(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. Learned Advocate Mr Viral Vyas for Mr M.J. Dagli for the opponents states that the learned Advocate has returned the papers of the Criminal Appeal to respondent-Bharwad Madha Bhaya.
2. Respondent-Bharwad Madha Bhaya is present in the Court. He states that about a week back he had come to know about the present Appeal being on board. He requests for time. The request is declined because the party-in-person does not state as to when did he receive the papers of Criminal Appeal from the learned Advocate.
3. The State of Gujarat is before this Court by way of this appeal under section 378 of the Criminal Procedure Code, 1973 against the order of acquittal dated 28th February, 1989 rendered in Sessions Case No.30 of 1988 by the learned Sessions Judge, Surendranagar.
4. The facts leading to the present appeal are set out in the memo of the Appeal, which are to the effect that the present respondent-accused was charged for offences punishable under section 302 of IPC and under section 135 of the Bombay Police Act in Sessions Case No.30 of 1988 in the court of learned Sessions Judge, Surendranagar. The case of the prosecution is that one year prior to the date of the incident, the accused had left his cattle for grazing in the field of one Baldevbhai who had taken away the cattle to village Dholi in a livestock carriage. The accused got his cattle released and a compromise had taken place between them but the accused kept grudge about the incident. On the day of the incident when the accused was grazing his cattle at about 2.30 p.m., he saw the deceased Baldevbhai coming on his bicycle. The accused called Baldevbhai who kept aside his bicycle and went to the former. At that time, the accused gave one blow of Farsi on the head of the deceased followed by number of blows upon the deceased. One Thakarsinh Lavjibhai passing by, on seeing the incident, rushed to the spot. The accused fled the scene. The deceased was taken to Government Hospital, Dhangadhra where he succumbed to the injuries.
5. A complaint was lodged before Dhangadhra Taluka Police Station for offence under Section 302 of IPC as well as section 135 of the Bombay Police Act. On the basis of the complaint, offence was registered as CR No.5 of 1988 and investigation was carried out. During the investigation, panchnama of scene of offence was drawn and the accused was arrested. Statement of necessary witnesses were recorded and the muddamal was recovered from the accused. Charge sheet was filed before the learned Judicial Magistrate First Class, Dhangadhra and 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. (for short, "the Code")
6. After investigation, charge was framed against the accused. The accused denied the charges levelled against him and claimed to be tried.
7. To prove its case, the prosecution has examined as many as 14 witnesses - PW 1 Thakersinh Lavji Exh.8, PW 2, Hansrajbhai Vithalbhai Exh.9, PW3 Chaturbhai Harjibhai Exh.13, PW 4, Govind Gordhanbhai Exh.15, PW 5 Parshottambhai Devjibhai Exh.16, PW 6 Babubhai Shivabhai Exh.18, PW 7 Mahadevbhai Merubhai Exh. 19, PW 8 Ganeshbhai Devjibhai Exh.22, PW 9 Maganbhai Nagjibhai Exh.24, PW 10 Sukhdevbhai Karsanbhai Exh.25, PW 11, Khimjibhai Kunverjibhai Exh.26, PW 12 Dr. N R Saxena Exh.30, PW 13 Chinubhai Kantilal Exh.36, PW 14 PSI Kantilal Modh Exh.42.
7.1. To prove its case, the prosecution also produced documentary evidence such as FIR Exh. 43, inquest panchnama Exh.10, Panchnama of scene of offence Exh.14, post mortem report Exh.34, FSL report Exh.40 etc.
8. 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 submitted that he was falsely involved in the case. 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.
9. 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 not believing the case of the prosecution though the prosecution was able to establish the case. He submitted that the learned Judge ought to have accepted the evidence of Thakarsinh who had fully supported the prosecution case and there was no reason to disbelieve the evidence given by this witness. He further submitted that the learned Judge has come to the conclusion that as this witness Thakarsinhwas was present at the time of the incident, this witness cannot be termed as chance witness. The Learned Judge has also disbelieved the evidence of other eye witnesses who have supported the case of the prosecution. Therefore, the acquittal order passed by the learned Judge requires to be reconsidered. Inviting our attention to the oral as well as documentary evidence, the learned APP submitted that the Sessions Court has not properly considered the evidence led by the prosecution and it is established that the prosecution has proved the whole ingredients of the evidence against the present respondent- accused.
10. As per the case of the prosecution, three witnesses are important for the case on hand. They are, PW 1, Thakarsinh Lavjibhai, Exh.8, PW 4 Govind Gordhanbhai, Exh.15 and PW 6 Babubhai Shivabhai Exh.18. As per the deposition of Govind Gordhanbbhai and Babubhai Shivabhai, they have not seen the incident in question. The complaint was also given by PW 1, Thakarsinh Lavjibhai. We have carefully gone through the deposition of PW 1, Thakarsinh Lavjibhai at Exh.8. Referring the material contradictions, we are of the opinion that the story put up by him appears doubtful and it cannot be believed. PW 1 Thakarsinh Lavjibhai has deposed that he was away at a distance of about two fields when he had seen Baldevbhai. It is practically not possible to believe that when this witness was away at a distance of two fields and still he had heard the shouts of the accused. As the accused had called Baldevbhai, Baldevbhai had gone inside 'Masmanidhar' which is round in shape and its height is about 20 ft. This witness has further deposed that when he reached there Baldevbhai was lying there. If we consider all these circumstances, it creates doubts whether this witness has actually seen the real incident or not and considering the same as a whole, we are of the opinion that the learned Judge has rightly taken the decision of acquittal of the accused after considering and discussing all the aspects elaborately.
11. As per Exh.43, the complaint filed by this witness Thakarsingh Lavji, five Bharvads were grazing their cattle at the same place whereas in the deposition, this witness has made improvement and deposed that except Madhabhai rest of the Bharwads were at a distance i.e. not near to the place where the incident occurred. Moreover, as per the case of the prosecution, the weapon, Farsi was used by the accused. If we refer the medical evidence, except one injury which is incised wound, rest of the injuries are in the nature of CLW and it has come on record that it can be caused by hard and blunt object. Further, it appears that the care which was required to be taken during the course of the investigation has not been taken by the police and important witnesses who were present at the scene of the incident and their statements, though required to be recorded, have not been recorded.
12. On perusal of the materials placed before us - oral as well as documentary evidence, this Court finds that the learned Addl.Sessions Judge has rightly come to the conclusion that the prosecution is not able to establish the guilt of the accused beyond reasonable doubt.
12.1. 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.
12.2. 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.
13. In the above view of the matter, we are of the considered opinion that the trial court was completely justified in acquitting the respondent of the charges levelled against him. We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the CR.A/268/1989 10/10 JUDGMENT court below and hence find no reasons to interfere with the same.
14. In the result, the Judgment and order dated 28th February, 1989 rendered in Sessions Case No. 30 of 1988 by the learned Sessions Judge, Surendranagar is upheld. The Criminal Appeal is dismissed. Bail bonds, if any, stand cancelled.
The office shall send back the Records & Proceedings to the trial court forthwith, after following the due procedure.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]