State of Gujarat is before this Court being aggrieved by judgement and order dated 1st July 1991 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No.56 of 1990. The learned Additional Sessions Judge was pleased to acquit accused- respondents no.1, 2, 3, 4 and 6 (appeal qua accused no.5 has abated vide order dated 19th October 1993 as he has expired) for the offence under sections 143, 147, 148 and 302 of the Indian Penal Code read with section 149 of the IPC and section 135(1) of the Bombay Police Act. 2. The case of the prosecution as narrated in para 2 of the judgement is that the deceased-Suleman Alias 'Pagal Aiyub' lent an amount of Rs.10,000/- to accused no.1-Bhagwanji Kalubhai, one of the accused persons, and the said amount was frequently demanded by deceased-Suleman from accused no.1. In this connection, accused no.1 had called deceased-Suleman to Village 'Amaran' by saying that this amount would be given to deceased- Suleman at Village Amaran. But on the day of the incident in question, viz. the day subsequent to Holi (Dhuleti), the accused persons of this case having joined together came by jeep near S.T. Bus Stand in Village Amaran. The accused persons armed with iron pipes, scythes and axes descended from the jeep and out of the accused persons, accused no.1 came hurling expletives into the hotel of the complainant-Dhiru Popat and asking, “Where is Pagal?” Therefore, at this point of time deceased-Suleman Alias Pagal who was sitting in the hotel of the complainant-Dhirubhai Popat started running away from there. Accused no.1 thereupon ran after him and accused no.1 and other accused persons surrounded deceased- Suleman Alias Pagal behind the S.T. Bus Stand and as accused no.1 armed with a pipe inflicted a pipe blow to deceased-Suleman; consequently he fell down. Thereafter, the other accused persons armed with axes, scythes and pipes gave blows to deceased- Suleman. At this time, other persons of the village had also gathered there. At the time of this incident, the witnesses Husainmiya Miyabhai and Shabbirhusain Ahmedbhai advised the accused not to beat him in this manner. But the accused persons warned them not to intervene, hence no person ventured to reach there. Thereafter, the accused persons having beaten deceased- Suleman Alias Pagal in this manner, embarked on the jeep and went away from the place of the incident. After departure of the accused persons the Police Head Constables, Shri Muljibhai and Shri Umedsinh arrived at the place of incident within a short time and on deceased-Suleman being asked by them, deceased-Suleman stated that “the accused Bhago and his brothers have beaten him”. Thereafter, as the condition of deceased-Suleman was serious, Head Constable, Shri Muljibhai suggested to take deceased- Suleman to the hospital at Morbi for treatment, therefore, witnesses-Ahmedmiya Alimiya, Abumiya, Bavabhai and Abbashusain Bukhari took deceased-Suleman to hospital at Morbi by a taxi but deceased-Suleman expired on the way. The deceased could not be admitted in hospital at Morbi, his body was brought to village Amaran. Thereafter, body of deceased-Suleman was sent for postmortem to the Government Hospital, Jodiya but as there was no facility of Medical Officer, postmortem of deceased-Suleman was performed in Irvin Hospital at Jamnagar. In the meanwhile, as the Investigating Officer in this case, PSI, Shri Rakeshkumar received information about this incident, he had returned to Village Amaran on the day of incident and after going there, he had taken over the charge of the investigation of this case. He has taken the complaint of the complainant-Dhirubhai Popat and he has recorded statements of witnesses-Shabbirhusain Ahmedmiya, Husainmiya Miyabhai, etc. and he has drawn the Inquest Panchnama of the dead body of deceased-Suleman Alias Pagal. As he has stated earlier, “his dead body was first sent to the hospital at Jodia for postmortem and thereafter it was sent to Irvin Hospital at Jamnagar. Thereafter, he has recorded statement of Jaitunben, wife of deceased- Suleman and Jusab Suleman, the son of deceased. He has made interrogation of the accused persons and as the accused persons were not found, he returned after 12.00 o'clock at night and recorded statements of other witnesses in the morning, that is to say, on the next day of the incident. On 12.03.1990, Panchnama of the place of incident was drawn. Thereafter, as the accused persons of this case have surrendered in the Police Station at Jodia, they were arrested and iron pipes and handle of scythes were seized from them. Thereafter, on completion of investigation, charge-sheet against the accused persons of this case was filed before the Court of learned Judicial Magistrate, First Class, Jodia.
As the court of the learned JM (FC), does not have jurisdiction to try this case, the case was committed to the Sessions Court, Jamnagar.
3. The accused did not plead guilty and opted for trial. The prosecution examined the following witnesses to establish their case.
Besides the prosecution has also examined the documentary evidence, such as, (i) F.I.R., exh. 50 (ii) Map of the place of incident, exh.44, (iii) Panchnama of scene of offence, Exhibits 42/1, and 34 (iv) Discovery Panchnama, exh.36, (v) Inquest Panchnama, exh.31, (vi) Postmortem Report, exh.16, etc.
