STATE OF GUJARAT Vs. THAKORE VANUJI KALSING

JUDGEMENT

(1.) The acquittal of the respondent - accused at the hands of the learned Additional Sessions Judge, Palanpur in Sessions Case No. 61/80 is sought to be challenged by the State of Gujarat in the present appeal. The respondents-accused were arraigned before him for offences punishable under sections 147, 149, 302 read with section 149 of I.P.C. and various other grounds on an allegation that on 18.6.1981 at about 11.00 a.m. in the outskirt of village Hathidra, Taluka Palanpur, the accused had formed an unlawful assembly and the common object thereof was to bring about the death of deceased Halusing Mansing and to injure Bai Sajuba and Bai Aduba. The incident seems to have taken place from a trifling matter. Otta constructed by the deceased was dug out by the accused No. 5 and while respective parties met on the way there was an exchange of words as to why accused No. 5 had dug out the said Otta. Said Halusing at the relevant time was carrying a muzzle loading gun and the respondents accused were also armed with an assortment of weapons. It is the case of the prosecution that accused Nos. 4 and 5 inflicted sword blows on the head of deceased. When Sajuba tried to intervene, she was also injured and hence the accused were arraigned before the learned Sessions Judge on the above counts.

(2.) The learned Sessions Judge on appreciation of evidence came to the conclusion that it was the deceased who was an aggressor and he had fired his muzzle loading gun first injuring accused No. 5 and thereafter other accused might have attacked the deceased. He, therefore, was of the opinion that the accused were acting in the exercise of their right of private defence. In that view of the matter, he acquitted the accused and hence the present appeal.

(3.) Mr. S. R. Divetia, the learned Public Prosecutor appearing for the appellant-State took us through the evidence and the relevant portions of the judgment. However, the attempts of Mr. Divetia to persuade us to interfere with the said finding of acquittal, have failed for the following reasons.