(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal has been filed by the State of Gujarat under section 378 of the Criminal Procedure Code, 1973 against judgment and order of acquittal dated 28.2.1992 passed by the learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 15 of 1991 for offences punishable under sections 302 read with section 34 and section 114 of Indian Penal Code.
2. The facts of the case in brief are that on 11.9.1990 at about 6 p.m. Naga Vinja and Devsi Punja as pillion riders were going towards Nagka Road on a Hero Honda motorcycle driven by Rambhai Bhimabhai Mer. When they reached near Ranpar, a jeep bearing No.1312 coming from opposite direction intentionally tried to collide with the motor cycle which was driven by Rambhai Bhimabhai. Rambhai Bhimabhai though stopped the motor cycle, the bonnet of the said jeep dashed the Motor cycle. The pillion riders managed to get off the motor cycle but the deceased Rambhai Bhimabhai fell down with the motorcycle. Thereupon four people - Raja Alshi, Bhura Raja who was driving the jeep, Vikram Raja and Navghan Punja came out of the jeep holding axes with them and they ran towards Naga Vinja and Devashi Punja. Being frightened, both of them started running away from the place of the incident and stopped for a while to look back and saw that the four accused were simultaneously inflicting axe blows haphazardly upon the deceased Rambhai who was lying near the motor cycle. On seeing this, Naga Vinja and Devashi Punja fled from the scene and from Ranpar village, got in a 'chhakado' rickshaw, went to factory, boarded a truck and went to Porbandar and informed the Babubhai, the complainant and brother of the deceased. Babubhai lodged FIR before Bhanvad police station on 12.9.190 at 0.50 hrs. which was registered as CR.No.114 of 1990 for offences punishable under section 302 read with section 34 and section 114 of Indian Penal Code.
3. PSI of Bhanvad police station, after registering the complaint, visited the place of offence and drew inquest panchnama and the body was sent for post mortem. The next day the PSI went to the place of offence and drew panchnama of place of incident, the muddamal jeep was taken into custody. After completing necessary formalities recorded the statements of witnesses. The blood stained clothes and the muddamal axes were recovered from the accused after drawing panchnama. The muddamal axes were sent to FSL. After investigation charge sheet was filed against the accused persons and as the offences were triable exclusively by the court of Sessions, the learned Judicial Magistrate First Class, Bhanvad committed the case to the Sessions Court, Jamnagar under section 209 of the Criminal Procedure Code.
The respondents-accused pleaded not guilty to the charge and claimed to be tried.
4. To prove the case, after framing the charge, the following prosecution witnesses were examined – PW 1 Dr. S V Saparia Exh.10, PW 2 Jeram Premjibhai Exh.13, PW 3 Babubhai Bhimabhai Exh.16, PW 4 Jashudan Bhayjibhai Exh.18, PW 5, Devashi Punja, Exh.22, PW 6 Rajashi Raja, Exh.23, PW 7 Laxmanbhai Jethabhai, Exh.24, PW 8, Lala Viram Exh.25, PW 9 Ramji Bhimaji Exh.27, PW 10 Tulshi Viraji Exh.29, PW 11 Ishmail Jivabhai Exh.31, PW 12 Mustafamiya Jusabmiya Exh.32, PW 13 Bhikhubhai Lakha Exh.51 and PW 14 Popatbhai Muljibhai Patel Exh.52.
5. Besides the aforesaid oral evidence, documentary evidence such as FIR Exh.53, Station Diary Exh.10, Serological report Exh.58, Panchnamas Exh.26, Exh.30 and Exh.33, Post mortem Note Exh.12, were produced by the prosecution which were also taken into consideration by the learned Sessions Judge.
6. After filing 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 defence Advocate, 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 was ample evidence connecting the respondents accused with the crime. He submitted that the learned trial Judge has erred in not believing the evidence of two eye witnesses Naga Vinja and Devashi Punja. He further submitted that the learned trial Judge has erred in giving more weightage to the minor discrepancies and contradictions in the evidence of the witnesses. He submitted that the learned trial Judge ought to have seen that the medical evidence as well as the circumstantial evidence supported the case of the prosecution.
