-===^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH M. Cr. C. N0. OF 200^°y^2J^ Cr.A. No. QF 2005 Appellant Applicant State of Chhattisgarh Through: The District IVtagistrate, Durg (CG) VERSUS ^ Non-Applicants Respondents ?d Qn s^-'s -/-T ^•'•\-ssr""'.. n—^"'V^T^^.•<-""" ;";^.(?p^^-A-^^^te 1. Tijau S/o Ramdayal Aged about 50 Years (at present aged about 6 1 Yrs) 2. Rain Singh S/o Laxman Singh Thakur at present aged about 43 Yrs. 3. Ram Naraya S/o Babulal Kurmi At present aged about 43 Yrs 4. Narayan S/o Kanshi Prasad Kurmi, At present aged about 45 Yrs. All R/o Village Ghatiya Kala, PS: Berla, Distt: Durg (CG) APPLICAION FOR GRANT OF LEAVE TO APPEAL UNDER SECTION 378 f3)^ AND MEMORANDUM OF APPEAL UNDER SECTION 378 fl) QF THE CODE OF CRIMINAL PROCEDURE, 1973. lU HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P. No. 232 of 2009 APPLICANT StateofChhattisgarh. VERSUS RESPONDENTS Tijau son Ramdayal and others. Shri Pravin Das GA for the applicant/State. APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 378(3) OF THE CODE OF CRIMINAL PROCEDURE. ORDER (04.11.2009) Heard on admission. Present petition is directed against the impugned judgment dated 4.7.2005 passed by the Judicial Magistrate First Class, Bemetara, District Durg in Criminal Case No. 238/2002 acquitting the respondents/accused of the offences under sections 353 and 392/34 ofthe Indian Penal Code. 2. Brief facts of the case are thaton the basis of written report dated 6.12.1994 lodged by J.R. Lahre, Naib Tehsildar, FIR (Ex. P-2) was registered on 8.12.1994. In the saidreport it was alleged that on 6.12.1994 a Revenue Recovery Camp was organized in village Ghatiakala by the Naib Tehsildar and two oxen, one Black & White TV and two cycles belonging to one Tejram were attached. It is further alleged that the attached articles where forcibly taken by the respondents/accused from the Camp itself and thus they have committed the aforesaid offences. 3. Counsel for the applicanVState submits that there was ample evidence available on record including the evidence of the complainant so as to convict the respondents/accused for the offences under sections 353 and 392/34 of the Indian Penal Code .<7. <2- but the Court below has committed a serious error in ignoring the same and thereby awarding acquittat in favour of the respondents. 4. Prosecution has examined 8 witnesses in support of its case. Statements of the respondents/accused were also recorded under Section 313 ofthe Code ofCriminal Procedure in which they denied the charges levelled against them and pleaded false implication in the case. 5. The Court below has acquitted the respondents of the aforesaid offences mainly on the ground that while issuing the warrant of attachment, proper procedure prescribed under the law has not been followed in this case. The other ground for acquittal taken by the Court below is that under the provisions of Section 147 of the Chhattisgarh Land Revenue Code, the livestock meant for agricultural work cannot be attached. The Court below has also held that the direction issued by the Additional Collector regarding recovery of the articles has also not been followed by the Naib Tehsitdar. The Court below has disbelieved the statement of Ramji (PW-1) on the ground that he being an employee of the Government may be an interested witness and therefore the same can be taken to be trustworthy. The Court below has further held that the evidence of Jhumuk (PW-7)and Tekram (PW-8) does not make it clear whether the respondents/accused had taken the oxen and TV after committing theft and in so doing they had threatened anyone of life or otherwise, and thus according to the court below the prosecution has been unable to prove its case beyond all reasonable doubt. The findings of the Court below acquitting the respondents/accused have been tested by this Court in the touchstone of the material collected by the prosecution and fortification of the same appears to be the only proper approach. 6. Thus after hearing counsel for the applicant/State and consjdering the material available on record as well as the elaborate \ judgment impugned passed by the Court below, and being very \ much conscious of the existing legal position that in an appeal F~" -I 3— against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favoured the accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, this Court is of the view that the judgment impugned acquitting the respondents/accused of the offences under sections 353 and 392/34 of the Indian Penal Code, is just and proper and does not warrant any interference by this Court. Accordingly, the leave as sought for by the applicanVState for registration of appeal against the judgment of acquittal is hereby refused. i Sd/- Pritinker Diwaker Judge