1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT D.B. CRIMINAL APPEAL No.66/1983 THE STATE OF RAJASTHAN V/s MANIYA DATE OF JUDGMENT ::: JANUARY 22, 2010 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Shri Javed Choudhary, Public Prosecutor, for appellant State. Shri S. Manjoor Ali, for accused respondent. BY THE COURT : (Per N.K. Jain, J.) Heard learned counsel for the parties and examined the impugned judgment as well as record of the trial court. The accused respondent was charged for the offence u/s 302, 420, 379, 404 and 201 of the Indian Penal Code. The trial court vide its impugned judgment dated 30.1.1982 acquitted the accused respondent from all the charges by giving him the benefit of doubt. A Parcha Bayan of Mota Mali father of Mohan, was recorded on 9.9.1980 that his son Mohan is missing since five days before Raksha Bandhan and on that basis, FIR was registered. The date of Raksha Bandhan 2 festival was 26.8.1980. After investigating of the case, the police filed the challan against the accused respondent. The prosecution examined PW 1 to PW 27 and also produced documentary evidence. Admittedly, there is no eye witness in the present case and the entire case is based on circumstantial evidence. So far as the evidence of last seen that accused was seen with deceased is concerned, the trial court has considered the statements of PW 1 Ladu, PW 2 Magliya and PW 12 Mst. Nandu but after appreciating their evidence, it is clear that there was no occasion for Mohan to go with accused Maniya. The number of infirmities are also there in the statements of PW 2 and PW 12 as discussed in detail in impugned judgment. Hence, the trial court rightly disbelieved the evidence of last seen of the deceased with accused. We have also examined the statements of PW 1, PW 2 and PW 12 and we also find number of infirmities in them. The learned Public Prosecutor also could not point out any infirmity, illegality or perversity in the said finding of the trial court. We do not find any cogent reason for 3 taking different view in this regard. The another circumstance to connect the accused with the crime was in respect of recovery of silver Karas, golden Murkies and clothes of the deceased. The trial court considered the statements of PW 19 Mota (father) and PW 20 Durga Lal, (brother of deceased) and also the statement of PW 25 Sushil Kumar Rawat, Judicial Magistrate who conducted the identification parade. PW 19 Mota did not identify the clothes and Karas as well as Murkies of the deceased. So far as PW 25 Shri Rawat is concerned, the trial court has observed that he did not conduct the identification parade in a proper manner. Although there was no malafide on the part of Shri Rawat and it was his ignorance or inadvertence that he did not add some articles of silver of identical nature which should have been added before getting the articles identified from the prosecution witnesses. Since these articles were not identified by father of deceased himself, therefore, the trial court rejected the prosecution evidence in this regard also. We have also examined the statements 4 of PW 19 Mota, PW 20 Durga Lal and PW 25 Shri Rawat and we do not find any illegality or perversity in the finding of the trial court in this regard. The learned Public Prosecutor is also unable to point out any illegality or perversity in the said finding. So far as the recovery of bones made at the instance of accused Maniya is concerned, it is clear from Ex. P 7, an information of the accused, that it was in the nature of confessional statement which cannot be admitted in evidence. Similar is the position in respect of information of relating to recovery of Gandasi, clothes etc. The confessional part of statement was excluded and remaining part was also disbelieved by the trial court. In this connection, it is relevant to mention that there is no positive or cogent reason to prove or connect that the bones were belonging to Mohan who is alleged to have been murdered by accused. There is no DNA test report available in this regard also. This is case of 1980 and it is just possible that the said facility was not easily available at that time. PW 26 Dr. 5 S.S. Kanodiya has failed to give his opinion regarding the time of death, regarding the alleged weapon of offence used, and also in respect of cause of death and for some pieces of bones, he admitted his inability to state as to whether they belonged to either male or female human being. In these circumstances, we are also of the view that there is no reliable and cogent evidence adduced on behalf of the prosecution to take a view that the said bones belonged to Mohan who is alleged to have been murdered. In these circumstances, we find that the trial court was absolutely right in acquitting the accused respondent from all the charges levelled against him. We are also conscious of this fact that this is an appeal against the order of acquittal. It is settled that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view of which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A 6 miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. The order of acquittal should not be interfered with by the appellate court unless there are compelling and substantial reasons for doing so. In this connection, we may refer to the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Bacchudas alias Balram & Ors. reported in AIR 2007 Supreme Court 1236. Para 9 of the judgment reproduced as under :- “9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellant court to re- appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan 7 Singh v. State of M.P. 2003(3) SCC 21). The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793); Ramesh Babulal Doshi v. State of Gujarat (1996(9) SCC 225); Jaswant Singh v. State of Haryana (2000 (4) SCC 484); Raj Kishore Jha v. State of Bihar (2003 (11) SCC 519); State of Punjab v. Karnail Singh (2003(11) SCC 271); State of Punjab v. Phola Singh (2003 (11) SCC 58); Suchand Pal v. Phani Pal (2003 (11) SCC 527) and Sachchey Lal Tiwari v. State of U.P. (2004(11) SCC 410).” In view of the above discussions, we do not find any infirmity, illegality or perversity in the impugned order passed by the trial court so as to interfere with the same. We do not find any merit in this appeal and same is accordingly dismissed being devoid of any merit. (Raghuvendra S. Rathore),J. (Narendra Kumar Jain), J. chauhan/