ABDUR REZAK Vs. MD JALALUDDIN

JUDGEMENT

(1.) This is an application for leave to appeal against the order of acquittal coupled with a prayer to admit the appeal. The records of the Court below have been produced.

(2.) In an appeal from an order of acquittal the court is governed by certain positive principles. This is an application for leave to prefer an appeal against the order of acquittal preferred against 11 members of the opposite party in a petty theft case. The ambit of powers of the High Court under Section 423(1) (a) (378 sic) of the Code of Criminal Procedure, 1973, for short, the CodeT well- defined. The power of the High Court is wide and extensive. It has full power to review at large the evidence upon which the order of acquittal is based and to reach the conclusion on the evidence as to whether the order of acquittal should be reversed or not the provisions of the CodeT do not place any limitation on the appellate court to appraise the evidence distinct and separate from the manner in which it should be appreciated in an appeal against the order of conviction. However, hi a catena of cases, the limitations of the High Court have been delineated by the Supreme Court. The limitations are that the views of the trial court as to the credibility of 1 he witnesses should be properly weighed and considered; the presumption of innocence in favour of the accused is never weakened by the fact that he has been acquitted at the trial; the right of the acquitted persons to the benefit of reason able doubt should not be denied on the score that they have been acquitted and are no longer accused; the appellate court should be slow in disturbing the findings of fact reached by the trial Judge, who had the advantage and opportunity of personally watching the demeanour of the witness; when the High Court does not agree with the view of the trial court yet reaches the conclusion that the view expressed by the trial court is reasonably probable, the High Court should not interfere with the findings. We cull the principles from the decisions of the Supreme Court in S.A.A. Biyabani v. State of Madras,1 Aher Raja Khima v. State of Saurashtra,2 Sanwat Singh v. State of Rajasthan,3 Rambhopal Reddy,4 The State of U.P. v. Sam man Das,5 Bhim Singh Rup Singh v. State of Maharashtra,6 State of Andhra Pradesh v. P. Anjaneulau,7 babu and others v. State of U.P.,8 Ramji Surjya v. State of Maharashtra,9 and Chandra Kanta Deb Nath v. State of Tripura.

(3.) Bearing in mind the above principles let me turn to the facts of the case. The case is a tempest in a tea-pot. The complainant himself admits that he was an unauthorized occupier of Government land and therefore, had illegally constructed a shed. It is alleged by the complainant that in broad day light, in presence of all and sundry the eleven accused persons came, dismantled the house and took away the materials. There was inordinate unexplained delay of 12 days. Learned Magistrate has given due weight age to it. Naturally, the prosecution case had to be considered bearing in mind the impact of the delay lodgment of the complaint. There was possibility of bolstering up the prosecution case. Learned Magistrate duly considered this fact. It is a relevant consideration. He has considered the deposition of all the witnesses, threadbare discussed the entire evidence and reached that there were bundles of contradiction in the testimony of the prosecution witnesses. Indeed, the witnesses contradicted each other on very many material particulars. Learned Magistrate has duly taken note of the contradictions and could not rely on the testimony.