(Per : HONOURABLE MR.JUSTICE G.B.SHAH)
1. This appeal under section 378 of the Code of Criminal Procedure, 1973 arises out of the judgment and order dated 7.10.1991 passed by the learned Addl.Sessions Judge, Panchmahals at Godhra in Sessions Case No. 111 of 1991 whereby the accused was acquitted of all the charges under section 302 of Indian Penal Code.
2. The facts of the case in brief are that on 10.3.1991 at 9.30 p.m., complainant Mohammad Parvez residing at Thakkar Faliya, Dahod was standing at a tea stall belonging to his uncle, near Vijay Talkies. At that time, he saw his elder brother Lala alias Mohammad Faiz and Imtiyaj Mohamad Malek (accused) staying at the back of the house of the complainant, riding towards Market on a Rajdoot Motorcycle. The complainant had thereafter gone to Delsar village where he is having house and land. From there he had returned at about 11.15 p.m. and went to sleep. At about 12.00 midnight his mother woke him up and told him that his elder brother Lala was admitted to Government Hospital. Accordingly at 1.00 a.m. the complainant rushed to Cottage Hospital and saw that his elder brother was lying injured near the Motorcycle outside the hospital. He had noticed deep injuries on the chest and neck of his brother who was bleeding. He noticed that his brother's shirt was missing and his gold chain and finger ring too were missing. On enquiring with the watchman of the Hospital, he was told that an unknown person had brought the injured to the hospital and on realisation that the injured was dead, that person had gone away from the place. Accordingly a complaint was filed before the Dahod Town police station on 11.3.1991. After investigation, the complaint was registered for offences punishable under section 302 of Indian Penal Code and section 135 of Bombay Police Act.
3. Charge sheet was filed against the accused persons and as the offences were triable by the Court of Sessions, the learned Judicial Magistrate First Class, Dahod committed the case to the Sessions Court, Panchmahals at Godhra under section 209 of the Criminal Procedure Code.
4. To prove the case, the prosecution has examined the following witnesses:
1. PW 1, Vallabhbhai Motibhai Patel Exh.8
2. PW 2, Govindbhai Dalabhai Exh.10
3. PW 3, Dr.Rajendrakumar Kishorilal Srivastava Exh.12
4. PW 4, Sattarbhai Bhurabhai Exh.30
5. PW 5, Mohammad Parvez Abubhai Memon Exh.32
6. PW 6, Shantilal Lalaji Exh.35
7. PW 7, Mohammad Sufiyankhan Exh.36
8. PW 8, Babulal Badriprasad Mittal Exh.39
9. PW 9, Maganlal Manilal Bhatt Exh.41
10. PW 10, Veersing Gangji Damor Exh.42
11. PW 11, Abeda Banu daughter of Mubarak Ali, and wife of Abubhai Exh.43
12. PW 12, Somjibhai Sadiyabhai Damor Exh.44
13. PW 13, Rameshbhai Bachubhai Exh.50
14. PW 14, Pratapbhai Mansing Exh.51
15. PW 15, Chandrasekhar Maneklal Mudaliyar, PSI Exh.52
16. PW 16, Jagdishchandra Gaurishankar Pandya, P.I.
Exh.54 Besides the oral evidence, documentary evidence produced by the prosecution were also taken into consideration by the learned Addl. Sessions Judge.
4. After filing of closing pursis by the prosecution, the learned Addl.Sessions Judge has recorded further statement of the accused under section 313 of the Code of Criminal Procedure in which he has denied all the allegations levelled against him.. After hearing the arguments of the learned Advocates for the parties, the learned Sessions Judge has acquitted the accused of all the charges levelled against him as aforesaid.
5. We have heard the learned APP Mr L R Pujari for the appellant and learned Advocate Mr A V Prajapati for the respondent-accused. Learned APP submitted that the learned trial Judge has erred in acquitting the accused though there was ample evidence to connect the respondent-accused with the crime. He submitted that the learned trial Judge ought to have appreciated the evidence of the prosecution witnesses. He further submitted that though the accused was identified by the prosecution witness, the learned trial Judge has erred in not believing the witness. He finally submitted that the learned trial Judge ought to have held that the prosecution has proved its case beyond reasonable doubt and thereby the accused was required to be convicted for the offence he was charged with.
