(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This Appeal, under section 378 of the Code of Criminal Procedure, 1973, has been filed by the State of Gujarat against the judgment and order of acquittal dated 11.4.1991 passed by the learned Addl.Sessions Judge, Ahmedabad City in Sessions Case No.43 of 1989 for offences punishable under sections 324 and 307 of Indian Penal Code and section 30 of the Arms Act.
2. The facts of the case in brief are that on 9.5.1988 at about 2.30 a.m. Police Constables Takhatsinh and Ambuji were patrolling near oriental building, Relief Road, Ahmedabad. At that time, the respondent-accused along with two other persons - Ashok Deviprasad Pande and Kamlakar Indranarayan Shukla were passing on a scooter. The respondent-accused being a PSI, was identified by the two police constables who were patrolling. All the three were in drunken condition. Upon the scooter being stopped, they were found grappling. In the process, the accused caused injury to Ashok and Kamlakar whereupon all the three were taken to Kalupur police station. At about 3.15 a.m, complainant PSI Bagale brought all the three into the chamber of the Police Inspector. The clothes of all the three were blood stained. The respondent-accused was in plain dress and the service revolver was in the holster tied around his waist. While PSI Bagale was interrogating the accused, the accused removed the revolver and pointed at PSI Bagale. On noticing this, PSI Bagale pushed away the hand of the accused and changed the direction of the revolver but by the time the bullet went off and hit the glass of the cupboard which was in the chamber of the Police Inspector and the glass was broken and the bullet had entered into the cupboard. PSI Bagale then snatched the revolver from the accused. The accused was earlier working as PSI in Kalupur police station and at the time of the incident, he was PSI in Bhavnagar police station but he was on commuted leave. FIR was registered being CR.I 550 of 1999 for offences punishable under sections 324 and 307 of the Indian Penal Code and offence under section 30 of the Arms Act. As the offences were triable only by the Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code.
3. After investigation charge was framed at Exh.1. The accused denied the charges levelled against him and claimed to be tried.
4. To prove the case, the prosecution has examined as many as seven witnesses - PW 1 Arun Ramchandra , PSI, Exh.8, PW 2 Shubhanrao Laljangle, Exh.9, PW 3 Takhatsinh Raisinh, Exh. 12, PW 4 Jayantilal Laxmandas Rami, panch Exh,13, PW 5 Viswambhar Dayal Kalicharan Exh.15, PW 6 Mahendra Rameshchandra Thakar, Exh.16 and PW 7 Becharsinh Ranjitsinh Champavat, Exh. 26. Vide closing pursis at Exh.30 dated 3.4.1991 the learned APP has shown the reasons for non-examination of witnesses Ashok and Kamlakar.
4.1. Besides the aforesaid oral evidence, documentary evidence such as police dairy Exh. 10, panchnama of clothes of accused Exh.14, panchnama of clothes of injured witness Exh.17, panchnama of scene of offence Exh.21, Medical certificate of Ashok, injured Exh.22, Medical certificate of the accused Exh.23, Medical certificate of injured Kamlakar Exh.24 etc. were also taken into consideration by the learned Addl. Sessions Judge.
