Judgment:
Sunil Kumar Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order dated 30-3-90 passed by the learned Judicial Magistrate, Churu in Cr. Case No. 173/1986 by which the learned Magistrate acquitted the accused respondent for offence under Sections 16/54 (a)(c) and (d) of the Rajasthan Excise Act.
2. This appeal arises in the following circumstances :
i) On 15-4-86, a secret information was received by P.W. 5 Suraj Prakash, Excise Inspector, Churu that illicit liquor was being prepared from a running still in the village belonging to the accused respondents and thereupon along with two motbirs P,W, 2 Arjun and P,W. 3 Khem Chand in the evening raided the field of the accused respondent and seeing the raiding party, it is case of the prosecution that the accused respondent and one more person who were there, fled away from the scene and in their absence, the field was searched and some illicit liquor along with some incriminating article of manufacturing the illicit liquor was found and seized through Fard Ex.P/1.
3. That the accused respondent was got arrested through Fard Ex. P/3 on 17-4-86.
4. After usual investigation, the police submitted challan against the accused respondent.
5. On 10-8-87, the learned Judicial Magistrate framed charge for offence under Section 54(a)(c) and (d) against the accused respondent who pleaded not guilty and claimed trial.
6. During trial, as many as 5 witnesses have been produced on behalf of the prosecution and statement of accused respondent was recorded under Section 313, Cr.P.C. and one witness was examined in defence.
7. After conclusion of the trial, the learned trial Magistrate acquitted the accused respondent through his judgment and order dated 30-3-90 inter alia holding :
That from the statements of P.W. 2 Arjun, P.W. 3 Khem Chand and P.W. 1 Mahendra Pratap it is not established that the accused respondent was preparing illicit liquor and thus the learned Judicial Magistrate gave benefit of doubt to the accused respondent.
8. Aggrieved from the said judgment and order this appeal has been filed by the State.
9. In this appeal, it has been argued by the learned P.P. that the findings of acquittal recorded by the learned Magistrate are erroneous one as there was evidence to prove the charge for the said offence against the accused respondent and, hence, this appeal should be allowed and the accused respondent should be convicted for the offences charged against him.
10. On the other hand, the learned counsel for the accused respondent submits that the judgment and order of the trial Magis trate are based on correct appreciation of evidence and the same do not call any interference by this Court.
11. I have heard both and perused the record.
12. There is no dispute on the point that the accused respondent was not found present when his field was searched by P.W. 5 Suraj Prakash and his raiding party consisting of P.W. 1 Mahendra Pratap, P.W. 2 Arjun and P.W. 3 Khem Chand.
13. P.W. 1 Mahendra Pratap is a Guard who was with P.W. 5 Suraj Prakash and he has specifically stated that seeing the raiding party, two persons ran away from the scene and the motbirs P.W. 2 Arjun and P.W. 3 Khem Chand told that out of those two persons, one was accused respondent. In cross examination this witness has clearly admitted that as per the statements of P.W. 2 Arjun and P.W. 3 Khem Chand, he came to know the name of the accused respondent, otherwise, he did not see that person on the scene.
14. P.W. 2 Arjun is a motbir witness who has admitted that in the field from where the illicit liquor was recovered, two persons were present and the field was also in the joint possession of two brothers including the accused respondent and he was not in a position to see the face of any of these two persons.
15. Similar is the statement of P.W. 3, another motbir who has also admitted that faces of the persons who ran away from the scene was not seen by him.
16. P.W. 5 Suraj Prakash is the Excise Inspector who has also admitted in his cross-examination that as per the statement of P.W. 2 Arjun who was Sarpanch also, he stated that out of the two persons who ran away from the scene, one of the accused respondent and the name of Naurang Ram was told by P.W. 2 Arjun and P.W. 3 Khem Chand and earlier to that, he did not recognize them.
17. In my opinion, from the above evidence if the learned Magistrate has come to the conclusion that identity of the accused respondent was not established by the prosecution, the learned Magistrate has committed no illegality in coming to that conclusion as the accused respondent was not found present on the scene when the raid was conducted and there is no dispute on the point that two persons fled away from the scene and none has seen the face of any of these two persons and the case against the accused respondent has been made by P.W. 5 Suraj Prakash as per the statement of P.W. 2 Arjun who was motbir witness and Sarpanch. Thus, from the above evidence, it cannot be concluded with certainty whether the accused respondent was present on the scene or not.
18. The position of law with respect of hearing appeal against acquittal has been made clear by the Hon'ble Supreme Court in so many judgment and for that the important judgment of Ajit Savant Majagavi v. State of Karnataka reported in AIR 1997 SC 3255 : 1997 Cri LJ 3964 may be referred to.
19. While hearing appeal against acquittal, no doubt the High Court possesses all the powers, but the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and if the High Court on scrutiny of material available on record is of the opinion that there is another view which can reasonably be taken, then the view which favours the accused should be adopted.
20. In my considered opinion, the judgment of the learned Magistrate is based on correct appreciation of evidence and the reasons which has been assigned by the learned Magistrate are reasonable and plausible and cannot be entirely and effectively dislodged or demolished and this Court sitting and hearing appeal against acquittal would not like to disturb the order of acquittal merely on flimsy grounds.
21. Since the learned Magistrate has arrived at the findings just quoted above and since they are based on correct appreciation of evidence, this Court should also give proper weight and consideration as the views of the trial Magistrate as to the credibility of the witnesses must be respected. Apart from this, the Court should be very slow in disturbing the findings of facts arrived at by the learned trial Magistrate as the Magistrate had advantage of seeing the witnesses and even if two reasonable conclusions can be drawn on evidence on record, the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below.
For the reasons mentioned above, the present State appeal is dismissed after confirming the judgment and order dated 30-3-1990 passed by the learned Judicial Magistrate, Churu.