Noormamad vs State of Gujarat

K.S. Jhaveri, J.—1. All these appeals are preferred against the judgment and order dated 20.6.2006 passed by Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 212 of 2002 and allied cases, whereby accused Nos. 4 and 14 were held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 10,000/-, and in default of payment of fine, accused Nos. 4 and 14 were ordered to undergo simple imprisonment for three months. By the impugned judgment, accused No. 4 and 14 were also convicted for the offence punishable under Section 325 of IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/-, and in default of payment of fine, accused Nos. 4 and 14 were ordered to undergo further simple imprisonment of one month. Accused No. 14 was also held guilty for offence under Section 324 of IPC and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 500/-, and in default of payment of fine, accused Nos. 14 was ordered to undergo further simple imprisonment for fifteen days. By the impugned judgment, accused No. 3 was held guilty for offence under Section 325 of IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/-, and in default of payment of fine, he was ordered to undergo further simple imprisonment for one month. By the impugned judgment, accused Nos. 7 and 11 were held guilty for offence under Section 326 of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 2,000/-, and in default of payment of fine, they were ordered to undergo further simple imprisonment for two months. Accused Nos. 1, 5, 6, 8 and 13 were acquitted of the charges levelled against them. Feeling aggrieved by the impugned judgment, accused Nos. 3, 4, 7, 11 and 14 have preferred Criminal Appeal No. 1205 of 2006, while Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 are preferred by the State against acquittal of accused persons from the charges levelled against them.

The facts in brief giving rise to the filing of present appeal are as under:-

2.1 It is the case of the prosecution that on 14.8.2003 at about 10.30, the accused had gathered near Vacchani Mill, Bedi Bandar Road, Jamnagar. The accused with an intention to cause death of the labour contractor had formed an unlawful assembly and gathered at the aforesaid place. It is alleged that accused No. 1 was having revolver, accused Nos. 2, 5, 7 and 11 were having pipes, accused Nos. 3, 4 and 14 were having swords, while accused Nos. 6, 8 and 10 were having wooden block (dhoko) in their hands, while the absconding accused, Mukesh was armed with sword. However, it has come on record that said absconding accused Mukesh Chetandas has expired. It is alleged that with a common intention and by forming unlawful assembly, the accused persons have committed offences punishable under Section 147, 148, 149 and 120 (B) of IPC. It is also alleged that accused No. 14 along with absconding accused, Mukesh, had attacked Anvar Aalabhai Chamadiya with sword and caused fatal injuries to him. Said Anvar Aalabhai Chamadiya has succumbed to such injuries. Therefore, accused No. 14 was charged with offences punishable under Sections 302, 325, 324 read with Section 149 of IPC. It is further alleged that accused No. 14 had also attacked Shabbir Osman Chamadiya with sword and caused injury on his wrist of the left hand, while accused No. 4 had attacked said person with sword and caused injury on his head due to which he died. It is also alleged that accused Nos. 5 and 11 had also attacked said Shabbir Osman Chamadiya with pipes. Therefore, they were charged with offence punishable under Sections 307, 325, 324 read with Section 149 of IPC. It is alleged that accused Nos. 3 and 14 attacked Salim Jusab Saycha with sword, while accused No. 10 attacked him with wooden block and accused No. 7 and 11 attacked him with pipes. Therefore, they were charged with offence under Sections 307, 325, 324 read with Section 149 of IPC. Accordingly, one Umar Osman was also attacked by accused No. 14 with sword. One Yusuf Abdul was also attacked by the accused and accused No. 3 had caused him injury with sword while accused No. 11 had attacked him with pipe. Accused No. 12 with a view to save the accused persons from legal proceedings had given shelter to them and thereby committed an offence under Section 212 of IPC. Since accused No. 1 was having revolver and he had fired a shot in the air, it is alleged that he had committed an offence under Section 25(1)(a) and 27(1) of the Arms Act. Since the notification regarding prohibition of weapons was also breached, the accused were also charged with offence punishable under Section 135(1) of IPC. The motive alleged for the incident was business rivalry as accused No. 1 was working as labour contractor at Mundra Port, which work was previously handled by deceased Anvar Aala. With these allegations, the complaint was filed against the accused persons.

