The present appeal is filed by the State of Gujarat under section 378 of the Code of Criminal Procedure, 1973. The appeal is filed being aggrieved by the judgement and order dated 27th November 1991 rendered in Sessions Case No.198 of 1991 by the learned Additional Sessions Judge, Nadiad. The learned Additional Sessions Judge, Nadiad was pleased to record acquittal of offence under section 302 of the Indian Penal Code. 2. The case of the prosecution as set out in the opening para of the judgement is such that at the time of the incident, deceased- Ramesh was studying in Standard-V in Primary School of Barmuvada under Gokalpura of Taluka Mahemdabad and the accused was discharging duty as a teacher in the said school. At the time of incident, examination was in progress in the said school. Deceased-Ramesh had gone to school at about 08.00 AM, gave his examination, and was returning home at 12.00 noon. On his way home, deceased-Ramesh had complained of severe pain in stomach and sat down under a banyan tree. Deceased-Ramesh has asked his sister, who is a witness in this case that, “I have pain in stomach, therefore, signify it to mother.” His sister immediately reached home and informed her mother. Thereupon, deceased- Ramesh was brought home. As deceased-Ramesh had struggled with stomach pain upto night, his urination had stopped. He had been taken to hospital of a local doctor, named, Dr.Gadhavi for treatment, but the said doctor could not treat the boy. They had to leave the hospital for home without any treatment. On their way from hospital to home, Ramesh has died.
It is further the case of the prosecution that finding deceased- Ramesh not answering the examination paper, the accused who was on duty as an invigilator came in the class room and has allegedly administered a kick blow on lower part of abdomen of the boy, due to which his urination has stopped and subsequently he has died. The above facts having been narrated by Meena, sister of deceased-Ramesh to her mother, on the next day, mother- Amrutaben has lodged the present complaint in this regard. Pursuant to the complaint, investigation has commenced, statements of concerned witnesses have been recorded, and Panchnama of place of offence was drawn. On completion of investigation, as there was ample evidence against the accused, charge sheet under section 302 of the IPC has been filed in the competent court. Since the Magistrate had no jurisdiction to try the case for an offence alleged under section 302 of the IPC, the case has been committed to the Sessions Court.
3. In support of its case, the prosecution has examined the following witnesses:
4. In addition to the aforesaid oral evidence, the prosecution has relied upon the following documentary evidence:
5. Learned Additional Public Prosecutor Mr.Pujari submitted that the learned Judge has committed error in not appreciating the evidence led by the prosecution in support of its case in its true perspective and therefore, committed further error in recording acquittal of the accused. The learned APP submitted that it is the case of prosecution that the teacher- accused herein gave kick on the lower portion of the abdomen of the deceased, which resulted into death of the child. The learned APP submitted that the learned Additional Sessions Judge ought to have appreciated the evidence of the child witness keeping in mind the fact that the children are otherwise supposed to be narrating the true version of the case.
6. On careful consideration of the evidence led by the prosecution this Court is of the opinion that the prosecution has utterly failed in bringing home the guilt of the accused. The star witness is the sister of deceased-Meenaben, daughter of Prabhat. She is said to be aged about 10 years at the time of deposing before the Court. Though the learned Judge has recorded that the child witness is able to understand the difference between falsehood and truth and that she is able to understand the importance of deposing before the Court on oath, the evidence is recorded. On careful consideration of the evidence of this child witness, it is noticed that the child witness is not able to give true and correct version of the incident. In examination in chief, the child witness has stated in no uncertain terms that she and her brother were sitting in the same room for answering the examination, but in the cross examination she has admitted that the witness was in the room wherein Himmatsinh – accused was the Supervisor, whereas her brother was in the room where Meenaben, the other teacher was Supervisor. This shows that they were not in the same room. Besides, she has admitted in her cross examination that she was told by her 'Masa' (mother's sister's husband) that if she complains about the death of the child she will be getting an amount of Rs.25,000/-. She has also admitted in cross examination that she was deposing as told by her 'Masa'. Besides, there was material contradiction in the matter inasmuch as in examination in chief this child witness has stated that after examination is over, she and her brother started coming home and on the way he stopped near banyan tree and when witness has to go home and tell mother that the deceased is having severe pain in stomach and is not able to walk. It is the say of the child witness that she went home and told mother about the same. Mother came and took the deceased home. At this juncture, it will be important to note that the natural conduct will be that if a child has pain and is not able to walk, any parent would take the child to a doctor rather than taking the child home. In the present case the child was brought home and was kept at home for the whole day. It was only at night he was taken to doctor and at that time he was having complaint of stoppage of urination. Thereafter, the child was taken to hospital where he was declared dead.
At this juncture, it will be necessary to appreciate the evidence of the doctor- PW-5, namely, Dr.Jagdishchandra Prabhatsinh Gadhvi. He states that he holds degree of B.S.M. (sic., B.A.S.M.) and that he is running a clinic in the name of 'Anuradha Clinic' for the last six years in Haldharvas. He deposes that on 15th April 1991 between 10.00 and 10.30 PM the deceased was brought to his clinic. He was aged 11 years. The deceased was accompanied by their relation – Punambhai. The deceased complained about cough and also difficulty in breathing and severe chest pain. It is admitted by the doctor that though he is having the degree in Ayurvedic, he administers allopathic medicines and in the course of treatment he administered injection of 'lacix' to the patient and after that he advised the relatives of the patient to take him to L.G.
Hospital. This doctor is declared hostile and it is really surprising that though it has come on record that Ayurvedic doctor is administering allopathic drugs, no action is taken against him. Besides, the witness has an audacity to say that according to him he is eligible to give allopathic treatment.
What is important is that there is no other material on record to support the case of the prosecution that death of the child- Ramesh occurred on account of kick blow given by the accused herein. At this juncture, it will be again important to note that the child witness-Meenaben, PW 2 has stated that her brother used to complain about the pain in chest and stomach. Because of such pain he used to remain absent in the school also. This particular aspect is tried to be concealed by the prosecution.
7. On appreciation of totality of evidence produced before the Trial Court, this Court is of the opinion that the prosecution has utterly failed in proving the case of the accused. In fact, this is a case of no evidence, because even after death of the child, postmortem was not carried out and it was only by after-thought that one of the relatives of the deceased advised mother of the deceased to file complaint, the complaint is filed and a case is sought to be made out against the accused.
8. 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 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.”
9. 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. The Court records its displeasure over filing of such cases against persons especially when there is no evidence at all about the guilt of the accused.
11. In the result, the Appeal is dismissed. The judgement and order dated 27th November 1991 rendered in Sessions Case No.198 of 1991 by the learned Additional Sessions Judge, Nadiad is upheld. Bailable warrant issued against the respondent-accused is cancelled.
(RAVI R. TRIPATHI, J.) (G.B. SHAH, J.) karim