(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 2nd May 1991 passed by the learned Additional Sessions Judge, Gondal (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case Nos. 40 of 1987 and 16 of 1988, whereby, the learned Sessions Judge was pleased to acquit all the accused of the charge under Sections 302, 143, 147 of the Indian Penal Code (IPC) and Section 25(1) (a) of the Arms Act and Section 135(1) of the Bombay Police Act.
2.0 At the outset it is to be noted that the appeal stands abated qua respondents – accused No. 2 – Kanu Arjan Aher, No. 8 – Bogha Kana Aher and No. 9 – Kumbha Hamir Bharvad, as they are reported to have expired.
3.0 Brief facts of the prosecution case are that there is a long drawn enmity between to communities viz. Patels and Ahers in village Sultanpur of Gondal Taluka of Rajkot District. During 1985 election, Kaku Ranchhod took the leadership of Patel Community, whereas the Ahers fought the election with the cooperation of Kumbha Hamir. In the said election, the Patels won, which further accelerated the enmity between the two communities. That, on 1/7/1987 at about 1:30p.m., Vallabhbhai and Shamjibhai were returning from Gomta on a motorcycle. When they reached near the petrol pump of Kumbha Kana near Devla village, the accused namely Lakhu Kana, Kumbha Hamir, Kanu Arjan, Bogha Kana, Naran Bhana and one unknown person came from behind the cabin of one Bachu Moti. At that time, Kumbha Hamir assaulted them by stones twice; Kanu Arjan fired from the gun possessed by him, however, the bullet passed over the heads of above persons; thereafter, Lakhu Kana assaulted by firing from the gun possessed by him, which injured the elbow of left hand of Shamjibhai, who was the pillion rider. The other accused namely, Bogha Kana, Naran Bhana and one unknown person, who were having 'Dharia' and 'Spear' respectively in their hands, chased the above persons, however, they fled away from the scene on motorcycle to Sultanpur. Thereafter, the above persons, together with Kakubhai and some other persons were going from Sultanpur to Gondal for filing complaint by Ambassador and Jeep Cars. When they passed some distance, they saw that a truck, owned by Kumbha Kana, was following their Jeep. At a distance of about one and half kilometers from Sultanpur, near the field of Vallabh Nathu on roadside, Patel Kanu Shambhu and Hasmukh Vrajlal were repairing the motorcycle. The Jeep crossed them, however, the truck stopped there and Lakhu Kana fired at Kanu Shambhu. The persons who were sitting in the Jeep saw Kanu Shambhu falling down. Then, some persons got down from the truck and hence, the persons sitting in the Jeep got scared and they drove the Jeep towards Gondal. The truck followed the jeep and near village Lilakha, the truck reached almost near the Jeep and hence, the Jeep driver – Pratapbhai diverted the Jeep to the way heading to Jetpur. The truck continued chasing them and hence, Pratapbhai took the Jeep into a field. The truck also came behind them into the field and the persons in the truck started firing at the persons sitting in the Jeep. The Jeep stopped in the field as there was a 'Pala'. Except three namely Pratap Thakarshi, Velji Devshi and Keshu Ranchhod, other occupants jumped out from the Jeep and ran helterskelter. The accused persons were possessing different weapons like Gun, Dharia, Bhala in their hands. They started firing at the persons. The accused persons, who came by truck, fired at them, and also assaulted with other weapons and consequently, two persons died there itself and one person namely Keshu Ranchhod died in the hospital at Gondal. Accordingly, the accused 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 Judicial Magistrate First Class, Gondal committed the case to the Sessions Court at Gondal. The accused were produced before the learned Sessions Judge. The learned Sessions Judge framed Charge against the accused and read over to them. 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 44 witnesses. In order to support the case, the prosecution has produced on record several documentary evidence, which were also taken into consideration by the learned Sessions Judge.
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 Sessions Judge acquitted all the respondents – original accused of the charges levelled against them.