2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried.

2.3 During the trial, the prosecution had examined following witnesses:-

2.4 The prosecution had also produced and relied upon following documentary evidence:-

2.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court.

At the time of hearing of these appeals, Mr. A.D. Shah, learned Senior Advocate appearing for the appellants of Criminal Appeal No. 1205 of 2006-original accused Nos. 3, 4, 7, 11 and 14 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellants. He has taken us through the medical evidence of PW-15, Dr. Nileshkumar Hargovinddas and PW 47, Dr. Chetankumar Maganbhai Dharaiya and submitted that medical evidence in this case is not clear and it is not coming out as to which accused had given vital blows to the decease persons. He submitted that from the cross-examination of Dr. Chetan Dharaiya it is revealed that he could not confirm as to whether internal injuries Nos. 7 to 10 are relatable to external injuries No. 1 to 4. He also submitted that considering the size and nature of injury described by Medical Officer, Dr. Nileshkumar, PW-15, injury No. 3, CLW over middle anterior scalp cannot be connected with internal injuries. Therefore, the medical evidence as to fatal injury is not clearly emerging from the prosecution case, as per his submission. He, therefore, submitted that the medical evidence is not sufficient to establish the charge of culpable homicide amounting to murder against accused Nos. 4 and 14. Mr. Shah further submitted that the witnesses have not stated as to which appellant gave which blow and on which part of the deceased''s body and it is not clear as to which injury was caused by which accused. He further submitted that the doctor has also not stated which injury was fatal. He further submitted that the deceased attacked by the absconding accused also, therefore, it is not clear as to whether the accused-appellant herein or the absconding accused had given blows on the vital part, which caused death of the deceased. He also submitted that the appellants herein had no common object to murder the deceased and, the trial Court has committed an error in convicting them for offence punishable under Section 302 read with Section 149 of the IPC. He further submitted that even if the case of the prosecution is believed, at the most, it can be said that the accused are guilty for offence punishable under Section 304 Part-I of IPC. In support of his submissions, Mr. Shah has relied upon the following decisions.

(i) Ram Lal v. Delhi Administration, , AIR 1972 SC 2462.

(ii) Ninaji Raoji Baudha and Another v. State of Maharashtra, , AIR 1976 SC 1537.

(iii) Badal Murmu and Others v. State of West Bengal, , 2014 (3) SCC 366.

(iv) Koli Gator Sura v. The State of Gujarat, , 1966 GLR 357.

3.1 In Ram Lal v. Delhi Administration, reported in , AIR 1972 SC 2462, it is observed by the Honourable Apex Court as under:-

"8. No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstance, the appellant''s conviction under S. 302-IPC was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 r/w Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction under S. 302-IPC and convict the appellant under S. 325 r/w 34 and sentence him to 5 years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of order passed against him by the High Court."

3.2 In Ninaji Raoji Baudha and Another v. State of Maharashtra, reported in , AIR 1976 SC 1537, it is observed by the Honourable Apex Court as under:-

"12. The evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his ''oota'' but passed him by in search of Samadhan who was dressing his injuries, inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted on his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonaji. The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown, there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death, it appears that the appellants had the common intention of causing grievous injury with the lathi and the ''khunt''. They could therefore be convicted of an offence under Section 325 read with Section 34, I.P.C. and not Section 302 read with Section 34, I.P.C."