6. Learned Advocate Mr A V Prajapati 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 evidence of PW 1 Vallabhbhai Motibhai Patel at Exh.8 Executive Magistrate who had carried out the identification parade and prepared panchnama, it is stated that the panchas were called by the staff of the office before the identification parade. In the identification parade though at the relevant time the accused was identified for second time and this shows that the first identification parade held cannot be believed. He submitted that it is pertinent to note that the witness who had identified the accused namely Virsangbhai had turned hostile. He further submitted that merely on the basis of 'last seen together' in the case of circumstantial evidence, the accused cannot be convicted as nothing incriminating was found from the scene of offence, knife was not recovered and blood group of the accused was not checked. He submitted that looking to the evidence of the witnesses, the prosecution has not proved its case beyond reasonable doubt and the learned trial Judge has rightly appreciated the evidence of the witnesses and has acquitted the accused.
7. We have considered the above referred rival submissions made by the learned Advocates for the parties in light of the oral as well as documentary evidence come on the record. Learned APP tried to convince us on the point of theory of the deceased having been 'last seen together' in company of the accused. For this he has placed reliance on the deposition of the complainant Mohammad Parvez, brother of deceased, PW 5 at Exh.32 and mother of the deceased namely, Abeda Banu, PW 11 at Exh.43. He vehemently submitted that both these prosecution witnesses have supported the case of the prosecution and on this aspect, learned trial Judge has discussed their evidence in paras 9 and 10 of the judgment which according to him appear to to be without any proper and valid reason to disbelieve and discard the evidence of the deceased 'last seen together' with the accused. Referring to the deposition of the complainant Mohammad Faiz when the deceased along with the accused was standing at the 'paan' shop at around 10'0 clock and both of them were seen riding away on the motor cycle. On careful perusal, it appears that except this evidence there is nothing incriminating against the accused. Moreover, referring the evidence of this witness, it appears that nothing has been stated by him as to how he had come to know regarding the incident in question. Likewise the deposition of mother of the deceased is at Exh.43. She deposed that on 10.3.1991 at about 9.30 p.m., her son Mohammad Faiz @ Lala had demanded Rs. 5,000/- for giving it to Mistry whose land is situated in the sim of village Delsar and after taking Rs. 5,000/- he had left the house along with the accused on a Rajdoot motor cycle. It has also come on record that she has stated to the complainant, her son that the deceased was lying unconscious in the hospital. She has not given name of the person who gave the said information to her. But she has stated that she does not identify the said person. During the course of investigation also the police has not traced the aforesaid person who gave the information. It has also not come on record whether the investigation was carried out to find out whether Lala had ever reached Mistry along with the accused on that night to hand over Rs. 5,000/- as deposed by his mother Abeda Banu at Exh.43. Moreover the prosecution has also examined the so-called eye witnesses PW 12 Somajibhai Sadiyabhai Damor and PW 13 Rameshbhai Bachubhai. On perusal of the same, prima facie, their evidence appears not believable. According to PW 12, he had seen two persons when he was at his shop and one person inflicted injury to other person and thereafter carried the injured on the motorcycle. It is relevant to note that though the said witness claimed to be eyewitness, name of the accused or deceased is not stated. Therefore, it was mandatory on the part of the Investigating Officer to see that the identification parade was held to enable the said witness to identify the accused, but in the present case the same was not held by the prosecution and therefore, evidence of this witness cannot be believed. During the cross examination of this witness it has come on record that in para 5 of the police statement it is stated that 'on the say of the other persons he came to know that somebody killed the other person by causing knife injury'. Thus, this witness has not seen the said incident and no reliance can be placed on the evidence of this witness as he is a 'got up' witness. Similarly, PW 13 Rameshbhai Bachubhai was examined at Exh.50. He has stated in his evidence that he was working in GIDC factory namely, Vrundavan Plastics and the deceased had not gone to the factory on the day of the incident. He further stated that when he was returning from the Dahod Railway station he had seen two persons near the lari of Raysingbhai and he had also seen 'one person being carried on the motorcycle which was being driven by another person'. If the said witness was knowing the deceased, he could have given name of the deceased but the same is not done. Therefore, the evidence of this eyewitness cannot be relied upon.
8. Considering the above we do not agree with the theory of 'last seen together' as canvassed by the learned APP because no cogent, reliable and appreciable evidence has come on the record. We have perused the entire judgment and order dated 7.10.1991 passed by the learned Addl.Sessions Judge, Panchmahals in Sessions Case No. 111 of 1991. The learned Addl. Sessions Judge, after considering the oral as well as documentary evidence led before him, specifically recorded his finding that there are major contradictions with regard to the injuries caused, the place of incident etc.
9. 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. 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 7.10.1991 passed by the learned Addl.Sessions Judge, Panchmahals at Godhra in Sessions Case No. 111 of 1991 is confirmed. Bail Bond stands cancelled.
[RAVI R TRIPATHI, J.] [G B SHAH, J.] msp Top