1. The appellant – State of Gujarat has preferred Criminal Appeal No. 819 of 1996, under Section 11 of the Probation of Offenders Act, challenging the Judgment and order dated 12.6.1996, passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No.81 of 1991, whereby the learned Judge has held the respondent – original accused No.2 guilty of the offence under Section 324 of I.P. Code. However, the learned Judge has granted benefit of probation to the respondent (original accused No.2) under the provisions of the Probation of Offenders Act. Against the said Judgment and order of granting probation to the respondent, the appellant – State has preferred this Appeal.
2. The appellant – State has also filed another Criminal Appeal No. 820 of 1996 against the same Judgment and order passed by the very learned Judge, Valsad, in the said Sessions Case, whereby the learned Judge has acquitted the respondents – original accused Nos. 1 & 3 of the charges levelled against them.
3. As both the Appeals arise out of the one and common Judgment, they are disposed of together nby this common Judgment.
4. Brief facts of the prosecution case are that on 8.4.191 at 10.15 hours night, the accused have assaulted on the injured persons with deadly weapons, like sword, iron rod, etc. and caused injuries to the injured Dhirubhai. Thereafter, the complaint was lodged against the accused for the offences under Sections 307, 114 of I.P.
Code before City Police Station, Valsad.
5. Necessary investigation was carried out, statements of the witnesses were recorded. Thereafter, after completion of investigation, the charge-sheet was filed against the respondents – accused in the Court of learned Magistrate. Thereafter, as the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter, the charge was framed against the respondents – accused. The respondents – accused pleaded not guilty to the charge and claimed to be tried.
1. To prove the case against the accused, the prosecution has examined the witnesses and relied upon the documents. At the end of trial, after recording the statement of the respondents – accused, under Section 313 Cr. P.C., and after hearing the arguments on behalf of the prosecution and the defence, the learned Additional Sessions Judge, vide the impugned Judgment and order, has acquitted the respondents – original accused Nos. 1 & 3 from the charges levelled against them and granted benefit of probation to the original accused No.2 under the provisions of the Probation of Offenders Act.
2. Being aggrieved by and dissatisfied with the aforesaid Judgment and order passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 81 of 1991, the State of Gujarat has preferred the above mentioned two Criminal Appeals, viz. one against the Judgment and order of acquittal of original accused Nos. 1 & 3 and another against granting the probation to the accused No.2 under the provisions of Probation of Offenders Act.
3. Heard learned A.P.P. Ms. Jirga Jhaveri, appearing on behalf of the appellant – State of Gujarat in both the Appeals. Learned Advocate Mr. Sunil C. Patel, appearing on behalf of respondent No.1 and learned Advocate Mr.
E.E. Saiyed, appearing on behalf of respondent No.2 in Criminal Appeal No.820 of 1996. Though served, respondent – original accused No.2 in Criminal Appeal No.819 of 1996 did not remain present. I have also gone through the Judgment and order passed by the trial Court and also considered the documents produced on the record of the case.
4. Learned APP, appearing on behalf of the appellant, has contended that the Judgment and order passed by the learned Judge is without considering the facts and evidence on the record. She has contended that looking to the complaint and the deposition of the witnesses, the prosecution has proved its case beyond reasonable doubt. She has contended that at the time of incident the presence of all the three accused was established and the witnesses have also stated as to which accused had which weapons in their hands and, therefore, the learned Judge has erred in not believing the case of the prosecution. She has contended that the medical evidence also supports the case of the prosecution. She has, therefore, contended that looking to the over all evidence, prima-facie, the prosecution has established its case beyond reasonable doubt and the learned Judge has wrongly acquitted the original accused Nos. 1 & 3. She has contended that no doubt the prosecution could be able to establish its case against the original accused No.2 and the learned Judge has held him guilty for the offence alleged against him, however, the learned Judge, though believed the case of the prosecution, took a lenient view and given probation to the accused No.2 under the provision of Probation of Offenders Act. She, therefore, contended that the Judgment and order of the trial Court is bad in law and perverse and, therefore, the same requires to be quashed and set aside.
5. On behalf of respondents No.1 & 2 in Criminal Appeal No.820 of 1996 (original accused No.1 & 3), learned Advocates Mr. Sunil C. Patel for respondent No.1 and learned Advocate Mr. E.E. Saiyed have supported the Judgment and order of acquittal passed by the learned Judge. Both the learned Advocates have contended that the learned Judge has considered the oral and the documentary evidence produced on the record and after considering the same, the learned Judge has rightly acquitted the respondents from the charges alleged against them and, therefore, no interference is required to be called for. Though served, no body has appeared on behalf of the respondent – original accused No.2 in Criminal Appeal No.819 of 1996.
6. From the observation of the trial Court it is clearly established that the prosecution could not be able to prove its case beyond reasonable doubt. The trial Court has clearly observed that there are material contradictions in the evidence of prosecution witnesses and the statement made before the Police. The learned Judge has observed that the incident had happened in a spur of moment and all of a sudden the original accused No.2 got excited and he caused injury to Dhirubhai by sword. The learned Judge has categorically observed that, no doubt, the injury was caused on the head, which is a vital part of the body, but, it was a simple in nature and, therefore, it cannot be believed that the accused No.2 was having intention to cause death of Dhirubhai by inflicting sword blow on his head. Looking to the oral as well as documentary evidence produced on the record, the learned Judge has observed that the prosecution has proved its case beyond reasonable doubt that Dhirubhai had received sword injury through the accused No.2 Samirbhai @ Munnabhai. However, looking to the age of the accused and as this was his first offence, the learned Judge has thought it fit to grant him probation under the provisions of the Probation of Offenders Act. So far as other accused are concerned, looking to the oral as well as documentary evidence produced on the record, the prosecution could not be established its case against the accused Nos.1 & 3. In my opinion, therefore, the Judgment of the trial Court is proper and no interference is called for.
7. It is 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 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 respondent – accused and adopting the said reasons and for the reasons aforesaid, 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.
8. In view of above, both the Appeals are dismissed. The Judgment and order dated 12.06.1996 passed by the learned Additional Sessions Judge, Valsad, in Sessions Case No. 81 of 1991, is hereby confirmed. Bail Bonds, if any, shall stand cancelled. Record & Proceeding to be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas