(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 Present appeal u/s. 378 of the Code of Criminal Procedure, 1973 arises out of the judgment and order dated 27th December 1991 passed by the learned Additional Sessions Judge, Mehsana (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case Nos. 184 of 1991, whereby, the learned Sessions Judge was pleased to acquit the accused of the charges under Sections 366, 497, 498, 302, 176 and 201 of the Indian Penal Code (IPC).
2.0 The respondent herein – original accused, had prayed for legal aid so as to represent his case before this Court. Pursuant to order dated 12th March 2012 passed by this Court, directing the Registry to make necessary arrangement for providing assistance of an advocate through legal aid, learned advocate Ms. Nisha M. Parikh appears for the respondent – original accused.
3.0 Facts in nutshell of the prosecution case are that the respondent herein – original accused, by luring Bai Kamu the wife of the complainant, took her away with him along with her minor child – Rakesh of about two years. As the said child was coming in his way of fulfilling his illdesign, he took away the child from Bai Kamu by saying that he will leave the child at her in law's/maternal uncle's place. However, afterwards, he killed the child by strangulation and to hide the offence, he buried the body of the child and thereby, he committed the offence as above and complaint had been lodged against him.
3.1 As the offence was triable by the Sessions Court, the learned Judicial Magistrate First Class, Kalol committed the case to the Sessions Court at Mehsana. The accused was produced before the learned Sessions Judge. The learned Sessions Judge framed Charge against the accused and read over to him. The accused, in turn, pleaded not guilty to the charge and consequently, the learned Sessions Judge conducted the trial.
3.2 To prove the guilt against the accused, the prosecution has examined in all 10 witnesses. In order to support the case, the prosecution also produced on record several documentary evidence.
3.3 At the end of trial, after recording the statement of the accused u/s. 313 of the Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge acquitted the respondent – original accused of the charges levelled against him.
4.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, the appellant State has preferred the present appeal.
5.0 We have heard learned Additional Public Prosecutor Mr. LR Pujari. The learned Additional Public Prosecutor submitted that the learned trial Judge has erred in appreciating the oral as well as documentary evidence adduced by the prosecution and thereby, acquitted the accused. The learned Additional Public Prosecutor also submitted that the learned trial Judge has erred in holding that it is not proved that Bai Kamu had taken divorce from her earlier husband – Jagdish. He further submitted that the learned trial Judge has erred in discarding the evidence of Bai Kamu, who has fully supported the case of the prosecution and there is no cogent reason to discard her evidence, as at the time of incident, Bai Kamu, who happened to be mother of the deceased child, was residing with the accused in the compound of Nirma Factory. The learned Additional Public Prosecutor further submitted that the learned trial Judge has also erred in not appreciating the fact that Watchman of Nirma Factory also stated that the accused had taken the deceased boy – Rakesh with him on the day of the incident and thereafter, the boy – Rakesh was found murdered and the accused had also discovered the dead body of the boy in presence of Panchas. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.
5.1 On the other hand, learned advocate Ms. Nisha M. Parikh, appearing for the respondent – accused submitted that the trial Court has rightly appreciated the evidence on record and the reasons recorded by it for recording a finding to acquit the respondent – original accused of the offence charged against him, are reasonable and cogent. She submitted that there are glaring contradictions in the depositions of the prosecution witnesses, which go to the root of the matter. It is further argued that this being an appeal against order of acquittal, the judgment and order rendered by the trial Court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. She, therefore, prayed that the appeal be dismissed.
6.0 We have carefully considered the submissions made by the learned Additional Public Prosecutor as well as by the learned advocate for the respondent – original accused in light of the oral as well as documentary evidence forthcoming on the record. We have also perused the judgment impugned in the present appeal. The learned Sessions Judge has dealt with all the aspects involved in the case on hand. For the purpose of deciding the present appeal, Para 6, 7 and 8 of the judgment, are significant. The learned trial Judge has specifically stated in Para 6 of the judgment that, 'the complainant – Pashabhai and Bai Kamu are the important witnesses in the case and Bai Kamu only can disclose the true facts'. It is stated in the said paragraph that, 'Bai Kamu has, in her deposition at exh. 17, stated that, she came to know the accused during 'Rupal Palli' before 56 years, however they never used to meet; she met the accused at Kalol when she had gone to purchase vegetables; then they went to Kalol ST Busstand, where the accused had given her sweet (Pendo) to eat and after eating the same, she felt giddiness and the accused told her to go with him and when she refused, the accused went with her to Paliyad and waited at Paliyad busstand, asking her to bring Rakesh. Then they roamed to different places and ultimately, gone to Ahmedabad and he got job in Nirma Factory at Chhatral and a room to dwell, where she resided with changed name i.e. Krishna; they also brought the luggage belonging to her husband namely Pasho, which was kept at Kamor village in Rabari's house. Rakesh was residing with them whenever Rakesh cried, the accused used to beat him and hence, Kamu had told the accused to leave Rakesh at Paliyad or Sardhav and hence, the accused took Rakesh with him saying that he was going to leave Rakesh to Paliyad or Sardhav'.
