Hon'ble Aditya Nath Mittal,J.
(By Justice Aditya Nath Mittal) The State of U.P. has preferred this appeal against judgment and order dated 06.12.1991, passed by the First Additional Sessions Judge, Unnao, by which learned Additional Sessions Judge, Unnao has acquitted the respondent for the offence punishable under Section 409 Indian Penal Code in Criminal Appeal No.38 of 1991, Police Station-Kotwali, District-Unnao.
The brief facts as culled out from the pleadings of appeal are that on 19.09.1979, articles relating to Case Crime No.672 of 1979, under Section 161 Indian Penal Code and Section 5 (2) of Prevention of Corruption Act were deposited in Police Station-Kotwali,District-Unnao. At that time, Head Constable Girija Shankar Vipra was 'Malkhana' Moharrir. After retirement of Girija Shanker Vipra, the charge of 'Malkhana' was taken over by Head Constable 19 C.P. Kunwar Jaiveer Singh Chauhan, the accused-respondent. The articles of Case Crime No.672 of 1979 were entrusted to the accused-respondent on 09.12.1982 and an entry in this respect was made in the 'Malkhana' Register also. On checking, it was found that five Notes of Rs.10/- denominations, numbering 5/7 665759, 84F388903, 66P253551, 38T675396 and 13V332321 were missing. The said articles were entrusted to the accused and were in his custody. A First Information Report was lodged against the accused-respondent on 04.01.1984 by Circle Officer, City Sri Shitla Prasad at Police Station-Kotwali, District-Unnao. The case was investigated by Sri Beni Madhava Singh, who after completion of investigation, submitted charge-sheet against the accused-respondent under Section 409 I.P.C. The accused-respondent was charged under Section 409 I.P.C., to which, he denied and claimed trial. In support of his case, the prosecution examined PW-1 Head Constable Ram Asrey, PW-2 Head Constable Purushottam Narain Tandon, PW-3 Head Constable (retired) Girija Shankar, PW-4 Deputy Superintendent of Police S.P. Mishra and PW-5 Beni Madhava Singh (Investigating Officer). The prosecution also submitted all the relevant and necessary documents in support of his case.
The accused-respondent in his statement under Section 313 Cr.P.C. alleged that wrong testimony was tendered against him and he did not receive any Currency Notes, in his charge. The accused-respondent, however, did not adduce any evidence in his defence. The learned Trial Court after finding the accused-respondent guilty as charged, convicted and sentenced him with two years rigorous imprisonment with fine of Rs.500/-. In default of payment of fine, the accused-respondent would have to undergo one month simple imprisonment. Being aggrieved against the conviction and sentence, the accused-respondent preferred Criminal Appeal No.38 of 1991, which was decided on 06.12.1991 by the learned First Additional Sessions Judge, Unnao. After hearing both the parties and perusing the evidence on record, learned Additional Sessions Judge allowed the appeal preferred by the accused-respondent and acquitted the accused-respondent.
Learned counsel appearing for the appellant-State has submitted that the respondent never disputed that the seized five Currency Notes in denomination of Rs.10/- each in Case Crime No.672 of 1979, Police Station-Kotwali, District-Unnao were not received or were never entrusted to him. Instead, he had written note on page 169 of 'Malkhana' register.
"uksV 50/- fj'orh uksV uEcjh eky[kkuk es ryk'k djus ls ugh fey ikus ds dkj.k ftls vHkh pktZ es ugh fn;k tk ldrkA"
The above entry proves that the accused-respondent received the aforesaid Currency Notes on 09.12.1982 at the time of taking charge of 'Malkhana', and it will be deemed to be in his custody till 04.02.1984 when they were found to be missing. The prosecution has proved beyond reasonable doubt that the missing Currency Notes were entrusted to the possession of accused-respondent and he has committed criminal breach of trust. The judgment and order reversing the finding of the learned Trial Court, whereby acquitting the accused-respondent is contrary to the evidence on record and against the provisions of law. The findings recorded by the learned Additional Sessions Judge are perverse. The learned Additional Sessions Judge has wrongly rejected the prosecution evidence. The order of acquittal is based on conjectures and surmises and suffers from proper appreciation of evidence on record. Learned Trial Court had rightly convicted and sentenced the accused-respondent. The judgment and order of the learned Additional Sessions Judge is not maintainable either on facts or in law and the same is liable to be set aside.
