2025:HHC:26231 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 31 of 2016 Reserved on: 28.07.2025 Date of Decision: 05.08.2025 Sunil Jaswal ...Petitioner Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitoner : Mr. Ajay Kochhar, Senior Advocate with M/s Akansha Chauhan and Preetika Thakur Advocates. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The present revision is directed against the judgment of conviction and order of sentence dated 02.01.2016 passed by learned Additional Sessions Judge (II), Shimla, District Shimla, H.P. (learned Appellate Court) vide which the appeal filed by the respondent/State was allowed, the judgment passed by learned Judicial Magistrate, 2nd Class, Court No.7, Shimla (learned Trial Court) was set aside and the petitioner (accused before learned 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. P a g e | 2 2025:HHC:26231 Trial Court) was convicted of the commission of an offence punishable under Section 379 of Indian Penal Code (IPC) and sentenced to undergo simple imprisonment for six months, pay a fine of ₹5000/- and in default to payment of fine to undergo further simple imprisonment for one month for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present revision are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 379 of the IPC. It was asserted that, Sub- Inspector Kamal Chand, HC Sanjeev Kumar (PW-1) and HC Ashwani Kumar (PW-5) were on patrolling duty on the intervening night of 17/18.07.2010 in a vehicle bearing registration No.HP07A-0685. When they reached near Railway Crossing Totu at about 12:10 a.m., they saw a person coming out of the Maruti Car bearing registration No. HP18-5555 carrying a stereo-like object. The police apprehended him. He identified himself as Sunil Jaswal (the present petitioner). He was found in possession of a Digital FM receiver/USB reader (Ext.P-1). He could not provide any P a g e | 3 2025:HHC:26231 explanation for its possession. The police seized it vide seizure memo (Ext. PW-1/A). The site plan was prepared. The matter was reported to the police, and ASI Deshraj (PW-6), Constable Kuldeep, HHC Harish and HHG Sanjeet went to the spot for verification. HC Sanjeev Kumar (PW-1) made a statement (Ext.PW-3/A), which was sent to the Police Station, where F.I.R. (Ext. PW-3/B) was registered. ASI Des Raj conducted the investigation. He found during the investigation that the vehicle belonged to Sada Nand Sharma (PW-2). He identified Stereo (Ext.P-1) as the one which was installed in his vehicle. Statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence punishable under Section 379 of the IPC, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined six witnesses to prove its case. HC Sanjeev Kumar (PW-1) and HC Ashwani Kumar (PW-5) were on patrolling duty when they saw the accused coming out of P a g e | 4 2025:HHC:26231 the vehicle along with Stereo. Sada Nand Sharma (PW-2) is the owner of the vehicle. Bheem Singh Rana (PW-3) signed the F.I.R. Inspector Mathra Dass (PW-4) prepared the challan. ASI Desh Raj (PW-6) conducted the investigation. 5. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that his medical examination was conducted. He denied the rest of the prosecution’s case. He did not produce any evidence in his defence. 6. Learned Trial Court held that no independent witness was associated during the recovery. There were major contradictions in the statements of the prosecution witnesses. Sada Nand (PW-2) himself stated that he was unable to identify the Stereo. All these circumstances made it difficult to place reliance upon the prosecution’s case; therefore, the accused was acquitted. 7. Being aggrieved by the judgment passed by the learned Trial Court, the State filed an appeal, which was decided by the learned Additional Sessions Judge (II), Shimla, District Shimla, H.P. (learned Appellate Court). Learned Appellate Court held that the incident had taken place during the night; therefore, it was not P a g e | 5 2025:HHC:26231 possible to associate an independent witness. The witnesses deposed consistently, and minor contradictions were bound to come with time. These could not have been used for acquitting the accused. The view taken by the learned Trial Court was not probable. The statements of prosecution witnesses corroborated each other on material particulars. The medical evidence also proved that the accused had sustained injuries. He was found in possession of the stolen Stereo immediately after the theft, and a presumption could be drawn that he had committed the theft. The accused failed to displace this presumption; therefore, he was convicted of the commission of an offence punishable under Section 379 of the IPC and was sentenced as aforesaid. 