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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1403 OF 2011

SUDERSHAN KUMAR .....APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 1404 OF 2011

CRIMINAL APPEAL NOS. 1445-1446 OF 2011

A N D

CRIMINAL APPEAL NOS. 1447-1448 OF 2011

J U D G M E N T

A.K. SIKRI, J.

These  appeals  arise  out  of  common  judgment  dated  May  03,  

2011 rendered by the High Court of Himachal Pradesh.  The appellants  

in these appeals were charge-sheeted and tried for offences punishable  

under  Sections 120-B,  409,  218 and 420 of  the Indian Penal  Code,  

1860 (for  short,  'IPC')  as well  as  Section 13(2)  of  the Prevention of

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Corruption  Act,  1988  (for  short,  'PC  Act').   They  were  arrayed  as  

accused 1 to 4 (A-1 to A-4).  After the trial, the learned Special Judge,  

Solan,  acquitted  all  the  four  appellants  of  the  aforesaid  charges,  

inasmuch as, as per his findings, the charges were not proved against  

these appellants beyond reasonable doubt.  The respondent-State went  

in appeal challenging the aforesaid verdict of the Special Judge.  The  

High  Court,  by  impugned  order,  has  upturned  the  decision  of  the  

Special  Judge  holding  all  the  four  appellants  as  guilty  of  various  

offences  under  IPC  as  well  as  the  PC  Act  and  convicted  them  as  

follows:

Accused No./Appeal No. Name Designation and Charges Accused No.1

Crl.A. No. 1430/2011 Sudershan Kumar In-charge of Himachal Pradesh State  

Civil Supplies, Chambaghat

1)  Under  Section  120-B  read  with  Sections  409  and  218  IPC  and  Section  13(2)  of  the  Prevention  of  Corruption Act (SI for one year and fine of ₹10,000/-  with default for 3 months)

2)  409 IPC – SI  for  two years  and  fine  of  ₹30,000/-,  default  SI  for  6  months

3)  218 IPC – SI for six months and  fine of ₹5,000/-, default SI one month

4)  13(2) PC Act  – SI  for  one year  and fine of  ₹20,000/- with default SI  three months

Accused No.2 Crl.A. No. 1404/2011

Ramesh Chand Helper with Himachal Pradesh State  Civil Supplies, Chambaghat

1)  Under  Section  120-B  read  with  Sections  409  and  218  IPC  and  Section  13(2)  of  the  Prevention  of  Corruption Act

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(SI for one year and fine of ₹10,000/-  with default for 3 months)

2)  409 IPC – SI  for  two years  and  fine  of  ₹30,000/-,  default  SI  for  6  months

3)  218 IPC – SI for six months and  fine of ₹5,000/-, default SI one month

4)  13(2) PC Act  – SI  for  one year  and fine of  ₹20,000/- with default SI  three months

Accused No.3 Crl.A. Nos. 1447-1448/2011

Pawan Kumar Sahni Owner/Proprietor  of  the  Flour  Mill  (Giri Raj Atta Mill)

Under  Section  120-B  read  with  Sections  409  and  218  IPC  and  Section  13(2)  of  the  Prevention  of  Corruption Act (RI for one year and fine of ₹20,000/-  with default SI 3 months)

Accused No.4 Crl.A. Nos. 1445-1446/2011

Ramesh Chand-II Munshi of Pawan Kumar Sahni

Under  Section  120-B  read  with  Sections  409  and  218  IPC  and  Section  13(2)  of  the  Prevention  of  Corruption Act (RI for one year and fine of ₹20,000/-  with default SI 3 months)

Special  leave to appeal was granted by this Court  on July 18,  

2011  and  July  22,  2011  respectively  in  the  petitions  filed  by  the  

appellants.  By the same orders, this Court suspended the sentence of  

the appellants on certain terms.  The appellants are, accordingly, on  

bail.

2) The  factual  matrix  which  led  to  the  charge  of  these  appellants,  is  

succinctly narrated by the High Court with due clarity and, therefore, we  

are taking the facts from the said judgment,  which led to the trial  of

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these appellants.

