(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 the judgment and order of acquittal dated 30.7.1991 passed by the Addl.Sessions Judge, Bharuch in Sessions Case No.191/1989 for offences punishable under sections 302, 452 of the Indian Penal Code and under section 135 of the Bombay Police Act.
2. The facts of the case in brief are that on 26.8.1989, at about 1.00 p.m., Dinesh Narpat, nephew of the complainant-Chandubhai Bavabhai Tadvi went to call the complainant informing him that the younger brother of the complainant, Bachubhai was inflicted axe blow on the head and killed by Somabhai Ukabhai Bariya in the house of Girdharbhai Shivabhai. On hearing this, the complainant and his nephew rushed to the house of Girdharbhai Shivabhai at Tankari village at about 6.00 p.m. There he saw his brother Bachubhai lying in a pool of blood in the front portion of the house of Girdharbhai Shivabhai and four injuries inflicted by axe were found on the head and face of Bachubhai. On asking, Girdharbhai Shivabhai told him that he told Bachubhai to bring pesticides for the cotton plants and Bachubhai had come with the same and called Girdharbhai. As Girdharbhai was having tea, he asked Bachubhai to sit in the front portion of the house. Immediately thereafter Girdharbhai heard Bachubhai screaming and shouting “help, Soma will kill me”. Thereupon Girdharbhai along with his daughter-in-law Bhikhiben rushed to the place of incident and saw that Somabhai Ukabhai Bariya holding an axe and Bachubhai lying down with injuries on the head and they have seen the deceased being inflicted two axe blows on his head. Girdharbhai pleaded Somabhai not to kill Bachubhai and on this, Somabhai Ukabhai put the axe down there and gone towards his house. According to the complainant, the reason to kill his brother Bachubhai is that Somabhai had suspicion that since two years there was extra marital affairs between his wife Lalitaben and Bachubhai and in this regard quite often he used to quarrel with Bachubhai. Complaint Exh.17 was filed by Chandubhai Bavabhai Tadvi before Rajpipla police station which was registered as CR.I-149 of 1989 for offences punishable under sections 302, 452 and 135 of Bombay Police Act. After investigation, the accused was arrested.
3. Charge sheet was filed and as the offences were exclusively triable by the Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code.
3.1. After investigation, charge was framed at Exh.2 against the accused. The accused denied the charges levelled against him and claimed to be tried.
4. To prove the case, after framing the charge, the following prosecution witnesses were examined – PW 1 Dr. Kamleshbhai Ganeshbhai Rathod, Exh. 14, PW 2 Chandubhai Bavabhai Tadvi, Exh.16, PW 3 Chandubhai Chhotabhai Tadvi, Exh.18, PW 4 Vikramsinh Nagji Bava, Exh.21, PW 5 Jasvantasinh Motisinh Parmar, Exh.23, PW 6 Kokilaben Bachubhai Exh.24, PW 7 Dineshbhai Narpatbhai Tadvi Exh.25, PW 8 Umedsinh Mohansinh Rathod, Exh.26, PW 9 Nagjibhai Ramsinh, Exh. 27, PW 10 Bhikhiben Bhailalbhai Exh.31, PW 11 Girdharbhai Shivabhai Exh.32 and PW 12 Punamchand R Gehlot, PSI, Rajpipla police station, Exh.35.
4.1. Besides the aforesaid oral evidence, documentary evidence such as Inquest panchnama Exh.6, Yadi issued to Medical Officer Exh. 8, complaint Exh.17, panchnama of scene of offence, Exh.19, Map of scene of offence Exh.34, post mortem note Exh.38 etc. were produced by the prosecution and were also taken into consideration by the learned Sessions Judge.
5. After filing closing pursis by the prosecution, the learned Addl.City Sessions Judge recorded further statement of the accused under section 313 of the Code of Criminal Procedure by which the respondent-original accused took the defence of 'total denial'. After hearing the arguments of both the sides and after appreciating the evidence on record, the learned Sessions Judge has come to the conclusion that the case against the accused had not been proved as no satisfactory evidence was adduced to show that the accused was guilty of the offence with which he was charged. The trial court, therefore, acquitted the present respondent-accused as referred above and hence this appeal.
6. We have heard Mr L R Pujari, learned APP for the appellant-State. He submitted that the learned trial Judge ought to have appreciated the evidence of the prosecution witnesses Girdharbhai Shivabhai and Bhikhiben Bhailalbhai who were eye witnesses to the incident. He further submitted that the learned trial Judge has erred in not appreciating the medical evidence in true perspective.
None appeared on behalf of the respondent-
accused.
7. We have perused the entire evidence along with the judgment and order dated 30.7.1991 passed by the learned Addl. Sessions Judge, Bharuch in Sessions Case No.191 of 1989. As per the case of the prosecution, the witness Bhikhiben Bhailalbhai Exh.31 and Girdharbhai Shivabhai Exh.32 are the eye witnesses of the incident and after perusing the same, there appears glaring contradictions in the depositions. It is alleged that in the house of Girdharbhai Shivabhai, deceased Bachubhai Bavabhai was murdered. It is important to note that Bhailalbhai, son of Girdharbhai Shivabhai was present in the backyard of the house and inspite of that both the above referred witnesses denied the presence of Bhailalbhai at the relevant time. Complainant-Chandubhai Bavabhai, brother of the deceased Bachubhai has admitted in his cross examination at Exh.16 that the police had suspicion on Bhailalbhai, son of witness Girdharbhai Shivabhai. Both the above referred witnesses are as such not the eye witnesses and the evidence on record through their deposition are not beyond doubt. As per the say of the complainant regarding the incident in question the sarpanch Ambalal had lodged complaint before Rajpipla police station but it is a fact that such complaint has not come on record. As per the say of the complainant, he had lodged complaint at 'Poicha' outpost. It is important to note that the complainant himself has admitted that prior to lodging of the complaint he himself, Jadvaben and Girdharbhai had decided that Somabhai Ukabhai be shown in the complaint. As such deceased Bachubhai was an agricultural labourer and the prosecution has failed to show that agricultural land was there in the name of the deceased Bachubhai.. Under the circumstances, the prosecution story that the deceased had gone to the house of Girdharbhai to bring pesticides to be used for the cotton crop is not believable.