6.1 It is stated in Para 7 of the judgment that, 'in crossexamination Bai Kamu has stated that, it is only after her husband and brothers in law had come, she regained from the effect of the sweet (Pendo); she stayed with the accused for about two months with changed name; during the said period, many a times she told the accused that she wanted to go back, but the accused threatened her with knife and told her that he will kill her; she was conscious during two months; as they were residing together, they brought the luggage of her husband, which was kept at Kamor village; when she used to ask accused to leave her child, he used to tell her to kill the child'. It is also stated in the said paragraph that, 'in cross examination of the complainant it is admitted that, Bai Kamu had earlier married to one Raval Jagdish of Uvarsad, the complainant denied of having residing with Bai Kamu in spite of Jagdish was surviving and without getting divorce; all the three children are of theirs, their birth registration is also made, Bai Kamu resides with him since last 78 years; their marriage is not registered; he is having the certificate of divorce of Kamu and Jagdish; the said certificate was not asked for by the police; he does not have any document in which Jagdish had signed but he is having a document in which Kamu's parents have given in writing the said fact, however, in spite of giving time to produce the same, he could not produce the said document, in the complaint given to police in March, it is not stated that Kamu was abducted by somebody but it was stated that Kamu was missing with Ashok, that after making complaint in May, on 08/08/1991, the complainant, through his advocate, had given complaint against his wife of suicide and stated that, she was bailed out in a murder case, and that, in spite of his unwillingness, the police had forced him to take her with him, that she tried to consume poisonous drug in his presence, however, it is his presence of mind that saved her life; that Bai Kamu had threatened him that she will consume poison if the complainant will get imprisoned her beau a Harijan belonged to Sardhav; that she does not like him; that she fled away with her beau and as her beau is presently in jail, she is trying to take revenge against him and tried to suicide so that the complainant might put himself in trouble'.
6.2 The crux of the matter is reflected in Para 8 of the judgment. It is stated in Para 8 that, 'the wife of the complainant herself had fled away. Moreover, the story of giving sweet (Pendo) seems to have been twisted. Further, divorce with Jagdish, earlier husband of Bai Kamu is not proved. In the circumstances, whether the present complainant has a right to complain adultery is not proved. It is also not proved that the accused had taken away complainant's wife by luring. Though the complainant was given sufficient time and opportunity to produce the certificates as regards the registration of birth of his three children, though he was claiming that all the three children are his children, he could not produce the same. Moreover, in the complaint, instead of 'Rakesh', the name of the child is mentioned as 'Ashok', which shows that the complainant even does not know the name of his child. The prosecution has also not given any explanation to this regard...'. Moreover, the expert evidence as well as the evidence of the security guards also do not support the case of the prosecution and do not prove the case of the prosecution beyond reasonable doubt.
6.3 We are of the considered view that the learned trial Judge has rightly appreciated the evidence on record and has rightly acquitted the accused of the offences charged against him as referred above and we find ourselves in agreement with the same.
7.0 It is well settled that in acquittal appeal, where there is a possibility of two views, the one favourable to the accused should be adopted. It is also well settled principles of law that the Appellate Court would be slow to interfere in an order of acquittal until and unless the judgment of the trial court is perverse or demonstrably unsustainable. In the present Appeal, we find that the reasons given by the learned trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned trial Court has committed any error in acquitting the accused.
7.1 It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 wherein it is held as under:
“… This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967)1 SCR 93: (AIR 1967 SC 1124) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.”
7.2 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the detailed discussion of evidence is not necessary.
8.0 In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal fails and is dismissed. The impugned judgment and order dated 27th December 1991 passed by the learned Additional Sessions Judge, Mehsana in Sessions Case Nos. 184 of 1991 is confirmed. Bail Bond stand cancelled.
8.1 The office shall send back the Record & Proceeding to the trial Court forthwith, after following the due procedure.
[ Ravi R. Tripathi, J. ] [ G. B. Shah, J. ] hiren