(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 5th December 1991 passed by the learned Additional City Civil Judge, Court No. 19, Ahmedabad (hereinafter referred to as 'the learned City Sessions Judge') in Sessions Case No. 112 of 1991, whereby, the learned City Sessions Judge was pleased to acquit all the accused of the charges under Sections 302, 323, and 34 of the Indian Penal Code (IPC) and Section 135(1) of the Bombay Police Act.
2.0 Facts in nutshell of the prosecution case are that complainant - Manish was studying in standard Xth in Amar Jyoti School. He had a friend named Viram Shah, who was also studying in the same standard. The sister of Viram Shah namely Deepa Shah was also studying in the same school in IXth standard. The complainant came to know Deepa through his brother Viram. The accused - respondent No. 1 herein, who was residing near the house of the complainant - Manish, used to ask the complainant not to talk with Deepa. It was only before three months of the incident that the accused - respondent No. 1 scolded Manish on the said count and they had an altercation. The complainant then stopped talking with accused - respondent No. 1 herein. The accused - respondent No. 1, was attempting to assault the complainant since then with the help of his friends and was quarreling with the complainant on one ground or the other. On a day before the incident also, when the complainant had gone to see Garba, the accused - respondent No. 1, with the help of his friends, had attempted to beat the complainant but he could not succeed as the complainant fled away to his house. On the day of incident i.e. 30/09/1990, the complainant along with his friends namely, Bhupendra, Manu and Vinod were going to see Garba at Janpath Society. At that time, the accused - respondent Nos. 2 and 3 were sitting near the bus-stand situated opposite Amar Jyoti School. The accused - respondent No. 2 called Manu and asked him about the previous day's incident and then started scuffling with him. On such happening, someone gave information about the same to accused Nos. 1 and 4, who were at their homes. One of the friends - Bhupendra went to the house of the complainant and informed the parents as well as uncle - Jivaji and aunt - Menaben of the incident. Thereupon, the accused - respondent Nos. 1 and 4 as well as the uncle of the complainant and his aunt reached the spot. When they reached the spot, the accused - respondent Nos. 2 and 3 started assaulting the uncle of the complainant. The accused - respondent No. 4 herein was instigating them. The accused - respondent No. 1, who was possessing a 'Gupti', inflicted two blows with Gupti to Jivaji - uncle of the complainant on right-side of abdomen. Hence, Jivaji started running from there screaming for help. The accused - respondent No. 1 chased Jivaji and gave another blow of Gupti on his back. Thus, Jivaji sustained grievous injuries. He was shifted to L.G. Hospital, but 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 City Sessions Court, the learned Metropolitan Magistrate, Court No. 7, Ahmedabad committed the case to the City Sessions Court, Ahmedabad. The accused were produced before the learned City Sessions Judge. The learned City 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 City Sessions Judge conducted the trial.
2.2 To prove the guilt against the accused, the prosecution has examined in all 12 witnesses. Besides, to prove its case, the prosecution has produced on record several documentary evidence, which were also taken into consideration by the learned City Sessions Judge.
2.3 At the end of the 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 City Sessions Judge acquitted all the respondents - original accused of the charges levelled against them.
3.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned City Sessions Judge, the appellant - State 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, acquitting the accused. The learned Additional Public Prosecutor vehemently submitted that the learned trial Judge has wrongly discarded the evidence of six eye-witnesses merely on the ground that they are relatives and friends, and therefore, they are interested witnesses. Except this no cogent and convincing grounds have been given for discarding their evidence. He also submitted that the learned trial Judge has erred in giving undue importance to minor discrepancies in the evidence of Manish at exh. 32, Virambhai - his father at exh. 36, Menaben - his aunt at exh. 37, Bhupendra - his friend at exh. 34 and Manu - his friend at exh. 39. The learned Additional Public Prosecutor also submitted that the learned trial Judge has erred in acquitting the accused on the ground that injury to accused No. 3 - Dalpat, though was not serious, nor bleeding and it was night time i.e. 10:15 p.m. is not explained. Therefore, in such hubbub, the witnesses might not have been able to see such minor injury caused to accused No. 3. He also submitted that the learned trial Judge ought to have seen that medical evidence and other circumstantial evidence on record support the case of the prosecution. Last but not the least, the learned Additional Public Prosecutor submitted that the judgment and order of acquittal passed by the learned City Sessions Judge is erroneous, contrary to law and evidence on record and is required to be quashed and set aside.