8. Though Group 'B' blood stains were found on the muddamal axe, the prosecution has not proved whether the blood group of the deceased was 'B' or not. Referring to the serological report in respect of blood sample of deceased Bachhubhai, it has been found that the said blood group was”undecided”. Thus in short, the evidence of two eye witnesses put forward by the prosecution is not beyond doubt and so relying upon the evidence of the said witnesses, it is not possible to hold the accused guilty is the finding of the learned trial Judge and we find ourselves in agreement with the same.
9. While referring the record and depositions, certain carelessness and negligence on the part of the concerned trial Judge has come to our notice. We could not prevent ourselves from highlighting the same with a view to see that the same are not repeated again by learned trial Judges. It goes without saying that after recording each deposition as well as prior to signing the same, the learned trial Judge has to minutely and carefully go through the same and if any correction was required, then he should have made the required corrections and put his signature on each page as well as beneath the corrected portion and on the last page. As referred above, in this case Bachubhai Bavabhai was murdered and it is alleged that Somabhai Ukabhai Baria had committed the same. We find that the learned trial Judge has failed to discharge his duties as while dictating the depositions, the entire meaning of the sentence was changed and one could not gather the exact picture of the prosecution story and we could see the major part of it from the following lines recorded during the course of the deposition of prosecution witnesses No.2 and 11 which reads as under:
9.1. In chief examination of prosecution witness No.2 Exh.16 Chandubhai Bavabhai Tadvi, the complainant stated as under:
ccPPPD[ ULZWZ XLJFG[ VF V\U[ 5]K5ZK SZL CTL tIFZ[ ULZWZ XLJFV[ DG[ SC[,]\ S[4 AR]V[ ;MDFV[ DFZL GF\bIM K[PPPcc”
Here it should not be AR]V[ but it should be AR]G[P
9.2. In the last two lines of cross examination of PW 11 Exh.32, Girdharbhai Shivabhai reads as under:
ccPPPD[ OZLIFNL R\N]EF. ;FY[ ;JFT RLT SZ[,L S[ EFTFZF EF,G[ AR]V[ DFZL GF\B[, K[PPPcc It should be as under :
ccPPPD[\ OZLIFNL R\N]EF. ;FY[ JFTRLT SZ[,L S[ TFZF EF. AR]G[ DFZL GF\B[, K[PPPcc As the above depositions were not corrected after dictating the same by the concerned trial Judge, it gives an entirely wrong and opposite meaning of the said sentence. As such Bachubhai was murdered and on reading the above, it appears that Bachubhai had murdered someone.
9. 3. On the above point the relevant paragraphs Nos. 150 and 155 of Gujarat Criminal Manual by M.L. Jindal, Edition 2005 read as under:
“150. (1) The memorandum should be made and the depositions should be recorded, so as to leave a quarter margin on each page so as to facilitate the binding of the record.
(2) The deposition of every witness should be read over to him in the presence of accused if in attendance or his pleader if he appears by pleader and shall if necessary, be corrected. If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or the Judge may instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. The Magistrate or the Judge should also note the fact of having read over the deposition to the witness at the end of each deposition thus recorded by him, and should also make an endorsement that the witness admits the correctness thereof.
151. ... ... ...
152. ... ... ...
153. ... ... ...
154. ... ... ...
“155. Judges and Magistrates may use a typewriter, instead of a pen, for the purpose of recording Judgment, deposition and memorandum of evidence; but every sheet of any Judgment, deposition or memorandum so recorded must be initialled or signed by the Judges or Magistrate recording it.”
Thus, after dictating the deposition, it is bounden duty of the concerned Judge to read the same carefully and then sign the same so that mistakes such as above referred can be avoided. We are of the opinion that on this point the attention of the trial courts should be drawn forwarding earlier circulars issued in this regard with a view to see that after the completion of the recording of deposition on each day, the concerned trial Judge in all promptness completes his work as narrated above so that ultimately that will give more accuracy and correctness in taking the final decision by him which will also help all concerned. Under these circumstances, the Registrar General is directed to draw attention of the Hon'ble The Acting Chief Justice to the relevant portion of this judgment so that if thought fit, necessary circular may be issued to the trial courts drawing their attention to the above aspect.
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 of acquittal dated 30.7.1991 passed by the Addl.Sessions Judge, Bharuch in Sessions Case No.191/1989 are confirmed. Bail Bond stands cancelled. Office is directed to send the Records & Proceedings forthwith to the court concerned after following the due procedure.
12. Office is also directed to forward copy of this judgment to the Registrar General, High Court of Gujarat so that he can go through paragraph No.9 of the same and can do the needful.
[RAVI R TRIPATHI, J.]
[G B SHAH, J.]
msp