On the other hand, learned counsel for the respondent has submitted that the prosecution has failed to prove the guilt of the respondent beyond reasonable doubt. The said five Currency Notes amounting to Rs.10/- each were never handed over to the respondent in charge, which is evident from the statements of the witnesses. The respondent was wrongly convicted by the leaned Munsif Magistrate, Unnao and that mistake has been corrected by the learned Additional Sessions Judge, Unnao. The prosecution had failed to prove that the said Currency Notes were given in charge to the respondent. It has also been submitted that since 01.07.1982 to 15.05.1984, the charge of the said 'Malkhana' remained with Constable Girija Shankar Vipra, therefore, there was no occasion to hand over the said Currency Notes. It has also been submitted that no such envelope containing the alleged Currency Notes was given in charge to the respondent and there was no mention in the Rapat No.40. The respondent was convicted by the learned Trial Court merely on the presumption while there was no specific evidence to the effect that the said sealed envelope containing the said five Notes of Rs.10/- each were given in charge to the respondent.
Learned counsel for the respondent has further defended the order passed by the learned Additional Sessions Judge, Unnao.
Before we enter into merit of the case, we are required to deal with the contention of the counsel appearing on behalf of the respondent regarding the scope and ambit of an appeal against acquittal. Various decisions of Apex Court have dealt with the issue very extensively. Therefore, it would be suffice, if we extract few decisions of Supreme Court lying down the law in this regard.
In the case of Sate of U.P. vs. Ram Sajivan and others reported in (2010) 1 SCC 529, detailed the law in this regard as follows:-
"46......This court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the Appellate Court in an appeal is well settled. The powers of the Appellate Court in an appeal against acquittal or no less than in an appeal against conviction."
In Chandrappa vs. State of Karnataka (2007) 4 SCC 415, it has been held as under:-
"(1). An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
In another decision of Hon'ble Apex Court in the case of Sannaia Subba Rao and others vs. State of A.P. reported at 2008 (17) SCC 255, has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that the appellate court has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded; further it was also accepted that the Code of Criminal Procedure puts no limitation or restriction on the appellate court to reach its own conclusion based on the evidence before it.
In the case of Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi) reported at (2010) 6 SCC 1, the Hon'ble Supreme Court held as follows:-
"27. The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed."
In Mookkiah & Anr. Vs State rep. by the Inspector of Police Tamil Nadu, Criminal Appeal No.2085 of 2008 decided on January 4, 2013, the Hon'ble Supreme Court held as follows:-
"This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because he High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal."
In State of Madhya Pradesh vs. Ramesh and another (2011) 4 SCC 786, the Court, while considering the scope and interference in appeal against acquittal held:
"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
In Minal Das and others vs. State of Tripura (2011) 9 SCC 479, it has been held :
"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."
In Rohtash vs. State of Haryana (2012) 6 SCC 589, the Court held:
"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
In Murugesan & Ors. vs. State through Inspector of Police 2012 (10) SCC 383, the Hon'ble Supreme Court has elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor AIR 1934 PC 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:
"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup1 is to be found in para 42 of the Report in Chandrappa & Ors. vs. State of Karnataka, The same may, therefore, be usefully noticed below:
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Therefore, one of the settled position of law as to how the court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate court has no restriction to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate court would consider the manner in which the evidence was dealt with by the lower court. At the same time, if the lower court's decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside.
Another settled position is that, if the trial court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate court is competent to reverse the decision of the trial court.
Therefore keeping in mind the aforesaid broad principles of the settled position of law, we would proceed to analyse the evidence that is adduced and come to the conclusion whether the decision of the court below should be upheld or reversed.
Section 409 Indian Penal Code provides as under:-
"Criminal breach of trust by public servant, or by banker, merchant or agent. - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal beach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
In view of the above provisions, it is necessary to prove that the property must have been entrusted to the accused in his capacity of public servant, for which such public servant has committed the criminal breach of trust in respect of that property. In the present case, the alleged entrustment has been disputed.