3) Appellant No.1 Sudershan Kumar (hereinafter referred to as 'A-1) was  

working  as  In-charge  of  Himachal  Pradesh  State  Civil  Supplies  

Corporation, Chambaghat (hereinafter referred to as the 'Corporation'),  

a suburb of Solan town. Appellant No.2 Ramesh Chand, s/o. Bhagwan  

Singh (hereinafter referred to as 'A-2'), was working as Helper in the  

aforesaid Corporation in the month of May 2003.  Appellant No.3 Pawan  

Kumar Sahni (hereinafter referred to as 'A-3') is the proprietor of flour  

mill, known as Giri Raj Atta Mill, at Deonghat, another suburb of Solan  

town.  Appellant No.4 Ramesh Chand-II, s/o. Sher Bahadur (hereinafter  

referred to as 'A-4') was employed as Munshi by A-3 for assisting him in  

the affairs of the aforesaid flour mill.

4) Prosecution case is that on May 30, 2003, Shri Hari Chand (PW-14),  

Deputy Superintendent of Police (Vigilance), received secret information  

that  a  truck was being loaded with  wheat  bags at  the Corporation's  

Depot at Chambaghat and that the wheat was to be carried to the flour  

mill of A-3 in an illegal and unauthorized manner.  The wheat was, in  

fact, meant for distribution to the persons living below poverty line and it  

could  not  have  been  sold  to  anybody  else.   PW-14  deputed  Sub  

Inspector Shri Bheem Singh (PW-11) to verify the information received  

by him.  PW-11 then went to Chambaghat and found that wheat was

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being loaded in Truck No. HP-14-6189.  He returned to the office of PW-

14 at Solan and informed him about what he had seen.

5) Soon, Truck No. HP-14-6189 appeared on the National Highway from  

the side of store of Corporation at Chambaghat.  It was followed by PW-

14 in a Government Gypsy.  He was accompanied by PW-11 and some  

other police officials.  Truck crossed Solan town and proceeded towards  

Deonghat.   It  stopped behind two trucks which were already parked  

near the flour mill of A-3.  PW-14, accompanied by PW-11 and other  

police officials, deboarded their vehicle and went to the site where the  

truck had been stopped.  Driver of the truck, namely Shri Duni Chand  

(PW-2), was in driver's seat.  A-4 was in the driver's cabin.  There were  

no papers regarding transportation of wheat available with the driver.  

On  enquiry,  the  driver  told  that  the  wheat  had  been  loaded  at  the  

instance of A-4 who claimed that the papers were with him.  Wheat bags  

loaded in the truck were counted and they were 130 in number.

6) A written report was prepared, which is marked Exhibit PW-10/L and  

sent to the Police Station for formal registration of the case. Case was  

formally registered vide FIR Exhibit PW-10/M.  Driver of the truck, i.e.  

PW-2, and A-4 were taken into custody.  Truck loaded with 130 bags of  

wheat was seized and taken to the police station.  A-1 and A-2 were  

also taken into custody.  On May 31, 2003, or say the next following

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day, Gate Pass Book (Exhibit PW-6/A-6) was taken into possession.  It  

had a carbon copy of Gate Pass dated May 30, 2003 as per which 130  

bags of  wheat  had been loaded in  Truck No.  HP-14-0198 for  being  

carried to Arki.  This is the last Gate Pass in the Book.  Carbon copy of  

the  Gate  Pass  available  in  the  Book  is  marked  as  Exhibit  PW-9/A.  

During verification, the Police found that HP-14-0198 is the registration  

number of a Scooter and not a Truck or mini Truck.

7) During the course of  investigation,  specimen writings of  A-1 and A-2  

were also taken.  Their admitted writings/signatures were also seized.  

Specimen and admitted  writings/signatures  of  these  appellants  were  

sent  to  the  handwriting  expert  Dr.  Minakshi  Mahajan  (PW-9)  for  

comparison.  She opined that the signatures Mark Q-3 on Gate Pass  

(Exhibit PW-9/A) was similar to the standard signatures of A-1 and the  

body of the Gate Pass Mark Q-1 tallied with the standard writings of A-2.

8) On completion of investigation and after obtaining sanction to prosecute  

A-1  and  A-2,  a  report  under  Section  173  of  the  Code  of  Criminal  

Procedure, 1973 (for short, 'Cr.P.C.'), along with relevant papers, was  

filed  in  the  Court  of  Special  Judge,  who,  after  complying  with  the  

requirement  of  Section  207  of  Cr.P.C.,  and  hearing  the  Public  

Prosecutor and defence counsel and after perusing the record, charged  

A-1 and A-2 with offences punishable under Sections 120-B, 408, 218 of

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IPC and Section 13(2) of the PC Act.  A-3 and A-4 were charged with  

offences under Sections 120-B and 420 of the IPC.