3.3 In Badal Murmu and Others v. State of West Bengal reported in , 2014 (3) SCC 366, it is observed by the Honourable Apex Court as under:-

"10. As earlier noted by us, in this case none of the eye witnesses have given specific role to any of the appellants. They have not stated which appellants gave which blow and on which part of the deceased''s body. They have not stated which injury was caused by which accused. The doctor has not stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haematoma under the scalp, but nobody has said that any particular appellant caused these injuries. It bears repetition to state that though sharp cutting weapons i.e. tangies were available, the appellants did not use them. In the peculiar facts of this case, therefore, it is not possible to hold that the appellants shared common object to murder the deceased and in prosecution of that common object they caused his death. It would not be possible to sustain their conviction for offence punishable under Section 302 read with Section 149 of the IPC. It would be just and proper to resort to Section 304 Part II of the IPC and treat the sentence already undergone by them as sentence for the said offence."

3.4 Mr. A.D. Shah further submitted that there was no preplanning nor there was any intention on the part of the accused persons to kill the deceased. He also submitted that though the presence of the accused persons at the scene of offence is proved, however, looking to the medical evidence, it is clear that the present appellants cannot be held guilty for offence under Section 302 of IPC. He, therefore, submitted that the trial Court has committed an error in convicting the accused Nos. 4 and 14 for offence punishable under Section 302 of IPC and at the most it would fall under Section 304, Part-I of IPC. He submitted that considering all these circumstances, offence alleged against the accused Nos. 4 and 14 may be converted to Section 304, Part-I from that of Section 302 of IPC. So far as accused Nos. 3, 7 and 11 are concerned, it is submitted by Mr. Shah that considering the fact that more than 12 years have passed after the incident, this Court may show some leniency towards accused Nos. 3, 7 and 11. He further submitted that if this Court finds the accused guilty of the offence, they are ready to pay some compensation to the victim. In this regard, he has pressed in service the decision of the Apex Court in "ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA", , 2013 (6) SCALE 778 and decision of this Court in Criminal Appeal No. 1552 of 2004, and submitted that as held therein, sub-section (3) of section 357 of Cr.P.C. is empowering the Court to award compensation. In view of above submissions, he prayed that Criminal Appeal No. 1205 of 2006 may be allowed.

On the other hand, Mr. L.R. Pujari, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused Nos. 3, 4, 7, 11 and 14 is just and proper and he has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant and other witnesses, the view taken by the trial Court is just and proper and no interference is called for by this Court. He also submitted that the learned trial Judge has not committed any error while imposing the sentence on accused Nos. 3, 4, 7, 11 and 14 and, therefore, no interference is called for in the present appeals.

So far as Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 are concerned, these appeals are preferred against acquittal of the accused persons from charges levelled against them. Learned APP has taken us through the evidence and contended that the trial Court has committed an error in acquitting the accused persons inspite of voluminous evidence against them and contended that the trial Court ought to have convicted him for offences alleged against them. He also submitted that as per the evidence of the witnesses, presence of the accused persons at the scene of offence is established. He also submitted considering the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5, the prosecution has successfully established it case against the accused persons and the trial Court has committed an error in acquitting them of the charges levelled against them. He also submitted that PW-40, 41, 42 and 43 have also supported the case of the prosecution, therefore, the accused are wrongly acquitted of the charges of offences under Sections 147, 148, 149, 302, 120(B) read with Section 212 of IPC. He also submitted that the prosecution has also proved the motive behind the incident and medical evidence also supports the case of the prosecution and, therefore, the accused should have been convicted by the trial Court. He also submitted that the trial Court has committed an error in not believing the version of the complainant and other witnesses. He, therefore, submitted that Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 may be allowed and the accused persons be convicted for the offences alleged against them.

On the other hand, learned counsel for the respondents-accused submitted that there is no infirmity in the impugned order. It is submitted that the lower court has rightly appreciated the evidence on record and acquitted the respondents of the charges levelled against them. It is also submitted that the prosecution could not prove its case beyond reasonable doubt. It is also contended that so far as acquittal appeals are concerned, the law is well settled and when two views are possible this Court should not interfere with the finding of acquittal recorded by the trial Court. By taking us through the impugned judgment, it is submitted that this Court may not interfere with the impugned judgment and these appeals may be dismissed.