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 appreciating the Medical Evidence. He further submitted that the learned trial Judge has erred in holding that the F.I.R. was given at the time, as stated by the prosecution witness, is not correct because of the fact that the F.I.R. was given on 1st July 1987 at about 5:00 p.m. at the place of incident and the offence was registered at the concerned Police Station at about 7:30 p.m. The said information was given by Shri Kakubhai. The learned Additional Public Prosecutor further submitted that the learned trial Judge has also erred in holding that original accused Nos. 7 and 11 i.e. Nanji Devdan Aher and Raidhan Lakha Aher were at Sabarmati Central Jail at the relevant time and they have proved alibi beyond reasonable doubt. The learned Additional Public Prosecutor further submitted that the learned trial Judge ought to have considered that even a plain reading of the F.I.R. itself is suggestive of the fact that it was recorded at the scene of the incident. The learned trial Judge has disbelieved this evidence because witness Dilipbhai had stated in his statement before the police that when he and Kakubhai reached Gondal, Kakubhai got down at the Police Station to lodge the complaint; the time and place of recording the complaint was not stated in the complaint and in the Inquest Panchnama of Pratap Thakarshi and Velji Devshi, drawn by PSI Thakor between 6:00 p.m. and 8:00 p.m. the C.R. Number was not stated, one Naran Laxman – a Police Constable who was treated hostile by the prosecution stated in his evidence that PSI Thakor came to Sultanpur at about 6:00 p.m. and he came to Gondal with PSI Thakor and he was with him till 8:00 p.m. The learned Additional Public Prosecutor submitted that the learned Judge has erred in holding that these infirmities could not be said to be sufficient to discard the oral evidence corroborated by the entries in the Station Diary and the F.I.R., which were made at 7:30 p.m. He submitted that the learned trial Judge has committed an error in appreciating the evidence of PSI Thakor as well as evidence of the investigating agency. 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 Per contra, learned advocate Mr. HN Joshi for M/s. Thakkar Associates, appearing for the respondent – accused No. 1 and Mr. Khandheria, learned advocate, appearing for the accused respondent Nos. 3 to 7 and 10 to 12 submitted that the trial Court has rightly appreciated the evidence on record and the reasons recorded by it for acquitting the respondents – original accused of the offence charged against them, 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. 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. They, 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 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 Sessions Judge has dealt with all the aspects involved in the case on hand. It is specifically mentioned in Para 35 of the judgment as under:
“The deposition of the witness Ashwin Shambhubhai has been recorded vide Exhibit No.189. He was the brother of deceased Kanu Shambhu. But, in view of his deposition, his conduct is not found as could be in natural circumstances and it is not found that Hasmukh Vrajlal might have told any fact about the incident, therefore the prosecution case is not supported by even the deposition of Ashwin Shambu. He has denied that all the witnesses knew the fact to the effect that a crowd consisting 700 to 800 persons had already gathered in the village Sultanpur between 230 to 300 O'clock in the afternoon and left for burning the Aher Vas with kerosene tins and weapons. However, all the witnesses had arrived in the village Sultanpur at 600 to 630 hours in the evening, despite this, he states such fact that he knows nothing about the incident. From the entries made on the basis of the calls made in the police Station by police and the investigation in respect of the incident of firing, the fact has been undisputedly proved that instigation was spread in the village after the incident of firing took place on Shamjibhai and Vallabhbhai and a crowd consisting 700 to 800 persons went for burning Aher Vas and on preventing them, police was compelled to start firing. Under the circumstances, it is quite possible that the male members of Aher community may go out armed with weapons for their self defence. Similarly, when firing took place on Shamjibhai and Vallabhbhai at village Deval, the fact is undisputed that the complainant and the other witnesses knew that, “the persons are present with weapons” as stated in the complaint lodged by Shamjibhai in the village Devla. The fact has also come on record that, there are also other roads for coming to Gondal from Sultanpur, however they may be little long in kilometer but if the accused persons armed with weapons are present on the way at village Devla, in the natural circumstances the fact is not believable that the complainant and the persons accompanied him may pass on that way in Jeep and Ambassador Cars without taking any kinds of weapons. Even if they might have passed, they should have kept the weapons for their self defence and the assumption is supported by the evidence that three live cartridges were found from the pocket of the Pant of Pratap