(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. The present Appeal arises from a judgment and order dated 27.11.1991 passed by the learned Addl.Sessions Judge, Ahmedabad (Rural) at Mirzapur in Sessions Case No.127/1990 for offences punishable under section 302 read with section 34 of the Indian Penal Code. It has been filed by the State of Gujarat under section 378 of the Code of Criminal Procedure, 1973.
2. The facts of the case in brief are that the incident took place on 9.4.1990, in Barot Vas, Bilasiya village. The deceased Jyotikaben was married to accused No. 2. Accused No.1 is mother-in-law of the deceased. It is the case of the prosecution that on account of staying separately from the Barot vas, there were quarrels between the deceased and the accused No.2 and accused No.1. The case of the prosecution is that the respondent - accused No.2 along with his mother- accused No.1 poured kerosene on deceased Jyotikaben and ignited her by match stick. On hearing the news, father, mother and brother of the deceased reached from Vatva and they have taken the deceased to L.G. Hospital. During treatment, she died in the hospital. Charge sheet has been filed for the offences under section 302 read with section 34 of Indian Penal Code. After completing the investigation of the complaint of Jyotikaben which came to be registered as CR-I. No. 49 of 1990 with the Kunjad police station against the accused. As the offence under section 302 of IPC is triable by the Court of Sessions, the learned Judicial Magistrate First Class, Ahmedabad committed the case to the Sessions Court at Ahmedabad (Rural) under section 209 of the Criminal Procedure Code.
3. The respondents-accused pleaded not guilty to the charges and claimed to be tried.
4. To prove the case, the following prosecution witnesses were examined – PW 1 Mohammad Siddique Gulamnabi, Exh.10, PW 2 Devikaben Ashokkumar , Exh. 13, PW 3 Bhikhaji Mangaji, Exh.21, PW 4 Shantaben Raghunathbhai, Exh.23, PW 5, Pratik Ravjibhai Exh.24, PW 6 Shikanderkhan Amirkhan Exh.27.
5. Besides the aforesaid oral evidence, documentary evidence such as Dying Declaration of the deceased Exh. 12, Inquest panchnama Exh. 14, FSL Report Exh. 20, Panchnama of scene of offence Exh. 22 etc. were produced by the prosecution which were also taken into consideration by the learned Sessions judge.
6. After filing of closing pursis by the prosecution, the learned Addl.Sessions Judge has recorded further statement of the accused under section 313 of the Code of Criminal Procedure. After hearing the arguments of the learned Advocates for the parties, the learned Sessions Judge has acquitted the accused persons of all the charges levelled against them as aforesaid.
7. 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 evidence to connect the respondents accused with the crime. He has submitted that the learned trial Judge ought to have relied upon the FIR i.e. the dying declaration lodged by the deceased Jyotikaben immediately after the incident wherein she has clearly stated that both the accused persons have set her on fire. He submitted that as per the medical evidence, the deceased Jyotikaben was conscious at the time of lodging the FIR and on the basis of the dying declaration recorded by the police, the accused should have been convicted by the trial Judge. The learned APP submitted that the learned trial Judge has erred in discarding the evidence of the dying declaration recorded by the Executive Magistrate, an independent witness wherein she had given consistent version regarding the incident and the deceased was very much conscious. He further submitted that the learned trial Judge has not properly appreciated the evidence of PW 2 Devikaben, the sister of the deceased. He finally submitted that looking to the aforesaid grounds, this appeal be allowed.
8. Learned Advocate Mr Pratik Barot appearing for the respondent No.1 remained absent when the matter was called out. We have considered the above referred submissions made by the learned APP for the appellant-State of Gujarat in light of the oral as well as documentary evidence forthcoming on record. So far as the dying declaration of deceased Jyotikaben is concerned, the same is at Exh.12 which has been recorded by the Executive Magistrate who is an independent witness, as submitted by the learned APP. But on a careful perusal of the same it is pertinent to note that though the Executive Magistrate has commenced recording of the dying declaration in 'question and answer' form which is the healthy practice and recorded in the same fashion upto the 9th question. The 10th question related to description of the incident which has not been recorded by the Executive Magistrate in 'question-answer' form and moreover, it appears similar and almost verbatim to the complaint. Moreover, it is the fact that the dying declaration referred above was recorded after 7 to 8 hours from the incident and if we peruse the description of the incident alleged to have been dictated by the deceased Jyotikaben in para 10 of the said dying declaration, it appears that only a person in conscious state can narrate such type of incident.
8.1. It is to be noted that the deposition of Devikaben Ashokkumar, PW 2 Exh.13, the real sister of the deceased and the deposition of PW 4 Shantaben Raghunathbhai Exh.23, the mother of the deceased are not supporting the case of the prosecution at all.
8.2. On perusal of deposition of panch witness PW 3 Bhikhaji Mangaji Thakore Exh.21, he has as such supported the panchnama at Exh.22, the scene of offence. In cross- examination, PW 3 has admitted that in the room in which the incident took place had two doors – one door opens towards Bhagol and another opens towards Barot Vas. As referred in the panchnama Exh.22, the door situated on the eastern side appears opened and the doors situated towards Bhagol on the western side appears to have been broken down from one side. It is the defence of the respondents-original accused that after closing the door Jyotikaben has burned herself by pouring kerosene and ignited match stick by herself and it is a case of suicide and not a murder as alleged. This panchnama, by all means, supporting the version of the defence and we find ourselves in agreement with the impugned judgement.
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 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. The impugned judgment and order dated 27.11.1991 passed by the learned Addl.Sessions Judge, Ahmedabad (Rural) at Mirzapur in Sessions Case No.127/1990 are confirmed. Bail Bonds stand cancelled.
[RAVII R TRIPATHI, J.]
msp
[G B SHAH, J.]