IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No.721 of 2001. Date of decision:23.3.2009. State of H.P. …Appellant Versus Shanti Swarup & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.J.S. Rana, Assistant Advocate General. For the Respondents: Mr.Ajay Kochar, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment passed by the learned Special Judge(Forests), Shimla, in Corruption case No.1-S/7 of 1996, acquitting the respondents of charges under Sections 218, 420, 120-B of the Indian Penal Code read with Rule 18/20 of the H.P. Forest Produce Transit(Land Routes) Rules, 1978 and under Section 5(2) of the Prevention of Corruption Act. The respondents were charged for these offences on the allegation inter alia that they had conspired to export excess timber in violation of the Himachal Pradesh Forest Transit(Land 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Routes) Rules, 1978 and the provisions of law as already noticed which also include causing of illegal and unlawful loss to the State. The learned Special Judge, on the evidence on record found that the defence evidence, consisting of DW-1 Shri T.K. Sharma and DW-2 Shri K.C. Nandwani, (who proved on record the inquiry report Ex.DW-1/A, seizure memo Ex.DW-2/A as also the list of export permits Ex.DW-2/B), the case of the prosecution was not established. The learned Court, in particular, made reference to export permit No.53/81-82 which was mentioned at Sr.No.47 of Ex.DW-2/B wherein the permit was issued on 13.1.1982 in the name of Jiwan Singh. The expiry date was mentioned as 30.5.1982 and the number of scants authorized to be exported as 570. The Court noticed specifically that the authenticity or truthfulness of this export permit mentioned at Sr.No.47 of the Ex.DW-2/B has not been challenged by cross-examining DW-2. In-fact this witness had not been cross-examined at all. The Court also considered the inquiry report Ex.DW-1/A which did not find any illegality in the export permit as noticed hereinbefore and the number of scants exported vide the permit. This witness was posted as Vigilance Inspector in the Railway Board, Delhi at the relevant time and had conducted the inquiry at a number of Railway Stations including Shoghi for the period of the validity of the permit ibid and all details of this export permit at Sr.No.47 of Ex.DW-2/A. He specifically stated in his evidence that report Ex.DW-1/A clearly states that there was no illegality either in the reception, storing or export of timber with reference to the timber 3 of export permit No.53/81-82 at Sr.No.47 of Ex.DW-2/A (hereinafter referred to as the “permit Ex.DW-2/A”) which authorized respondent No.3 to export 570 scants. The Court also referred to the evidence of PW-6 Daya Nand, who was posted as Superintendent in the office of Divisional Forest Officer, Chopal, who tried to prove the summoned record but admitted in cross- examination that he did not know the number of pages in the file which dealt with the issue and renewal of export permits and which was not complete nor the pages arranged in seriatim. He was also not sure as to how many permits etc. were issued/renewed to various owners. The learned trial Court held that in the absence of challenge to the authenticity of the permit Ex.DW-2/A, it was not possible to hold that on the strength of the export permit Ex.PW- 6/A and its extension Ex.PW-6/M that any guilt could be fastened on the accused who were given the benefit of doubt. Shri J.S. Rana, learned Assistant Advocate General, has urged with vehemence that the onus of proving the fact that proper and valid export permit has been issued was on the respondents. He submits that the evidence on record is sufficient to establish the guilt of the respondents, more especially when the number of scants exported have been established on the record. The arguments though attractive, cannot be countenanced for the reasons that DW-1 Shri T.K. Sharma who was the Vigilance Inspector, as noticed, was not cross-examined on any aspect of the matter. In-fact he was not subjected to any cross- examination. He was the person who had seized not only the 4 permit Ex.DW-2/A which established the innocence of the respondent, but as many as 254 permits in all. He was categoric in his statement that he did not find any malfeasance/misfeasance of criminal intent on the part of the respondents as the permit Ex.DW- 2/A authorizing the export of 570 scants was in order. The evidence of DW-2 Shri K.C. Nandwani whose statement has remained unchallenged throughout, thereby accepting and corroborating contents in Ex.DW-1/A exonerating the respondent of all wrong doing with respect to the export of 570 scants according to the Ex.DW-2/A, coupled with the evidence of PW-6 who has been unable to prove the record but has been able to establish that it has been maintained in a very un-satisfactory manner, there can be no doubt that the prosecution has not been able to establish its case beyond reasonable doubt and the learned Sessions Judge was correct in holding that no guilt has been established. I need not repeat that the law is now well settled that in appeal against acquittal, the judgment cannot be upset merely because another view is possible. Such view at all has to be firmly established by the facts on record. It is also by now well settled that the appellate Court has wide powers to review the findings of the Court below and arrived at its own conclusion and can re- appreciate the evidence. This power is to be exercised with care and caution and the appellate Court should attach due weight to the lower Court’s acquittal. In Mohadeo Laxman Sarane and Another vs. State of Maharashtra, (2007)12 SCC 705, the Supreme Court held:- 5 “20. We have heard counsel for the parties at length. We are conscious of the settled legal position that in an appeal against acquittal the High Court ought not to interfere with the order of acquittal if on the basis of the same evidence two views are reasonably possible – one in favour of the accused and the other against him. In such a case if the trial court takes a view in favour of the accused, the High Court ought not to interfere with the order of acquittal. However, if the judgment of acquittal is perverse or highly unreasonable or the trial court records a finding of acquittal on the basis of irrelevant or inadmissible evidence, the High Court, if it reaches a conclusion that on the evidence on record it is not reasonably possible to take another view, it may be justified in setting aside the order of acquittal. We are of the view that this case the High Court was justified in setting aside the order of acquittal.” In K.Prakashan vs. P.K. Surenderan (2008)1 SCC 258 the Court held: “22. It is now trite that if two view are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court’s jurisdiction to interfere is limited. (See: M.s. Narayana Menon (2006)6 SCC 39 and Mahadeo Laxman Sarane vs. State of Maharashtra (2007)12 SCC 705.) … … … … … … … … “ 6 Further in Ghurey Lal vs. State of Uttar Pradesh (2008)10 SCC 450, it was held that though the appellate Court can review the evidence against acquittal under Section 378 and 386 of the Code of Criminal Procedure where such powers are wide and the evidence can be re-appreciated, but interference has to be in a very substantial and compelling reasons as illustrated therein, namely, that the conclusion with respect to the facts are wrong, the trial Court’s decision is based on an erroneous view of law, the judgment is likely to result in grave miscarriage of justice, the approach of the trial Court is patently illegal etc. and the Court has ignored the evidence or misread material evidence on the record etc. It is these principles which are to be applied and the case brought within the four corners of law. Applying these principles in the present case, I do not find any perversity, illegality or mis-appreciation of evidence. The Court has correctly appreciated the burden of proof and the standard of proof required for finding a person guilty of an offence, coupled with the non-explanation coming forth as to why DW-2, Shri K.C. Nandwani, has not been cross-examined at all when his evidence led to only one conclusion that the respondents were innocent as also the fact that the evidence of PW-6, Shri Daya Nand, who was working as Forest official at the relevant time, is destructive to the entire case of the prosecution, there is no perversity or illegality in the judgment. 7 Merely because I was urged to take another view, I cannot persuade myself to h old that this is a case where there is any perversity of appreciation of evidence or a state of affairs exists which lead to only one conclusion which is the guilt of the accused. The fundamental principle of Criminal Law that the fact alleged must be proved beyond reasonable doubt, has not been established on the record. In the facts and circumstances of the case, there is no perversity in the findings recorded by the learned trial Court. This appeal is accordingly dismissed. There shall be no order as to costs. March 23, 2009. (Dev Darshan Sud) (aks) Judge.