9) During examination of the appellants under Section 313 of the Cr.P.C.,  

A-1 in his statement had denied supplying of 130 wheat bags to flour  

mill of A-3.  However, he has stated that these bags had been loaded in  

the truck for transportation to Arki depot from where the demand had  

been received.  He denied A-4 having come to the godown.  However,  

he admitted sealing of the store by the police, taking of the gate pass  

and stock register into possession, handing over 130 bags of wheat to  

the  Regional  Manager  on  superdari,  keeping  two  empty  bags  as  

sample, handing over the keys of the store to Anil Kumar, and taking  

into possession the appointment and posting orders.  He also admitted  

taking  of  their  specimen  handwriting.   Information  supplied  by  the  

Registering and Licensing Authority, Solan with regard to Vehicle No.  

HP-14-0198 as Scooter has been admitted.  It is admitted that no wheat  

grains had been received at Arki depot and PW-3 had loaded 130 bags  

of wheat from the godown in vehicle Swaraj Mazda from another truck  

at his instance.  It is admitted that the gate passes were issued by them  

and denied the sending of documents to the Examiner of Documents.  

However, it was stated by A-1 that the truck number was written on the  

challan on the information of Palledar and so  bona fide  mistake had

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crept in filling the number.  The bags were meant to be taken to Arki  

depot.  Similar is the statement of A-2.

10) A-3  and  A-4  have  also  denied  the  correctness  of  the  prosecution  

evidence.  A-3 stated that A-4 was employed as peon-cum-water carrier.  

He had also denied keeping any attendance register and making over  

writing.  It was stated that there was no reason for them to erase the  

original  entry  and  if  they  wanted  they  could  have  prepared  and  

produced a new register  to  the Police.   He claimed to  be innocent.  

Statement  of  A-4  was  also  claiming  to  be  innocent.   As  far  as  the  

evidence  regarding  hiring  trucks  from  open  market  and  issuing  of  

instructions to hire trucks from the Union, the appellants admitted it to  

be correct, but stated that they had been hiring trucks from market.  He  

further stated that the practice of hiring trucks from open market had  

been found correct.  About hiring of the trucks of private owners, he has  

stated that they used to give demand on phone but when the Union did  

not  send trucks  of  required  number,  then  truck  was called  from Mr.  

Kapila.

11) A-1 had examined two witnesses: DW-1 Ram Pal,  Public Distribution  

Clerk in  Food and Supply depot  at  Chambaghat,  to  prove that  food  

grains  etc.  used  to  supply  through  the  truck  tied  from  the  private  

owners, and DW-2 Sandeep Kapila, owner of Truck No. HP-14-6189 to

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prove that his truck had been hired for transporting the wheat from FCI  

godown, Chambaghat to FCI Arki depot.   As per him, the driver had  

come to Deonghat for obtaining money for diesel and other expenses.  

The driver got the wheels of the truck checked and put new tyres.  After   

having test drive, the wheels again got jammed and the driver left the  

vehicle by road side and came to him and told about the same.  In the  

meantime, some people came there in civil dress and asked the driver  

to accompany them to the place where the truck was parked and there  

were police people surrounding the truck.

12) Judgment of the Trial Court   

After  hearing the arguments of  the counsel for  the parties and  

analyzing the evidence which surfaced on record,  the Special  Judge  

believed the defence version and held that prosecution could not prove  

the case beyond reasonable doubt.  While arriving at this conclusion,  

the learned trial court pointed out certain loopholes in the investigation  

as well as the evidence of the prosecution and also observed the areas  

where  the  prosecution  lacked in  furnishing  sufficient  evidence  which  

could nail the appellants.  Discarding the case of the prosecution that  

the accused persons were caught red-handed, the trial court pointed out  

that the truck was not actually taken to the premises of the factory of A-

3.   It  was  still  by  the  side  of  the  main  road  when  the  truck  was

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intercepted.  The Special Judge was of the opinion that the police party  

should have waited to find out whether the truck will  be taken to the  

factory and goods would be unloaded.