It is not disputed that the then 'Malkhana' Moharrir had retired on 30.06.1982. The said case property was related to Case Crime No.672 of 1979, under Section 161 I.P.C. and Section 5 (2) of Prevention of Corruption Act. The said case property also contained the shirt of the accused Sri Ram Lekhpal along with sample of seal and four bottles of sample of water containing the washing of hands of the accused.
From the statement of PW-3, Girija Shankar Vipra, who was the then 'Malkhana' Moharrir, it is evident that although he had retired on 30.06.1982 but he retained the charge of 'Malkhana' since 01.07.1982 to 15.05.1984 along with the respondent, (Kunwar Jaiveer Singh) as well as P.N. Tandon. It is evident from this that till 15.05.1984, the complete charge of the said 'Malkhana' was neither handed over to the respondent nor to P.N. Tandon. The prosecution has also failed to prove that the said five Currency Notes of Rs.10/- each were even entrusted to Girija Shankar Vipra or not. When it is not proved that the said case property was handed over to Girija Shankar Vipra or not, then it cannot be said that Girija Shankar Vipra, the then 'Malkhana' Moharrir, had entrusted that property to the respondent.
The prosecution has also failed to prove that till 09.12.1982, the said case property was physically present in 'Malkhana' of Kotwali Unnao.
Undisputedly on 09.12.1982, the respondent was posted as 'Malkhana' Moharrir of Kotwali, Unnao. Head Constable Purshottam Narain Tandon, who has been examined as PW-2, has specifically denied that he was not given the charge of the said case property of five Currency Notes and entry at page No.169 of register of 'Malkhana' was made that because the said Currency Notes were not traceable, therefore, they are not being given in charge.
Head Moharrir Girija Shankar Vipra has failed to prove that the said Currency Notes were entrusted to the present respondent. It is also very surprising that although Girija Shankar Vipra had retired on 30.06.1982, but he retained the charge of 'Malkhana' Moharrir till 15.05.1984.
It is also relevant to mention that at Rapat No.40 there was no mention of sealed envelope containing the alleged Currency Notes. In the charge list also there was no specific mention regarding the said sealed envelope containing the said Currency Notes, which goes to disbelieve the prosecution story.
Certainly, there is provision for inspection of 'Malkhana', but in any of the inspection since 01.07.1982 to 15.05.1984, it has not come that the said sealed envelope of Currency Notes was found in the 'Malkhana'. For convicting any accused for the offence punishable under Section 409 Indian Penal Code, the entrustment of the property must be proved, which the prosecution has failed to prove.
We find substance in the submission of learned counsel for the respondent that the Trial Court had convicted the respondent merely on presumptions, while there was no reliable evidence regarding the entrustment of the property.
Learned Additional Sessions Judge has dealt with all aspects of the matter in detail and the findings are based on evidence on record supported by cogent reasons. Learned Additional Sessions Judge has also considered the evidence on record and has come to a conclusion that the appellant cannot be convicted for the criminal breach of trust because the entrustment was not proved.
Considering the evidence as discussed by learned court below, we are of the opinion that the conclusion of learned Additional Sessions Judge cannot be said to be a distorted conclusion and does not suffers from any glaring mistake. In appeal against acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence and secondly the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the First Appellate Court. It is settled law that if two reasonable interpretations are possible on the basis of record, the Appellate Court should not disturb the findings of acquittal recorded by the First Appellate Court. We are conscious of the law while dealing with appeal preferred by the State that it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons, set aside the judgment of acquittal. In the present case, we do not find any compelling and substantial reasons for doing so.
The findings of learned Additional Sessions Judge, Unnao cannot be said to be palpably wrong, manifestly erroneous or demonstratively unsustainable.
For the reasons given above, we are of the view that the prosecution has failed to prove the entrustment of property to the respondent beyond reasonable doubt and learned Additional Sessions Judge has not committed any glaring mistake in acquitting the respondent.
In the result, the appeal is liable to be dismissed.
The appeal is dismissed.
Suresh/ 12.04.2016