An appellate court cannot interfere with an acquittal without compelling reasons, maintaining the presumption of innocence and respecting the trial court's assessment of evidence.

JUDGMENT :

M.S. SAHOO, J.

The petition was filed U/s. 378(5) of Cr.P.C. seeking leave to appeal against the judgment of acquittal dated 30.09.2008 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.31 of 1989 arising out of V.G.R. No.41 of 1982 corresponding to Cuttack Vigilance P.S. Case No.41 of 1982; acquitting the opposite parties who stood trial for committing the offences U/s.120-B/465/468/471/419 of IPC and under Section 37 of Orissa Forest Act read with Clause 21 of Orissa Timber and other Forest Produce Transit Rules, 1980 and U/s.5(2) read with Section 5(1)(d) of P.C. Act. 1988.

2. Learned Standing Counsel strenuously urged to grant leave stating that the learned trial court did not consider the material as well did not appreciate the material in their proper perspective and the evidence adduced by the prosecution was sufficient to bring home a finding of guilt against the opposite parties.

3. Having heard the learned Standing Counsel for the petitioner, this Court has gone through the judgment impugned as has been annexed through the present petition and on perusal of the judgment, it is indicated that the learned trial court has taken note of the evidence of the thirteen prosecution witnesses including the Forest Range Officer (P.W.2), the Sub-Divisional Manager of OFDC (P.W.3) who had issued the Timber Transit (T.T.) Permit in favour of the purchaser, P.W.4 who was the Assistant Supervisor, Orissa Forest Corporation Ltd., some independent witnesses like P.W.5: a villager, the witnesses of the seizure who have put their signature in the seizure list such as P.W.6 and the P.Ws.8 and 9 who were presented as witnesses to the loading of the sawn timber of the railway wagon as per the prosecution case.

4. Learned court has discussed the statement of Narsingh Choudhury (opposite party no.1 herein) recorded U/s. 164 Cr.P.C. marked as Ext.8. When specifically requested, learned Standing Counsel has referred to the entire judgment to note that Narsingh Choudhury was never produced as witness before the learned trial court nor his statement was recorded.

Somehow, the prosecution relied upon the statement of the opposite party describing it to be a confessional statement recorded by a Magistrate.

5. Learned trial court has gone at great length to discuss such statement and has given a finding that the learned Magistrate has not shown any document indicating recording of the statement nor the Investigating Officer has disclosed anything regarding the statement nor also any responsible government servant who was present when the Opposite Party Shri Choudhury allegedly made the writing, amounting to a confession.

However, contention was raised by the Special Public Prosecutor before the learned trial court that the statement recorded 164 Cr.P.C. is a piece of evidence that can be used against the Opp. Party-accused.

6. In the facts of the case and the other peculiar circumstances of the trial, it has to be observed that whether, the statement of any accused, recorded U/s.164 Cr.P.C. without the accused being examined by the learned trial court or without examining the person before whom the accused has been alleged to have made the statement, could be a admissible evidence, would be a different matter altogether, and this Court is not expressing any opinion in that regard.

7. In Anwar Ali v. State of H.P. , (2020) 10 SCC 166 : 2020 SCC OnLine SC 776 (at page 179 of SCC), the law on the appeal against acquittal and the scope and ambit of Section 378 CrPC and the scope of interference by the High Court in an appeal against acquittal was considered by the Hon’ble Supreme Court and it has been held:-

14.1. In Babu [ Babu v. State of Kerala , (2010) 9 SCC 189 :