5. After examining the prosecution witnesses, the learned Addl. Sessions Judge recorded statements of the accused under section 313 of the Code of Criminal Procedure in which the accused has denied all the charges. The relevant portion of the statement of the accused is reproduced as under :
"I was firstly appointed as a Police Sub-Inspector in Astodia in 1978. Thereafter, I was appointed as a P.S.I. in Kalupur Police Station from December 1982 to 1985. During this period, I had performed my duty very well in Kalupur Police Station. Moreover, during anti-reservation and communal riots of 1984-85, I performed my duty very well. As a reward of it, I had received a prize of Rs. 125/- from the Police Commissioner vide C.P.N.No.Z/725/1935/85 on 28/5/85. Moreover, I had received the biggest prize of Rs. 500/- in respect of performing special duty in Kalupur communal riots during that period vide C.P.N. No. Ja.725/1840/85 on 20/7/85. Due to my this performance, my colleagues and higher officers started to believe that I am doing work hard for getting more respect and more appreciation than they and for degrading them before higher officers. Therefore, keeping this fact into mind, the higher officers who were discharging duty during that tenure at that police station were censuring me and quarrelling with me frequently and were making efforts to harass and insult me. Moreover, due to my such performance, some political leaders of Kalupur area had also started to oppose me and intimidated me frequently that if you do not leave performing your duty strictly, such time will come that you have to suffer a lot for this and perhaps, you will also lose your service. I intimated my higher police officers about such intimidations and submitted a written report in this regard and entry for information was made in the police diary. Moreover, during anti-reservation and communal riots of 1984-85, I had maintained law and order very strictly. Due to all these facts, some officers and political leaders as well as anti-social leaders were harassing me without any reason and were trying to harass and harm me by any way by hatching conspiracy. Considering all these facts, I submitted a report along with all these facts to the Police Commissioner on 26/12/85 and also requested to transfer me from Kalupur Police Station to any other Police Station. Pursuant to this, I was transferred to Navrangpura Police Station from Kalupur Police Station on 30/12/85 with immediate effect. The appreciation made about me has been produced before the court vide exh.-27 by which I was posted in a special branch. I was instructed confidentially that I should keep a strict vigilance on terrorist activities being conducted in Ahmedabad city and its surrounding areas and I should keep arms for 24 hours for the said purpose that is to say Government service revolver should be kept. When I was working in Navrangpura, I had received instruction to keep a watch on such activities being conducted on highway. Thereafter, on my transfer to Bhavnagar, the D.S.P had also instructed me to keep a watch on such activities. During the period when I was in Ahmedabad, I came to know that Ashok and Kamlakar are frequently visiting to video parlour. They might be connected with terrorist activities. Therefore, as per the instruction which I received, I maintained close relation/rapport with them. I met both of them on 8/5/88 in that connection. When both of them were coming to drop me, two constables met me near Orient Building at night. As both the constables identified me, they saluted me. Therefore, Kamlakar and Ashok raised such doubt that I am a police officer. At that time, Kamlakar put his hand on my revolver and he was trying to snatch it and therefore, due to their movement, my doubt was sure. Therefore, I shouted and instructed both the constables to catch them and to take them to the police station. I wanted to lodge a complaint against them in the police station. During that, Shri Bagale came there and took me in the chamber of P.I. Shri Bagale so told me that you are also in intoxicated condition. Therefore, hand over your revolver to me. Therefore, I told him that if you really want to get my revolver deposited, then call the officer in the rank higher than you, then I will hand over my revolver. Therefore, taking an opportunity, I placed the said revolver on the table. Shri Bagale swooped to take it. Therefore, against his such behaviour, I tried to move the revolver towards me by putting my hand on Bagale's hand. During this pulling and dragging, a sound of firing a bullet from the revolver was made."
5.1. After hearing the arguments of both the sides and after appreciating the evidence on record, the learned Addl.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 were guilty of the offence they were charged with. 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 Addl.Sessions Judge has committed error in acquitting the accused. He submitted that the learned trial Judge has erred in discarding the evidence of important eye witnesses - Ashok and Kamlakar who have supported the prosecution case. He further submitted that the learned trial Judge ought to have appreciated evidence of the prosecution witnesses who have supported each other. He submitted that the learned trial Judge has erred in discarding the evidence of the complainant as there was time gap of two hours in lodging the complaint and the time of the incident. The learned APP submitted that the learned Judge has erred in considering that the case was fabricated against the accused due to grudges against him. He submitted that the learned trial Judge also erred in holding that the prosecution has tried to conceal the facts intentionally by preparing panchnama Exh.20 first.
