2003 Supreme(Guj) 265

Gujarat High Court
Judgename :H.H.MEHTA, J.M.Panchal
VAHAJI RAVAJI THAKORE - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 918 of 1995
Decided On : 05/05/2003

Headnote:

Criminal Procedure, 1973 – Sec. 374 (2) – Bombay Police Act, 1951 – Section 135 – Indian Penal Code, 1860 – Section 302 – B. P. Act – Sections 37 (1) and 135 – Prosecution case can be summarized as follows:-4. 1 accused Nos. 1, 2 and 3 are the real brothers, while accused No. 4 is their father. Jivrajaji Vihaji (deceased) was a younger brother of complainant - Complainant and deceased both were staying separately in one field which is known as "kamodiya-ni-Vatvalu Khetar" (for short " the field") situated on outskirts of village Deka of Deesa Taluka in Banaskantha District. The eastern part of that field was in possession of the complainant, while western part of that field was in possession of Jivrajaji (deceased ). Both - complainant and Jivrajaji (deceased) have their respective houses in their respective parts of that field. Jivrajaji was residing in his house situated in western part of field, with his wife and two sons. Likewise, the complainant was residing with his family members in the house situated in the eastern part of the said field – It appears from the record that the house of the Jivrajaji was at a distance of 150 away from the house of the complainant. 4. 2 jivrajaji had two sons -one P. W. 6 Bhaichandji and another Parabat. His daughter P. W. 5 Amriben was given in marriage at village Zadi – On or around 29th September, 1993, she had come to her parental home in village Deka to stay with her parents. 4. 3 on previous day of 30th September, 1993, after taking dinner, Jivrajaji along with his family members, was sleeping on cot outside in front of his house. As per case of prosecution, Jivrajaji was sleeping on his own cot, while his wife P. W. 4 Ramaben was sleeping on second cot nearby on the side of the cot of Jivrajaji (deceased husband) with his son P. W. 6 Bhaichandaji. P. W. 5 Amriben and her brother Parabat were sleeping on another third cot on the side of cot of Amriben outside house. As per the case of prosecution, in the mid-night at about 01-00 a. m. , when Jivrajaji and his family members were sleeping in their respective cots, Ramaben, on hearing some conversation in between four persons (accused) suddenly woke up and saw that accused No. 1 had a Dharia with him, accused No. 2 had an axe with him and Accused Nos. 3 and 4 both were armed with sticks – On hearing talks interse in between accused, she immediately started to make hue and cry loudly to attract attention of others. She saw that accused No. 1 inflicted a blow of Dharia on face of her husband; accused No. 2 inflicted blow of an axe on the face of her husband and accused Nos. 3 and 4 both gave indiscriminate blows of sticks on person of her husband. On hearing hue and cry of Ramaben, Amriben and Bhaichandji who were sleeping just nearby the cot of Jivrajaji, also woke up and they also saw all accused nearby the cot of their father – Held, When the evidence with regard to bruise found only in inquest panchnama by medical officer, the learned Judge of the trial Court has rightly held accused Nos. 3 and 4 not guilty for the offences. After all, appeal preferred by the State is an acquittal appeal. It is well settled principles of law that in acquittal appeal, the Court should be very slow to interfere with the finding arrived at by the lower Court. This court can certainly alter the judgment of acquittal provided the finding is palpably wrong, manifestly erroneous or demonstrably unsustainable. We do not find any such infirmity in appreciation of absence of evidence with regard to injuries caused by the accused Nos. 3 and 4. We have taken into consideration the principles laid down by the Honble Supreme Court in case of Ajit Savant Majagval Vs. State of Karnataka reported in 1997 SCC (Cri) 992 with regard to appreciation of evidence by the appellate Court while dealing with an acquittal appeal. We are unable to agree with the submission made by Mr. Pandya, learned APP for the State that the learned Judge of the trial Court has erred in acquitting the accused Nos. 3 and 4. We have found that the learned Judge of the trial Court has given cogent, convincing and plausible reasons for coming to the conclusion, and therefore, we cannot substitute our own decision by reappreciating the same evidence. When two views are possible, the view which is favourable to the accused should be adopted while dealing with and hearing of an acquittal appeal, and therefore, we do not find any substance in the appeal preferred by the State – Appeal dismissed . (Paras 44 and 45)