13) The judgment of the trial court further reveals that the learned Judge  

formulated the following points which had arisen for determination in this  

case:

“(1)   Whether  the  accused  Sudershan  Kumar  and  Ramesh  Chand  have  entered  into  a  conspiracy  with  accused Pawan Kumar and Ramesh Munshi to sell  the  wheat  bags  from  the  Civil  Supply  Food  Corporation,  Chambaghat to the Flour mill at Deonghat?

(2)  Whether the accused Sudershan Kumar and Ramesh  Chand sold the Government wheat to the accused Pawan  Sahni  illegally  and  these  are  guilty  of  criminal  misconduct?

(3)  Whether accused Pawan Kumar and Ramesh Munshi  had  obtained  delivery  of  the  wheat  bags  by  dishonest  inducement?

(4)  Final order.”   

14) Having  regard  to  the  facts  that  the  aforesaid  questions  are  

interconnected, the Special Judge took them up together for discussion.  

For determination of these points, the Court analyzed the prosecution  

evidence by pointing out that as per the version of the police, they had  

followed the truck from Chambaghat and the truck had stopped in front  

of the floor mill of A-3.  The police party following the truck called the  

local police and searched the truck. PW-2 and A-4 were sitting in the

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truck.  Arun Kumar, who was the cleaner of the truck, had not been  

examined.  The trial court found that this part of the prosecution case  

was not supported by PW-2 and, therefore, it raised grave doubt about  

the  correctness  of  the  prosecution  version.   It  is  highlighted  by  the  

Special  Judge that  this witness has categorically stated that after he  

parked the truck in front of the factory, he came to take tea and when he  

came back to the vehicle, the police had reached there. It  was clear  

from this statement that he was not inside the truck when the police  

searched the  truck.   He  also did  not  state  that  A-4  or  Arun  Kumar,  

cleaner of the truck, were inside the truck when the police intercepted it.  

The  trial  court  also  pointed  out  certain  circumstances  from which  it  

came to the conclusion that evidence of PW-2 was not reliable.  The  

specific observations on his testimony, highlighting this aspect, are in  

the following words:

“22.  Apart from above facts, the evidence of PW-2 is not  reliable.  He appears to be a witness with a view to save  himself  from  the  case  as  earlier  he  had  also  been  arrested  by  the  police.   His  bail  application  has  been  opposed and later on he has been cited as a witness.  In  his statement he states about leaving one boy in the truck  who  was  said  to  be  son  of  driver.   As  per  his  cross- examination, he took 10-15 minutes for him to take tea.  The police had arrived on the spot before his return to the  truck.  He did not tell the police that he had gone to take  tea after parking the truck.  It takes 5-6 minutes to reach  Deonghat from Dohri Dewar.  He admitted that when he  came there after taking tea, police was in the parking area  of hotel Shefiton and he was arrested by the police  the  read (sic) before he could reach his truck.  He also does  not know where the son of driver had gone whether he

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was inside the truck or outside.  He admitted that he was  asked by the police to take the truck to the police station  and accused Ramesh Munshi  was not  inside  the  truck  and came to the police station in a car and he was also  arrested when he reached the police station.  The witness  has  however  denied  the  suggestion  that  the  accused  Ramesh Munshi had not come with him.

23.  As would be seen, the evidence of PW-2 is full  of  doubtful features.  Therefore, on reliance can be placed  on such a witness too.  He cannot be relied upon and  believed in parts.  His evidence has to be either accepted  in toto or rejected in toto.  His evidence is as such part of  which cannot be accepted.  It would be highly unsafe to  place reliance on him and it would be equally unjustified  to believe the portion which goes in favour of prosecution  and if believe goes against it (sic).  Therefore, the safest  course is to discard his evidence in its entirety.”

15) The  trial  court  also  observed  that  as  per  the  prosecution  it  is  A-4,  

munshi  employed by A-3,  is  the person who links the supply of  the  

wheat to the flour mill of A-4.  However, if his presence is excluded, as it  

was not substantiated by cogent evidence, then there is no evidence to  

link A-4 with the sale of wheat bags to him as the wheat bags to his flour  

mill had not been transported from the truck as, when the police had  

caught the truck, the truck was not standing in front of the flour mill of A-

4.  On the contrary, it was parked on the road side, away from the flour  

mill of A-4, which was clearly revealed from the photographs taken by  

the police.  There was even an admission on the part of PW-2 in his  

cross-examination that A-4 had come in his own car.

