IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 173 of 1990 For Approval and Signature:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI HONOURABLE MR.JUSTICE G.B.SHAH ==========================================
========================================== STATE OF GUJARAT - Appellant(s) Versus SURESH KESHAVLAL SUVARNA - Opponent(s) ========================================== Appearance :
Mr L R Pujari, Addl.PUBLIC PROSECUTOR for Appellant(s) : 1, MR SA BAQUI for Opponent(s) : 1, ==========================================
CORAM : HONOURABLE MR.JUSTICE RAVI
R.TRIPATHI and HONOURABLE MR.JUSTICE G.B.SHAH Date : 12/01/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. Being aggrieved and dissatisfied by the judgment and order dated 02.12.1989 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 03 of 1989 for offences punishable under section 302 read with section 34 of Indian Penal Code and under section 135 of the Bombay Police Act, this Appeal under section 378 of the Code of Criminal Procedure, 1973 (for short, “the Code”) has been filed by the State of Gujarat.
2. The facts of the case leading to the present appeal in brief are that Jamnaben, wife of the deceased Babuji Manaji was doing household work and was residing in Kali Mandir Chawl, Sabarmati. Her husband was doing labour work. One week prior to the incident, at about 10.00 a.m., one Alakhraj Dwarkaprasad and one Prabhaker, residents of railway colony, Bhutiya Bungalow had gone to her house. At that time her husband was not in the house and she was alone. Both of them demanded Rs.500/- from her. On being asked as to for what purpose the money is demanded, she was told by Alakhraj Dwarkaprasad that she is doing illegal business and that if she does not give the money, he threatened that he will teach her husband a lesson. On 16.10.1988 at about 9.30 a.m., when the complainant and her husband were sitting in a cot near her house and were talking, one Ramesh Bhikhaji of village Kaligam came along with one boy and took her husband in a rickshaw telling that in a short while they will return. At 11.00 am, Ramesh came back to her house and informed her that somebody has assaulted her husband near Kali Road Station. She immediately sat in the rickshaw and reached Kali Mandir road and saw her husband lying in a pool of blood. She lifted him and taken to Sabarmati Police Station. On the way, the complainant asked her husband as to who caused injuries. He told her that Suresh Keshavlal, resident of Vasna and Alakhraj inflicted seven blows on him for not giving money as demanded. From the police station she took him to Civil Hospital where husband of the complainant Babuji was declared dead. Thereafter she gave complaint against both the accused. The complaint was registered as CR No.I-374 of 1988 with Sabarmati police station, investigation was carried out, the accusedalong with absconding accused (Alakhraj Dwarkaprasad) were charge sheeted and the case was committed to Sessions Court, Ahmedabad (Rural).
3. Charge Exh.2 was read over and explained to the accused and he pleaded not guilty to the charges and was tried for the above referred offences. After recording evidence of witnesses and considering the records and papers of the case, the learned Addl. Sessions Judge acquitted the accused of the aforesaid offence. It is pertinent to note that accused Alakhraj Dwarkaprasad has remained absconding.
4. To prove the case, after framing the charge, following prosecution witnesses were examined:
sr.no. Name of witnesses Exh.no.
1. Dr.Ravindra Shrikrushan Bhise 5
2. Jamnaben Chelaji 9
3. Ramesh Bhikhaji 11
4. Bhailalbhai Karsanbhai Patel 12
5. Shankerbhai Ramraj 13
6. Rameshbhai Bababhai 14
7. Vishnubhai Maganbhai 15
8. Bhanubhai Natvarlal 16
9. Visaji Babuji 17
10. Jarnelsing Kartarsing 18
11. Krishna Baburao 19
12. Sundarji Tribhovanbhai 21
13. Manoj Himatbhai 23
14. Baldevbhai Bhailalbhai Amin 25
15. Amarsing Babalji 27
16. Bhupatsinh Dipsinh 29
17. Umarkhan Usmankhan 32
18. Mafatbhai Kacharabhai 35
19. Manubhai Naranbhai 36
20. Shambhubhai Prabhubhai Patel 37
21. Agarsing Bhurubhai Chavada 38
22. Dhanjibhai Kaljibhai 39
23. Bhaskerrao Sakharam Patil 40
24. Devjibhai Kanjibhai Bawa 41
25. Dr. Khemchand Madhubhai Chhatrapati 50
4.1. Besides the aforesaid oral evidence, documentary evidence such as Post Mortem Note Exh.6, original complaint Exh.10, Panchnama Exh.20, Inquest report Exh.22 etc. were also taken into consideration by the learned Sessions Judge.
