1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Criminal Appeal No. 417/1983 State of Rajasthan Versus Motu. Date of Judgment: 08.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Raghuvendra S. Rathore,J. Ms. Rekha Madnani, Public Prosecutor, for the appellant. Mr. Vijayant Nirwan, for the respondent. (Oral) Heard learned counsel for the parties. 2. This appeal, on behalf of State of Rajasthan, is directed against the impugned judgment and order dated 24th July, 1982 passed by Sessions Judge, Kota in Sessions Case No. 121/1981 whereby the accused respondent was acquitted from the charges levelled against him for the offences under Sections 302 and 201 IPC. 3. Briefly stated the facts of the case are that on 17th March, 1981 at about 10.00 A.M. a report in Rojnamcha was written at Police Station Anta, District Kota on the 2 basis of oral report given by Chittarlal son of Dulilal that yesterday at about 5.00 P.M. he had gone to his another house. His wife came at the house and his son Ramdayal aged about 10-12 years was at his house. When he reached at about 6.00, then his wife told him that Ramdayal inflicted an injury on the girl of Motu by throwing a small stone and on this Motu gave threatening to their son. He also abused and tried to catch him but their son ran away. Chittarlal, his brother and other relatives have searched Ramdayal but he could not be traced out. He is a student of Class III, therefore, he be searched. 4. On the basis of above report, one Shri Devi Prasad was directed to search the missing boy. On next day, i.e. 18th March, 1981, S.H.O. Madan Lal registered a written report Marg wherein it was mentioned that when he reached near Well of Chandra Sahai Bhatnagar while searching Ramdayal, he saw number of persons standing there. Thereafter a dead body was also recovered from the said well. Thereafter an F.I.R. under Section 174 Cr.P.C. was registered and investigation commenced. Subsequently, on 23rd March, 1981 chalked F.I.R. No. 21/81 was registered under 3 Section 302 IPC. During investigation of the case, the statements of certain persons were recorded under Section 161 Cr.P.C. Post Mortem Report dated 18th March, 1981 was also collected wherein the Medical Board opined that the death has been caused due to Asphyxia. After completion of investigation, the police filed a charge sheet against the accused respondent for the offences under Sections 302 and 201 IPC. The case was committed for trial to the Court of Sessions Judge who framed charge for the above offences. The accused denied the charge and claimed trial. In support of its case, the prosecution examined 14 witnesses. Thereafter the statement of the accused was recorded under Section 313 Cr.P.C. and in defence the accused examined 4 witnesses. The trial court after considering the evidence and submissions of the parties acquitted the accused respondent from the charge levelled against him. 5. Learned Public Prosecutor contended that it was a case wherein motive to commit murder was established. There was last seen evidence against the accused. The recovery of shoe and Gilol of the deceased was made as 4 per information furnished by the accused, while in custody. There was a chain of evidence to connect the accused with the crime, but the trial court illegally acquitted the accused. Therefore, the impugned order of the trial court is liable set aside and the accused is liable to be convicted and sentenced. 6. Learned counsel for the respondent contended that in the present case the dead body of the deceased was recovered on 18th March, 1981 and no report was lodged for any offence till 23rd March, 1981, no explanation has been given for delay in lodging FIR, the name of the accused was not known to the prosecution also till 23rd March, 1981 and thereafter, also there is no last seen evidence of the accused with the deceased in the present case. The recovery of shoe and Gilol has been discarded by the trial court and rightly so. In these circumstances, the trial court was fully justified in acquitting the accused respondent. He further contended that the matter relates to the year 1981 and the accused was acquitted in the year 1982. He further contended that even if one view, as contended by learned Public Prosecutor, is 5 possible, on appreciation of the evidence and another view is also possible, as per the findings of the trial court, then in that event, the view, which is favourable to the accused, should be adopted as per the settled proposition of law and it being an appeal against an order of acquittal should not be allowed and be dismissed. 7. We have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 8. From the facts on record, it appears that on 16th March, 1981 the accused was playing “Kancha” which hit the daughter of the accused, who made a complaint to her father i.e. the accused and the accused asked the deceased as to why he hit his daughter by Kancha. It appears that the accused inflicted simple injury on the person of the deceased also and wanted to inflict more injuries, but the deceased ran away. From the prosecution evidence, It is clear that the accused remained in the village itself. On 17th March, 1981 when oral report was lodged in Rojnamcha, the father of the deceased Chittarlal did not mention that the 6 accused also ran behind his son. When prosecution witnesses including uncle and father of the deceased went to make an enquiry from the accused, he was present at his house and he told that he only asked the deceased as to why he hit a Kancha on his daughter and thereafter he is not aware as to where Ramdayal has gone. From the scrutiny of entire prosecution evidence including the statement of P.W.3 Kailash; P.W. 4 Gadul and P.W. 11 Chittarlal, there is no cogent evidence about last seen of accused with the deceased and the trial court was right in recording a finding that the last seen evidence against the accused is not proved in the facts and circumstances of the present case and on the appreciation of the evidence. 9. So far as the recovery of one shoe and Gilol is concerned, we are also of the view that the trial court was right in observing that information furnished by the accused itself is not proved, therefore, recoveries are also not proved in the present case. Even otherwise, on the basis of recovery of one shoe and Gilol, the accused cannot be connected with the crime. It is also relevant to mention that statements of 7 P.W. 3 Kailash; P.W. 4 Gidol; P.W. 5 Ramdas; P.W. 6 Chouthmal; P.W. 11 Chittarlal are contrary to their statements recorded under Section 161 Cr.P.C. Which is clear from Exhibits D-1 to D-3 and D-4(A). There is no doubt that the death of Ramdayal was homicidal death but from the prosecution evidence it is not proved beyond reasonable doubt that it was only the accused who has committed murder of Ramdayal. It is an admitted fact that there is no eye-witness in the present case and the entire case is based on circumstantial evidence, last seen evidence and recovery of articles which are not proved beyond all reasonable doubts. It is a case wherein the prosecution witnesses have improved their statements during trial which is clear from the comparation of their statements recorded before the Court as well as before investigating agency. Learned Public Prosecutor has been unable to point out any specific evidence which could be read against the accused beyond all reasonable doubts. Apart from above, it is also relevant to mention that it is a settled law that when two views are possible on appreciation of the evidence, the view which 8 is favourable to the accused should be adopted. In these circumstances, even if we accept the contentions of learned Public Prosecutor and come to a conclusion that one view on that basis is established, then it is also clear that another view taken by the trial court on appreciation of evidence is also possible and the same cannot be said to be illegal or perverse. Under these circumstances, when there are two views possible on the basis of appreciation of evidence, then the view which is favourable to the accused is liable to be accepted. Moreso, it is an appeal against an order of acquittal and the same cannot be interfered with unless there are some compelling reasons for the same. We do not find any compelling reason in the facts and circumstances of the present case so as to interfere in the order passed by the trial court. 10. In view of above discussion, we do not find any merit in this appeal and the same is accordingly dismissed. (Raghuvendra S. Rathore),J (Narendra Kumar Jain),J. Manoj