IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 639 of 1990 For Approval and Signature:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE G.B.SHAH ===========================================================
========================================================= STATE OF GUJARAT Appellant(s) Versus RAMBHAI S KAKRANI & 3 Opponent(s) ========================================================= Appearance :
MR L R Pujari, Addl.PUBLIC PROSECUTOR for Appellant(s) : 1, MR KJ SHETHNA for Opponent(s) : 1 3.
MR JM PANCHAL for Opponent(s) : 4, MR JP SUKHWANI for Opponent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE G.B.SHAH
Date : 30/01/2012
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This Appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against the judgment and order of acquittal dated 12.3.1990 passed by the learned Additional City Sessions Judge,No.7, Ahmedabad in Sessions Case No.264 of 1989 for the offences punishable under section 302 read with section 34 and 341 of Indian Penal Code.
2. The prosecution case in short is that one Pushpaben Virumal, wife of Virumal Gidhumal was residing at House No.315 of Samrath Nagar, Hansol, Ahmedabad with her husband and children. She was a housewife and her husband was carrying on business of selling sweets and biscuits from a cabin near the gate of Samrath Nagar. Pushpaben Virumal (hereinafter referred to as 'Pushpaben') had to recover a sum of Rs.20,000/- from Ram Kukrani, accused No.1 in connection with the sale of her previous house. On 7.6.1989 at about 7.45 a.m., Pushpaben sent her daughter Rajni to call Ram Kukrani at her house as she wanted to talk to him about the money. At about 8.00 a.m., four persons including accused No.1 Ram Kukrani came to her house. The other three persons were Labhu Khatri, accused No.2 who was working as Estate Broker, Gop Vakil, accused No.3, who was running an Egg shop in a lari and Kamal Parasram, accused No.4 residing at Bhilvas, Sardar Nagar. Pushpaben asked them to pay up her money. Ram Kukrani pretending that he is not aware of any money to be paid, asked Pushapen “which money ?”. On this, heated arguments have taken place between Pushpaben and Ram Kukrani. Thereafter Ram Kukrani said that Pushpaben should be done away with so that she will not demand money. Saying so, all the four persons dragged Pushpaben to the bath room and Ram Kukrani and Gop Vakil were holding her and Kamal Parasram poured kerosene from a kerosene tin which was lying there and Labhu Khatri lighted a match and set her blaze. Thereafter all these four accused persons fled the scene. Before setting Pushpaben ablaze, Ram Kukrani sent the daughter of Pushpaben out for buying penda by giving one Rupee to her. Pushpaben started shouting but none came forward to save her. However, her husband was informed about the incident by someone and Pushpaben was shifted to Civil Hospital for treatment.
3. Pushpaben was admitted to Civil Hospital, Police recorded her complaint in respect of offences under sections 307, 348 and 114 of IPC. Pushpa was fully conscious and the complaint was read over to her and she confirmed that the contents of it are correct whereupon her thumb impression was taken below the complaint. After recording statement of one Dinesh Laxmanbhai at Exh.34, report was sent to Executive Magistrate for recording dying declaration of Pushpaben. The Doctor had given opinion that the patient was fully conscious. Thereafter the report was sent to Sardar Nagar Police station for registration of the crime. The Executive Magistrate recorded dying declaration of Pushpa on 7.6.1989 at 12.20 pm. The Investigating Officer recorded statement of the husband of the victim on 7.6.1989. Thereafter panchnama was prepared with regard to the place of offence in presence of Senior Scientific Assistant of Forensic Science Laboratory as well as the panchas. All the accused were arrested and were sent to Civil Hospital for medical check-up and were kept in judicial custody. On 14.6.1989, report was received from the Hospital that the victim Pushpa succumbed to her injuries. Thereafter inquest panchnama was prepared and the report was sent to learned Metropolitan Magistrate for adding offence under section 302 of IPC.
3.1. On 31.8.1989 Charge sheet was filed before the learned Metropolitan Magistrate Court, Ahmedabad. As the offence under section 302 of Indian Penal Code was triable only by the Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code. The Charge was framed at Exh.3 against all the accused and the accused pleaded not guilty to the charges levelled against them and claimed to be tried.
4. To prove the case, thirteen prosecution witnesses were examined - PW 1 Laxmanbhai Keshavlal Parekh, Executive Magistrate, Exh.13, PW 2, Shyamsing Pragsing Rajput, Police Constable, Exh.25, PW 3, Kanaiyalal Harishchandra, PSO, Sardar Nagar Police Station, Exh.28, PW 4 Shamsherkhan Jamalkhan Pathan, PSO, Exh.31, PW 5, Dineshbhai Laxmanbhai, Exh.34, PW 6 Virumal Gidhumal, husband of deceased Pushpa, Exh.35, PW 7, Sevakram Vishnumal, Exh.38, PW 8, Shardaben Chimanlal Raval, Exh.39, PW 9, Rinaben Murlidhar Otvani, Exh.40, PW 10, Dr. Rajesh Ishwarbhai Patel, Civil Hospital, Exh.41, PW 11, Dr. Brijeshkumar Satishchandra Rao, Exh.45, PW 12, Ravindra Kashiram Bhatt, I.O. Exh.48 and PW 13, Dr.Kiranbhai Krishnaprasad Dave, Exh.59.