We have heard Mr. A.D. Shah, learned advocate for the appellants-original accused Nos. 3, 4, 7, 11 and 14 and Mr. L.R. Pujari, learned APP for the State. We have also gone through the impugned judgment as well as evidence on record. Considering the evidence on record, it is clear that the motive for the incident is the business rivalry as accused No. 1 was working as labour contractor and he obtained the labour contract of Mundra Port which was previously handled by the deceased Anvar Aala. From the evidence of PW-2, Yusuf Abdul, who is an injured eye-witness, it is clear that the accused were armed with deadly weapons and they had attacked the deceased. This witness has described the role played by the accused in the offence. Even if the evidence of PW-3, Shabbir Osman, Exh. 118 is taken into consideration, accused No. 14 had attacked him with sword and this injury is proved by support of medical evidence. This witness was also attacked by accused No. 4 and his presence with the sword is also proved at the scene of offence. Even PW-4, Sidik Hasam Vandha, Exh. 119, has also supported the case of the prosecution and stated that the accused had attacked the deceased with weapons. He specifically stated that the deceased was attacked with sword by accused No. 4 and 14 and the absconding accused, Mukesh Bavaji. PW-40, Babubhai Rajabhai, Exh. 259, who is an independent witness has also stated that the accused arrived at the scene of offence armed with weapons. This witness has also stated as to which weapons the accused were holding and how they have attacked the deceased and the injured persons. In the same way, PW-41 and PW-42, who are independent witnesses have also supported the case of the prosecution. From the evidence on record, it is clear that accused Nos. 4 and 14 had attacked the deceased with sword and the deceased Anvar Aala was having same number of injuries as were narrated by the complainant. Not only that Dr. Manojsingh, PW-45, who has recorded the statement of the deceased Anvar Aala on 14.8.2002, has stated that the deceased had stated before him that the incident had occurred at about 10.45 near Vacchani Mill and he had also given the names of the accused and stated that they were armed with weapons. However, as submitted by Mr. Shah, examination of Dr. Chetan Dharaiya, PW-47, Exh. 338 revealed that he could not confirm as to whether internal injuries Nos. 7 to 10 are relatable to external injuries No. 1 to 4. It has also come in evidence that considering the size and nature of injury described by Medical Officer, Dr. Nileshkumar, PW-15, injury No. 3, CLW over middle anterior scalp cannot be connected with internal injuries. Therefore, the medical evidence as to fatal injury is not clearly emerging from the prosecution case. In view of the medical evidence, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the accused have committed an offence under Section 302 of IPC. However, their presence at the scene of offence is proved by statements of witnesses and also in view of cross-complaint filed in the case. It is also proved that they were armed with weapons like swords, pipes, wooden blocks etc., and it has also come in evidence that they had attacked the deceased and the injured witnesses, therefore, even if it is believed that accused Nos. 4 and 14 are not guilty of offence punishable under Section 302 of IPC, it can be said that accused Nos. 4 and 14 are guilty of offence under Section 304, Part I of IPC. Therefore, in our opinion, Criminal Appeal No. 1205 of 2006 is required to be partly allowed by holding the accused Nos. 4 and 14 guilty for offence under Section 304, Part I of IPC and not for offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to ten rigorous years imprisonment instead of life imprisonment.

So far as other accused Nos. 3, 7 and 11 are concerned, considering the evidence on record they are rightly convicted by the trial Court and sentence imposed upon them is not required to be interfered with. Considering the evidence on record, it is rightly found by the learned trial Judge that the accused had attacked the victim and thereby caused the injuries and, therefore, they are rightly convicted. Considering the nature of injuries, it can be said that the accused Nos. 3, 7 and 11 are guilty of offence under Sections 325 and 326 of IPC respectively. However, taking into consideration the decision of the Apex Court in "ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA", , 2013 (6) SCALE 778 and decision of this Court in Criminal Appeal No. 1552 of 2004, we find it proper to award compensation to the victim in lieu of sentence as per sub-section (3) of section 357 of Cr.P.C. Therefore, looking to the special circumstances and the principles enunciated in the case of ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA, , 2013 (6) SCALE 778, since accused Nos. 3, 7 and 11 have agreed to pay an additional amount of compensation to the victim, if they pay such additional amount of compensation they are not required to undergo the period of sentence imposed upon them. Accordingly, Criminal Appeal No. 1205 of 2006 is partly allowed.