The learned APP finally submitted that looking to the aforesaid grounds, this appeal be allowed.
8. Mr J M Buddhbhatti, learned Advocate appearing for the respondents-accused No.1 to 4 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 Buddhbhatti also submitted that from the deposition of the complainant it has come on record that the incident in question occurred because of the reason that the contract work which was being done by the accused was now being entrusted to the deceased. Due to this, the accused were very desperate. Drawing our attention to the scene of offence panchnama at Exh.28, the learned Advocate for the Respondents/original accused submitted that if the damages caused to both the vehicles are considered then it becomes very clear that such damage to the vehicles was practically not possible unless the vehicles had head-on collision. He 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.
9. On perusing the Panchnama of scene of offence and the damages caused to both the vehicles, the possibility of head-on collision between both the vehicles cannot be ruled out. In other words that is found to be more probable in light of the impact noted in panchnama, under such circumstances, it is not believable that only Rambhai is fallen down from the motorcycle while both pillion riders namely, Naga Vinja and Devashi Punja could easily got off by jumping from the vehicle. It is not possible to believe that these persons would not have fallen along with Rambhai and in that case, there was possibility of sustaining injury by them also. In view of this fact also, presence of both these eye witnesses becomes suspicious. Thus, looking to the entire evidence, conduct of these witnesses is not consistent with the ordinary course of nature and human behaviour. It is surprising that one of the eye witnesses Naga Vinja has not been examined at all. After much discussion in detail in paragraphs 21 and 22 of the judgment dated 28.2.1992, the learned Addl. Sessions Judge, has summed up the same as under:
(I) “21. ... In addition to this, many significant inconsistency are also there in the police investigation, the police having gone to the place of occurrence drew the inquest panchnama first and then the panchnama of the place of offence was drawn in the morning on the next day after returning to Bhanwad, whereas the complainant Babubhai states that both these panchnamas have been drawn at the night only and the R.T.O. report in respect of muddamal jeep has been called for. It has been called for after filling in the form of accident and in view of this, there was doubt in mind of police until the form was filled in as to whether it was an accident or murder and as it was not determined, the form of accident has been filled in and forwarded. Because of the aforesaid reasons, it cannot be believed that the investigation has been also conducted satisfactorily and trustfully because the incident has occurred at about 6.30 to 7.00 hours as per the fact proved in evidence. There are Orchards surrounding it. The persons are present therein, despite this no statements of them have been taken. A statement of one witness has been taken. The investigating officer admits the fact in the cross examination that has been declared in his statement to the effect that 4 to 5 persons were beating one person with sticks. In such circumstances no evidence of any witnesses have been produced. This fact is also found against the neutral investigation. Though the dead body of Rambhai was lying on the place of occurrence from 6.00 to 12.00 at night, the vehicles, people or any person passing from there do not try to inform or to telephone to the police. All these facts go against the prosecution.”
(2) “22. Because of all the aforesaid reasons, the evidence produced on behalf of the prosecution is not sufficient evidence to hold the accused persons guilty. The evidence of only one eye witness Devashi Punja is not believable to be sufficient and trustworthy for holding accused persons guilty. No other independent witnesses have been examined. All are Rambhai's servants. The prosecution has not been able to prove the panchnama in respect of the muddamal weapons and clothes produced by the accused persons. Both the witnesses have denied the fact to the effect that the panchnama has been drawn in their presence. Thus, the prosecution has not been able to prove the said fact also ”
Considering the above aspect aforesaid, there appears substance and merit in the above referred findings concluded by the learned trial Judge and we are 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 dated 28.2.1992 passed by the learned Addl. Sessions Judge, Jamnagar in Sessions Case No. 15 of 1991 are confirmed. Bail Bonds stand cancelled.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]