JUDGMENT
A.M. Kapadia, J.
1. Respondent (the accused for short) was charged and tried by the learned Additional Sessions Judge, Junagadh in Sessions Case No. 45 of 1985 for commission of the offence punishable under Sections 302 and 504 of the Indian Penal Code (SIPC for short) arraigned on charge of having committed murder of Salat Bhurabhai Malubhai by giving him blow of a big wooden log. At the end of the trial, the accused was found not guilty to the offence with which he was charged and resultantly he was acquitted vide judgment and order dated 18.2.1986, giving rise to the instant Appeal filed under Section 378 of the Code of Criminal Procedure (the Code for short) at the instance of the Appellant – the State of Gujarat.
2. The prosecution version as disclosed in the FIR and unfolded during trial was that on the date of the alleged incident, i.e. on 9.2.1985 the complainant – Kalu Amarshi and the victim Salat Bhurabhai Malubhai were cutting trees in the forest and at about 11:30 a.m. they left the forest and came to their respective huts and after taking meal they again had gone to he forest for their labour work. At the time of the incident deceased Bhura Malu and the accused were in the same hut and there was some altercation between both of them. As a result thereof, accused gave blow with a piece of wood on the head of the deceased. Thereafter other labourers assembled there and saw the alleged incident of giving blow to the deceased by the accused.
3. The aforesaid incident was reported by the complainant Kalu Amarshi at Sasan Outpost Police Station. The injured Salat Bhurabhai Malubhai who had received the injury was shifted to Government hospital Talala. As the injury caused to him was serious he was shifted to Verawal Hospital were he was admitted as an indoor patient. The said complaint was thereafter sent to City Police Station, Verawal for its registration, where it was registered against accused for commission of the offence punishable under Sections 326 and 504 of the IPC.
4. During the course of investigation, as health of the victim Salat Bhurabhai Malubhai was deteriorated, he was shifted to Civil Hospital, Ahmedabad where he was treated as a indoor patient for two days and thereafter he succumbed to the injuries sustained by him. Since the deceased died, the Investigation officer made a report to the concerned Magistrate for adding Section 302 in the said FIR. Thereafter inquest was held on the dead body of the deceased Salat Bhurabhai Malubhai and sent it for autopsy. Panchnama of the scene of the offence was prepared, statements of witnesses were recorded and thereafter the accused was arrested and produced before the learned JMFC, Verawal.
5. At the end of the investigation, as sufficient incriminating evidence was found against the accused for commission of the murder of Salat Bhurabhai Malubhai punishable under Section 302 of the IPC, he was was chargesheeted in the Court of the learned JMFC, Verawal. As the offence under Section 302 alleged against the accused was exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Court of Sessions of Junagadh District.
6. On committal the case was made over for trial to the learned Additional Sessions Judge, Junagadh who framed the charge under Section 302 of the IPC against the accused. The accused pleaded not guilty to the charge and claimed to be tried, therefore he was put to trial in Sessions Case No. 45 of 1985.
7. To prove the culpability of the accused, prosecution has examined in all 11 witnesses and relied upon their oral testimony details of which have been given in paragraph 14 of the impugned judgment and order. To prove the charge levelled against the accused, prosecution has also produced number of documents; like complaint, panchnama of the scene of offence, etc.
8. After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section 313 of the Code. In his further statement he denied the case of the prosecution in toto. He neither led any evidence nor examined any witness to support his defence.
9. On analysis, appreciation, evaluation, and scrutiny of the evidence, it was held by the learned trial Judge that the prosecution has proved that the deceased Salat Bhurabhai Malubhai died a homicidal death. However, prosecution has failed to produce reliable and trustworthy evidence to prove the charge levelled against the accused for commission of the offence under Sections 302 and 504 of IPC, more particularly in view of the fact that none of the witnesses examined by the prosecution has supported the case against the accused. He, therefore, recorded the finding of not guilt against the accused and resultantly acquitted the accused of the offence with which he was charged vide judgment and order dated 18.2.1986, which is now on anvil of scrutiny in this Appeal filed under Section 378 of the Code by the Appellant – the State of Gujarat.
