(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 19th October 1991 passed by the learned Additional Sessions Judge, Mahesana (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 32 of 1987, whereby, the learned Sessions Judge was pleased to acquit the accused of the charges under Sections 302 and 201 of the Indian Penal Code (IPC).
2.0 Brief facts of the prosecution case are that on 02/10/1986, in the early morning, the complainant along with her sisterinlaw (Bhabhi) was going to his field. As they were late in reaching the field, the mother of the complainant proceeded ahead of the complainant. When they reached near a Neem tree at the place called 'Bechardas Kevaldas Patel's Wada', they found one person coming hurriedly from the opposite direction possessing a torch, spear (Bhalo) and milk can (Dolchu). The person was identified as Bhikhaji Amuji Thakore, the respondent – accused herein. On the complainant inquiring as to why he was rushing, he replied vaguely. When the complainant and his sisterinlaw walked further, they found the mother of the complainant lying on the way and groaning. Her left shoulder was bleeding. The deceased was shifted to Mahesana Hospital, where ultimately, she died. Thus, the accused was alleged to have committed the offence as above for which complaint had been lodged against him.
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 Mahesana. The accused was produced before the learned Sessions Judge. The learned Sessions Judge framed Charge against the accused and read over to him. 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 examined in all 09 witnesses. Besides, in order to prove the case, the prosecution relied on several documentary evidence, which were also taken into consideration by the learned Sessions Judge.
2.3 At the end of trial, statement of the accused u/s. 313 of the Code of Criminal Procedure was recorded in which the accused has denied the charges levelled against him. After hearing the arguments on behalf of the prosecution and the defence, the learned Sessions Judge acquitted the accused of the charges levelled against him.
3.0 Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned 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 of the charges levelled against him. The learned Additional Public Prosecutor submitted that the learned trial Judge has not properly appreciated the evidence of the doctor and erred in not giving due weightage to the same. The learned Additional Public Prosecutor further submitted that the learned trial Judge ought to have seen that though the case is based mainly on circumstantial evidence, there is clinching evidence to show that the accused was guilty and has committed the crime. He also submitted that the learned trial Judge ought to have given due weightage to the evidence of one Shri Amichandbhai at whose field the accused stayed for whole night and in the early morning at about 5:00 o'clock, left his field as the electricity supply went off. Amichandbhai had given him a vessel (dolchu) with lid to deliver it at his (Amichandbhai) house. This vessel also bore the name of Amichandbhai. The learned Additional Public Prosecutor also submitted that the learned trial Judge ought to have taken into consideration the fact that the aforesaid vessel was found from the place of the accused without lid, for which, no explanation came forward from the accused. Lid of the said vessel was found by the police from the place of offence. The blood samples of the deceased and the blood found on the lid were of the same group i.e. 'AB'. The learned Additional Public Prosecutor also submitted that the learned trial Judge ought to have taken into consideration the fact that there is dying declaration given by deceased Kashiben before her husband and daughterinlaw implicating the accused to have committed the offence by giving blow to Kashiben on her neck. 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 Ms. Sonal D. Vyas, assisted by Mr. Dhawan M. Jayswal for the respondent – original accused submitted that the learned trial Judge has rightly appreciated the evidence on record and the reasons recorded by him for acquitting the respondent – original accused of the offence charged against him, are plausible 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 an order of acquittal, the judgment and order rendered by the trial Court deserves to be upheld as proper because 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 respondent 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 9 of the Judgment, has observed that, '...in the complaint it is stated by the complainant that he left for bringing tractor, leaving his sisterinlaw (bhabhi) with her injured mother, whereas, in his deposition he has stated that, he had first gone to his field to call his father. His father came with him. His father asked his injured mother as to who had assaulted, to which, the mother of the complainant gave the name of the accused. This fact seems to be fabricated afterwards in order to implicate the accused, as no such fact has come forward in the complaint...'. (emphasis supplied)
5.1 It is further observed in the said paragraph that, 'Panchnama of the place of offence was carried out, however, from the place of offence one basket etc. were found but the socalled lid of the milk can was not found. The husband of the deceased Kashiben took away only the said lid to his house from the place of offence and later produced it before the police, whereas, he left the other things there at the place of offence. So, if in fact the said thing (lid) was found there, he would have left it there. But he has not done so, which leads to suspicion...' (emphasis supplied)
5.2 The learned trial Judge, in Para 10 of the Judgment, has recorded the contradiction and stated that, 'the complainant has not stated in the complaint that he identified the accused in torch light, however, in his deposition, he had stated so'. Moreover, it is stated in the said paragraph that, 'the complainant, in his deposition, has stated that when he saw the accused, the accused was possessing Spear (Bhalo), however, nothing about the said Spear had come on record. Moreover, in his deposition, the accused has stated contrary facts, for example, he has stated 'Barchhi' instead of 'Spear' (Bhalo)'. It is further stated in the said paragraph that, 'the fact of sisterinlaw (Bhabhi) of the complainant asking her deceased motherinlaw about the name of the accused and deceased giving the name of the accused, is not stated in the complaint. Moreover, the fact that the complainant had gone to call his father and after his father came, he asked the deceased as to what had happened and she gave the name of the accused, is also not stated in the complaint. The said fact has come on record for the first time in the Court. In the circumstances, the fact of giving name of the accused by the deceased, appears to be fabricated'. (emphasis supplied)
5.3 It is further stated in the said paragraph that, 'it is the case of the prosecution that there was a stab wound on the neck of the deceased and as per doctor, the stab wound could only be caused by a weapon, which has sharp edges on both sides. If the injuries are inflicted with a weapon, which is pointed and sharp on both the edges, then the edges can be clearly seen. In the case on hand, as per doctor, in the injuries sustained, edges on both the sides can be seen. In the circumstances, the said injuries could be possible only by a weapon, which has sharp edges on both sides and is pointed.
However, the weapon produced by the prosecution, is not of such specifications and stab wound is not possible by such a weapon...'. (emphasis supplied)
5.4 It is further stated in the said paragraph that, 'from the place of offence, of which Panchnama was carried out, clay was collected.
As per FSL Report, it appears that the said clay was not collected from the place of offence and the said clay was not proper for sample. Moreover, as per the Panchnama, the lid of the 'milk can' was lost, which the husband of the deceased was stated to have taken away and later produced before the police and other things were left there. So, if in fact the lid was there, then what was the actual need for the husband of the deceased to take away the said lid only and not other things. In the circumstances, the fact of having found the said lid there at the place of offence, is doubtful...' (emphasis supplied)
5.5 In above view of the matter, 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 rewrite the judgment or to give fresh reasoning, 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 19th October 1991 passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 32 of 1987 is confirmed. Bailbond stands 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