(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 11th October 1991 passed by the learned Additional Sessions Judge, Mahesana (hereinafter referred to as 'the learned Sessions Judge') in Sessions Case No. 137 of 1988, whereby, the learned Sessions Judge was pleased to acquit all the accused of the charges under Sections 447, 394, 397, 398 and 114 of the Indian Penal Code (IPC).
2.0 Brief facts of the prosecution case are that on 30th March 1988, at about 8:00 p.m. complainant – Thakor Gambhirji Mafaji had gone to the 'khetarvas' in his field. Viramji Motiji, paternal uncle (elder brother of his father) whose field was situated near the field of the complainant, had also accompanied him. Both were there in their respective fields. At about 11:00 p.m. the complainant heard a male voice shouting and a female voice screaming 'save' 'save' from eastern side of his field. On hearing this, thinking that some quarrel was taking place, the complainant along with Viramji Motiji rushed towards the said direction, where they found some persons were scuffling near the tube well of one Shankerbhai Naththudas of the village of the complainant. The complainant and his uncle intervened. Upon this, four persons, the respondents herein – original accused rushed to the complainant. The complainant saw the respondents – original accused in the light available of tube well as well as moon light and could identify them as they used to come to his village often and as also they had common boundaries of their fields. He could see that Magaji and Amraji – the respondent accused Nos. 1 and 3 were possessing Scythes (Dharias) and respondent accused Nos. 2 and 4 were possessing sticks. On the complainant challenging the respondents – original accused, they assaulted the latter. The respondent – accused No. 2 – Amraji inflicted Scythe blow to the complainant on the right side of his forehead. The respondent – accused No. 1 – Magaji inflicted Scythe blow to Viramji Motiji on the right side of his head. While rushing to the complainant, the accused had also given blows with sticks, which caused injury on the left upper arm as well as on the right thigh of the complainant. The complainant started shouting and hence, Patel Babubhai Ishwarbhai, Thakor Sonaji and Thakor Gobarji Punjaji etc. rushed to the scene. Hence, the respondents herein – original accused fled from the scene with their weapons. The respondents herein – original accused had first assaulted Thakor Chuthaji Dhulaji belonging to the complainant's village. On inquiry, it was learnt that the respondents herein – original accused had gone to the field of Thakor Chuthaji Dhulaji with an intention to commit theft of Wheat but as they could not succeed, they assaulted Thakor Chuthaji on his head and right wrist. The injured persons were shifted to the hospital for treatment. Accordingly, 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, Kadi committed the case to the Sessions Court at Mahesana. 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 examined in all 14 witnesses. 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 the trial, the learned Sessions Judge has recorded the statements of the accused u/s. 313 of the Code of Criminal Procedure in which they have denied all the charges levelled against them. After hearing the arguments on behalf of the prosecution and the defence, the learned 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 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 submitted that the learned trial Judge has erred in not believing the evidence of Thakor Chuthaji and his wife Gauri, who have narrated the incident very clearly, which is supported by medical evidence. The learned Additional Public Prosecutor also submitted that the learned trial Judge has erred in not believing the evidence of the injured complainant and injured Viramji, who have specifically stated the role played by each accused and the weapons used. Dr. Shri Parmar has corroborated the evidence of the injured eyewitnesses about the injuries caused to them. He further submitted that the learned trial Judge ought to have considered that as Thakor Chuthaji was very serious, he was transferred to Ahmedabad Civil Hospital and the medical certificate shows that there was a fracture on his skull. He also submitted that the learned trial Judge ought to have considered that the Panchnama of scene of offence and the discovery Panchnama were proved by the Panchas and thus supported the case of the prosecution. The learned Additional Public Prosecutor also submitted that the learned trial Judge ought to have seen that the Report of Forensic Science Laboratory also supported the prosecution case. He further submitted that the learned trial Judge has committed an error in believing that as there was cross case, the case of the prosecution cannot be believed. 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 On the other hand, learned advocate Mr. PM Vyas for Ms. Mona Raval, 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 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 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 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 pains and has dealt with all the aspects involved in the case on hand. Paragraph No. 15 of the judgment goes to the root of the matter. It is stated in the said paragraph by the learned trial Judge that, 'it is not believable that the complainant had seen Chuthaji being assaulted by the accused with sticks from a distance of 34 fields. Moreover, the Panchnama of Scene of offence, exh. 23, did not find any mention of articles like logs, stones, wheat or availability of light'. It is further stated in the said paragraph that, 'the stick that was discovered and recovered from the residence of accused Talaji, was the one usually found in the houses, but there was no blood stains or other marks on the stick to support the prosecution case. Moreover, there is nothing on record to show that it is this stick, which was used to commit the offence'. It is further stated in the said paragraph that, 'in Telephone Vardhi at exh. 33 it is specifically mentioned that Chuthaji was beaten by Magaji Badaji and other four persons. In that circumstances, the allegation that injuries were caused by Talaji alone was doubtful'.
5.1 The learned trial Judge has also mentioned in the above said paragraph that, 'the scene of offence is surrounded by fields, tube well, ripen crop etc., however, no independent witness is examined and as there is old enmity between these witnesses and as they are interested witnesses, their evidence cannot be believed'. The learned trial Judge, in the said paragraph, has also taken into consideration various other aspects, which are relevant viz. 'the accused alleged to have gone there for theft of wheat, is not proved; no Test Identification Parade was conducted; no evidence as regards matching of blood group of complainant with that of the blood found on the muddamal stick' and so on.
5.2 In the said paragraph, the learned trial Judge has also taken into consideration the injury sustained by the complainant and observed that, 'looking to the injuries narrated by Gambhirji and looking to his deposition, he has not stated, as mentioned in the complaint at exh. 11, that the tip of the Scythe was struck. In that regard, if we peruse the description of injury sustained, it is measured as 1/2'' x 1/4'' however, depth of the injury is not mentioned. Moreover, there is no incised wound of that size..'
5.3 Thus, there are material contradictions in the evidence due to which the prosecution has failed to prove its case beyond reasonable doubt. 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 Addl. Sessions Judge are plausible, cogent and convincing. Thus, in light of the evidence on record, it cannot be said that the learned Addl. Sessions Judge 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 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 11th October 1991 passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No. 137 of 1988 is confirmed. Bailbonds 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