10. We have heard Mr. N.D. Gohil, learned APP for the Appellant – the State of Gujarat as well as Mr. B.S. Supehia, learned advocate appointed by this Court to assist the accused. We have also perused the impugned judgment and order and the set of evidence, copies whereof have been supplied by the learned advocates appearing for the parties during the course of their submission. We have undertaken a complete and comprehensive appreciation of all vital features of the case and entire evidence on record which is read and re-read by us with reference to broad and reasonable probability of the case.
11. The fact that the deceased Salat Bhurabhai Malubhai died a homicidal death, cannot be disputed. In this connection, prosecution has examined PW-11 Dr. Nayankumar Natwarlal at Exh.27, who has performed autopsy on the dead body of the deceased Salat Bhurabhai Malubhai. He has in his testimony stated before the Court that he has performed the autopsy on the dead body of the deceased and he found the following external injuries on the dead body:
Stitch would over L.side of scalp on frontal bone area extending downwards towards the angle of rt. Eye-10 stitches with rubber drain in situ.
He prepared the autopsy report which he has produced at Exh.28. A perusal of his oral testimony as well as autopsy report at Exh.28 shows that deceased died due to shock as a result of head injuries. Internal injuries are corresponding to the external injuries. Therefore it is held that the deceased died a homicidal death and the learned trial Judge has very rightly come to the conclusion that the deceased died a homicidal death.
12. Having held that the deceased died a homicidal death, the next question which falls for our consideration is whether the accused is the author of the injuries caused to the deceased. To prove the guilt of the accused the prosecution has examined following witnesses:
PW-1 Kalu Amarshi at Exh. 5
PW-2 Rakhu Sultan at Exh. 6
PW-3 Nanji Megha at Exh. 7
PW-4 Bashir Raheman at Exh.8
On perusal of their oral testimony, it is seen that none of the witnesses has supported the prosecution case. PW-1 Kalu Amarshi has not supported the complaint filed by him which is on record at Exh. 13. So far as the other witnesses are concerned, they have also not supported the prosecution case. They stuck to the same version that they do not know as to what had happened inside the hut.
13. In view of the unsatisfactory evidence led by the prosecution, we are of the considered opinion that no illegality or infirmity has been committed by the learned Additional Sessions Judge in acquitting the accused of the offence with which they were charged. We find ourselves in complete agreement with ultimate conclusion and the resultant order of acquittal, as, in our view, no other conclusion was possible except the one reached by the learned Additional Sessions Judge.
14. It is a cardinal principal of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. See Ramesh Babulal Doshi v. State of Gujarat . In the instant case, the learned APP has not been able to point out to us as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.
15. In the case of Ram Kumar v. State of Haryana , Supreme Court has held as under: –
The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.PC.are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.
16. It may be noted that this is an acquittal appeal in which Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly, when the evidence has not inspired confidence of the learned Judge. As this Court is in general agreement with the view expressed by the learned Judge, it is not necessary for this Court either to reiterate the evidence of the prosecution witnesses or to restate reasons given by the learned Judge for acquittal and in our view, expression of general agreement with the view taken by the learned Judge would be sufficient in the facts of the present case for not interfering with the judgment of the learned Judge and this is so, in view of the decisions rendered by the Hon’ble Supreme Court in the case of Girja Nandini Devi and Ors. v. Bijendra Narain Chaudhari and State of Karnataka v. Hema Reddy and Ors. .
17. On overall view appreciation of the evidence, this Court is satisfied that there is no infirmity or illegality in the reasons assigned by the learned Additional Sessions Judge for acquitting the accused. Suffice it to say that the learned Additional Sessions Judge has given cogent and convincing reasons for acquitting the accused. Learned APP Mr. N.D. Gohil has failed to dislodge the reason assigned by the learned Additional Sessions Judge and convince this Court to take a view contrary to the one taken by the learned Additional Sessions Judge.
18. Seen in the above context, we do not find any valid reason or justifiable ground to interfere with the impugned order acquitting the accused of the offence with which he was charged. The Appeal, therefore lacks merit and deserves to be dismissed.
19. For the foregoing reasons, the Appeal fails and accordingly it is dismissed. As the accused is on bail, his bail bond shall stand cancelled and sureties are discharged.