1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT (The State of Rajasthan V/s. Hoti Singh & Ors.) S.B.CRIMINAL APPEAL NO. 416/1988 Date of Judgment : 4th of February, 2008 PRESENTS. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. B.S. Chabba, Public Prosecutor. Mr. Praveen Balwada ] Mr. Yogendra Sharma ] Mr. Deepak Soni, ], for the respondents. This Criminal Appeal has been filed under Section 378 Cr.P.C. against the judgment dated 23rd November, 1987 passed by the learned Sessions Judge, Bharatpur in Sessions Case No. 93/87, whereby, the accused – respondents had been acquitted for the offence under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950. 2. Brief facts giving rise to this appeal are that one Mohan Singh lodged a report at Police Station Kotwali, Bharatpur on 9th February, 1987. It is stated in the report that as usual, in the morning the informant had taken his cow for grazing towards hotel Saras. It is also stated that at that time, informant was following 2 the cow at a distance and in the meanwhile she turned towards the fields of Maharaj Singh Subedar. It is further stated in the report that the accused had fired a gun and killed the cow. 3. On the said report, the police registered a case for the offence under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950. Thereafter, the investigation commenced and on conclusion of the same, challan was filed by the police against the accused – respondents for the offence indicated above. During the course of trial the prosecution had produced 5 witnesses in support of their case. Thereafter, the accused – respondents was examined under Section 313 Cr.P.C. wherein, they denied the charges and had stated that the prosecution has leveled false allegations against them, on account of enmity. On the conclusion of the trial the learned Sessions Court, having found that the prosecution has failed to prove his case for the offence referred to above acquitted the accused respondents vide his judgment dated 23rd November, 1987. 4. The learned Public Prosecutor has tried to assail the judgment impugned, on the ground that the learned trial Court has failed to appreciate the evidence produced on record by the prosecution. He has also stated that the prosecution has proved the guilt of the accused, beyond reasonable doubt but even then the learned court below has passed the order of acquittal which is 3 wholly erroneous. He has also submitted that even though the names of witnesses were not mentioned in the report sooner thereafter, the investigation agency had recorded the statements of the prosecution witnesses wherein, the details about the persons and the witnesses was very much disclosed. In the last learned public prosecutor has stated that the learned court below has erred in not relying upon the statements of Dr. Kali Charan. 5. On the other hand, the learned counsel for the accused- respondents has supported the judgment given by the learned court below and has submitted that the same has been passed after thoroughly considering each and every aspect of the matter and evidence of all the prosecution witnesses. The learned counsel for the accused – respondents submitted that so far as the respondent no. 1 Hot Singh is concerned, he was not even present at the time of incident and this has been very well accepted by the learned court below after taking into consideration the evidence on record produced by the defence, in respect of absent of accused from the village on the day of incident. 6. I have heard the rival submissions made by the parties and also perused the judgment passed by the learned Sessions Court on 23rd November, 1987. In this matter, the incident had taken place on 9th February, 1987 and the accused – respondents 4 are charged with the offence under Section 2 of the Rajasthan Preservation of Certain Animals Act, 1950. So far as, the accused – respondent no. 1 is concerned, the learned court below after taking into consideration the defence evidence had held that he was not present in the village on the day of incident and as such the prosecution evidence to the effect of commission of crime by him is not reliable. 7. The learned court below has considered in detail the statements of the Investigation Officer, Sahav Singh PW 5 and he has also taken note of the errors committed by him during the course of investigation. It is noteworthy that in the instance case even weapon of offence i.e. the alleged gun had not been recovered. The learned trial court has disbelieved the statement of Phoola Singh PW 3. Likewise, the learned court below has held the PW 4 Ram Prakash is a chance witness. 8. In view of the above finding given by the trial court, I am of the view that no interference is called for particularly for the reasons that the view taken by trial court is not perverse or erroneous. It is a settled principle of law that the trial court can more appropriately consider/assess the evidence of the witnesses before whom they are examined and that they had the advantage of examining the demeanour of the witnesses. Moreover, it is a 5 principle of criminal jurisprudence that a person is innocent and the said presumption of innocence in favour of the accused is fortified by the findings of the trial court. 9. In view of the aforesaid evidence on record, on the basis of which the learned trial court has arrived at the findings and also the principle of law, I do not consider it a fit case to interfere with the conclusion arrived at by the learned trial court. Needless to say if two views are possible even then the benefit is to be given to the accused in an appeal filed by the prosecution. 10. Consequently, the appeal is dismissed as devoid of any merit. (RAGHUVENDRA S. RATHORE),J. Makwana I.No. S-20