(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. Present Appeal is filed by the State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the order of acquittal passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 59 of 1985 whereby the learned Additional Sessions Judge was pleased to acquit the accused of all the charges levelled against them for the offences punishable under sections 302 read with section 34, 447 of Indian Penal Code and under section 25 [c] of the Arms Act.
2. The case of the prosecution as set out in appeal memo in paragraph No. 2 is as under:
The complainant and the deceased are relatives and at Village Piperla they have undertaken the work of growing wheat in the wadi of Gadhvi Bhagatbhai Devabhai. On 30.11.1984 at about 4.45 or 6 p.m., while the deceased Mohanji Nanji was sleeping in his field after watering the crop and the complainant Valji Narshi and one Nanji Popat were warming themselves sitting near the camp fire, the accused came there. Accused No.1 had axe, accused No.2 had a country made Tamancha, accused No.3 had stick and accused No.4 had a Rampuri knife with him. Accused No.2 covered himself with black cloth and came near the complainant and asked 'where Mohan Nanji was', in response to that the complainant said that he is sleeping and pointed out the place where he was sleeping. All of a sudden accused No.2 fired from his Tamancha whereby the deceased got up and started running. The accused chased and beaten him to death. At that time Hakubai, wife of the deceased was coming to the wadi with food, on hearing the firing of the shot, she ran towards wadi and identified the accused. On these facts on a complaint of Valji Narshi the case was registered. After investigation the accused were charge sheeted.
3. As the accused pleaded not guilty to the charges and opted for trial, they were tried. The prosecution, to establish the guilt of the accused, examined following witnesses:
PW 1 Valji Narshi Exh.
PW 2 Nanubhai Popatbhai Exh.12 PW 3 Hakuben Bijalbhai Exh.13 PW 4 Bhagwan Dehabhai Exh.14 PW 5 Dr.
Rasiklal Karsanbhai Exh.16 PW 6 Ganpatsinh Bhimsinh Exh.18 PW 7 Natubha Hathisinh Exh.21 PW 8 Bhikhabhai Ramjibhai Exh.35 Besides, the aforesaid oral evidence, the prosecution also led documentary evidence as under:
Complaint Exh.11 Panchnama of scene of offence Exh.15 Post Mortem Note Exh.17 Discovery panchnama Exh.19 Panchnama Exh.20 Inquest panchnama Exh.22 Form sent for investigation Exh.23 Panchnama of clothe Exh.24 Arrest panchnama Exhs.25,26,27 Map of place of the incident Exh.28 Letter written to FSL Exh.29 Receipt Exh.30 Letter Exh.32 Report from Serologist Exh.34
4. Learned Addl.Sessions Judge, after taking into consideration the evidence led before him, came to the conclusion that the prosecution has utterly failed in establishing its case. The complainant Valji Narshi who happens to be the nephew of the deceased i.e. son of the sister of deceased's wife, (the deceased was husband of the sister of the mother of the deponent) was the star witness but his evidence does not render required support to the case of the prosecution and does not help in establishing the guilt of the accused. The case of the prosecution as it has come on record, is that at about 5.45 a.m. on 30.11.1984 when the complainant and one Nanubhai Popatbhai, PW 2 were in the field along with deceased, four persons walked in. They entered the field from different directions and one of the accused stood at the back of the complainant. The complainant in FIR has stated that he was under an impression that they were labourers from Jain Mandir situated on the southern side of the field where the incident took place. He replied to these persons that 'no buffaloes have come to the place'. Incidentally, what is missing is that, 'any of them enquired about buffaloes'. Whereas in the chief examination this witness deposed that these persons told that their buffaloes are lost and to that the complainant replied that he does not know about their buffaloes. Though it appears to be a minor contradiction in 'chief' and the 'complaint', it is significant for the reason that in the complaint narration of the incident is not found to be natural. It is only when somebody comes and enquires, one may reply and not otherwise. But in the complaint it is stated that soon after these persons came in the field, the complainant invited them to come near the camp fire and then said that he has not noticed their buffaloes.
