understood as to why the complainant did not file any F IR at the Police Station. In the cross examination, PW-1 has given a casual stat ement that the incident was orally reported to the Police Station. Since the com plainant was a literate person and since the disputed site was situated in Nagao n town and few meters away from the Police Station, it would have been proper fo r the complainant to lodge a written FIR in the Police Station on the same day. [11] In the complaint petition, three persons, other than the complai nant, were cited as witnesses. Out of these three persons, only one person (PW 2 ) was examined. In other words, the complainant did not examine the other two pe rsons. From this fact also adverse inference can be drawn against the complainan t that a fabricated case has been lodged or at least the facts have been exagger ated. However, the complainant examined a non-listed person as PW-3 and this wit ness has stated that he was engaged by the complainant to supply earth in his co mpound and on the relevant day at about 7.00 a.m. when he went to the house of t he complainant for delivery of earth, then he found that the passage was blocked and gate was closed. According to PW 3, he saw from the body of the truck that the accused and his labourers were demolishing the boundary wall and took away b roken materials. [12] Since PW- 3 was engaged by the complainant for delivery of earth he can also be brought in the category of interested witness. Besides this, he was also not cited as a witness in the complaint petition. This apart, PW- 3 ha s also not said anything as to how long he waited at the scene and as to whether he met the complainant at all after the incident. In this way, PW- 3 is also no t a reliable witness. Besides this, according to P.W. 3 broken materials were ta ken away, whereas according to the complainant unused 10 (ten) quintals of iron rod were taken. [13] As noted earlier in the complaint petition the allegation is tha t the accused had demolished the boundary wall of the complainant. However, in t he cross-examination, the complainant (PW-1) himself has admitted that his bound ary wall still exists. PW-2 has also admitted in his cross examination that the boundary wall of the complainant was not demolished and there was another wall a djoining to the compound of the complainant and the accused and that wall was de molished. In this way, deposition of PW 2 is contradictory to the averments made in the complaint petition and also that of PW 1. [14] With regard to the stealing of iron materials, no attempt was ma de by the complainant to obtain a search warrant from the court for recovery of the stolen goods. Besides this, there is also discrepancy in the evidence regard ing removal of unused/fresh materials or demolished goods. [15] Shri Pran Bora, the learned counsel for the appellant relied upo n the judgment of the Hon’ble Supreme Court, rendered in the case of A.E. Rani V s. R. Sarma; reported in (1995) 1 SCC 627, to advance his argument that there is no bar to proceed with a criminal proceeding or convicting an accused for a cri minal offence, despite pendency of civil suit. There can be no dispute with rega rd to the aforesaid legal position. However, the aforesaid authority is based on powers of High Court under Section 482 of the Cr. P.C. for quashing a criminal proceeding, whereas, in the present case, I am examining a judgment of acquittal . In this way, the judgment cited by the learned counsel for the appellant is no t applicable in the present case. [16] For the foregoing reasons, I hold that it is not a fit case wher e the impugned judgment of acquittal should be interfered with by this court. A ccordingly, the appeal stands dismissed at the admission stage.