16) Commenting upon the unusual anxiety shown by the police in seizing

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the truck in a hurry without waiting for the unloading of the truck, the trial  

court  observed  that  such  a  conduct  of  the  police  was  neither  

understandable  nor  satisfactorily  explained.   The  Special  Judge  

remarked that if the wheat had been sold or was to be supplied to A-4,   

which was purportedly the information received by the police, then the  

police should have waited for  unloading of  the bags and carrying of  

these bags to the flour mill of A-4.  In that event, they could have caught  

the accused persons red-handed.  As it was not done, it raised grave  

doubt about the actual happening and genuineness of the prosecution  

case.  The trial court also found lack of evidence of conspiracy between  

the accused persons as it  was not  proved that  all  the accused had  

joint/separate meetings and had conspired together to do the acts as  

alleged.

17) The aforesaid,  in  brief,  are  the reasons which prompted the Special  

Judge to acquit the appellants.

18) Judgment of the High Court   

The material discussion in the judgment of the High Court starts  

with taking note of the admitted facts, namely: (i) the wheat was loaded  

in the truck in question; (ii) when it was intercepted and its driver PW-2  

was taken into custody, he did not have the gate pass with him.  The  

carbon copy of the gate pass was made available to the investigating

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agency by A-1 on the next date; (iii) the said copy was from the gate  

pass book (Exhibit  PW-6/A-6) and carbon copy was Exhibit  PW-9/A.  

On the gate pass, number of the vehicle written was HP-14-0198, which  

was not the registration number of  the vehicle in which 130 bags of  

wheat had been loaded.  Prosecution had proved that Registration No.  

HP-14-0198 was of a scooter and not of any truck; and (iv) gate pass  

(Exhibit PW-9/A) is the last pass of the date May 30, 2003 from which it  

was  proved  beyond  reasonable  doubt  that  the  said  gate  pass  was  

prepared subsequently  to  cook up defence plea that  the wheat  was  

being consigned to a depot at Arki.

19) The High Court observed that it was for the defence to prove that the  

wheat had been dispatched to a depot at Arki, but they failed to do so.  

The High Court discarded as unworthy of trust the testimony of DW-2,  

Sandeep Kumar, owner of Truck No. HP-14-6189, in which the wheat  

bags were loaded for carrying to Arki.  It is also observed that the log  

book of the said vehicle had not been filled in after October 10, 2002  

and there was no explanation given for the same.  On the other hand,  

the High Court  has acted upon the testimony of  PW-2, driver of  the  

truck.

20) In nutshell, the two factors which weighed with the High Court are the  

discrepancy in the gate pass inasmuch as number of the vehicle shown

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therein was wrong and there is no satisfactory record to prove that the  

consignment was meant for Arki depot.

21) Mr. Amarendra Sharan, learned senior counsel, appeared for A-1 and A-

2.  Mr. Sidharth Luthra, learned senior counsel, appeared on behalf of  

A-3 and Mr. Dushyant Dave, learned senior counsel, argued the matter  

on  behalf  of  A-4.   Mr.  Suryanarayana  Singh,  Additional  Advocate  

General, appeared on behalf of the State, and rebutted the submissions  

made by the learned senior counsel appearing for the appellants.

22) It may not be necessary to reproduce in detail the submissions of the  

counsel  on  either  side  for  the  simple  reason  that  endeavour  of  the  

appellants was to refer to the defence version, which was accepted by  

the trial court and pointing out those portions of the judgment whereby  

the trial  court  held  that  prosecution had not  successfully  proved the  

charges  beyond  reasonable  doubt  with  the  aid  of  testimony  of  the  

relevant witnesses.  On the other hand, learned counsel appearing for  

the State, extensively referred to the judgment of the High Court while  

making  his  submission  that  the  said  judgment  rightly  analyzed  the  

evidence, which did not call for any interference.

