(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 21st June 1991 passed by the learned Additional City Sessions Judge, Ahmedabad (hereinafter referred to as 'the learned City Sessions Judge') in Sessions Case No. 9 of 1991, whereby, the learned City Sessions Judge was pleased to acquit both the accused persons of charge under Section 302 of the Indian Penal Code (IPC) and Section 135(1) of the Bombay Police Act. However, the learned City Sessions Judge was pleased to convict accused No. 2 – Prahlad Ramsing Yadav for the offence under Section 324 of the IPC and he was ordered to be released on probation of good conduct for two years on his furnishing personal bond of Rs.2,000/ and a surety of the like amount.
2.0 It is to be noted that the respondent No. 1 had requested this Court for appointment of an advocate on his behalf by way of legal aid. We requested learned advocate Mr. JM Buddhbhatti to assist the Court by way of amicus curiae and accordingly, he has assisted the Court for respondent No. 1. Learned advocate Mr. BG Patel for the respondent No. 2 remained absent when called out.
3.0 Brief facts of the prosecution case are that on 11th August 1990 at about 13:30 hours in Saraspur area, near chawl of Radheshyam, accused No. 1 caught hold of deceased Dhanjibhai and gave him fist blows; the accused No. 2 gave knife blows on the left cheek, on the collarbone and on the chest on left side and thereby, committed murder of Dhanjibhai.
3.1 After the case was committed to the City Sessions Court, the accused were produced before the learned City Sessions Judge, Ahmedabad. The learned City Sessions Judge framed Charge against the accused and read over to the accused. The accused, in turn, pleaded not guilty to the charge and consequently, the learned City Sessions Judge conducted the trial.
3.2 To prove the guilt against the accused, the prosecution has examined in all 17 witnesses. In order to support the case, the prosecution has produced on record several documentary evidence.
3.3 At the end of trial, after recording the statements 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 City Sessions Judge acquitted the respondents accused of the charge under Section 302 of the IPC. However, the learned City Sessions Judge was pleased to convict accused No. 2 – Prahlad Ramsing Yadav for the offence under Section 324 of the IPC and he was ordered to be released on probation of good conduct for two years on his furnishing personal bond of Rs.2,000/ and a surety of the like amount.
4.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned City 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 ought to have considered that there were 22 injuries on the deceased and out of them, some of the injuries were found on the vital part of the body of the deceased and that indicates that accused No. 2 behaved in murderous manner. The learned Additional Public Prosecutor further submitted that the learned trial Judge ought to have held that there is no inconsistency between medical evidence and ocular evidence. He further submitted that the learned trial Judge has erred in holding that the accused No. 1 was not present for the reason the F.I.R. involves only one person, and also on the ground that if the deceased had been caught hold by accused No. 1, the deceased would not have received defence wounds. The learned Additional Public Prosecutor further submitted that the learned trial Judge has wrongly applied decision in the matter of Bijoysingh Vijaynarayansingh and Ors. vs. State of West Bengal, reported in 1990 (2) GLH 51 because in that case, the hands and legs of the deceased were caught hold by the accused. Last but not 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, Mr. Buddhbhatti, amicus curiae for respondent No. 1 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 respondents – original accused of the offence punishable under Section 302 r/w. Section 34 of the IPC, are reasonable and cogent. He submitted that there are glaring contradictions in the depositions of the prosecution witnesses, which go to the root of the matter. He submitted that the learned trial Judge has elaborately discussed the injuries inflicted on the accused, alleged to have been caused by big knife (Chharo), which had been recovered under the Panchnama carried out under Section 27 of the Indian Evidence Act and has rightly come to the final conclusion that the said injuries are not possible as alleged, more particularly, by the said knife muddamal article No. 16, which had been recovered. He 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. He has, therefore, prayed that the appeal be dismissed.
6.0 We have carefully considered the submissions made by the learned Additional Public Prosecutor in light of the oral as well as documentary evidence forthcoming on the record. As per the case of the prosecution, on 11th August 1990 at about 1:30 p.m., opposite Milan Cinema, the accused No. 1 – Kirit caught hold of deceased Dhanjibhai Lavjibhai by one hand and gave fist blows with other hand and at that time, accused No. 2 stabbed Dhanjibhai in quick succession by causing about 20 wounds which ultimately resulted into his death. As per the prosecution case, at the time of giving blows, two Homegaurds – Ganpat Gokal (PW2) and Ratilal Mohanlal Patni (PW8) happened to pass by the place of occurrence riding their bicycles and on seeing the incident of stabbing, they got down. Ganpat gave a stick blow to accused No. 2 – Prahlad, who ran away and accused No. 1 – Kirit also ran away behind accused No. 2. The complainant – Gokal Lavji (PW1), the elder brother of deceased – Dhanji, who claims to be an eyewitness said that just coming out of his small gate (wicket gate), he saw the incident and thereafter, came to the spot with his mother Laduben and Muktaben, the wife of his brother Dhanji. The injured was rushed to Shardaben Hospital by rickshaw and admitted in emergency ward at about 1:35 p.m., where Dhanjibhai was declared dead by the Medical Officer Dr. Dipak Shankarlal (PW4) who had examined his injuries also.
6.1 The direct evidence involving the accused consists of oral testimony of i) Gokalbhai Lavjibhai PW1, exh. 15, ii) Home guard Ganpat Gokal – PW2, exh. 16 and iii) Homeguard Ratilal Mohanlal – PW8, exh. 32. It may be noted at this stage that, PW 2 – Ganpat has not implicated accused No. 1 – Kirit and he was contradicted with his assumed police statement by the learned Additional Public Prosecutor. This aspect has a reference with Vardhi Book, the documents exhs. 25, 31 and 37 which totally exclude accused No. 1 – Kirit. Another alleged eyewitness Homeguard – Ratilal Mohanlal – PW8, exh. 32 has not supported the prosecution and he has also been contradicted with his assumed police statement. Then remains the evidence of only alleged eyewitness viz. Gokalbhai Lavjibhai, the brother of the deceased, implicating both the accused. But considering his evidence in light of the medical evidence, exh. 28 and evidence of Homeguard – Ganpat, it clearly appears that he has not witnessed the incident.
6.2 As per the case of the prosecution, the respondent No. 2 – accused No. 2 had produced muddamal article No. 16 – Big Knife (Chhara) under the Panchnama carried out as per Section 27 of the Indian Evidence Act. Two Panchas of the said Panchnama are not supporting the same. Moreover, as per the say of Dr. Patil and Dr. Leuva, by muddamal article No. 16 – Big Knife (Chhara), only 'cut' wound is possible and not the 'bruised' wound. The said statement was made by Dr. Leuva when he was recalled for examination. Whereas, there were cut and bruised wounds on the hand of the accused. As per the say of Dr. Patil, the relevant stabbed injuries which have been caused to the deceased may be by a weapon which is sharp edged and pointed on one side and blunt on other side because one edge of the said injuries was obtuse on one side and the said injuries are not possible to be caused to the deceased by the muddamal article No. 16. Thus, there are material contradictions in the evidence. 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 offence punishable under Section 302 r/w. Section 34 of the IPC 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 21st June 1991 passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 9 of 1991 is confirmed. Bail Bonds 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