4.1 On the other hand, learned advocate 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 City 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 7 of the Judgment, has specifically stated that, '...the prosecution examined and relied on the direct oral evidence of the complainant Manish Ex. 32, Bhupendra Panchal Ex. 34, Viramji Thakor Ex. 36, Menaben Ex. 37 and Manubhai Shambhubhai Ex. 39, who are examined as eye-witnesses. But it is clearly admitted that all these witnesses are inter-related in one or the other way and they can not be said to be independent persons...'. (emphasis supplied) 5.1 Moreover, learned trial Judge, in Para 8 of the Judgment, has pointed out a contradiction in the recording of complaint and stated that, '...According to this witness Manish Ex. 32 his complaint Ex. 33 was recorded by the police in the police station. But it is very clear from the evidence of the Investigating Police Officer P. I. Shri Mayavanshi Ex. 40 and even from the complaint Ex. 33 that complaint Ex. 33 was recorded in the L. G. Hospital. Thus this witness-Manish Ex. 32 gives contradictory version with regard to the place of recording of his complaint...'. (emphasis supplied) 5.2 The learned trial Judge has also recorded further contradiction and stated that, '...The version of this witness - Manish Ex. 32 that the accused No. 1 had hidden Gupti in his lungi is also materially contradicted by his previous statement. Thus the evidence of this witness Manish Ex. 32 suffers from some material contradictions. The version of this witness - Manish Ex. 32 that both the accused No. 2 and 3 started beating Jivaji after catching hold of him does not get support from other evidence on the record. So, obviously, there are some discrepancies in the evidence of this witness - Manish Ex. 32 which make his evidence doubtful.' (emphasis supplied) 5.3 The learned trial Judge has dealt with the evidence of all the eye-witnesses in subsequent paragraphs and ultimately came to the conclusion and stated in Para 13 that, ' Now, it is pertinent to note that the evidence of these eye-witnesses viz. Manish Ex. 32, Viramji Ex. 36, Bhupendra Ex. 34, Menaben Ex. 37 and Manubhai Ex. 39 suffers from material discrepancies which is sufficient to make their evidence most doubtful and unreliable...'. (emphasis supplied) 5.4 Now, if we take into consideration the evidence of Dr. Navin Parikh, exh. 44, who had performed the Post Mortem, he has stated in his deposition, as mentioned in Para 15 of the judgment that, '...there were three external injuries in the nature of stab wounds on the dead body of deceased Jivaji. He categorically admits that these injuries are not caused possibly by an instrument which has one sharp and another blunt edge. Thus, according to the evidence of Dr. Parikh Ex. 44 all these three injuries which the deceased had are possible by an instrument which has sharp edges on both the sides. Now, the panchnama Ex. 42 categorically shows that one side of the muddamal gupti is not sharp as it is specifically stated therein that the gupti has sharp edge on only one side. So, when this muddamal gupti has only one sharp side edge and when according to the evidence of Dr. Parikh Ex. 44 the injuries on deceased Jivaji were not likely to be caused by such instrument, it is highly improbable to believe that the muddamal gupti might have been used for causing injuries to deceased Jivaji. So, obviously, the recovery or discovery of the muddamal gupti is of no material use to the prosecution in light of the special facts and circumstances of the case to connect the present accused with the alleged incident...' (emphasis supplied) 5.5 Moreover, referring to the injuries mentioned in column No. 17 of the PM Report at exh. 17 and also referring to the deposition of Dr. Navin Natvarlal Parikh at exh. 44 on the same aspect, it appears that while performing the Post Mortem on the deceased, the 'length' and 'width' of the injury had been noted down but he has not mentioned the 'depth' of the injury. The notings made in column No. 17 of PM Report are relevant and the same are reproduced as under:
"A stab wound on anterior axillary line on right side in size of 1 x 0.6 c.m. Both angles are sharp.
