(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1.0 Present appeal u/s. 378 of the Code of Criminal Procedure, 1973 arises out of the judgment and order dated 16th March 1993 passed by the learned Additional Sessions Judge, Bhavnagar (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 70 of 1992, whereby, the learned Sessions Judge was pleased to acquit all the accused of the charge under Sections 302 of the Indian Penal Code (IPC). However, the accused Nos. 1 to 3 were held guilty of the charges under Section 324 r/w. Section 149 of the IPC and imposed punishment of imprisonment of 15 months and fine of Rs.100/- each and in default of payment of fine, simple imprisonment of one month each. The accused Nos. 4 to 6 were held guilty of the charges under Section 323 r/w. 149 of the IPC and imposed punishment of simple imprisonment of three months each.
2.0 Brief facts of the prosecution case are that the respondents herein - original accused and the deceased had previous enmity on account of some problems related to their children. On the day of the incident, deceased - Bhojubha along with one Jagatsinh was returning from his field. When they reached near the way of field of Bhikhubha, the respondents herein - original accused, who were present in their field, which was situated near the field of the deceased, suddenly rushed to the deceased. The respondents herein - original accused Nos. 1, 2 and 5 were possessing axes in their hands, whereas, respondents herein - original accused Nos. 3, 4 and 6 were possessing sticks with them. They assaulted Bhojubha with axes and sticks on his head, left leg and on wrist of left hand, shouting 'why the deceased (Bhojubha) used their road'. Due to the assault, Bhojubha sustained grievous injuries. He was taken to his village in a bullock cart by the cousin brother of the complainant. The mother of the injured - deceased and sister-in-law (Bhabhi) of the complainant reached there. They shifted Bhojubha to hospital, where, ultimately, he succumbed to the injuries and was declared dead by the doctor. Thus, the accused were alleged to have committed the offence as above for which complaint had been lodged against them.
2.1 As the offence was triable by the Sessions Court, the learned Judicial Magistrate First Class committed the case to the Sessions Court at Bhavnagar. The accused were produced before the learned Sessions Judge. The learned Sessions Judge framed Charge against the accused and read over to them. The accused, in turn, pleaded not guilty to the charge and consequently, the learned Sessions Judge conducted the trial.
2.2 To prove the guilt against the accused, the prosecution has examined in all 10 witnesses. In order to prove the case, the prosecution has produced on record several documentary evidence, which were also taken into consideration by the learned Sessions Judge.
2.3 At the end of trial, after recording the statements of the accused u/s. 313 of the Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge acquitted all the accused of the charges under Sections 302 of the Indian Penal Code (IPC). However, the accused Nos. 1 to 3 were held guilty of the charges under Section 324 r/w. Section 149 of the IPC and imposed punishment of imprisonment of 15 months and fine of Rs.100/- each and in default of payment of fine, simple imprisonment of one month each. The accused Nos. 4 to 6 were held guilty of the charges under Section 323 r/w. 149 of the IPC and imposed punishment of simple imprisonment of three months each.
3.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Judge, the appellant - State of Gujarat has preferred the present appeal.
4.0 We have heard learned Additional Public Prosecutor Mr. LR Pujari. The learned Additional Public Prosecutor submitted that the learned trial Judge has erred in appreciating the oral as well as documentary evidence adduced by the prosecution and thereby, acquitted the accused of the charge under Section 302 of the IPC. The learned Additional Public Prosecutor submitted that the learned trial Judge has erred in not taking into consideration the fact that Dr. Milankumar had stated in his deposition that the injuries on the deceased were sufficient in ordinary course of nature to cause death. He also submitted that the learned trial Judge has not properly appreciated the evidence of Dr. Dhirajlal. The learned Additional Public Prosecutor further submitted that the learned trial Judge has erred in holding that there was no intention on the part of the accused to cause death of the deceased and the learned trial Judge ought to have considered that the accused assaulted the deceased with deadly weapons like axes, which clearly establishes the intention of the accused to commit murder of the deceased. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.
