State of Madhya Pradesh (Now Chhattisgarh) I Samaru (dead) and others Vs. JUDGMENT C5 Post for .1 1 .2009 Lii, LA Sunil Kumar Sinha Judge Sdl- HIGH COURT OF CHHATTISGARH, BILASPUR ‘ Criminal Agpeal No. 445 of 1990 HIGH COURT OF CHHATTISGARH, BILASPUR SB: Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 445 of 1990 (Criminal Aggeal under'Section 37811! of The Code of ' Criminal Procedure} /’ ‘\ \ APPELLANT State of Madhya Pradesh (Now Chhattisgarh) Versus RESPONDENTS 1. Samaru, Son of Lochan Sahara, aged about 50 years, resident of Lakhadbari - Dead. Name deleted. V a 2. Hariram, son of Mahan Lal Kurmi, aged about 26 years, resident of Deoraj P.S. Damoh, Irrigation Department, Chhindwara, Present Address — Sub—Engineer, ' Pradhan Mantri Gram Sadak Yojna, Manendragarh, Distt. Korea, Baikunthpur (C.G). 3. Ram Sahay, s/o Tula Mishra, Lokpal — Discharged. Therefore, name deleted as per court order dated 08.09.2005. 4. Abhay Kumar, son of Shyam Rao Jathav, aged about 35 years, r/o Kerakal, Distt. Bastar (C.G. — Dead - Name deleted. 5. Bihari Lal, s/o “Narayandas about r/o Agrawal, aged 3‘5 years, Parsapali, presently at‘ Basna, P.S. Basna, Distt. Raipur (C.G). 6. Bhagwan Singh, son of Bansiram Rayast, aged about ’43 years, Tahsildar Dodilohara, Village Jabera, P.S. Charama, Distt. Bastar KLC.G). 2 Cr. Appeal. N0. 445 of 1990 i Appearance: Mr. Ajay Dwivedi, Deputy Govt. Advocate, fc:r the appellant/ State. Mr. Kunal Das, counsel for respondents 2, 5 81; 6. JUDGMENT ’ ( 7 .11.2oo9) Following judgment of the Court was delivered by Sunil‘K‘umar Sinha, J, (1) Being aggrieved with the judgment ofi acquittal dated 17.4.1989 passed in Criminal Case No.553/1983 by the Judicial Magistrate First Class, Baloda Bazar, Distt. Raipur, the State has filed this appeal with the leave of the Court. During the pendency of the appeal, Samaru, respondent no. 1 85 Biharilal, respondent no.4 have died, therefore their names have been deleted Whereas respondent no.3 namely Ram Sahay was discharged and was wrongly arrayed in the cause title, therefore, his name was also deleted. w: Q (2) The facts, briefly stated, are as under : The accused persons were charged u/ss 409 85 467 read with section 34 of the I.P.C. Accused Somaru was the Sarpanch of the Gram Panchayat Parasapali and accused Biharilal was Up—Sarpanch. Accused Hariram was working as Sub—Engineer and accused Bhagwan Singh and Abhay Kumar were in charge of Block Development Officers. The discharged accused namely Ram Sahay was the accountant. 3 Cr. Apgeal. No. 44S of 1990 The allegations were that they being the public servants committed criminal breach of trust as also forgery of valuable securities in furtherance of their common intention as they misappropriated public money amounting to Rs. 1,1 1,664. 14 p. by preparing forged muster rolls and also by making high valuation of the relief works which were conducted in the year 1980 in Gram Panchayat Parasapali. G According to the prosecution, the misappropriation was ‘d‘is‘covered when a revaluation of the work was done. The ‘ learned Magistrate held that the accused persons were public serv‘ants within the meaning of Section 21 of the Indian Penal Code. However, it was held that the prosecution failed to prove that in fact how much amount was entrusted to the accused ,i persons and it further failed to prove that the accused persons had misappropriated the public money or they got it by making high valuation of the work done. The learned Magistrate further held that it was also not established beyond reasonable doubt that any valuable securities were forged by them. Therefore, the learned Magistrate passed the judgment of t acquittal of the accused persons. ‘ gt (3) Mr. Ajay Dwivedi, learned Deputy Government Advocate, appearing on behalf of the appellant/State argued that the amounts in the muster rolls were shown to be paid to particular pegsons for their Vlabou‘r‘wworks but they were never paid, 3 therefore, the mus’ter rolls were. forged. He further argued that by showing false measurements of the work done, the public money was misappropriated by the accused persons who were 4 Cr. Aggeal. N0. 445 of 1990 measurements of the work done. I " (4) On the other hand, Mr. Kunal Das, learned counsel appearing‘on behalf of respondents 2, 5 85 6 opposed these arguments and supported the judgment of acquittal passed by the learned Magistrate. 15) We have heard learned counsel for the parties at length and have also perused the records of the trial Court. (6) Jo‘dhan (P.W.1) was a labourer Who claims to have worked in the relief work. His evidence was recorded on 20.11.1986. He deposed that he had worked as a labourer in the raelief work. His daughter and son namely Sohadra and Tiharuvlwere also going in the relief work. They worked there in the tank but the charges. He used to put his signature but he had never signed any document relating to payment of relief works. Other labourers namely Bharat, s/o Nanhu (P.W.3), Narsingh (P.W.5), Kartik (P.W. 6), Banau (P.W.7), lndu Bai (P.W.8), Bharat, s/o Budhirfm (P.W.9), Parmanand (P.W.lO) and Battulal (P.W.ll) have also been examined. Out of them Banau (P.W.7) has been declared hostile and he has been cross examined by the Public Prosecutor but nothing material could be brought on record in his cross—examination to support the case of prosecution. On “the contrary, he admitted in the cross examination by the defence that he was paid the amount of labour charges for the days on which he had worked in the relief works. . (8) After going through the evidence of these witnesses, it accused persons. The evidence of these witnesses are vague and general Without giving any specification. The relief works were undertaken in the year 1980 Whereas the witnesses were n 6 Cr. Appeal. No. 445 of 