Surprisingly, the prosecution has selected one Koli Dhiru Popat as complainant. He is also examined as PW-2 at Exhibit 18. His deposition is at page 131. Though he is the complainant and in the complaint he claims to be an eye witness he chose not to support the case of the prosecution and turned around at 180 degrees. He denied to have any acquaintance either with the deceased or with the assailants though in the F.I.R. he has stated that he knew the deceased as well as the assailants both.
4. What is surprising is that the prosecution has examined son of deceased-Jusab Suleman as one of the witnesses, more particularly, to disclose the motive of the offence, said Jusab Suleman is examined as PW-6 at Exh.23. His evidence is interesting in a way that he states that, 'while he was taking his 'mer' for water a jeep crossed by and in that jeep he saw the accused sitting and that jeep was going towards Village 'Amaran',' where the incident takes place and in that incident his father loses his life. Apprehending that identification of accused will be challenged, he states that the jeep crossed him by coming from the front direction. It was passing very slowly and he looked turning around at the jeep and therefore, could notice that some of the accused were sitting at the rear portion of the jeep. Not only that he also explains that as the jeep was coming towards him, he could notice the accused sitting in front portion of the jeep. It is very interesting that for every accused he has an independent story to tell that as to how did he come to know that particular accused. For example he states that Hira Dahya was sitting in jeep along with Bhano. About Hira Dahya, he states that he knew Hira Dahya since a year and half before the incident (present incident). He further states that about 1½ year back he had gone to 'pan' shop. At that time Hira Dahya had also come there to have pan along with 4 – 5 other persons. Those 4-5 persons were calling Hira Dahya by name. Therefore, he could know that he is Hira Dahya. As he was not satisfied with his own explanation, he improves the story and states that those 4-5 persons were saying that, “Sarpanch of Village Koili, Shri Hira Dahya, please accept this pan”. Absolutely unnatural theory is put forth by the prosecution to bring on record that this witness- son of deceased knew the accused by name. Another such untenable and unacceptable story is about accused-Raighan Mansur. The witness says that about 1½ year before the incident he had gone to Village Bhadra, there he had an occasion to know this accused and therefore, he knows accused 'Raighan'. He further states that somebody called 'Raighan' by saying that, “Come Raighan, have tea”, thus he had an occasion to know him. Similar is the case about Bhana. About Bhana, it is very interesting to note that he says that, 'one of my friends had conveyed to me that this man is Bhana'. What is interesting about this story is that he does not remember the name of the friend, but he remembers that one of his friends had conveyed to him that this man is Bhana and had also said that he is from Village 'Tarna'. On perusal of evidence of witness, this Court is surprised on the maturity of the prosecution that they believe that the Judge will believe such fancy story and will convict the accused on such evidence.
5. Similar is the case of PW-3, Husenmiya Miyabhai Bukhari, exh.19, and last but not the least, Ahmedmiyan Alimiyan, PW-7, Exh.26.
6. Howsoever graver the offence may be the settled law is that the prosecution has to prove the guilt of the accused by leading sufficient evidence and that evidence must be acceptable and reliable so that the Court relying on such evidence can record conviction.
7. On perusal of the judgement and order of the learned Additional Sessions Judge, this Court finds that the Court has rightly not believed the case of the prosecution and has acquitted the accused. No doubt, the deceased was brutally beaten and was caused as many as 18 external injuries, causing corresponding internal injuries resulting into death of the person even before he could reach the hospital, but that is not the ground on which the accused can be held guilty when there is no evidence coming forward on record.
8. It will be in fitness of things if the persons in-charge of the prosecution undertake an exercise of introspection along with the persons, who are in-charge of the investigation and learn for themselves as to on what point the prosecution has failed to bring the wrong doer to book.
9. It is well settled principle of law that in acquittal appeal where there is a possibility of two views, the one which is favourable to the accused should be adopted. It is also well settled principle of law that the Appellate Court would be slow in interfering with an order of acquittal until and unless the judgement 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.
It is also a settled legal position that in acquittal appeal, the Appellate Court is neither required to re-write the judgment nor to give a fresh reasoning, when the reasons assigned by the court below are found just and proper. Such principle is laid down by the Hon'ble the Apex Court in the case of State of Karnataka Vs.
Hemareddy, reported in A.I.R. 1981 SC 1417, wherein it is held as under:
“ .. .. This Court has observed in Girija Nandini Devi Vs. Bigendra Nandini Chaudhary, (1967) 1 SCR 93 : (A.I.R. 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.”
10. 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 the result, the appeal stood abated qua respondent no.5- Meghabhai Karubhai Barecha vide order dated 19th October 1993. As regards respondents no.1, 2, 3, 4 and 6, the Court finds no substance in the appeal and the same is dismissed. Bailable warrant issued against each of respondents no.1, 2, 3, 4 and 6 stand cancelled.
(RAVI R. TRIPATHI, J.) (G.B. SHAH, J.) karim