KANJIBHAI BUDHIYABHAI HALPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant -original accused was charged with offences punishable under Sections 376 and 302 of IPC and Section 135 (1) of the Bombay Police Act. By the impugned judgement dated 27.08.2002 passed by the learned District and Sessions Judge, Navsari in Sessions Case No. 15 of 202, he was convicted for offences under Sections 376 and 302 of IPC. He was, however, acquitted for offence under Section 135(1) of the Bombay Police Act. For offence under Section 376, he was sentenced to 10 years of rigorous imprisonment. Fine was also awarded. For offence under Section 302 of IPC, he was sentenced to life imprisonment in addition to fine. Substantive sentences were made concurrent. He has challenged the said judgement in the present appeal. We were informed that the accused is absconding since 24.04.2008. This appeal is pending since more than 10 years. Nothing is pointed out to us from the Code of Criminal Procedure or any other provision whereby, under such circumstances, we would be precluded from hearing the appeal, particularly, when the appellant is represented by a legal counsel. We had, therefore, instead of further adjourning the appeal, heard the advocates appearing for the parties.

(2.) BRIEFLY stated the prosecution version was that, the complainant Ujeshbhai and his wife Gajaraben had gone to the sim of the village for collecting grass for the cattle in the morning hours on 02.09.2001. Complainant came home earlier and after resting for a while, since his wife had not yet returned, in the afternoon hours went back to the sim looking for her and to help her to bring back the hay. In the sim of the village, he found his wife dead. She was bleeding from the head. Her clothes were torn. Her petticoat was lifted up. She had been raped.

(3.) UJESHBHAI Ranchhodbhai Rathod, P.W. 1, the complainant was examined at Exh 11. He deposed that on 02.09.2001, in the morning, he had gone for labour work. His wife was with him at that time. They both got separated. He himself returned home alone. He and his wife had gone for collecting fodder for the cows. At home, he waited for his wife and thereafter, went in search of his wife and also to help her in case, she was unable to carry all the fodder that she might have collected. He went to the sim of the village in the late afternoon. Near the field of Thakorbhai Mangabhai, he saw his wife lying near a guarder. Buttons of her blouse were open. Her petticoat was lifted up and was torn. She had injury on the head from where she was bleeding. She had died. He came to the village to inform Kanjibhai, who was not at home. He, therefore, went to his shop and informed Kanjibhai about the incident, who called up the police. The police recorded his complaint which was produced at Exh 12. He identified the clothes worn by his wife at the time of death. In the cross examination, he admitted that in the FIR, he had given inaccurate details of waking up in the afternoon at about 3 O'clock and proceeding to search for his wife at 3.30. He admitted that when he first saw the dead body, it was lying in a ditch and, with the help of Soma Motibhai Rathod, who was working nearby, he had pulled out the dead body from the ditch.