8. Being aggrieved by the judgment and order passed by the learned Appellate Court, the accused has filed the present revision, asserting that the learned Appellate Court erred in convicting and sentencing him. The judgment is based upon conjectures and surmises. Non-examination of independent witnesses was fatal to the prosecution’s case. The identity of the Stereo was not proved. Broken pieces of the window pane were not seized by the police. Other members of the police party were not examined. Sada Nand Sharma (PW-2) admitted that Stereo (Ext. P a g e | 6 2025:HHC:26231 P-1) was commonly available. There was no proper identification of the stereo as stolen property. Therefore, it was prayed that the present revision be allowed and the judgment and order passed by the learned Appellate Court be set aside. 9. I have heard Mr. Ajay Kochhar, learned Senior Counsel assisted by M/s Akanksha Chauhan and Preetika Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 10. Mr. Ajay Kochhar, learned Senior Counsel, submitted that the learned Appellate Court erred in convicting and sentencing the accused. Learned Trial Court had taken a reasonable view while acquitting the accused, and such a view could not have been reversed unless it was perverse. The conduct of Sada Nand Sharma (PW-2) was not normal. He never reported the matter to any person. He categorically stated that stereo (Ex.P-1) was commonly available, and he was not sure about its identity. Hence, the accused could not have been convicted of stealing the Stereo from the possession of Sada Nand Sharma (PW-2). He prayed that the present revision be allowed and the P a g e | 7 2025:HHC:26231 judgment and order passed by the learned Appellate Court be set aside. 11. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State, supported the judgment and order passed by the learned Appellate Court. He submitted that the accused was caught red-handed with the Stereo after coming out of the car. He ran away after seeing the police and fell. He sustained injuries, which were noticed by the Medical Officer. The Stereo was not costly, and the conduct of Sada Nand Sharma (PW-2) of not reporting the matter to the police is normal. There is no infirmity in the judgment and order passed by the learned Appellate Court; therefore, he prayed that the present revision be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. Learned Appellate Court was dealing with the appeal against the judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on P a g e | 8 2025:HHC:26231 misreading of evidence or omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed: “11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ’42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. P a g e | 9 2025:HHC:26231 (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while P a g e | 10 2025:HHC:26231 dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the P a g e | 11 2025:HHC:26231 learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. Therefore, the learned Appellate Court was required to record positive findings that the view taken by the learned Trial Court was perverse, which could not have been taken by any person. No such findings were recorded by the learned Appellate Court. The learned Appellate Court only held in para-27 of its judgment that the acquittal was recorded on an erroneous appreciation of evidence, and it was the duty of the learned Appellate Court to set it right. The judgment could not have been reversed merely because of an erroneous appreciation of evidence. Nothing was stated in the judgment of the learned Appellate Court that the view taken by the learned Trial Court was not a possible view. Thus, the learned Appellate Court erred in reversing the judgment of acquittal passed by the learned Trial Court. 15. Sada Nand Sharma (PW-2) stated in his cross- examination that his Stereo was manufactured by J.K. Company and he had not put any identification mark on the Stereo. He admitted that stereo (Ext. P-1) was commonly available, and he P a g e | 12 2025:HHC:26231 could not say with certainty that the stereo (Ext.P-1) was the stolen stereo. 16 Testimony of Sadanand Sharma (PW-2) was not sufficient to prove that stereo (Ex. P-1) was stolen. There is no evidence that the stereo was manufactured by J. K. Company. There was no other identification mark to connect the stereo to Sadanand. Statement of Sadanand Sharma (PW-2) that he was not sure that the stereo (Ext.P-1) was his, knocks out the whole premise of the prosecution case that the Stereo was stolen out of the possession of Sada Nand Sharma (PW-2), and it was not permissible for the learned Appellate Court to record a conviction. 17. The conduct of Sada Nand Sharma (PW-2) was also contrary to normal human conduct. He stated that he found on 18.07.2010 that the left side window pane was damaged and the Stereo and pendrive were missing. He did not inform the police because his sister and brother-in-law had to take a test, and he was taking care of their minor child. He stated in his cross- examination that he did not apply for the release of the Stereo in his favour, and the police had not got the Stereo identified from him. P a g e | 13 2025:HHC:26231 18. It is difficult to believe that a person whose car was damaged and the Stereo was stolen would not have reported the matter to the police, or would not have applied for its release after he was told about its recovery. His conduct is to be read with his statement that he was not sure that Stereo (Ext.P-1) belonged to him. Hence, the inference drawn by the learned Trial Court that the possession of Sadanand Sharma was not proved cannot be said to be unreasonable. 