P.G. Ajithkumar JUDGMENT
P.G. Ajithkumar, J.
1. This is an appeal against acquittal. The de facto complainant/victim is the appellant. He expired and his legal heirs are the additional appellants. The respondent was charged with an offence under Sections 328 and 392 of the Indian Penal Code, 1860 (IPC). After trial, he was acquitted by the Additional Sessions Judge (Adhoc) Fast Track-I, Pathanamthitta as per the judgment dated 14.12.2009. MO1 is a gold ingot. The trial court ordered to confiscate the same. Aggrieved by the orders of acquittal and confiscation this appeal has been filed under Section 372 of the Code of Criminal Procedure, 1973 (Code).
2. Heard the learned counsel for the appellants, the learned counsel for the 1st respondent and the learned Public Prosecutor.
3. Two questions require consideration in this appeal are as follows:
i) Is the acquittal of the 1st respondent incorrect?
ii) Is not the order of confiscation correct?
4. The prosecution evidence consists of oral testimonies of PWs.1 to 9 and Exts.P1 to P10. MO1 was identified. On the defence side, Exts.D1 to D3 were marked. The incident of robbery occurred on 15.01.2004. The allegations were that PW2 was persuaded and taken to have drinks to a bar by the 1st respondent and after making PW2 drowsily by administering narcotic drugs, the 1st respondent took the gold chain and rings, besides his watch and an amount of Rs.3,000/-. A case in that regard was not soon registered. The 1st respondent was arrested in crime No. 345 of 2008 of Konni Police Station. While questioned, he confessed commission of the present offence. Following that, PW1 the then Circle Inspector of Police, Konni Police Station registered a crime. During the investigation effected recovery of MO1 from Apsara Jewellery stating that the stolen ornaments were converted to ingot. That resulted in his prosecution.
5. The case resulting in the prosecution of the 1st respondent was registered only on 28.06.2008. Although PW2 as well as his son, PW3, claimed that following the incident, a complaint was lodged in Pathanamthitta Police Station, there is no tangible evidence in that regard. According to them, PW2 was in hospital for three days following the incident and they did not enquire further about the complaint so lodged. Of course, PW2 identified the 1st respondent in court as the robber. PW2 narrated also how happened the incident, but the 1st respondent was not a person known earlier or familiar to PW2. In such circumstances, the delay tells upon the credibility of PW2, insofar as identification of the 1st respondent before the court is concerned.
6. PW1 deposed before the court that on the basis of Ext.P8(a) statement that the 1st respondent sold the gold ornaments in Apsara Jewellery, he effected the recovery. PWs.4 and 5 are employees in Apsara Jewellery. They testified regarding purchase of gold ornaments from the 1st respondent and in lieu of the ornaments, one ingot was produced before the police officer. Their evidence is not very cogent as to the circumstances in which the gold ornaments were purchased from the 1st respondent and also as to the identity of the ornaments. Evidence of PW2 also is not available to prove that his stolen articles were the ones sold by the 1st respondent in that jewellery for want of production of the ornaments in kind. However, the fact that the recovery was effected based on the statement of the 1st respondent stands proved. That would connect the 1st respondent with the stolen ornaments, although the same is not enough to draw a presumption that he is either the thief or the person received stolen articles knowing them to be stolen. It is not known at what point of time the gold ornaments were sold by the 1st respondent in the Apsara Jewellery. That also is a reason dissuading to draw such a presumption.
7. In the view of the above factual situation, the findings of the court below leading to the acquittal of the 1st respondent cannot be said to be incorrect. Unless the findings are patently incorrect and against the evidence, an order of acquittal cannot be reversed.
8. The Apex Court in Chandrappa and others v. State of Karnataka [MANU/SC/7108/2007 : 2007:INSC:142 : (2007) 4 SCC 415] enunciated the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal;
"(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."
9. In Shyam Babu v. State of U.P. [MANU/SC/0727/2012 : 2012:INSC:382 : (2012) 8 SCC 651] the Apex Court held that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering a specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court, while entertaining an appeal against the judgment of acquittal by the trial Court, is entitled to re-appreciate the evidence and come to an independent conclusion. While doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. It was further held that if two views are possible on a set of evidence, then the Appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal.
10. What the Apex Court held in Central Bureau of Investigation v. Shyam Bihari and others [MANU/SC/0774/2023 : 2023:INSC:623 : (2023) 8 SCC 197] is that in an appeal against acquittal, the power of the appellate court to re-appreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. Hence, the order acquitting the 1st respondent is confirmed.
11. As stated, sale of the gold ornaments by the 1st respondent in Apsara Jewellery stands established by the evidence of PWs.4 and 5 and also the recovery based on Ext.P8(a) statement. Although the evidence of PWs.4 and 5 is not sufficient to establish the identity of the gold ornaments, their evidence before the court and their statement before the police certainly establish that the ornaments purchased from the 1st respondent belonged to PW2. The statements of the witnesses recorded by the investigating officer in this regard can also be used to take a decision for disposal of the property under Section 452 of the Code (See: Krishna Pillai v. Public Prosecutor [1987 (2) KLT 366] and Puthiyadathu Kavu Devaswom Temple Committee v. Manoharan [MANU/KE/0134/2002 : 2002 (2) KLT 167]. Although the gold could be recovered only as ingot, the evidence and materials proved that the same is the converted form of the ornaments stolen from the possession of PW2. Therefore, the order of the trial court to confiscate MO1 is incorrect. It is liable to be returned to PW2, who is the appellant. Since he is no more, additional appellant Nos. 2 to 4, who are his legal heirs, are entitled to receive it back.
12. Accordingly, this appeal is disposed of by confirming the acquittal of the 1st respondent and ordering to return MO1 to additional appellant Nos. 2 to 4 on production of a legal heirship certificate.
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