STATE OF GUJARAT Vs. BHIKHABHAI BHOLABHAI KOLI

JUDGEMENT

(1.) LEAVE to appeal granted. Appeal admitted. Mr. Yogeshwar Patel, learned Advocate for Mr. P. P. Majmudar, learned Advocate waives service of notice of admission on behalf of respondent. Learned Advocate Mr. Patel and Mr. Raval, learned APP requested this Court to hear the matter finally as Record and Proceedings of the learned trial Court is available with Court and that they would provide extra copies of evidence recorded during the trial and documents produced before the learned trial Court. In the facts and circumstance of the case, the request is granted and the matter is taken for final hearing.

(2.) INSTANT appeal is preferred by the State against the judgment and order delivered by the learned Additional Sessions Judge at Amerli on 09. 04. 2004 in Sessions Case No. 161 of 2001 whereby the present respondent came to be acquitted by the learned trial Court for the offence punishable under Section 302 of the Indian Penal Code as well as under Section 37 (1) of the Bombay Police Act.

(3.) AS per the brief facts of the prosecution case, incident in question occurred on 30. 05. 1994. Accused at the relevant juncture was doing agricultural work in the field of deceased Patel Pravinbhai Kadvabhai in the partnership. The accused has five daughters and three sons. Two daughters are married and others are staying with the accused. On the earlier day i. e. on 29. 05. 1994, the accused was working in the field for the whole of night and thereafter, some guests came at the house of brother-in-law - Popatbhai Mohanbhai. Those guests were to go to some other village and they insisted the accused to accompany them. The accused agreed to go to Maandan Gam. His daughter i. e. Vimuben was present at the field and he instructed Vimuben to water the field by machine and watch over the field. Thereafter, at about 9. 00 a. m. when he started with the guests to go to Maandan Gam while they were proceedings, deceased Pravinbhai Kadvabhai' was going to their field; and Pravinbhai was conveyed that all of them were going to village Maandan. In the meantime, the accused felt that by pipe line from the field of Popatbhai, water was to be drawn in the field of Pravinbhai and since pipe line was available in the tractor, the accused took out pipe line and as necessary arrangements were to be made for the flow of water. For that he requested his guests to go ahead and stated that after doing needful about the pipe line, the accused would follow the guests. Therefore, the accused followed the tractor of the deceased Pravinbhai and returned to the field of Pravinbhai. When he reached at the field, he found deceased 'pravinbhai' and his daughter 'vimuben' in indecent position and Vimuben was putting her cloths while 'pravinbhai' was wearing his pants. When the accused asked about what had taken place, Vimuben stated that the deceased had raped her. In excitement the accused took axe which was lying there and ran after the deceased Pravinbhai who attempted to board the tractor. He inflicted a blow of an axe on the head of the deceased. He also inflicted other blows of Axe on the body of deceased Pravinbhai. However, as per the prosecution case at about 15. 00 hrs, the accused presented himself before the Police Sub Inspector, Savarkundla and narrated the story which was recorded by Police Sub Inspector in the form of First Information Report. A crime came to be registered against the accused vide Crime Registered No. I - 95 of 1994 for the above charges and investigation was entrusted to PW - 20 - Babubhai Rasiklal Mehta. He recorded statements; draw necessary panchnama and arrested accused on 31. 05. 1994. Muddamal was sent to Forensic Science Laboratory and thereafter, since PW-20 was transferred from the said Police Station, his successor Mr. H. U. Shiram, submitted charge-sheet in the Court of learned Judicial Magistrate First Class, Savarkundla.