(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 Present appeal U/s. 378 of the Code of Criminal Procedure, 1973 is directed against judgment and order dated 17th August 1989, passed by the learned Additional Sessions Judge, Gondal, Dist. Rajkot (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 29 of 1988 for the offences punishable under Sections 302 r/w. Section 34 and 114 of the Indian Penal Code (IPC) and Section 135 of the Bombay Police Act, whereby, the learned Sessions Judge was pleased to acquit the accused persons of the charges leveled against them.
2.0 At the outset, it is required to be noted that so far as respondent No. 4 – Patel Shailesh Bhikhubhai is concerned, vide order dated 29th December 2011, the appeal has been abated qua him (respondent No. 4).
3.0 Facts, in nutshell, of the prosecution case are as under:
3.1 The incident took place on 5th June 1988 at about 17.30 to 17.45 hours at village: Gomta near Gondal Darwaja. It is the case of the prosecution that respondent No. 3 had given sword blow to Garasiya Dolubha Halaji and thereby, committed murder. The accused respondent Nos. 2 and 4 had abetted the respondent No. 3 in commission of the said offence. It is also the case of the prosecution that respondent No. 4 had also given sword blow to deceased Dolubha and thereby, he committed the offence of murder under Section 302 of IPC. The accused – respondent Nos. 1, 2 and 3 had abetted each other in commission of the said offence. The respondent No. 2 had given stick blow to deceased Dolubha and thereby, committed offence under Section 323 of IPC. The accused respondent No. 4 had instigated and abetted in committing the said offence. Thereby, the respondents – original accused had committed the above offences. The respondents – accused had also committed breach of Notification issued by the District Magistrate, and thereby, committed offence under Section 37(1) and 135 of the Bombay Police Act.
3.2 The complaint was filed by one Navalsinh Halaji, the brother of the deceased. As per the say of the complainant, he was informed by one Bharvad Dahya Bava when he was at his residence at about 6:00 p.m. On hearing from him, he immediately rushed to the place of incident, where he saw his elder brother – Dolubha Halaji was lying in bleeding condition. He also saw injuries on his head, mouth, face and leg. He inquired from his brother, but he was not in a position to say anything. At that time, one Batuk Laxman was there with his bicycle. He narrated that, he was on his bicycle and the brother of the complainant had sat on carrier, when they were going from Railway Station to village Gomta. He informed that, accused No. 1 was not having weapon, but accused No. 2 had with him, a wooden log and accused No. 3 had an open sword. He gave sword blow on the head of the deceased and because of the blow, the deceased fell down from bicycle. The accused No. 3 continued giving blows on head, leg, hand, and face of the deceased. The accused No. 2 had also given blow with wooden log. Accused No. 1 was instigating accused No. 2 that finish the deceased. At that time, witness Batukbhai tried to intervene but accused No. 2 raised his log towards him. Because of blows given by respective accused, Dolubha became unconscious. The injured Dolubha was shifted to Gomta Hospital in a rickshaw and from there, he was shifted to Gondal Government Hospital. After giving treatment, as per the advice of the Doctor, the deceased was shifted to Rajkot Hospital. The complaint was filed at about 22:15 hours at Rajkot Hospital and that, the offence was registered with the Gondal Police Station being C.R. No. 126/88.
3.3 The investigation was carried out and on completion of investigation, chargesheet was filed. After committal proceeding, trial was conducted by the learned Sessions Judge. 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 Map of place of offence, Inquest Panchnama, Panchnama of Local Place, Panchnama of Clothes, Station Diary, P.M. Note etc.
3.4 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, Gondal, Dist. Rajkot acquitted the respondents accused of all the charges levelled against them by judgment and order dated 17th August 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 We have heard learned Additional Public Prosecutor Mr. LR Pujari for the State. The learned Additional Public Prosecutor contended that the learned Sessions Judge has erred in appreciating the evidence of prosecution witnesses and thereby, has erred in discarding the same, which resulted into miscarriage of justice. He further submitted that the learned Sessions Judge has erred in not accepting and not relying upon the evidence of the injured eyewitness – Batuk Laxmanbhai and as per his say, he explained the prosecution case that the deceased was beaten by the respective accused by respective weapons and he supported the prosecution case and thereby, has committed error in acquitting the respondents – accused. The learned Additional Public Prosecutor also submitted that the learned Sessions Judge has erred in appreciating the medical evidence produced on record of the case, which clearly shows that the deceased has sustained as many as 22 external injuries and that were also, as per the medical evidence, possible by sharp cutting instrument like sword as well as also possible by hard blunt substance. The learned Additional Public Prosecutor also submitted that the learned Sessions Judge has given undue importance while acquitting the respondents – accused that the name of the respondent – original accused No. 4 is not revealed as a person giving blow with sword to the deceased, but the eyewitness has clearly and specifically stated that the accused Nos. 3 and 4 had given blows with sword to the deceased.
6.0 Per contra, learned advocate Mr. Jay Thakkar appearing on behalf of the respondents – original accused submitted that the learned trial Court has rightly appreciated the evidence, which is forthcoming on the record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. He further submitted that there are glaring major contradiction and material amendment forthcoming on the record without any explanation and in light of his said submission, he drew the attention of the Court to exhs. 51, 44, 45, 46 and 57 and the improvement made by stepbystep has seriously affected the root of the matter. Therefore, the respondents have been rightly acquitted by the learned trial Court. He further submitted that this being an appeal against an order of acquittal, the judgment and order delivered by the learned trial Court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. Lastly, he submitted that the appeal be dismissed.