4.1 Per contra, learned advocate Mr. Gondaliya for the respondents - original accused submitted that the trial Court has rightly appreciated the evidence on record and the reasons recorded by it for acquitting the respondents - original accused of the offence charged against them, are reasonable and cogent. He submitted that there are glaring contradictions in the depositions of the prosecution witnesses, which go to the root of the matter. It is further argued that this being an appeal against 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. They, therefore, prayed that the appeal be dismissed.
5.0 We have carefully considered the submissions made by the learned Additional Public Prosecutor as well as by the learned advocate for the respondents - original accused, in light of the oral as well as documentary evidence forthcoming on the record. We have also perused the judgment impugned in the present appeal. The learned Sessions Judge has taken all pains and has dealt with all the aspects involved in the case on hand. The learned trial Judge, in Para 12 of the Judgment, has specifically stated that, '... the prosecution has failed to prove that the death of the deceased was the culpable homicide and under the circumstances, the accused could not be punished under Section 302 of the IPC and if at all, they could be punished, then for the offence less grievous than under Section 302 of the IPC. (emphasis supplied) 5.1 The learned trial Judge further discussed in the above-said paragraph of the judgment that, ' ...if three persons were possessing axes and two were possessing sticks and they assaulted the deceased, in that case, there could have been numerous injuries on the body of the deceased. However, looking to the evidence of the doctor as well as the Post Mortem Report, cause of death appears to be puncture in the lungs of the deceased. Looking to the other injuries caused on hand, leg and head, there appears only two cut wounds, whereas, the other injuries are found to be superficial like abrasions and bruises, that is to say, these injuries are minor...'. (emphasis supplied) 5.2 The learned trial Judge, in the said paragraph, further states that, '...As per the theory of the prosecution, the deceased was assaulted with axes on his hand and leg, however, on the pant, which was worn by the deceased, there were no cut marks. If the injuries were caused by the axes, in that case, there must be cut marks on the clothes. However, looking to the Panchnama, there appears no cut marks. In the circumstances, the injuries caused on hand and leg cannot be said to be stab injuries...'. (emphasis supplied) 5.3 The learned trial Judge, in Para 13 of the judgment, has stated that:
"If we compare the whole evidence, no evidence as regards the presence of any other person/s than the accused at the place of incident, is forthcoming on record. From the evidence of Jagatsinh, it specifically emerges that all the six accused persons had caused injuries to the deceased. Witness Rupsinh also stated the said fact. It is stated that when they reached the spot, only deceased Bhojubha was found lying down. In the circumstances, the presence of accused cannot be discarded and there is no reason to disbelieve the same. However, it is also a fact that the injuries caused to the deceased were not the direct cause of the death of the deceased. It is not the case that the accused had caused injury on the chest of the deceased. In the circumstances, it appears that the intention of the accused was to teach the lesson to the deceased by inflicting minor injuries with axes and sticks, under Sections 324 and 323 of the IPC, and accordingly, by forming unlawful assembly, the offence has been committed. Hence, I believe that the accused be held guilty for the offences punishable under Section 324, r/w. Section 149...' (emphasis supplied) 5.4 In above view of the matter and considering the totality of the aspects dealt with on the evidence on record and appreciation of the same by the learned trial Judge, we are of the considered view that the learned trial Judge has rightly appreciated the evidence on record and has rightly acquitted the accused of the offences charged against them as referred above and we find ourselves in agreement with the same.
6.0 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 principle 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 learned trial Court are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned trial Court has committed any error in acquitting the accused.
6.1 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."
6.2 Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then detailed discussion of evidence is not necessary.
7.0 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 16th March 1993 passed by the learned Additional Sessions Judge, Bhavnagar in Sessions Case No. 70 of 1992 is confirmed. Bail-bonds stand cancelled.
7.1 The office shall send back the Record & Proceeding to the trial Court forthwith, after following the due procedure.
[ Ravi R. Tripathi, J. ] [ G. B. Shah, J. ] hiren Top