23) Insofar as the two judgments taking contrary view, namely, that of the

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trial court as well as the High Court are concerned, we have already  

stated in detail  the factors which influenced these courts to arrive at  

conflicting conclusions.   After  giving our  serious consideration to the  

submissions  of  the  learned  counsel  on  both  sides,  examining  the  

judgments of the lower courts and the relevant portion of the testimonies  

of the witnesses which have been discussed and analyzed by the courts  

below, we are of the opinion that it was a case where the trial court had  

rightly concluded that prosecution had not been unable to prove its case  

beyond reasonable doubt.

24) No doubt, it is an accepted fact that the truck which was intercepted by  

the police carried 130 bags of wheat.  Also, at the time when it was  

intercepted, PW-2 (driver of the truck) did not have gate pass with him  

and the carbon copy of this gate pass was produced on the next date  

and the number of the vehicle written on this gate was was different.  

However, it is also not in doubt that the truck was not intercepted inside  

the flour mill of A-3, but it was at a distance from the said flour mill and  

was on the right side on the national highway.  The moot question is as  

to whether from these facts, coupled with the deposition of PW-2, can it  

be said that offences for which these appellants were charged, have  

been proved beyond reasonable doubt.  Here, we find that the trial court  

has  given  very   cogent  reasons  in  arriving  at  a  conclusion  that  the

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prosecution has failed on  this  ground.   The trial  court  is  right  in  its  

observation as to why the truck was intercepted when it was still parked  

on the right side of the national highway and was not taken inside the  

flour mill of A-3.  If there was a cogent and reliable information that the  

material in the truck is to be illegally and unauthorisedly sold to A-4, the  

police party could have easily waited for the truck to enter the premises  

of the flour mill  and caught the culprits red-handed at the time when  

these bags were supposed to be unloaded.  It has also come on record  

that  PW-2,  after  parking  the  truck  on  the  right  side  of  the  national  

highway, had gone to the nearby tea tall to take tea, which is routinely  

done by such truck drivers.  The prosecution has not been able to prove  

that at the time when the truck was intercepted, A-2 (helper) as well as  

Arun Kumar (cleaner) were inside the truck.  The trial court has also  

given convincing reasons, which have already been reproduced above,  

to  disbelieve the testimony of  PW-2 and it  appears  to  be correct  in  

making  pertinent  observations  that  being  the  driver  he  gave  the  

statement to save his own skin.  The High Court, on the other hand,  

when discussing the contradictions in the testimony of PW-2, as pointed  

out  by  the  trial  court,  has  relied  upon  on  his  testimony  to  nail  the  

appellants.

25) Insofar as infirmity pointed out by the High Court on the gate pass is

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concerned, it would be relevant to point out that this very aspect has  

been considered by the trial court in the following words:

“24...The record of the godown, excepting of the wrong  number  mentioned  on  the  gate  pass,  shows  transportation  of  the  wheat  to  Arki  which  fact  is  also  probalised through the defence evidence of  PW-2.   No  doubt  wrong number  has  been mentioned on  the  gate  pass which was found to be that of a scooter.  But this by  itself would not prove anything.   The explanation given by  the  learned public  prosecutor  does seem to  be correct  that  the  record  had  been  manipulated  by  the  officials  afterwards.   Then  there  was  no  reason  for  them  to  mention the number of  the scooter  as by that  time the  truck had been caught by the police.

25.  In order to attract the provisions of Section 218 I.P.C.,  it  has  to  be  proved  that  accused  have  prepared  an  incorrect  record  knowingly  with  intent  to  cause  loss  or  injury to the public or to any person, or with intent thereby  to save any person from legal punishment or with intent to  save  or  knowing  that  they  would  thereby  save  any  property from forfeiture or other charge.”

Though  the  High  Court  has  remarked  that  the  gate  pass  as  

'proved to have been prepared subsequently to create false defence   

plea', there is no evidence to corroborate this observation.

26) The aforesaid discussion about gate pass may be probable.   In any  

case, that by itself could not have been the circumstance or conclusive  

evidence to convict the appellants holding them guilty of the offences for  

which they were charged.  Insofar as charge under Section 218 IPC is  

concerned,  the  aforesaid  discussion  of  the  trial  court  appears  to  be  

correct  and  that  has  not  been  dealt  with  by  the  High  Court  in  the

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impugned judgment at all.  A-1 and A-2 were charged for offence under  