A stab wound on the above portion of the injury No. I in the length of wound 1 in size of 1 x 0.5 c.m.
Both angles are sharp. Stain of blood present on wound margin.
A stab on back of waist on left side in size of 2 x 1.3 c.m. margins stained with blood."
5.6 While describing an incised wound, it is always necessary to note its direction. The commencement of the wound is deeper, and it gradually becomes shallower and tails off towards the end. Moreover, the tailing off of an incised wound indicates the direction in which the weapon was drawn off. The length of the incised wound has no relation to the length of the cutting edge of the weapon but it may give idea of the depth of penetration.
5.7 While carrying the autopsy, the doctor concerned has only shown 'length' and 'width' of the wounds but has not shown the 'depth' of the same. It is well settled position that if the injuries are present over the body, autopsy surgeons should always describe their nature, measurements including 'depth', 'width' and 'length' situation and their relation to anatomical landmarks.
5.8 In Modi's Medical Jurisprudence and Toxicology, 23rd Edition, on Page 701, the 'Punctured or Stab Wounds' and 'Characters of Stab Wound' are narrated as under:
" Punctured or Stab Wounds:
These are popularly called stabs and are termed penetrating wounds, when passing through the tissues, they enter a cavity of the body, such as the thorax or abdomen. These wounds are produced by a long piercing or stabbing instrument, such as a pin, needle, knife, scissors, bayonet, spear, dagger, pickaxe, and arrow. The point of the instrument may be sharp or blunt.
A stab wound caused by a sharp, pointed and cutting instrument has clean-cut edges, which are almost parallel, but slightly curved to each other, like an ellipse, and have sharp angles at the two extremities. This is commonly the case if the instrument has two cutting edges, an instrument having one cutting and one blunt edge, will show a certain amount of bruising and raggedness at one end of the wound. The wound is generally wedge-shaped, if it is produced by an instrument with a thick, broad back and only one cutting edge, like an axe, and hatcher.
Characters of Stab Wound:
The Characters of the stab wound have definite relations to the weapon used.
Length of stab wound is equal to the breadth of the blade at the point of entry wound.
The depth of a stab or punctured wound is much more than its length or width, and may be equal to, or less than, the length of the blade.
The length of the wound is the breadth of the blade of the weapon.
If both the ends are sharp, clean cut edges are present and both the ends of the wound are pointed or acute.
If a single-edged knife is used, one end will be obtuse, caused by the blunt edge of the knife, and the other end is pointed or acute caused by the sharp edge of the knife.
The deeper point of the wound is tapering, if a tapering knife is used.
The direction of the stab wound is inwards (medially) and outwards (laterally).
5.9 On Page 702, it is narrated as under:
"The depth of a stab or punctured wound is much more than its length or width, and may be equal to, or less than, the length of the blade of the instrument causing it. In some cases, the depth may even be greater than the length of the blade owing to the fact that the force of the blow may depress the tissues of the part struck, allowing the point to reach the deeper tissues such as in abdomen. The shape of the wound made by the same weapon may differ on different parts of the body."
5.10 We are of the opinion that the Post Mortem Examination is a very important piece of evidence in criminal trials and the medical officers, who are entrusted with this work, should do it with utmost care and should not perform it casually. A Post Mortem Report is undoubtedly a very important document, which not only aids the medical officers in determining the nature of the injuries during their evidence in the trial but also helps the Court in appreciating the evidence in the case. It is well settled that a PM Report can be used as record of what the medical officer has observed during the relevant time for the purpose of corroboration or to contradict whatever he might say in the witness box and hence, utmost care is required while performing the Post Mortem and the doctor, in our opinion, has miserably failed to discharge his duty.
5.11 So considering the totality of the aspects dealt with, 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 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 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 the 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 5th December 1991 passed by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 112 of 1991 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