5. To prove its case, the prosecution also produced documentary evidence such as the original complaint Exh.49, Dying Declarations Exh.15, and Exh.51, panchnama of scene of offence Exh.22, post mortem report Exh. 47 etc.
5.1. After closing pursis by the prosecution, the learned Sessions Judge recorded further statement of the accused under section 313 of the Code by which the accused No.1 had stated that Nevandhra Gidhumal is the brother-in-law of Pushpaben who is retired Police Constable and is residing near the police chowki and to save his brother he has helped him and the police in turn had falsely implicated them. The accused No.2 has submitted that false evidence against them has been created and he had not gone to the scene of offence and he is innocent. The accused No.3 has submitted that the brother-in-law of Pushpaben was crime writer and because of his influence in the department, police had falsely involved them. Accused No.4 has submitted that he was tenant of the house of Pushpaben and has filed civil suit and obtained injunction on 27.3.1989 and thereafter they entered into compromise and on 11.5.1989 he had handed over vacant possession of the suit premises. After hearing the arguments of the learned APP as well as the arguments of defence Advocate, the learned Sessions Judge has acquitted the accused as aforesaid.
6. We have heard the learned APP for the appellant- State of Gujarat. The learned APP vehemently submitted that the learned Sessions Judge has committed error in acquitting the accused. He submitted that the learned trial Judge ought to have appreciated the fact that the deceased was not asked about who caused the injuries to her and therefore she had not disclosed the names of the accused in the first declaration and the subsequent declarations are consistent and the deceased was fully conscious while giving them and there is no contradiction between them.
7. On the other hand, learned Advocates for the respondents-accused submitted that the trial court has rightly appreciated the evidence on record and the reasons recorded by it for recording a finding of acquittal are reasonable and justifiable. They submitted that there are clear contradictions in the depositions of the prosecution witnesses which go to the root of the matter and thus the respondents-accused have rightly been acquitted by the trial court. They further argued that this being an appeal against the order of acquittal, the judgment and order delivered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. They lastly submitted that the appeal be dismissed.
8. We have carefully gone through the entire documentary evidence along with the judgment and order dated 12.3.1990 passed by the learned Additional City Sessions Judge in Sessions Case No.264 of 1989. In this case, the factum of the dispute was an amount of Rs.20,000/- which was outstanding out of the total amount of Rs. 59,000/- for which deceased Pushpaben sold her house No. 298 in Samrath Nagar to PW 7 Sevakram Vishunumal. Accused No.1 Ram Kukrani and accused No.2 Labhu Khatri were Estate Brokers through whom the sale had taken place. Accused No.4 Kamal Parasram was the occupant of one of the rooms of that house. He wanted price for vacating the said room. He had filed civil suit and obtained injunction through respondent No.3-Advocate Gop @ Gopichand who was an Advocate. As per the case of the prosecution, the alleged common factor between the four accused persons could be that Pushpaben be eliminated from the scene and the remaining amount of Rs.20,000/- be either paid in whole to accused No.4 as his price for handing over vacant possession to the purchaser-Sevakram or the said amount be distributed between the four accused persons. This factor could possibly bring the four accused persons together to form a common intention to cause death of Pushpaben.
8.1. It is important to note that PW 6 Virumal, the husband of deceased Pushpaben and PW 7 Sevakram, the purchaser of house No.298 of Pushpaben were examined and declared hostile witnesses. In his cross examination, Virumal, PW 6 has admitted that his wife had talked to him that Sevakram had paid an amount of Rs.20,000/- to respondents No.1 and 2. Further he had admitted that after respondent No.4 had vacated the room, the sum of Rs.20,000/- was paid to him in cash by respondent No.1 and 2. He had passed a writing Exh.36 on 11.5.1989 in that regard which was signed by respondents No.1 and 3 as witnesses. The document at Exh. 37 shows that deceased Pushpaben confirmed that a comprise was arrived at in respect of the tenanted premises for which respondent No.4 had filed the suit and that the suit was withdrawn and that there were no disputes between them. There is, therefore, reason to believe that the disputed amount has no longer remained outstanding.
8.2. There are four different statements made by deceased Pushpaben Virumal which are claimed by the prosecution to be dying declaration of the deceased Pushpaben. After discussing all the statements/dying declarations at length, the learned Trial Judge has observed that the motive and common intention on the part of the respondents is absent. If the accusations were made on circumstantial evidence and dying declarations and the case of the crime was related to non-motive, no conviction could be recorded unless the motive was proved. In the instant case, the prosecution has failed to prove the accusations as referred above.
9. 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 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.
9.1. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write 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.”
Thus, in case the appellate court agrees with the reasons and the opinion given by the lower court, then the discussion of evidence is not necessary.
10. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal is dismissed.
11. In the result, this appeal fails and is dismissed. The impugned judgment and order dated 12.03.1990 passed by the learned Addl. City Sessions Judge, Ahmedabad in Sessions Case No. 264 of 1989 are confirmed. Bail Bonds stand cancelled.
The office shall send back the records and proceedings to the trial court immediately after following the due procedure.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]