7.0 On perusal of the judgment and order, we find that the learned Sessions Judge, Gondal has taken all pains to consider the oral as well documentary evidence led before him. The learned Judge has specifically recorded in his finding that there is vital and major contradiction, amendment and improvement in the story put forward by the prosecution itself and the same creates serious doubts. Exh. 51 is the extract of Station Diary recording 'Janvajog' Entry No. 20/88 dated 5th June 1988 of Gondal Police Station. Referring the same, it appears that the same has been noted down first in point of time at about 19:45 hours and it is mentioned that, Darbar Dolubha Halaji of village Gomta had received injuries in a scuffle and he has been referred for further treatment to Rajkot Government Hospital. It appears from the same that no name of any accused persons was disclosed in exh.
51. Then Extract of Station Diary Entry No. 23/88 dated 5th June 1988 noted down by PSO, Rajkot Police Station at about 20:05 hours is at Exh. 44. Referring the said entry, it appears that, Navalsinh Halaji had informed the Head Constable, who was on duty at Rajkot Hospital that, near the busstop of Gomta village, Dinesh Bhimji and Haku Bhimji had given sword blows because of an old rivalry between them to Dolubha Halaji Darbar and Dolubha was brought there for treatment. We can see that, first of all, two names, as referred above, have been disclosed, who were having sword with them and who had given sword blows to Dolubha Halaji. Exh. 45 is the order given by Police Inspector to Police SubInspector for proceeding with the investigation, which is on the line of Yadi recorded as per Exh. 44 referred above. Exh. 46 is the copy of letter written by Police SubInspector to the Executive Magistrate for recording Dying Declaration. It is important to note that the contents of Exh. 46 is on the line of averments made at Exh. 44.
7.1 We will now refer exh. 57 the Complaint registered at 23:30 hours on 5th June 1988 lodged by said Navalsinh Halaji before the Gondal Police Station, in which, in all 03 accused had been named. As per the said FIR, accused No. 1 Patel Dinesh Bhimji was not having weapon; accused No. 2 Ramesh @ Hako Bhimji Patel had with him a wooden log and accused No. 3 – Vasant Manilal had a sword with him. As per the FIR, accused No. 1 – Dinesh Bhimji was instigating and accused No. 2 had given blow with wooden log and accused No. 3 – Vasant Manilal had given sword blows. If we refer statement of Batuk Laxman, who was riding the bicycle and on the carrier of the said bicycle, deceased Dolubha was sitting, and as per his statement, it appears that, he has given fourth name i.e. of Shailesh Bhikhubhai, having sword with him and had given blows with that sword. The above referred prosecution case levelled against accused, appears quite contradictory and appears fatal to the case of the prosecution inasmuch as, as referred above, initially, the swords were described to be with accused Nos. 1 and 2 and later on, the swords were shown to be in the hands of accused Nos. 3 and 4 as referred above and the said improvement made gradually, appears nothing but afterthought and prima facie, appears false implication of some of the innocent persons, for the reasons best known to the prosecution and the learned trial Judge has discussed this aspect at length and come to the finding that the presence of Batuk is doubtful. With a view not to burden this record, we are not repeating the same but we find ourselves in agreement with the same.
7.2 Moreover, we have carefully gone through the deposition of Batuk Laxman at exh. 10, deposition of Veja Rana at exh. 11, deposition of Dahya Bava at exh. 12, deposition of Bhoja Bhala at exh. 21 and deposition of Shantaben Savjibhai at exh. 31. The learned Sessions Judge has discussed the contradiction in the deposition of each witness, appears sufficient for not believing the story put up by the prosecution and we find ourselves in complete agreement with the same.
7.3 The learned Sessions Judge, Gondal, after recording the evidence of witnesses, came to the conclusion that the accused is not guilty for the offences alleged against them. The learned Sessions Judge has made certain observations against the Investigating Officer (I.O.) – Mr. SL Desai of this case in Para 20, Subpara 5 (Line Nos. 6 to 8), which read as under:
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7.4 It is important to note that this I.O. has preferred Special Criminal Application No. 384 of 1990 for expunging the above referred observations made by the learned Sessions Judge. In the said matter, Rule was issued and it was ordered to be heard with Criminal Appeal No. 855 of 1989 i.e. the present Criminal Appeal. During the course of hearing, learned Advocate Mr. HN Joshi for M/s. Thakkar Associates, Advocates for said I.O. in Special Criminal Application No. 384 of 1990 has passed a pursis and not pressed the same and accordingly, the same (Special Criminal Application No. 384 of 1990) is disposed of. We have carefully gone through the entire judgment referred above and we are of the considered opinion that the learned Sessions Judge has rightly observed the above aspect and we find ourselves in agreement with the same.
8.0 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.
8.1 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.”
8.2 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.
9.0 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 17th August 1989, passed by the learned Additional Sessions Judge, Gondal in Sessions Case No. 29 of 1988 is confirmed. Bail Bonds stand cancelled.
9.1 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