5. After examining the prosecution witnesses, the learned Sessions Judge has recorded statements of the accused under section 313 of the Code of Criminal Procedure in which he has denied the allegations levelled against him and further said that the deceased was a headstrong man and had enmity with several persons and, therefore, somebody might have assaulted him and that he is innocent.
6. Learned APP submitted that the learned Sessions Judge ought to have believed the oral dying declaration made by the deceased and merely on the ground that the prosecution witnesses were relatives of the deceased, their evidence ought not to have discarded. He further submitted that the prosecution case is fully supported by medical evidence and the learned Judge ought to have properly considered the discovery panchnama of the muddamal weapon. The learned APP finally submitted that looking the aforesaid grounds, this appeal be allowed and appropriate order of sentence be passed in accordance with law.
7. Learned Advocate for the respondent 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.
The learned Advocate for the respondent further submitted that this being an acquittal appeal, the judgment and order delivered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He lastly submitted that in view of the above, the appeal be dismissed.
8. 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. The learned Sessions Judge has observed that the complainant, wife of the deceased is not an eye witness to the incident and she was not knowing the accused prior to the incident. It is also observed by the learned Judge that the whole case was depending upon the oral dying declaration alleged to have been made before the alleged eye witness Ramesh and Jamnaben, wife of the deceased. The learned Sessions Judge further observed that looking to the injuries caused to the deceased, it was doubtful whether the deceased was in a position to make oral dying declaration to the complainant-wife and the prosecution has failed to produce any independent corroborative evidence. It is also concluded by the learned Sessions Judge that the prosecution has failed to produce any evidence in the court to convince the court beyond reasonable doubt that the oral dying declaration coupled with the evidence of Ramesh Bhikhaji inspires confidence to hold the accused guilty of murder of deceased Babuji Manaji.
9. On perusal of the impugned judgment and order, we find that the learned Sessions Judge has taken into consideration the oral as well as documentary evidence led before him. It is an admitted fact that Vardhi Exh.30 given by the police constable Bhupatsinh mentions that on 16.10.88 at 11.00 a.m the opponent has given knife blows and caused injuries and at 11.45 he has been admitted in the emergency ward. This information received at 11.15 a.m. does not mention name of the accused. The learned Sessions Judge has rightly observed that since name of the accused is not mentioned, the oral dying declaration alleged to have been made by the deceased cannot be believed. There was interpolation in the name of the accused subsequently in the case papers. The learned Sessions Judge has also observed that as per the evidence of the C.M.O. Mr Chhatrapati and looking to the injuries, the deceased was not in a position to make any kind of coherent or credible statement relating to the circumstances which resulted in his death.
9.1. It is also a 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 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.
10. It is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 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. We are in complete agreement with the judgment and order passed by the learned Sessions Judge and we do not find any reasons to interfere with the same.
11. In the result, this appeal fails and is dismissed. The impugned judgment and order dated 02.12.1989 passed by the learned Addl. Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 3 of 1989 are confirmed. Bail Bond stands cancelled.
12. The office shall send back the Records & Proceedings to the trial court forthwith, after following the due procedure.
[RAVI R TRIPATHI, J.]
msp
[G B SHAH, J.]