(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal under section 378 of the code of Criminal Procedure Code, 1973, has been filed by the State of Gujarat against the judgment and order of acquittal dated 30.9.1991 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 38 of 1991 for offences punishable under sections 302, 34, 109 and 114 of Indian Penal Code and section 135 (1) of the Bombay Police Act.
2. The case in brief are that the deceased Mohamad Ali Habibbhai Khoja was doing business of bakery items in Kalavad in the name of 'Kalavad Bakery'. Accused No.1 was also running a bakery in the name of 'Khushboo Bakery' just oppostite to the bakery of the deceased. Accused No.2 Harun Abdullah used to work with the bakery of the deceased in the past. On 11.1.1991 the deceased, fuva of the complainant and wife of the deceased Dolatben all were in the bakery and were talking each other. During that time accused No.2 Harun Abdullah came from outside and started asking “you people are talking about me?” On this, Bhikhusha Jamalshah who also working in the bakery told him that they were not talking about accused No.2-Harunbhai Abdullah. Still accused No.2 got angry and started abusing Bhikhusha Jamalshah and in spite of request made by Bhikhusha not to abuse him, accused No.2 not only not stopped abusing but had taken out a knife and ran towards Bhikhusha. Deceased Mohmad Ali interfered and told them not to quarrel and both of them were freed. However, while going accused No.2 Harunbhai gave threats to all of them. Next day i.e. on 12.1.1991, deceased Mohamad Ali, who had another shop near the court of the learned Civil Judge, Junior Division of Kalavad, was returning to his house; at that time, when he was passing near Kalavad bus stand on Barot Sheri Road while he was near Reshma Radio Shop, accused No.2 came and caught hold of him and took out a knife from his person and inflicted 5-6 blows. The deceased fell down. Zakir Hussain had seen the said incident and informed the complainant and wife of the deceased Mohamad Ali. Both the complainant and wife of the deceased rushed to the place of incident and they found the deceased lying in a pool of blood. They had taken the injured in an autorickshaw to the Government hospital. On the way to hospital the deceased told his wife and nephew Nasirudin that on the instigation of Arif Ibrahim, who has business rivalry, his servant Harun Abdullah has attacked him with knife. Before reaching the hospital Mohamad Ali succumbed to his injuries. Thereafter the complaint was filed before the Kalavad police station. Investigation was carried out. Bhikhabahadursinh, PSI of Kalavad police station, after taking the complaint, drew panchnama of scene of offence and recorded statements of witnesses. Thereafter Inquest panchnama of the body of the deceased was drawn and post mortem was done. The accused was arrested and the muddamal knife was recovered. After investigation the complaint was registered as CR.I-3/1991 for offences punishable under sections 302, 452 read with section 109 and section 34 of Indian Penal Code and section 135 of the Bombay Police Act. Charge sheet was filed against the accused and as the offences were triable by the Court of Sessions, the learned Judicial Magistrate First Class, Kalavad committed the case to the Sessions Court, Jamnagar under section 209 of the Criminal Procedure Code.
The respondent-accused pleaded not guilty to the charge and claimed to be tried.
3. To prove the case, the prosecution has examined following witnesses – PW 1 Rakhalchandra Exh.8, PW 2 Hashmukh Damjibhai Parmar, Exh.15, PW 3 Nasrudin Rahimbhai, Exh.18, PW 4 Zakirhusen Alibhai Exh.20, PW 5 Bhikhusha Jamalsha Exh. 21, PW 6 Jethabhai Becharbhai Exh.22, PW 7 Babulal Hansraj, Exh.23, PW 8 Rameshgiri Kantigiri, Exh. 25, PW 9 Govindbhai Rambhai Exh.26, PW 10 Vasram Rudabhai, Exh.28, PW 11 Ajijbhai Shidibhai Exh.29, PW 12 Dalsukh Popatbhai, Exh.31, PW 13, Jayantilal Gordhanbhai Exh.32, PW 14 Dolatben Jadavjibhai, Exh.34, PW 15 Aminaben Amirali, Exh.35, PW 16 Bharatkumar Babulal, Exh.36, PW 17 Kunjbihari Mohanprasad Exh.37, PW 18 Sarang Mitharam Patil Exh.39, PW 19 Ranjitsinh Banesinh Exh.40 and PSI, Bhikhabahadursinh Baudhesinh Exh. 41.
4. Besides aforesaid oral evidence, documentary evidence such as Charge Exh.2, FIR Exh. 42, Inquest Panchnama Exh.24, Report of Analysis Exh.47 and Panchnama Exhs. 27, 30, 33, 38 and 50 were produced by the prosecution which were also taken into consideration by the learned Sessions Judge.
5. After filing of closing pursis by the prosecution, the learned Addl.City Sessions Judge, Jamnagar has recorded further statement of accused under section 313 of the Code of Criminal Procedure. After hearing the arguments of the defence Advocate, the learned Addl. Sessions Judge has acquitted the accused of all the charges levelled against him as aforesaid.