7. Learned Advocate Mr Sudhanshu S Patel appearing for the respondent-Accused 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. He submitted that in the past the accused was falsely implicated in three false criminal cases by the Kalupur police. Previous enemity between the parties has been considered by the trial court while acquitting the accused. He also submitted that this being an appeal against an order of acquittal, the judgment and order rendered by the trial court deserves to be upheld as proper and plausible reasons for acquittal have been recorded. He, therefore, prayed that the appeal be dismissed.
8. We have considered the rival submissions made by the learned Advocates for the parties.
It is a fact that witnesses Ashok and Kamlakar had received injuries and medical certificates vide Exh.22 and Exh.24 issued by Civil Hospital has come on record. On 9.5.1988 the statements of the above witnesses were recorded. It has come on record that both the above referred two witnesses were not domiciled in Gujarat State. The prosecution has made efforts to locate them but they were not found at the given address. Thus, by closing pursis Exh.30 after declaring the above facts, the prosecution has dropped both the witnesses as the service of summons were not effected on them. In further statement, the accused has denied that he has caused injury to the above referred two witnesses.
8.1. It is alleged that the respondent-original accused had fired at PSI with a view to kill him. Referring the relevant column of the FIR, the alleged incident took place between 3.00 and 3.15 a.m and the complaint was registered at 5.30 a.m. on 9.5.1988. Thus it took approximately two hours to lodge the FIR. It is alleged that as it was planned to book the accused, the complaint was not lodged immediately. Considering the entire facts and evidence on record, we come to the finding that the said delay caused in registering the complaint is unpardonable and by the said action of the police officials doubt arises with regard to reliability and genuineness of the said complaint. Learned Advocate for the respondent/original accused argued that the delay referred above caused in lodging the FIR was with a view to chalk out a plan after discussion with others so that the accused could be booked. Thus, the delay caused in lodging the complaint makes the prosecution case doubtful from the beginning. On careful consideration there appears force and substance in the said submission made by the learned Advocate for the respondent-accused more particularly because the alleged incident had occurred in the Kalupur police station itself.
8.2. It has also come on record that the respondent/original accused had been acquitted in an offence registered against him under the Bombay Prohibition Act as well as under the Bombay Police Act.
9. So far as the alleged incident of firing is concerned, as per the say of PSI Bagale, one witness Shubhanrao Laljangle has been examined. As per the say of PSI , at the time of the incident, Subhanrao was standing near the door of the Chamber of P.I. As such this witness Subhanrao was deputed at the relevant time to the Panchkuva police chowky more particularly at Kadiyakui point. It is his say that to answer the nature's call, at about 3.00 hours he came to Kalupur police station. He has admitted that without informing anyone he has come to the Kalupur police station. If a person came to Kalupur Police Station to answer nature's call, it is not possible that he would stand near the door of the chamber and watch the incident. Moreover, on this important aspect nothing material has come out from the deposition of this witness. This Shubhanrao Laljangle appears to be a got-up witness is the submission made by the learned Advocate for the respondent/original accused and we find ourselves in agreement with the same.
9.1. So far as the offence related to breach of section 30 of the Arms Act is concerned, no circular, order or any document in support of the prosecution has come on record.
10. We have carefully perused the further statement of the accused referred above and in support of the same the document at Exh.27 submitted by the accused and referring the above discussed evidence as a whole along with the further statement of the accused, it creates doubt about the entire case of the prosecution. In our view, the reasons given by the trial court in acquitting the accused are plausible, cogent and convincing. On careful scrutiny and after considering the entire evidence which has come on record, it cannot be said that the trial court has committed any error in acquitting the respondent-accused. We are in complete agreement with the same and it does not call for any interference by this Court.
11. 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.
11.1. 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.
12. In view of the aforesaid discussion, this Court finds no substance in the appeal. The appeal fails and is dismissed. The impugned judgment and order dated 11.4.1991 passed by the learned Addl.Sessions Judge, Ahmedabad City in Sessions Case No.43 of 1989 are confirmed. Bail Bond, if any, stands cancelled.
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