(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 The present appeal U/s. 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 27th October 1989, passed by the learned Additional Sessions Judge, Banaskantha @ Palanpur in Sessions Case No. 133 of 1988, whereby, the learned Sessions Judge was pleased to acquit the accused persons of the charge leveled against him.
2.0 At the outset, it is required to be noted that present appeal is restricted qua respondent No. 2 as respondent No. 1 – Mafatlal Chhaganlal Modi has already expired and appeal qua him stood abated.
3.0 Facts, in nutshell, of the prosecution case are as under:
3.1 That the complainant – Raghuvir Virsangbhai Chaudhary, resident of Palanpur, on 23rd June 1988, filed a Complaint before the Palanpur City Police Station. As per the said complaint, on 22nd June 1988, the complainant and others, who happened to be the neighbours of accused, after having dinner, were sitting and gossiping nearby the house of the complainant at about 9:00 p.m. At that time, they found some firelight on the terrace of Mafatlal – the accused No. 1 (respondent No. 1 herein) and a person was in flames. On their rushing to the place, they saw said person fell down from the terrace and was screaming for help and identified to be one Soni Jagdish Babulal, who was residing in the room of Mafatlal the accused – respondent No. 1 herein, situated on the first floor. At that time, landlord – Mafatlal and his son Jagdish the accused were present at the place. They fetched water from Mafatlal's house and poured it on Jagdishkumar – the deceased and extinguished the fire. On inquiring from Jagdishkumar, he replied that as Mafatlal owed him some money, and some amount was still remained unpaid, both the accused, came on the terrace and set him ablazed to kill him. The trio then took Jagdish to Palanpur Civil Hospital in a rickshaw and admitted him for treatment. The complainant further stated that as Mafatlal Chhaganlal and Jagdishkumar, had, with intention to kill Jagdish Babulal on account of money transaction, they set Jagdish Babulal ablazed. The offence was registered on 23rd June 1988 with the Palanpur City Police Station under Sections 302 and 34 of the Indian Penal Code against the accused persons.
3.2 To prove the guilt against the accused, the prosecution has examined in all 18 witnesses. In order to support the case, the prosecution has produced on record several documentary evidence like P.M. Report, Inquest Panchnama, Map of place of offence, Panchnama of Scene of Offence, Panchnama regarding Muddamal, Analysis Report etc.
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, Banaskantha @ Palanpur acquitted the respondents accused of all the charges levelled against them by judgment and order dated 27th October 1989.
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 Learned Additional Public Prosecutor Mr. Pujari contended that the judgment and order of the Sessions Court is against the provisions of law. The Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. The learned Additional Public Prosecutor has also taken this Court through the oral as well as the entire documentary evidence.
6.0 As per the case of the prosecution, the complainant Raghuvir Chaudhary, Dinesh Chunilal and Virchand Parmar, after having their dinner, were standing and gossiping nearby the house of the complainant and they show the incident referred above. The learned Additional Public Prosecutor has drawn our attention to the depositions of the above referred three witnesses respectively at exhs. 29, 41 and 48 and submitted that they are the neighbours and also independent witnesses and there is no reason not to believe them. It is well settled legal position that a witness is normally to be considered independent unless he or she had any previous enmity against accused so as to implicate him falsely. It is true that when feelings run high and there is personal cause for enmity, that there is tendency of dragging an innocent person against whom a witness has grudge. We are conscious that each case must be judged on its own facts. From the depositions of the above witnesses, it has come on the record that as Chhaganlal had closed the westernside way of his property by making construction, father of Dinesh and others had filed a Civil Suit No. 525 of 1982 and the said suit and the dispute involved in it, was pending when the said witnesses gave the depositions. We have carefully perused the entire depositions in light of the documents forthcoming on the record and we are of the opinion that, the above referred three witnesses are the interested witnesses in its real sense and hence, the learned trial Judge had considered the same accordingly with all the care.
6.1 It is the fact that the accused have brought the deceased to the hospital for treatment. During the night of the incident also, the father of the accused had gone to the place of the parents of the deceased at village Majadar to call them. The police, after recording the complaint, had not tried to protect the place of offence. Moreover, the prosecution has not examined very natural and available witnesses from the compound in which, the accused were residing. The Dying Declaration before the doctor, appears more probable and natural. According to us, the Dying Declaration recorded by the Executive Magistrate, appears self contradictory and not consistent. The mental stability of patient, prior to recording of Dying Declaration by the Executive Magistrate, has not been checked by the concerned doctor. All the above aspect and facts, the learned trial Judge has discussed at length and considered each aspect by giving clear findings. There appears no infirmity or illegality in it and as such, we find ourselves in complete 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 trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the 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 Honourable 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 October 1989, passed by the learned Additional Sessions Judge, Banaskantha @ Palanpur in Sessions Case No. 133 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