So far as Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 filed by the State against acquittal of the accused persons is concerned, it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr., , (2006) 6 S.C.C. 39, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

9.1 Further, in the case of Chandrappa Vs. State of Karnataka, , (2007) 4 S.C.C. 415, the Apex Court laid down the following principles:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:

[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

[3] Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

9.2 Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.

9.3 Even in the case of State of Goa V. Sanjay Thakran & Another, , (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under:

"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."

9.4 Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors., , 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in , 2007 A.I.R. S.C.W. 5589. Thus, the powers, which this Court may exercise against an order of acquittal are well settled.

9.5 In the case of Luna Ram Vs. Bhupat Singh and Ors., , (2009) SCC 749, the Apex Court in paras-10 and 11 has held as under:

"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.

Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."

9.6 Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, , AIR 2013 SC 321, the Apex Court in para 4 has held as under:

"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, , (2004) 5 SCC 573]"

9.7 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 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, , AIR 1981, SC 1417, wherein it is held as under:

"... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (, (1967) 1 SCR 93 : AIR 1967 SC 1124) that it is not the duty of the Appellate 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. Therefore, we find that the accused are rightly acquitted by the learned trial Judge from the charges of offence alleged against them. Moreover, learned APP is not in a position to show any evidence on record so as to take a contrary view in the matter or to conclude that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored material evidence while acquitting the accused. Hence, we are of the considered opinion that the Court below has not committed any error in acquitting the respondents-accused from the charge of offences alleged against them. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below in the impugned judgment and, therefore, find no reasons to entertain these appeals of the State and these appeals are required to be dismissed.

For the foregoing reasons, Criminal Appeal No. 1205 of 2006 is partly allowed. The impugned judgment and order dated 20.6.2006 passed by Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 212 of 2002 is modified and instead of offence punishable under Section 302 of IPC, accused Nos. 4 and 14 are held guilty for offence punishable under Section 304, Part-I of IPC and ordered to undergo ten years'' rigorous imprisonment. The period of sentence already undergone by accused Nos. 4 and 14 may be given set off to them. Accused Nos. 4 and 14 shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. Remaining part of the impugned judgment shall remain unaltered so far as accused Nos. 4 and 14 are concerned. So far as accused No. 3 is concerned, his conviction for offence under Section 325 of IPC is confirmed. Conviction of accused Nos. 7 and 11 for the offence punishable under Section 326 of IPC is also confirmed. However, looking to the fact that the incident in question is of 2002 and considering the principles enunciated in the case of ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA, , 2013 (6) SCALE 778, since accused No. 3 has agreed to pay an additional amount of Rs. 15,000/- towards compensation to the victim and since accused Nos. 7 and 11 have agreed to pay an additional amount of Rs. 50,000/- each towards compensation to the victim, accused Nos. 3, 7 and 11 are directed to pay such additional amount of compensation within a period of twelve weeks from today. If accused Nos. 3, 7 and 11 pay such amount of compensation, they are not required to undergo the period of sentence imposed upon them. Upon deposit of amount of compensation, as aforesaid, the same shall be paid to the victim. If accused Nos. 3, 7 and 11 fail to pay the amount of compensation within twelve weeks from today, they shall surrender before the jail authorities to undergo the sentence as awarded by the impugned judgment.

So far as Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 are concerned, the same are dismissed. The impugned judgment and order dated 20.6.2006 passed by Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case Nos. 212 of 2002, 8 of 2003, 96 of 2003 and 81 of 2004 acquitting the accused persons of the charges of offences alleged against them is confirmed.

Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.