Thakarshi. If Pratap Thakarshi is not armed with the weapon in which such cartridges can be used, there was no reason to keep such cartridges in the pocket and the fact is also not believable that other persons also left in the jeep without weapons. Therefore, if any weapon out of weapons with the prosecution witnesses had remained before the inquest panchanama were drawn, there is complete possibility that it might have been shifted from the place of incident. Thakarshibhai, the father of deceased Pratap Thakarshi who had also gone to the place of incident and who has not been examined by the prosecution and father of the complainant Kakubhai who had also come with Thakarshibhai at the place of incident, it is also possible that the said weapon might have been shifted by them. And the fact has been clearly proved that the investigating Officer might be knowing that fact or not, but the inquest panchanama had been drawn by concealing some of the facts because at the time of drawing Inquest Panchanama he has not mentioned about the live cartridges which were found in the said panchanama. Thus, all the witnesses of the prosecution belong to the same community; there has been animosity between the prosecution and the accused persons since long; previously the incident of attacking on one another by fire weapons has taken place between them and the incidents of murder have also taken place. Further, as per the statements of all the eye witnesses, though firing was caused haphazardly by 7 to 8 persons armed with fire weapons, none of the persons had sustained a little injury. In view of this, it can be said that, when firing took place, they were far at a distance from the jeep or some of them were not in Jeep and later on such fact to the effect that they were in jeep has been arranged for creating as witness. However, because of the aforesaid only circumstance, it can not be said that the depositions of the witnesses should not be believed but looking to the entire conduct of the witnesses and looking to the other significant circumstances as per the description taken on the record and the contradictory statements, there has been complete possibility in this case that the witnesses might have made efforts to implicate other persons of their family along with the real attacking persons who might not have been present at the time of incident and under the said circumstances, considering all the circumstances in view of wide probability and even if the trivial contradictory statements which are not significant are not taken into consideration, on making evaluation of the entire evidence given by the witnesses, the fact is clearly proved that, the witnesses have not given the description of the incident in the way it has taken place. The important facts have been concealed. The innocent persons along with the real persons have been implicated in the serious offence like murder of four persons, wherein the sentence of “death” can be awarded and in such case, the responsibility of finding the truth of the court increases.
On making evaluation of the evidence adduced in this case entirely, it is difficult to separate the truth and falsehood from the depositions of the witnesses. And as discussed herein above, the complaint has not been lodged at the alleged time and place. There is complete possibility that the complaint might have been lodged after making arrangement and after all the witnesses might have got together and discussed. Taking into consideration the said entire circumstances, the prosecution has failed to prove the facts beyond doubt that the accused persons mentioned in the chargesheet that is to say the accused persons in this case were involved in hatching the criminal conspiracy and after hatching the criminal conspiracy, they had committed murder of four persons or all those accused persons in this case were the members of the unlawful assembly and in order to fulfill the common object of the unlawful assembly, they had committed murder of four persons or they had illegally kept the fire arms in their custody and armed with deadly weapons in public committed breach of the Notification issued by the collector and the accused persons are liable to get the benefit of doubt ”
6.1 We have also referred the averments made in Para 11 of the Judgment at page 1658 and in light of the same, also perused Ballistic Report at page Nos. 1458 etc. On page Nos. 1463 and 1464, the expert has opined after examination of cartridge cases that the same have not been fired from the weapons which had been recovered.
6.2 So far as accused No. 7 – Nanji Devayat and accused No. 11 – Raidhan Lakha are concerned, they were at Sabarmati Jail as visitors and thus, alibi has been proved.
6.3 It is also submitted by the learned advocate for the respondents – original accused that after the abovereferred incident, no other incident up to this date had taken place between both the rival communities and they are in good relations with each other.
6.4 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 them 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 2nd May 1991 passed by the learned Additional Sessions Judge, Gondal in Sessions Case Nos. 40 of 1987 and 16 of 1988 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