19. HC Sanjeev Kumar (PW-1) stated that when they reached Railway Crossing Totu, a person came out of the vehicle bearing registration No.HP18-5555. He had a Stereo with him. The accused identified himself as Sunil Jaswal. The police seized the Stereo vide memo (Ex. PW-1/A). 20. ASI Desh Raj (PW-6) stated that the vehicle was missing when the photographer was brought to the spot on the next morning. This shows that the crime scene was not preserved. Sada Nand Sharma (PW-2) stated that he drove the vehicle from the spot. This shows that there was no police official near the vehicle to preserve it. That is why Sada Nand Sharma (PW-2) drove the P a g e | 14 2025:HHC:26231 vehicle away. The fact that the police had not preserved the crime scene makes the prosecution’s case doubtful. 21. ASI Desh Raj (PW-6) filed an application to the police seeking the police remand of the accused on 18.07.2010, stating that the vehicle was found to be owned by Amarjit Parmar, who said that he had sold his vehicle seven years before the incident. Amarjit Parmar was not produced before the Court. Sada Nand Sharma (PW-2) stated in his cross-examination that he had purchased the vehicle from Rano Devi. The ownership of Rano Devi was not established. No registration certificate was filed to show the ownership of Rano or Sada Nand. This fact also makes it doubtful that the stereo was in the possession of Sadanand. 22. It was submitted that damage was caused to the left window pane, which showed the forced entry. This submission cannot be accepted. The evidence about the damage caused to the window panes of the vehicle is highly contradictory. HC Sanjeev Kumar (PW1) stated in his cross-examination that all four window panes and the rear windshield were damaged. Sada Nand Sharma (PW-2) stated that the left window pane of the vehicle was damaged. HC Ashwani Kumar (PW-5) stated that the window P a g e | 15 2025:HHC:26231 panes of the vehicles were damaged, suggesting that more than one window pane were damaged. ASI Desh Raj (PW-6) stated in his cross-examination that only one window pane was damaged. Thus, different witnesses have given different versions regarding the damage to the windshield. No photographs of the vehicle with damaged glass were taken. The broken pieces of glass were also not seized. Hence, the learned Trial Court was justified in doubting the prosecution’s case because of these contradictions. However, the learned Appellate Court brushed aside these material contradictions by holding that it was not material. The contradictions related to the manner of forced entry, which adversely affected the prosecution’s case regarding theft and cannot be said to be minor. 23. Learned Appellate Court relied upon the presumption of theft by the possession of the stolen articles contained in Section 114 of the Indian Evidence Act; however, there was no evidence that the Receiver/Stereo was stolen out of possession of Sadanand because of his unsatisfactory statement; therefore, the learned Appellate Court had erred in applying the presumption in the present case. P a g e | 16 2025:HHC:26231 24. Therefore, the view taken by the learned Trial Court was a reasonable one which could have been taken based upon the evidence placed before it, and the learned Appellate Court erred in reversing the judgment passed by the learned Trial Court. 25. In view of the above, the present petition is allowed and the judgment and order passed by the learned Appellate Court are set aside, whereas the judgment passed by the learned Trial Court is upheld. The petitioner is acquitted of the charged offence. The fine amount, if deposited by the petitioner, be refunded to him after the expiry of the limitation if no appeal is preferred, and in case of appeal, the same be dealt with as per the judgment of the Hon’ble Supreme Court. 26. In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023) the petitioner is directed to furnish a personal bond in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court which shall be effective for six months with a stipulation that in an event of a Special Leave Petition being filed against this judgment or on grant of the leave, P a g e | 17 2025:HHC:26231 the petitoiner on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 27. A copy of this judgment, along with the record of the learned Courts below, be sent back forthwith. Pending application(s), if any, also stand disposed of. Rakesh Kainthla) Judge 05th August 2025. (ravinder)