(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 4th October 1990 passed by the learned Additional Sessions Judge, Himatnagar (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 62 of 1989, whereby, the learned Sessions Judge was pleased to acquit all the accused of the charge under Sections 302 r/w. Section 114, 176 and 201 of the Indian Penal Code (IPC).
2.0 At the outset it is to be noted that vide orders dated 12th December 1991 and 21st January 2011, the appeal was ordered to have abated qua respondent – accused No. 5 – Bhaichandbhai Revabhai Patel, respondent – accused No. 2 – Chhaganbhai Jaychandbhai Patel, respondent – accused No. 4 – Lavjibhai Jaychandbhai Patel and respondent – accused No. 6 – Amichandbhai Kodarbhai Patel, respectively as they are reported to have expired.
3.0 Brief facts of the prosecution case are that deceased – Hansa, daughter of one Sanka Dhula, resident of Narsinhpura had got married to respondent accused No. 1 – Pravinbhai Chhaganbhai Patel about eight years before the incident. Kokila the sister of respondent accused No. 1 was also got married on the same day with Narayan the brother of the deceased Hansa. Out of the said wedlock, they had a male child namely Alpesh. That, after the marriage, during first four years, their relations were normal, however, after that, the respondent – accused No. 1 had started beating her, if she did not act according to his wish. He also used to give 'bidi' burns to the deceased. On account of this, the deceased, often used to go back to her parental home. As their marriage was done in exchange (i.e. the brother of the deceased – Hansa, was married to Kokila the sister of respondent – accused No. 1 – husband of the deceased), to prevent spoiling of relations between both the couples, she was sent back to her inlaw's house. Before one year of the incident also she had come back thus to her parental home and before four months of the incident, only on persuasion and promise from the village leaders to keep well the deceased, she was sent back to her inlaw's place. On 22/02/1989, the day of incident, the deceased was called to her brother's house being aunty (Foi) of the daughter of brother of the deceased, as she had some 'Badha', but as she did not reach, the other brother – Amrat had gone to bring the deceased. On that day also, the respondent – accused No. 1 had beaten up the deceased. Her ornaments were also taken off. Ultimately, she was killed by throttling. The respondent accused No. 2 had abetted the offence. The deceased was taken to the hospital at Idar, where, respondent – accused No. 15 treated her and though he was duty bound to inform the police about the incident, he did not and thus abetted the offence. The complainant came to know from one Pashabhai Revabhai about the death of her daughter at Lalpur when she had gone to see her parents. She, then, along with the wife of her nephew, went to Nava Revas, and found her daughter dead. She found nail abrasions on the chest of the deceased, her eyes and tongue had protruded, which was suggestive of throttling. The accused did not allow them to perform the rituals also, hence, they went back to their place. Ultimately, to hide the offence, the respondent accused No. 1 with the help of other accused persons, cremated the dead body of the deceased. The accused No. 1 also filed false complaint that the deceased committed suicide by consuming poisonous drug/tablets. 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, Idar committed the case to the Sessions Court at Himatnagar. 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 14 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 has erred in discarding the evidence of the parents of the deceased on the point of cruelty meted out by the respondents – accused to their daughter. He further submitted that the learned trial Judge has failed to appreciate that the accused had tried to suppress the incident by not informing the police and moreover, the dead body was cremated by the accused, which clearly shows the guilt of the accused. 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 On the other hand, learned advocate Mr. Manish J. Patel, appearing for the surviving respondents – 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. It is specifically mentioned in Para 23 of the judgment that, 'further, if the accused No. 1 has tried to kill his wife – Hansa by throttling, and if he had succeeded, then it is not believable as also not possible that he keeps the tongue of the deceased as it is, in out position'. It is further stated in the said paragraph that, 'In fact, after Pasha Reva informed, the prosecution witnesses had gone there and seen the dead body of deceased – Hansa; then they went to their village at Narsinhpura and after two days of the incident, a complaint has been filed stating the fabricated fact of tongue and eyes having come out, and she was killed by strangulation; moreover, the reason behind filing the complaint late of 'marriage was in exchange', also does not appear just and proper...' It is further stated in the said paragraph that, 'it is not possible for accused No. 1 to kill her wife by throttling in the day light at 11:00 a.m. in the morning because, near the house of accused No. 1, the houses of Vanand Amrutbhai Gangaram and Patel Punjabhai Nathabhai are situated and in that case, deceased Hansa might have shouted or screamed for help or she might have tried to run away from that house, which was having two doors. All these facts led to the inference that there is no incident of murder occurred. In fact, the just and reasonable inference is that she had consumed 45 poisonous tablets and she was shifted for getting treated, however, she died en route. It is not the case of the prosecution that Hansa has committed suicide'. It is also stated in the said paragraph that 'if at all the offence of murder has been committed, no cogent and irrebuttal corroborative evidence, which complete the chain of evidence has been produced'. (emphasis supplied)
6.1 It is mentioned in Para 25 of the judgment states that, 'when deceased – Hansa was taken to accused No. 15, who is a doctor, holding degree, she was alive; he requested the relatives of deceased – Hansa to take her to the Civil Hospital, however, only on request of her relatives, he treated her for two hours and then she was taken from there; and when the complaint is filed late by two days, I opine that, by no stretch of imagination Dr. Bhagubhai Patel was duty bound to inform the police that Hansa was brought to his Hospital, after consuming poisonous tablets; hence, the offence under Section 176 of IPC is not proved against him; it is also not proved that the accused Nos. 1 to 14, by cremating the dead body, have destroyed the evidence, as the offence of murder itself is not proved and hence, there is no question of destroying the evidence...'. (emphasis supplied)
6.2 Moreover, referring to the deposition of PW1 Surajben Sankabhai, exh. 21 and the deposition of PW2 Kamlaben Kacharabhai, exh. 23, both being verbatim same and accordingly, they appear to be tutored witnesses. 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 4th October 1990 passed by the learned Additional Sessions Judge, Himatnagar in Sessions Case No. 62 of 1989 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