JUDGEMENT

The Criminal Appeal filed under Section 378(i) of Cr.P.C. being aggrieved by the judgment dated 09.11.2000 passed by Judicial Magistrate First Class, Seoni in Case No.1531/95, whereby the learned JMFC acquitted the non-appellants No.1 & 2 from the charges under Sections 457 and 380 of the IPC and acquitting the non-appellants No.3 from the charges under Section 411 of the IPC.

2. The prosecution case, in short, is that between 05.09.1995 to

10.09.1995, complainant Jagdish Agrawal along with his mother had gone for treatment and was admitted at Seoni Hospital. When they returned home, they saw that lock of the door was broken and door was opened and jewellery and cash has been stolen. Thereafter, a report has been lodged against the said offence.

3. Learned Deputy Government Advocate for the appellant/State submits that Court below has not considered the statements of complainant (PW-1) Gangabai and (PW-2) Jagdish and the evidence available on record in right prospective which proved that she has identified the stolen articles. It is submitted that findings and conclusion drawn by the Courts below are perverse, hence liable to be set-aside.

4. None appeared for the respondents.

5. Heard learned Deputy Government Advocate for the appellant/State and perused the record.

6. Learned Trial Court have examined as many as 8 witnesses Gangabai (PW-1), Jagdish Agrawal (PW-2), Lokman (PW-3) Gaurishankar, (PW-4) Mahesh (PW-5) Omprakash (PW-6) Shankarlal (PW-7) and Subodh Sharma (ASI). Shankarlal (PW-7) has turned hostile. No witness was examined by respondents.

7. Gangabai (PW-1) stated that in Gram Panchayat she identified her jewellery. The two sets of Anklet (payal) (article ‘A’) silver coins as (article ‘B’) and one locket as (article ‘C’) were identified in the Court by Gangabai (PW-1). In her cross-examination, she stated that in identification proceedings, only 3-4 sets of Anklet (payal) was there. Except payal, no jewellery was mixed with. But as per identification memo, (Ex.P/1), necklace was also mixed with jewellery for identification.

8. (PW-2) Jagdish Agrawal stated that her mother reached home at village, Arpa and informed him that items has been stolen. But as per FIR, (Ex.D/1) Gangabai (PW-1) as well as Jagdish (PW-2) reached home from Seoni Hospital together. (PW-1) has also stated that she and her son Jagdish reached together.

9. Admittedly, (PW-5) Mahesh a is relative of (PW-1) Gangabai and (PW-2) Jagdish.

10 .On perusal of FIR, it is clear that only coins amounting to Rs.60/-

were stolen but coins of Rs.90/- were seized in the case. As per (PW-4) Gaurishankar, memorandum (Ex.P/4) of accused Laxminarayan was recorded at night and seizure (Ex.P/5 and P/6) was also made at night, which are contradictory from Ex.P/4, P/5 and P/6).

11 . As per statement of (PW-1) Gangabai, the lock of the door was broken and it was hanging in the door catch and (PW-2) Jagdish Agrawal is silent at this point and as per FIR (Ex.P/2).

12. It is settled position of law that while dealing with the appeal or revision against acquittal, findings given by the Courts below generally should not be disturbed until and unless there is substantive material available on record to reverse those findings even if two views are possible, the view supporting to the accused in the case should be taken.

13. Hon’ble Supreme Court in the case of Kaliram Vs. State of Himachal Prades, AIR 1977 SC 2773 has observed as under:-

‘’Golden thread which runs through the web of the administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be taken.’’ 14. Certainly it is a primary principle that the accused must be and not merely may be guilty before