(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 30th August 1991 passed by the learned Additional City Sessions Judge, Court No. 21, Ahmedabad (hereinafter referred to as 'the learned City Sessions Judge') in Sessions Case No. 232 of 1990, whereby, the learned City Sessions Judge was pleased to acquit all the accused of the charges levelled against them under Sections 143, 147, 148, 149, 302 and 34 of the Indian Penal Code (IPC) and Section 135(1) of the Bombay Police Act.
2.0 Learned Additional Public Prosecutor Mr. Pujari has placed on record a communication received from the 2nd Police Inspector of Gomtipur Police Station, Ahmedabad City. It is mentioned therein that, 'accused – Vasantkumar, respondent No. 6 herein has expired on 23rd June 2011'. A copy of Death Certificate is also produced along with the said communication. In view of the same, the appeal stands abated qua accused – respondent No. 6 – Vasantkumar @ Bhopo s/o. Jethalal Solanki.
3.0 Brief facts of the prosecution case are that complainant – Chandrikaben w/o. Rameshkumar Prajapati was residing at her parental house since 01/06/1990 with her mother Shantaben and brothers namely Mahendra, Mukesh and Arvind in Bungalow No. 31/33 of Ambica Park Society in Sukhramnagar, Ahmedabad. Accused Nos. 1 and 2 are the real brothers, who were residing with their parents in bungalow Nos. 31/34 and 35, adjoining the house of the complainant on northern side. Accused No. 3 is the brotherinlaw of the accused Nos. 1 and 2 and accused Nos. 4 and 5 are father and son and were residing in the same society. Accused No. 6 was a man of accused Nos. 1 and 2. Adjoining the house of the complainant, on southern side, house of one Parsottamdas Ranchhodbhai was situated. There were open front portion called 'osari' in all these houses, which were situated in one row. On 05/06/1990, the mother of the complainant had gone to Visnagar and the complainant and her brothers were at home. On the night of 05/06/1990, the complainant was sleeping on a cot in front of her house. Her brothers were also sleeping there on separate cots. The parents of accused Nos. 1 and 2 were sleeping outside their house. It is alleged that, at about 4:00 a.m., the accused No. 2 came near complainant – Chandrikaben, while she was sleeping. He lifted the gown which she had put on and started caressing her leg and hand. She immediately woke up and saw the accused No. 2 indulging in the act. On being questioned why he was misbehaving with her, the accused No. 2 told the complainant to go inside the house. The complainant could not speak anything at that time as she was frightened. She went to the mother of the accused No. 2, who was sleeping outside the house in the front side and narrated the incident. She in turn, told her that he (accused No. 2) might have done so because he had awakened from sleep suddenly. Then, the mother of the accused No. 2 took him inside the house and closed the door. The complainant also went inside her house and went to bed. Next morning, the complainant narrated the incident to her brother Mukesh. Mukesh in turn, told her to inform their mother on her return. The mother of the complainant returned from Visnagar in the evening. The complainant and Mukeshbhai narrated the story to her. The mother of the complainant informed about the incident to the parents of accused No. 2, who scolded accused No. 2. Mukesh, the brother of the complainant, who was present there, also gave two slaps to accused No.2. Then they all dispersed from there. It is further the case of the prosecution that on 07/06/1990 at about 9:30 p.m. when the brother of the complainant namely Mukesh came out of his house after dinner, the respondents – original accused Nos. 1, 3, 4, 5 and 6 rushed towards the house of the complainant. Accused No. 1 asked Mukesh to come out. Then, the accused started giving fist and kick blows to Mukesh. The respondent – original accused No. 1 was possessing a pen knife in his hand. He gave a blow with that penknife to Mukesh on his chest due to which, Mukesh sustained severe injuries. Mukesh then ran towards the house of his neighbour Parsottambhai and went inside the 'osari' of the house. The accused chased Mukesh but they could not open the door (Jali) of the house. During that time, the mother of the injured Mukesh came there running. Other persons namely Prabhudas, Ishwarbhai and other 810 persons also came there running and hence, the accused fled away from the scene. Injured Mukesh was taken to Shardaben Hospital by his uncle Chhaganbhai, where he succumbed to the injuries. Thus, the accused were alleged to have committed the offence as above for which complaint had been lodged against them.
3.1 As the offence was triable by the Sessions Court, the learned Metropolitan Magistrate, Court No. 10, Ahmedabad committed the case to the City Sessions Court at Ahmedabad. The accused were produced before the learned City Sessions Judge. The learned City Sessions Judge framed Charge against the accused and read over to them. The accused pleaded not guilty to the charge and consequently, they were tried by the learned City Sessions Judge.
