1. The present acquittal Appeal has been filed by the appellant – original complainant, State of Gujarat under Section 378 Cr. P.C., against the Judgment and order dated 15.6.1994 rendered in Sessions Case No.23 of 1991 by the learned Additional Sessions Judge, Mehsana, Camp at Patan. The said case was registered against the present respondents original accused for the offence under sections 397, 114, 504 and 506(2) of the Indian Penal Code.
2. According to the prosecution case, on 16.1.1985 at village : Jakha, Taluka : Patan, near wasteland on pucca road accused No.2 snatched wrist watch from Talajibhai Chehrabhai and at that time accused No.3 inflicted blows of dhariya on Talajibhai Chehrabhai and in commission of this crime accused No.2 and 3 abetted.
3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused persons were arrested and, ultimately, chargesheet came to be filed against them in the Court of learned Magistrate.
4. Thereafter, charge came to be framed and explained to the accused persons, to which the accused persons not pleaded guilty and claimed to be tried.
5. In order to bring home the charges against the accused persons, prosecution has examined several witnesses and also produced documentary evidence.
6. Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused persons have denied the case of the prosecution and submitted that a false case is filed against them.
7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondents – accused.
8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 15.6.1994 rendered in Sessions Case No.23 of 1991 by the learned Additional Sessions Judge, Mehsana, Camp at Patan, the appellant – State has preferred the present appeal before this Court.
4. Heard Learned APP Ms.Hansa Punani, appearing on behalf of the appellant – State. She has submitted that the learned Judge ought to have believed the evidence of injured eye witness, who had received injuries on his body as per medical evidence. That the learned Judge ought to have seen that the evidence of injured eye witness Talajabhai is supported by evidence of Chehrabhai, who have seen all the three accused running away.
5. She has submitted that the learned Judge ought to have seen that in spite of the fact that two eye witnesses, Lilabhai and Lallubhai have turned hostile. It will not make any difference so far as evidence of injured eye witness is concerned. That the learned Judge ought to have seen that medical evidence shows that there were 10 injuries out of which one was cutting the lip and two teeth came out from jaw, therefore it cannot be said to be self inflicted injuries. She has also submitted that the learned Judge ought to have seen that the circumstantial evidence on record also support the prosecution case during attack by accused they have looted wrist watch and stick of injured eye witness Kaljibhai.
6. She has submitted that injury Nos.2, 3 and 4 is possible by sharp edge weapon. She has further read Ex.20 Medical Certificate and oral evidence of P.W. No.3 who is injured person. She has submitted that from the oral evidence of injured person learned Judge has wrongly acquitted respondents – accused.
7. She has read Ex.24 panchnama and Ex.25 oral version of the P.W. No.4 who is declared hostile and Ex.27 panchnama and oral evidence of P.W.No.5 who is also declared hostile. She has also read oral evidence of P.W. No.6 and Panchnama. She has further submitted that from the oral evidence of the Investigating Officer prosecution has proved its case beyond reasonable doubt. She has prayed to quash and set aside the judgment and order of the learned Judge.
8. Heard Ms.Jyoti Mehta, learned advocate appearing for Mr.Vijay Patel, for the respondents accused. Ms.Mehta has read evidence of the medical expert and also read contents of Medical Certificate and submitted that looking to the evidence of the injured person it is the say of the prosecution that dhariya blow was given to the injured person, but as per the injury which is shown is proved beyond reasonable doubt.
9. She has further submitted that looking to the injury shown in the Medical Certificate it is not possible by dhariya or stick. She has further submitted that from the oral evidence of the injured person he has stated before the learned Judge that 5 to 20 persons were present at the event of the incident. She has submitted that no independent witness is examined by prosecution. She has prayed to dismiss the Appeal of the prosecution.
10. Heard learned advocates for both the parties. I have gone through the papers produced in the Case. The charge was framed against the present respondents and thereafter it was altered for the offence punishable under Section 397 of the Indian Penal Code, but to prove the case ingredients of Section 397 of the Indian Penal Code are required to be proved beyond reasonable doubt. In the present case nothing is recovered from the possession of the present respondents accused. So far as the main ingredient of offence is concerned, it is not proved.
11. I have perused the medical expert's opinion.
As per doctor's evidence it is admitted that injury of the injured person was simple in nature and that injury cannot be possible by dhariya. The muddamal dhariya is shown by the prosecution but the injury shown by the prosecution is not possible by that weapon. Even it is the say of the prosecution that during the incident it is alleged by the injured person that he has received serious injury on the mouth but as per medical expert's evidence he has found some injury inside the mouth. Therefore, from the evidence of this expert allegation made against the present respondents is not proved beyond reasonable doubt. Even no independent witness is examined by the prosecution. The witnesses, who are examined by the prosecution are declared hostile.
12. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
“16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.”
13. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
14. It is settled legal position that in acquittal Appeal, the Appellate Court is not required to rewrite the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondents – accused and adopting the said reasons, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.
15. In the result, the Appeal is hereby dismissed. The impugned Judgment and order dated 15.6.1994 rendered in Sessions Case No.23 of 1991 by the learned Additional Sessions Judge, Mehsana, Camp at Patan, acquitting the respondents – accused, is hereby confirmed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.K.SAIYED, J.) kks