THE GAUHATI HIGH COURT

(THE HIGH COURT OF , , MIZORAM & )

Criminal Appeal 182/2005

Sandip Das Vs Jugal Kishore Dalmia

BEFORE

HON’BLE MR. JUSTICE HITESH KUMAR SARMA

Advocate for the Appellant : Mr. D Talukdar.

Advocate for the Respondent : Mr. K K Phukan & Mr. P Gogoi.

Date of hearing & Judgment : 20.07.2017

JUDGMENT AND ORDER (Oral)

This is an appeal, against the judgment and order dated 22.7.2005,

passed in CR Case No. 534/2004, acquitting the accused respondent No. 2 of

the charge under Section 392 IPC.

2) The case of the appellant, who was the complainant in the aforesaid CR

Case before the learned Additional Chief Judicial Magistrate, , is that, he

purchased a Maruti Van, bearing Registration No. AS-22/4704, on 30.7.2003, in

the name of his wife Smt. Beena Das from the accused respondent No. 2 at a

consideration of Rs. 1,61,000/-, and towards the satisfaction of the consideration Page 1 of 6 Crl.A.182/2005 amount, Rs. 1,45,000/- , as agreed, was paid instantly and Rs. 16,000/- was

agreed to be paid and received by the parties on 6.5.2004. The complainant

appellant visited the residence of the accused respondent for making the

payment of balance amount of Rs. 16,000/-, but could not be paid as he was not

found available in the residence. On 23.6.2004, while the complainant

appellant with his family members were proceeding to Silapathar in the said

vehicle, they were intercepted at Silapathar Forest Gate by the accused

respondent and taken away the vehicle from his possession after putting him

under threat and even assaulting him.

3) On receipt of the complaint, the learned trial court proceeded as per

procedure prescribed by law, and ultimately, took cognizance of an offence

under Section 392 IPC against the accused respondent. A charge under Section

392 IPC was framed against the accused respondent in due course.

4) After completion of trial, the learned Additional Chief Judicial

Magistrate, vide his judgment aforesaid, acquitted the accused of the offence

under Section 392 IPC.

5) This appeal is against an order of acquittal. It is a settled law that unless

there is apparent perversity in the judgment of a trial court, there should not be

any interference of the same in the appeal.

6) Therefore, such settled position of law necessitates this court to look into

the evidence on record and the judgment passed by the learned trial court to

find out whether there is any perversity in the decision of the learned trial court

which, otherwise, would have resulted in a decision different to the one

recorded by the learned trial court.

Page 2 of 6 Crl.A.182/2005 7) I have perused the record of the learned trial court and evidence of the

witnesses. I have also meticulously examined the impugned judgment.

8) From the evidence of PW1 and PW2, who are the eyewitnesses of the

alleged occurrence of taking away of vehicle from the possession of the

complainant appellant, it is clear that they were also travelling in the said Maruti

Van at the relevant point of time and the accused respondent along with two

others, restrained them at Silapathar Forest Gate, and also asked the complainant

appellant to hand over the key of the vehicle to him. The two boys supporting

the accused respondent, were armed with iron rod, threatened the complainant

appellant and one of them even assaulted him with a fist blow. Then, out of

fear, complainant appellant handed over the key of the vehicle and the accused

respondent and his companion fled away from the place of occurrence

thereafter. The evidence on record and the judgment, read together, makes it

appear that there was some improvement in the evidence of PW1 and PW2, so

far assault on the complainant appellant is concerned at the relevant time of

occurrence, as their such evidence is found inconsistent with the initial statements

recorded by the court before asking cognizance.

9) It has come out from the evidence on record that, vide Ext.1, the

aforesaid vehicle was purchased by the complainant appellant from the accused

respondent in the name of his wife. On scrutiny of the evidence on record as a

whole, it does not appear that there is any dispute raised on Ext.1, meaning

thereby, the execution of the Ext.1 is never in question during the trial of the

case.

Page 3 of 6 Crl.A.182/2005 10) In Paragraph-22 of the judgment, the learned trial court has recorded

that the evidence of PW1 and PW2 lent support to the Ext.1. The Paragraph-22

of the judgment is quoted below :

“The evidence of PW1 and PW2 also reveals that PW2 has

purchased the said vehicle on 30.7.2003 from the accused vide Exhhibit

(1), fixing the price of the vehicle at Rs. 1,61,000/- she has paid a sum of

Rs. 1,45,000/- to the accused and agreed to pay the remaining sum on

6.5.2004, but she could not pay the sum of that day as the accused is

found absent in his house. The accused has handed over the vehicle

alongwith the documents then and there. Their evidence also reveals

that from 30.7.2003 to 23.6.2004 the vehicle was in their possession.

PW3 is the attesting witness and PW4 is the author of exhibit (1) and to

some extent they also leads support to the version PW1 and 2 in this

regard. Now it is to be seen how far the witnesses of the complainant

are reliable.”

11) Thereafter, the learned trial court, while recording that the PW1 and

PW2 have improved their version at different stage of the case, but on the core

point of taking of the vehicle by the accused respondent, no dispute has been

recorded. To arrive at the truth to a particular fact, it is the responsibility of the

court to segregate the evidence that can be relied upon from the evidence which

is untrustworthy. There is no such definite principle of appreciation of evidence.

There is no reason for the court for not believing the evidence of PW1 and PW2

which is consistent and corroborative on facts. Some deviations or

improvements in the evidence before the court from the statements under

Page 4 of 6 Crl.A.182/2005 Section 200 or 202 Cr.PC is found in the evidence on oath before the trial court

do not necessarily falsify the prosecution version as a whole.

12) Whatever it may be, it appears from the evidence on record taken

together with the appreciation of evidence recorded by the learned trial court in

Paragraph-22 & 23, it does not appear that there was correct appreciation of the

evidence on record. Had the evidence, on record, been correctly appreciated,

perhaps, the decision would have been otherwise than the one recorded by the

learned trial court. That apart, in Paragraph-25 of the judgment, the learned

trial court recorded that the vehicle was handed over to the complainant

appellant and that only the Registration Certificate was handed over and the

Insurance Policy was supposed to be handed over on 6.5.2004 on payment of

the remaining amount of Rs. 16,000/-. But the fact remains that the learned trial

court has accepted the evidence of taking away of the vehicle from the

possession of the complainant appellant midway while he was proceeding to

Silapathar, which speaks volumes about handing over of the vehicle to the

complainant appellant.

13) The position appearing from the evidence on record, as indicated above,

and the conflicting appreciation and the evidence of the witnesses in Paragraph-

22, 23 & 25 of the judgment, leaves this court with no doubt that a detail

evaluation of the evidence on the record is necessary so as to avoid any

perversity in the findings recorded by the learned trial court.

14) That being so, the judgment dated 22.7.2005, passed in CR Case No.

534/2004, by the learned Additional Chief Judicial Magistrate, Dhemaji, is set

aside and remanded back with a direction to proceed with the case from the

stage of argument and to deliver a fresh judgment.

Page 5 of 6 Crl.A.182/2005 15) It is made clear that the learned court, without being influenced by the

observation made by this court, is at liberty to pass any free and independent

judgment.

16) Both the parties are directed to appear before the learned trial court on

17.8.2017.

17) Accordingly, the appeal is party allowed.

18) Send back the LCR along with a copy of this judgment.

JUDGE

Basumatary

Page 6 of 6 Crl.A.182/2005