(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 11th October 1990 passed by the learned Additional Sessions Judge, Jamnagar (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 39 of 1983, whereby, the learned Sessions Judge was pleased to acquit all the accused of the charges under Sections 302, 143 r/w. Section 149 of the Indian Penal Code (IPC).
2.0 Learned advocate for the respondents submitted that respondent No. 1 – original accused No. 1 – Gandubhai Karamsibhai has expired on 9th May 2003 and has submitted zerox copy of the Death Certificate issued by the concerned Subregistrar, Office of Births and Deaths Registration, situated at South Zone, Udhna, Surat Municipal Corporation. Accordingly, the appeal is abated qua him.
3.0 Brief facts of the prosecution case are that since last about two years of the incident (occurred on 27/06/1981), there was a dispute between the deceased and the accused about the 'Shedha' of the land known as 'Gadadhar'. Hence, respondent No. 1 – Gandu Karamsi, respondent No. 2 – Kesha Karamsi and Bhimji Karamsi had got measured the land and also got decided the 'Shedha' of the land only before 45 days of the incident, which had occurred on 27/06/1981, in presence of the Upsarpanch and other eminent people of the village. On the day of the incident i.e. on 27/06/1981, deceased Virji Ghela along with his deceased wife Kanchanben had gone for sowing the land together with their minor daughter – Chandrika. At that time, the accused herein along with juvenile delinquent – Bhimji Karamsi assaulted – Virji Ghela with axe and sticks and Virji Ghela fell down. On seeing this, his wife – Kanchanben, who was working at some distance in the field, rushed there. The accused herein and juvenile delinquent assaulted her also with axe and sticks. Accordingly, they both received grievous injuries and ultimately they succumbed to the injuries. Accordingly, the accused 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 Judicial Magistrate First Class, Kalawad committed the case to the Sessions Court at Jamnagar. 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 22 witnesses. In order to prove 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 ought to have appreciated that there was enmity between the deceased and accused persons in respect of the land in question. He further submitted that the learned trial Judge ought to have considered that on 27/06/1981 all the accused persons assaulted deceased Virji Ghela with sticks and axe in presence of his wife – Kanchanben, the accused also assaulted his wife and ultimately, both died of the injuries thus received. The learned Additional Public Prosecutor also submitted that the learned trial Judge ought to have considered the fact that the incident was seen by two prosecution witnesses and both have supported the case of the prosecution and has erred in discarding their evidence. He also submitted that the learned trial Judge has erred in holding that Chandrika was 56 years old at the time of incident and her deposition is recorded after nine years and it would not have been possible to narrate the incident in the manner in which she had narrated. The learned Additional Public Prosecutor further submitted that the learned trial Judge ought have considered that it is settled legal position that the accused can be convicted on the basis of the sole evidence of single witness, if it is cogent and believable. Chandrika was present at the time of incident and she has narrated the facts of the case in detail before the Court, she is also crossexamined, however, nothing transpires from her detailed crossexamination to come to the conclusion that her evidence is not believable. The learned trial Judge ought to have considered that presence of Chandrika is not denied. 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 for the respondents – original accused 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 taken all pains and has dealt with all the aspects involved in the case on hand. The Post Mortem Report (PM Report) of deceased Virji Ghela is at exh. 14 and the PM Report of deceased Kanchanben Virji Ghela is at exh. 12. Referring the same, it appears that more than a dozen 'incised wound injuries' had been inflicted on each deceased, caused by the deceased accused – respondent No. 1 herein – Gandu Karamsi because as per the prosecution case, the accused – respondent No. 1 herein, was possessing axe at the relevant time on 27th June 1981 and he is the only person, who is alleged to have been author of all these incised wounds on the head portion of above referred both the deceased. Further, only one axe had been recovered during the investigation. So, considering the number of incised wounds, shown to have been caused on both the dead body referred above on the head portion, are unbelievable and the theory put forward by the prosecution that the accused No. 1 only had inflicted the same on both the persons, we are of the opinion that one man could not be the author of all these injuries shown as incised wounds, as referred in the PM Notes. Likewise, version of use of one axe in the entire episode is totally not possible considering the fact that at least more than twelve injuries on the head portion had been caused to each of the deceased viz. Virjibhai and Kanchanben. Under the circumstances, we can easily say that the prosecution has not come with the correct facts.
6.1 As discussed above, as per the case of the prosecution, accused respondent No. 1 – Patel Gandu Karamsi was the author of the abovereferred incised wounds, who has already passed away and the case against him has been ordered to have been abated.
6.2 Age of Chandrika, the child witness, at the time of incident was about 56 years. It is a fact that her deposition was recorded after nine years of the incident and she has identified the accused before the Court. But considering the fact that the Test Identification Parade (T.I. Parade) had not been conducted during the course of investigation and minor Chandrika has not disclosed the name of any accused at the initial point of time or thereafter before the relatives or during the investigation, the contradictions that cropped up have been proved through the deposition of Investigating Officer. Child witness – Chandrika has not disclosed the names of the accused and also not narrated the role played by each accused in the incident and so, benefit of doubt has been given to the accused by the trial Court and we find no error has been committed by the learned trial Judge.
6.3 Moreover, prosecution witness No. 13 – Vala Ruda, exh. 49, is the complainant. He has not supported the story narrated in the complaint but he has improved himself as an 'eye witness'. Thus, his deposition inspires no confidence.
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 11th October 1990 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 39 of 1983 is confirmed. Bailbonds 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