6. We have heard the learned APP Mr L R Pujari for the appellant-State. The learned APP submitted that the learned trial Judge has erred in acquitting the accused though there are ample direct and indirect evidence to connect the accused with the crime. He submitted that the evidence of the complainant Nasiruddin has supported the FIR which was lodged immediately after the incident. He further submitted that the deceased has made oral dying declaration to the witnesses Dolatben and Nasiruddin. The learned APP submitted that the learned trial Judge ought to have considered the evidence of Dolatben and Nasiruddin before whom the deceased has made the dying declaration. He submitted that the learned trial Judge has disbelieved the deposition of the eye witness Zakir Hussein Ali. It is his submission that the learned trial Judge has erred in discarding the evidence of the dying declaration on the ground that looking to the injuries the deceased must not have been be able to speak anything. He further submitted that the learned Judge has not properly appreciated the evidence of Dr. Rakhelchandra. He submitted that the learned trial Judge has not properly appreciated the medical evidence. He finally submitted the reasons given by the learned trial Judge in acquitting the accused are vague and perverse. He therefore submitted that looking to the aforesaid grounds, this appeal be allowed.
7. Learned Advocate Mr P P Majmudar appearing for respondents No.1 and 2 submitted that the 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. Mr Majmudar also submitted that there are glaring contradictions in the depositions of the prosecution witnesses which go to the root of the matter. He also submitted that this being an appeal against the 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. He, therefore, prayed that the Appeal be dismissed.
8. We have considered the above referred rival submissions made by the learned Advocates for the parties in light of the oral as well as documentary evidence forthcoming on record during the trial. As per the prosecution case, Zakir Hussein Alibhai is eye witness and his deposition is at Exh.20. It is also the case of the prosecution that after the incident, this witness had gone to the house of deceased Mohamad Ali Habibbhai Khoja and informed wife of the deceased-Dolatben and the complainant-nephew of Mohamad Ali namely, Nasiruddin Rahimbhai that, 'Harun Abdullah is beating Mohamad Ali Habibbhai Khoja near the bus stand.' In fact, while taking the injured Mohamad Ali Habibbhai Khoja to the hospital, the injured told them that because of business rivalry and on instigation of Arif Ibrahim (accused No.1) his servant Harun Abdullah (accused No.2) had assaulted him with knife. This sole and star witness Zakir Hussein has not supported the case of prosecution and has simply deposed that he had seen Mohamad Ali Habibbhai Khoja at the scene of the incident lying on the stomache. This witness has specifically deposed that he has not seen the person who had assaulted Mohamad Ali. The chance witness Bharatkumar Babulal Exh.36 has also not supported the case of the prosecution.
8.1. So far as Dr Rakhalchandra is concerned, he deposed that 'considering the gravity of injury caused to Mohamad Ali Habibbhai Khoja, he could not have remained conscious for more than 10 to 15 minutes'. Thus the say of Dolatben and Nasiruddin that when they were taking the injured-Mohamad Ali Habibbhai Khoja to the hospital in an Autorickshaw, he had informed that because of business rivalry and on instigation of Arif Ibrahim his servant Harun Abdullah had assaulted him with knife appears to be doubtful. The incident alleged to have occurred on the previous day i.e. on 11.1.1991 also creates serious doubts and the same has been discussed in para 6 of the impugned judgment dated 30.9.1991 passed by the learned trial Judge in Sessions Case No. 38 of 1991.
8.2. As per the deposition of Kunjbihari Mohanprasad Exh.37, after getting the information from the police station relating to murder of Mohamad Ali Habibbhai Khoja and also the further information that the accused has fled away, he kept watch and he had seen accused No.2 in the area of Kalyaneswar and so he has arrested him in presence of Panchas and on inquiry he had found blood stains on the pant of accused No.2 and also recovered the knife and on the knife also blood stains were found. Two panchas namely, Ajijbhai Siddqui Exh.29 and Dalsukh Popatlal Exh.31 had not supported the case of the prosecution and denied the averments of the panchnamas in toto. The entire story relating to the arrest of accused No.2 narrated by witness Kunjbiharibhai Mohanprasad Exh.37 creates doubts and there is nothing on record to support the say of this witness. Thus, in our view, the learned trial Judge has rightly come to the finding that the prosecution has failed to prove the offence beyond doubt against the accused persons.
9. 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.
10. 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.
10.1. It is also a settled legal position that in acquittal appeal, the appellate court is not required to re-write the judgment or 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.
11. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal is dismissed. The impugned judgment and order of acquittal dated 30.9.1991 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 38 of 1991 is confirmed. Bail Bonds stand cancelled.
Office shall send back the Records and Proceedings to the trial court forthwith after following the due procedure.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]