5. What is most important and glaring defect in the case of the prosecution is that this complainant as well as Nanubhai Popatbhai, PW 2 has categorically stated that there was a fire from the firearm but the prosecution has failed to bring on record any material to establish this fact. Not only that deceased did not receive any injuries by firearm but even the matress by which the deceased had covered himself while sleeping is found with any firearm marks. Even the FSL report does not support the prosecution on the point that the firearm was used. The wife of the deceased PW 3 Hakuben Bijalbhai has also stated that she heard the shot of firearm but then in absence of any material it appears to be a 'story' created by the witnesses of prosecution. Neither in the scene of occurrence panchnama nor in the inquest panchnama nor in the post mortem note any marks of use of firearm are brought on record. The prosecution is not able to bring sufficient material on record by examining PW 1-relative of the deceased about the incident. The only evidence of this witness is that the moment the person standing behind him fired a shot from the firearm, he was so much frightened that he ran away and went to village. Similarly Nanubhai Popatbhai, PW 2 also stated the same thing. In view of that there is no witness who can depose and bring on record as to which accused and by which weapon caused what injury.
6. In the post mortem note as many as 13 external injuries are mentioned by the Doctor. There were consequential internal injuries also. These injuries do reveal that the deceased was brutally murdered and axe was used very freely in causing serious injuries to the deceased which ultimately resulted into his death. But the question which is required to be answered is whether the prosecution is able to establish that the accused are the persons responsible for causing these injuries.
7. As against that the case of the defence is that the deceased was convicted for murder of the father of accused No.1-Harubha. In light of that fact it cannot be denied that the witnesses of the prosecution will have a tendency to implicate accused No.1 in this offence. Once it comes on record that the prosecution witnesses have implicated any one accused falsely then their evidence becomes shaky and unreliable. There is no parameter, application of which can make it possible to draw a line of distinction and come to a conclusion that the witnesses have rightly implicated the other accused.
8. In the present case, wife of the deceased Hakuben Bijalbhai is examined as PW 3 and her evidence is also found to be thoroughly unreliable. The case of PW 3 is that she got up in the morning at about 4.00 a.m., she milched the buffaloes and then she prepared meals for her husband and her nephew and she was bringing the same between 5.45 am and 6.00 a.m. in the morning. Now this version cannot be believed and is rightly not believed by the learned Addl. Sessions Judge because 5.45 a.m. in the morning is no time to bring meal. Besides, this witness has stated that she was coming to supervise watering work of the field. When her husband and nephew were doing watering of the field and not the servants, there is no reason for another family member to come to the field in the morning between 5.45 am and 6.00 a.m. and that too in the month of November to inspect as to whether watering is properly done or not. Similarly this witness-the wife of the deceased has also stated that, 'when she was coming from the village, she did not meet anybody on the way', whereas the case of Valjibhai Narshi, PW 1 is that on listening the firearm shot, he ran to the village. Then the question is as to who is right. Besides a natural question will arise that if they both are right then none of them could have seen the incident. In fact, the wife of the deceased ought have noticed the nephew and he in turn ought to have noticed his Aunt, but that is not coming on record. As the facts stand on record, it appears that everybody seems to have noticed the deceased only after the assailants had gone away from the scene of occurrence. That being so, there is no evidence to connect the accused with the incident.
9. We had examined the relevant evidence - oral as well as documentary and we have carefully gone through the judgment of the learned Addl. Sessions Judge. We are in full agreement with the findings recorded for the acquittal in the matter. We do not find any reason to differ with the findings recorded by the learned Addl. Sessions Judge.
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 27.11.1991 passed by the learned Addl. Sessions Judge, Bhavnagar in Sessions Case No. 59 of 1985 is confirmed. Bail Bonds stand cancelled.
[RAVI R TRIPATHI, J.] [G B SHAH, J.] msp Top