BABAR MAHESH DHIRUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Appeal is preferred by accused Babar Mahesh Dhirubhai of Session Case No. 17 of 1996 of the Court of Sessions at Junagadh against the judgment and order delivered by learned Sessions Judge, Junagadh, on 15th of February, 1997 convicting the present appellant for the charges proved against him under Section 302 of the Indian Penal Code and sentencing him for life imprisonment. Learned Sessions Judge though found the accused - appellant guilty for the offence under Section 450 of the Indian Penal Code but did not award any separate sentence. The appellant accused was acquitted of the charges framed against him under Section 3(1)(15) of the Scheduled Castes & the Scheduled Tribes Prevention of Atrocities Act, 1989 for which it appears that no appeal by the State has been preferred.

(2.) The incident leading to the prosecution of accused appellant occurred on 24.11.1995 at about 8.00 a.m. According to prosecution case, accused - appellant is married to one Hansaben daugher of Danabhai Laxmanbhai of village Khajudra. Before one year of the incident, the marriage between the accused and Hansaben had taken place. Before the said marriage, Hansaben, wife of the accused was staying at village Khajudra with her parents. Deceased Fulsingh Mohanbhai Vasava belonged to Surat District, serving as Teacher in the village school was residing just opposite the house of Hansaben. The deceased Fulsingh Mohanbhai Vasava was residing as a tenant in the house of one Mohanbhai Darji. On account of neighbourhood, deceased was often visiting the house of Hansaben and Hansaben was also helping the deceased in preparing food and cleaning his house. However few months before Hansaben married to the appellant accused, when Holy festival was near, Hansaben went to the house of deceased Fulsingh Mohanbhai Vasava for cleaning at about 11.00 a.m. and when she was doing cleaning work, deceased Fulsingh after closing doors of the house committed rape on Hansaben. On account of apprehension that their reputation will be damaged, no complaint was filed either by Hansaben or her parents, and thereafter Hansaben married to the accused appellant. However, on first wedding night accused appellant found that his wife Hansaben had intercourse with someone before the marriage. Hansaben admitted before her husband that once the deceased Fulsingh had committed rape upon her and from that day the accused appellant was maintaining grudge against deceased Fulsingh. On the day of the incident, there was one religious procession in neighbouring village Simar and, therefore, on earlier day, Hansaben and accused appellant both had come to Khajudra to take part in the said religious festival. On the day of the incident, the appellant accused got up early and after cleaning teeth, went to the house of deceased Fulsingh Mohanbhai Vasava. He was called by her mother-in-law Radhaben for breakfast and accused replied that he was to return immediately. Thereafter, shouts were heard and when mother-in-law of the accused Radhaben came out, she found that the accused was coming out of the house of the deceased running and got in their house. The deceased was shouting and came out from the doors abutting to the road and after going some distance ahead on the road had fallen down. He was smeared with blood. At that time, Rama Jodha, PW-12 and Kanabhai Polabhai, PW-5 who were standing at the cabin of Pancha Manda came and noticed that the accused was running towards the house of Danabhai from the house of the deceased. Some students of the village school informed about the incident to the Headmaster PW-2 Manshukhgiri Umdegiri. He came to the scene of offence and thereafter he informed Sarpanch of the village Atubhai PW-11. Atubhai after coming to the scene of offence inquired about what had happened and PW-3 Danabhai, father-in-law of the appellant - accused stated that the accused appellant had injured the deceased. At that time accused - appellant was present. He was also asked by the Sarpanch Atubhai and in the presence of PW-11 Sarpanch Atubhai, accused appellant admitted that the deceased had borrowed Rs.300.00 from the accused and for recovery of such amount, altercation took place and he attacked the deceased by knife. In this scuffle, the accused appellant was also injured on hips and lateral side of knee. Thereafter PW-11 Atubhai Sarpanch along with Headmaster of the School PW-2 Manshukhgiri reached Police Station and P.W.2 lodged a complaint before Una Police Station and investigation was entrusted to PW-13 Savdan Velani, PSI of Una Police Station.

(3.) In pursuance of the said investigation, a charge sheet came to be filed against the accused for the offences punishable as aforesaid. The case was committed to the Court of Sessions. The learned Sessions Judge, Junagadh on 20.11.1996 framed the charges against the accused for the offences punishable under Sections 450 and 302 of the IPC and punishable under Section 3(1)(15) of the Scheduled Castes & the Scheduled Tribes Prevention of Atrocities Act 1989, to which the accused pleaded not guilty.