3.2 To prove the guilt against the accused, the prosecution examined in all 07 witnesses. Besides, in order to prove the case, the prosecution relied on several documentary evidence, which were also taken into consideration by the learned City Sessions Judge.
3.3 At the end of the trial, Statements of the accused u/s. 313 of the Code of Criminal Procedure were recorded in which, the accused have denied the charges levelled against them. After hearing the arguments on behalf of the prosecution and the defence, the learned City Sessions Judge acquitted all the accused of the charges levelled against them.
4.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned City Sessions Judge, the appellant State of Gujarat 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, acquitting the accused of the charges levelled against them. The learned Additional Public Prosecutor submitted that the learned trial Judge has failed to appreciate that the prosecution has established the motive for the crime and the order of acquittal is required to be set aside. The learned Additional Public Prosecutor further submitted that the learned trial Judge has erred in appreciating the medical evidence on record of the case. He submitted that the learned trial Judge has committed an error in not believing the evidence of the eye witnesses as well as complainant – Chandrikaben on the ground that they are relatives of the deceased and has failed to consider that their presence at the place of incident was natural. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned City Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.
5.1 Per contra, learned advocate Mr. MY Malek, appearing for respondents – original accused Nos. 1 to 3 and learned advocate Mr. MJ Buddhbhatti, appearing for respondents – original accused Nos. 4 and 5 submitted that the learned trial Judge has rightly appreciated the evidence on record and the reasons recorded by him for acquitting the respondents – original accused of the offence charged against him, are plausible and cogent. The learned advocates for the respondents – original accused 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 an order of acquittal, the judgment and order rendered by the trial Court deserves to be upheld as proper because plausible reasons for acquittal have been recorded. It is, 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 advocates for the respondents 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 City Sessions Judge has taken all pains and has dealt with all the aspects of the case on hand. The learned trial Judge, on the aspect of interested/partisan witnesses, vide Para 8 of the Judgment, has observed that, '...If this is the position, then both these witnesses Chandrikaben Ex. 20 and Ishwarbhai Ex. 25 on whose evidence the prosecution has materially relied on as direct evidence, cannot be said to be independent and disinterested witnesses. Thus, these witnesses Chandrikaben Ex. 20 and Ishwarbhai Madhavlal Patel Ex. 25 are no better than partisan witnesses. Now, as observed by the Hon'ble Supreme Court in case of State of Gujarat Vs. Nagin Dhula Patel 1983 Criminal Law Journal page 1112 that the evidence of such partisan witnesses cannot be discarded unless it is proved that their evidence suffers from serious infirmity to create a doubt in the mind of the Court. So, the evidence of these witnesses Chandrikaben Ex.
20 and Ishwarbhai Patel Ex. 25 does not require to be discarded in toto merely because they are partisan or relative witnesses...'.
6.1 The learned trial Judge, on careful consideration of the evidence, has recorded contradictions in the versions of complainant – Chandrikaben, exh. 20 and Shri Ishwarbhai Patel, exh. 25, who were the eyewitnesses of the incident and materially relied by the prosecution. The learned trial Judge has observed in the said paragraph (Para 8) that, '...As I stated hereinabove, it is crystal clear that the evidence of these witnesses Chandrikaben Ex.
20 and Ishwarbhai Patel Ex. 25 suffers from many material, vital contradictions...'. The learned trial Judge has further observed in the said paragraph that, '...She categorically tells that only one blow was struck to his brother. She also tells that Prabhudas and prosecution witness Ishwarbhai and other 8 to 10 persons came there running and the accused thereafter ran away. Thus according to this witness Chandrikaben Ex. 20 the deceased Mukesh was called from osari by the accused No. 1 and the accused No. 2 to 6 were with the accused No. 1 at that time they gave slaps to Mukesh and then the accused No. 1 gave blow with the penknife on the chest of Mukesh. But prosecution witness Ishwarbhai Ex. 25 goes to depose that at the time of the incident the accused No. 1 came in front of the house of the father of the deceased and shouted Mukesh telling Mukesh come out and Mukesh came out and accused No. 2 to 6 started giving fist and cicks (sic. kick) blows to Mukesh. He categorically tells that the accused Nos. 2 to 6 were standing at some distance behind the accused No. 1. He tells that Mukesh fell down on the cot when he was being beaten with fist and cicks (sic. kick) blows and as soon as Mukesh fell on the cot the accused No. 1 gave blow with knife on the chest of Mukesh. Thus, the version of the complainant Chandrikaben Ex. 20 that Mukesh fell down on the cot after he was beaten by the accused No. 1 with the penknife is materially contradicted by the version of this prosecution witness Ishwarbhai Ex. 25 who tells that the accused No. 1 gave blow with the knife to Mukesh after he fell down on the cot...' (emphasis supplied)
6.2 The learned trial Judge has further observed in the said paragraph (Para 8) of the judgment that, '...Thus it is crystal clear that the evidence of the complainant Chandrikaben Ex. 20 is materially contradicted by her previous version which she gave before the police in her complaint Ex. 21. These contradictions are obviously and clearly very material and major. The complainant Chandrikaben Ex. 20 does not state in her evidence that the accused gave two blows with the penknife after her brother Mukesh fell down in the osari of the neighbour, even though such fact is admitted, stated by her in her complaint Ex. 21. She has also not stated the story of cot and blood stains on that cot in her complaint. No doubt, this is an omission. But in light of the facts and circumstances, it is crystal clear that this omission is very material to create a doubt about the truth and probability of the evidence of this witness Chandrikaben Ex. 20...' (emphasis supplied)
6.3 Besides, the learned trial Judge has observed in the aforesaid paragraph (Para 8) that, '...Thus, the evidence of Chandrikaben Ex.