1990 examined in the year 1986. Therefore, nothing material could have been inferred or determined on the evidence of these Witnesses. The alleged muster rolls have been proved as Ex.P.21 to P25. It has been proved by Suraj Bhan Namdeo (P.W.l3) who was a clerk in the office of Collector, Raipur. He deposed that on 11.01.1980, Police Bilaigarh had seized certain documents from the office of Collector and had prepared a seizure memo (Ex.P.8), which bears his signature. He has also at‘ proved a receipt (Ex.P.9) which was seized by the Police and was the counter—foil of the amount received from‘the Government Account by Sarpanch Samarulal. The Documents particularly the muster rolls which were seized from the possession of this witness were available on record but the above witnesses among P.W.1 to P.W.11 were not faced With the relevant entries of the muster rolls showing the alleged false payments made to them by the accused persons thereby preparing a false muster roll on their names. 47F v r s . (9) The learned Magistrate has also observed vide para 24 of ,4 the impugned Judgment that no handwriting expert was examined by the prosecution to prove that the thumb impressions/signatures over the muster rolls were false or were not of those persons against whose names they have been shown. Therefore, merely oh the basis of the statement of few "\ \ persons after 5—6 years that they had not received the amount . of their labour work, it cannot be held that the accused persons V/ had misappropriated the amount by forging the muster rolls. ’ 7 Cr. Appeal. No. 445 of 1990 (10) So far as the false measurements of the work done showing high valuation are concerned, the prosecution has ’ examined Mr. A.K. Shrivastava (P.W.24). He deposed thatq in the year 1982 he was working as Sub—Divisional Officer in R.E.S. Mahasamund. He has conducted the revaluation of the relief works of Bhilaigarh area. The Collector has ordered for the revaluation. After the revaluation, he has submitted his report p EX.P.4§.‘ He admitted in the cross examination that during revaluation, he had not given any notice to Mr. Rayasth, Mr. Patel or Mr. Biharilal. They were not present at the time of the re—measurement. He admitted that according to the practice, the persons whose works are to be revalued are required to remain present at the time of such measurement. Therefore, it is clear that the revaluation or the re—measurement was done by this witness behind the back of the accused persons. The learned trial Judge has observed that when the difference comes in the measurement in such manner, the matter is referred to the high authorities. It is not in dispute that works conducted under the relief operations were the earth works and the second measurements were taken after a long time and two rainy seasons had passed prior to revaluation after completion of the work. In the earth work, after some time, some difference is bo'und to come after the rainy seasons. It is in this state of evidence, the learned trial Judge has held that the prosecution has failed to prove its case on this aspect also that false "*\wmL .~\ K/Z’Jg’m 8 Cr. Appeal. No. 445 of 1990 measurements were recorded by the accused persons and payments were made against such measurements. G [11) In Budh Singh and others Vs. State of U.P. (2006) 9 SCC 731, the Apex Court held Vide para 9 that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two Views are possible, although the View of the Appellate Court is a more l proba‘b‘le one. However, While dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a-finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law, Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the i a appellate Court. s \ (12) In V.N. Ratheesh Vs. State of Kerala, AIR 2006 SC 2667, the Apex Court held that 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 0f innocence of the ; accused is further strengthened by acquittal. The Apex Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views Tlf‘ l l k i 9 Cr. Appeal. N0. 445 of 1990 are possible on the evidence adduced in the case, one pointing to the guilty of the accused and other to his innocence, the View which is favourable to the accused should be adopted. The Apex Court further said that 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 ‘ d the Appellate 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. The Apex Court referred to the decision rendered in the matter of Bhagwan Singh and others —vs- State of Madhya Pradesh (2002 (2) Supreme 567). It was further held that the principle to be followed by 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. (13) I have gone through the entire evidence on record with a View to find out as to whether the Views of trial Court were perverse or otherwise unsustainable. After going through the entire evidence available on record, I do not find any compelling J and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to 10 Cr. Appeal. N0. 445 of 1990 be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. \ ¥\¥ (14) In the facts and circumstances, I do not find the findings of the trial court to be perverse or otherwise unsustainable. The trial Court has considered all admissible evidence and has taken into consideration the entire evidence brought on record. It does not appear that present is a case in which miscarriage of t justie‘e‘ has occurred on account of acquittal of the accused persons. All the convincing and relevant materials have been taken into consideration and the judgment of acquittal has been passed. (15) I do not find any reason to interfere with the judgment of acquittal passed by the trial Court. The appeal has no merits. The same is liable to be dismissed and is hereby dismissed. Sd/ L Sunil Kumar Sinha - Judge ,4 a Rao ii 1‘ §