Section  409  IPC  as  well.   However,  the  same  cannot  be  held  as  

established  as  the  property  has  not  been  found  to  have  been  

misappropriated and used by these accused persons.  On the other  

hand,  it  has been shown to be transported to Arki  depot.   Such an  

offence could not have been complete only if the accused persons had  

succeeded in selling it to the flour mil of A-4.  However, as mentioned  

above, the truck never entered the flour mill and there was no act of  

unloading the bags in the said flour mill.   On the other hand, it  was  

seized  when  it  was  parked  on  the  highway  and,  thus,  no  such  

presumption or assumption can be drawn that the bags had been sold  

or supplied to the flour mill of A-4 and were not intended to be carried to  

the  depot  at  Arki.   For  the  same  reasons,  charge  of  cheating  also  

cannot  be  held  to  be  proved.   Insofar  as  charge  of  conspiracy  is  

concerned, there is a total lack of any evidence to prove this charge.

27) Though the High Court has observed that defence has not been able to  

show that  the goods loaded in the truck were meant  for  Arki  depot,  

these observations are contrary to record.  PW-3, Karam Chand, who  

was working with  the  Corporation,  has categorically  deposed to  this  

effect that A-1 had told him to load the wheat bags as they were to go to  

Arki  and  PW-13,  Anil  Kumar  Gupta,  Junior  Assistant  with  the

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Corporation, who took charge of the godown from A-1, stated that as  

per the stock register, 130 bags of wheat were shown to have been sent  

to the civil supply store at Arki.  He further stated that at times they send  

supply in private trucks that are hired from the union.

28) There  is  another  striking  and  significant  feature  in  this  case  which  

cannot  be  lost  sight  of,  namely,  there  was  a  delay  of  77  days  in  

recording the statements of persons under Section 161 of the Cr.P.C.  

No explanation,  worth the name, is  coming forth as to why such an  

abnormal delay took place and it tells a lot about the way investigation  

is carried out in the present case.  This factor also shakes the credibility  

of the deposition of PW-2, who may have been led to give the statement  

to save his skin.

29) It  has  been  stated  and  restated  that  a  cardinal  principle  in  criminal  

jurisprudence  that  presumption  of  innocence  of  the  accused  is  

reinforced by an order of the acquittal.  The appellate court, in such a  

case, would interfere only for very substantial and compelling reason.  

There is  plethora of  case laws on this  proposition and we need not  

burden  this  judgment  by  referring  to  those  decisions.   Our  purpose  

would be served by referring to one reasoned pronouncement entitled  

Dhanapal v. State by Public Prosecutor, Madras, (2009) 10 SCC 401  

is the judgment where most of  the earlier  decisions laying down the

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aforesaid principle are referred to.  In para 39, propositions laid down in  

an earlier case are taken note of as under:

“39.   In  Chandrappa and Ors.  v.  State of  Karnataka,  (2007) 4 SCC 415, this Court held:

(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.  

30) Thereafter, in para 41, the Court curled out five principles and we would

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like to reproduce the said para hereunder:

“41.   The  following  principles  emerge  from  the  cases  above:

1.  The accused is presumed to be innocent until proven  guilty.  The accused possessed this presumption when he  was  before  the  trial  court.   The  trial  court's  acquittal  bolsters the presumption that he is innocent.

2.   The  power  of  reviewing  evidence  is  wide  and  the  appellate court can re-appreciate the entire evidence on  record.   It  can  review  the  trial  court's  conclusion  with  respect  to  both  facts  and  law,  but  the  Appellate  Court  must give due weight and consideration to the decision of  the trial court.

3.  The appellate court should always keep in mind that  the trial court had the distinct advantage of watching the  demeanour of the witnesses.  The trial court is in a better  position to evaluate the credibility of the witnesses.

4.   The appellate court  may only  overrule or  otherwise  disturb the trial court's acquittal if it has “very substantial  and compelling reasons” for doing so.

5.  If two reasonable or possible views can be reached –  one that leads to acquittal, the other to conviction – the  High Courts/appellate  courts  must  rule  in  favour  of  the  accused.”

31) Result  of  the aforesaid discussion is  to allow these appeals and set  

aside the judgment of the High Court and restore that of the trial court.

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Ordered  accordingly.   Since  the  appellants  are  already  on  bail,  their  bail  

bonds shall stand discharged.

.............................................J. (J. CHELAMESWAR)

.............................................J. (A.K. SIKRI)

NEW DELHI; DECEMBER 18, 2014.