20 is clearly contradictory and it suffers from many material and vital contradictions and infirmities and discrepancies. Now, as I stated hereinabove, the evidence of the prosecution witness Ishwarbhai Ex. 25 is also materially contradicted by the evidence of Chandrikaben Ex. 20 who is also an eyewitness. This witness Ishwarbhai Ex. 25 goes to tell that there were ladies in the neighbouring house and when the deceased Mukesh rushed into that house of Parshottambhai the ladies closed down jali and five accused attempted to open that jali. But it is clear that the prosecution witness Chandrikaben Ex. 20 does not tell even a single word that there were ladies in the house of the Parshottambhai and they closed Jali and the five accused attempted to open that jali...' The learned trial Judge, in the said paragraph, has further recorded contradiction and observed that, '...This witness Ishwarbhai Ex. 25 goes to depose that Mukesh came outside from the house as he was called by Jayesh accused No. 1 and as soon as Mukesh came out accused Nos. 2 to 6 started to beat Mukesh with first (sic. fist) and cicks (sic. kick) blows. He categorically tells that there was no exchange of words between Mukesh and the accused No. 1 at the time of the incident. But it is categorically admitted by him that he has stated in his police statement that the accused No. 1 told deceased Mukesh as to why the deceased beat his brother and the accused No. 1 started to quarrel with the deceased. This witness Ishwarbhai Ex. 25 goes to depose that Mukesh fell on the cot as he was beaten with first (sic. fist) and cicks (sic. kick) blows but he at the same time categorically admits that he has not stated said facts before the police in his statement. It is also in the evidence that this witness Ishwarbhai has not stated before the police in his statement that there was a cot and Mukesh fell on the cot and the accused No. 1 gave blow with knife to Mukesh while he was on the cot. Now, if really this witness Ishwarbhai Ex. 25 was present at the time of the incident he would have naturally stated such material facts of the existence of the cot there and fact that Mukesh fell on that cot and then accused No. 1 gave blow with pen knife to him. Thus, it is very clear that the evidence of this witness Ishwarbhai Ex. 25 suffers obviously from many material contradictions, infirmities and discrepancies...' (emphasis supplied)
6.4 Eventually, the learned trial Judge, in Para 12 of the judgment, has observed that, '...However, as I stated hereinabove, I am of the opinion that the evidence on which the prosecution has relied in this case to connect the present accused with the alleged incident is not sufficient, reliable, trustworthy, cogent and free from doubt.
Whatever doubt is there, its benefit goes to the accused. So, in my view, the prosecution fails to establish this case against the accused beyond reasonable doubt for want of reliable, trustworthy and cogent evidence...'. (emphasis supplied)
6.5 In the above backdrop, evidence on record and appreciation of the same by the learned trial Judge, we are of the considered view that there are material contradictions, infirmities and discrepancies in the evidence of prosecution witnesses and the learned trial Judge has rightly appreciated the evidence on record and has rightly acquitted the accused of the offences charged against them as referred above. Accordingly, 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 principle 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 Judge are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned trial Judge 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 reasoning, 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 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 has abated qua accused No. 6 and is dismissed qua the other accused. The judgment and order dated 30th August 1991 rendered in Sessions Case No. 232 of 1990 by the learned Additional City Sessions Judge, Court No. 21, Ahmedabad is upheld. Bailable warrant issued against the respondents – accused is 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