The High Court cannot convert an acquittal into a conviction in revisional jurisdiction under Section 401 Cr.P.C.

ORDER

This criminal revision petition is filed under Section 397 r/w Section 401 of Cr.P.C. seeking to set aside the judgment dated 23.01.2019 passed by the II Addl. District & Sessions Judge, Chikkamagaluru, in Crl.A.No.70/2017 and judgment dated 16.01.2017 passed by the I Addl. Senior Civil Judge & JMFC, Chikkamagaluru, in C.C.No.111/2015 acquitting the accused for the commission of offence punishable under Section 379 of IPC.

2. Parties are referred to as per their ranking before the trial court for the sake of convenience.

3. Brief facts of the case are that:

On 04.11.2014 in Indavara village during night hours accused Nos.1 to 4 have taken away the cow and a calf worth Rs.15,000/- belonged to CW-1 without his consent, illegally and thereby committed the alleged offence punishable under Section 379 of IPC.

4. On receipt of charge sheet, trial court has taken cognizance for the commission of offence punishable under Section 379 of IPC. In pursuance of summons, accused appeared before the court and enlarged on bail. Trial court has framed the charges for the commission of offence punishable under Section 379 of IPC. Same is read over and explained to the accused. Having understood the same, accused has pleaded not guilty and claimed to be tried.

5. To prove the case of prosecution, in all 11 witnesses were examined as PW-1 to PW-11 and 12 documents were got marked as Exs.P-1 to P-12. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. is recorded. Accused has denied the incriminating evidence appearing against him, but he has not adduced any defence evidence on his behalf.

6. On hearing the arguments on both sides, trial court has acquitted the accused on 16.01.2017. Being aggrieved by the judgment passed by the trial court, the State has preferred Crl.A.No.70/2017 before the II Addl. and District Judge, Chickmagaluru, which came to be dismissed on 23.01.2019. Being aggrieved by the said judgment passed by the appellate court and also judgment passed by the trial court, the State has preferred this criminal revision petition.

7. Smt.Rashmi Jadhav, learned HCGP appearing for the State has submitted her arguments that impugned judgment passed by the Courts below are illegal and contrary to law and facts. Both the Courts have not properly appreciated the oral and documentary evidence on record. Both the Courts have given undue importance to the minor discrepancies in the prosecution witnesses and same are resulted in miscarriage of justice. On all these grounds, sought for allowing this revision petition.

8. Sri.N.R.Ravikumar, learned counsel for the respondent Nos.1 to 4 submits that both the Courts have properly appreciated the evidence on record in a proper and perspective manner and passed the impugned judgments and there are no grounds to interfere with the impugned judgments. On all these grounds, sought for dismissal of the revision petition.

9. I have carefully gone through the materials placed by the prosecution, impugned judgments and submissions of learned Advocates for both parties.

10. In paragraph 23 of the judgment of the appellate court it is observed as under:

"23. The important factor in the prosecution case is that as per complaint and other prosecution materials, the accused have transported the said cattle in a Maruti 800 car. No prudent man accept that cattle like cow can accommodate in a small car like Maruti 800 car. Even a person of 6 feet height and 90 kg weight cannot sit in the said car properly and comfortably. Such being the case, the charge that the accused have transported two cows and a calf in the said car is highly unscientific and not acceptable."

11. On re-appreciation of evidence on