STATE OF GUJARAT Vs. RAJURAI BHILARAY JAYSWAL

JUDGEMENT

(1.) THE present Appeal is filed by the State of Gujarat challenging the order of acquittal passed by the learned Additional Sessions Judge, Valsad district at Navsari in Sessions case no. 36 of 1992 dated 3rd February, 1994. The grievance of the State is that accused no.1 has been erroneously acquitted for the charge of offence punishable under section 307 of the Indian Penal Code and also under section 25(1)(aa) of the Arms Act and respondent no. 2 (original accused no.2) also has been wrongly acquitted from the charge of offence punishable under sections 302, 307 and 114 read with section 34 of the Indian Penal Code and also under section 25(1)(aa) of the Arms Act.

(2.) WE have heard the learned Additional Public Prosecutor Mr. Jani for the State. He has taken us through basic case placed by the prosecution effected in charge framed by the learned trial Judge at exh. 1. According to prosecution, on 11th January, 1992 one Kokilaben, daughter of Somabhai was drawing water through a hand pump at about 2.15 p.m. and at that time, both the accused charge -sheeted by police with third another accused Mohmed Rais had reached there and accused Mohmed Rais with bad intention had caught hold of her hand and asked her to go with that absconding accused. But Kokilaben forcibly took her hand back from the absconding accused. Thereafter, she had proceeded towards her residence with water in two different utensils popularly known as "Beda". This incident was witnessed by one Chhanabhai Somabhai. In this background, both the accused persons and the absconding accused Mohmed Rais with an intention to kill Bhikhubhai and Ukadbhai tried to inflict injuries with fire arm when complainant Rameshbhai and Chhanabhai were playing cricket with others. Chhanabhai had asked absconding accused Mohmed Rais that why he had played mischief by holding hand of his sister. At that time, the absconding accused had given a slap to Chhanabhai alleging that he is lying. After some time, all the accused had come again at the place where Rameshbhai and Chhanabhai were playing cricket. Accused no.1 Raju at that time was holding revolver in his hand and accused no. 2 was holding knife. Accused Mohmed Rais was holding fire arm and fired one bullet from revolver. At that time, Ukadbhai had rushed to the spot hearing the bullet shot. At that time, absconding accused Mohmed Rais fired second round. According to prosecution, Bhikhubhai Ukadbhai who was present there had asked the absconding accused Mohmed Rais not to repeat things. But as intention of the accused was to kill Bhikhubhai, accused no.1 Raju Rai fired revolver which he was holding and Bhikhubhai sustained injuries in the right side of his chest. It is alleged that all the accused persons were keen to see that Bhikhubhai Ukadbhai and the persons who were there are inflicted injuries that may result into death. The accused had assaulted both the prosecution witnesses deceased Bhikhubhai. Ultimately Bhikhubhai lost life. It is further the case of the prosecution that accused persons were holding fire arms, that is, accused no.1 Raju and absconding accused Mohmed Rais were unlicensed and they were holding weapons in contravention of the provisions of the Arms Act and thereby both of them have committed offence punishable under section 25(1)(aa) of the Arms Act. Thus, accused nos. 1 and 2 came to be charged for the offences punishable under sections 302 and 307 read with section 34 of the Indian Penal Code and section 25(1)(aa) of the Arms Act.

(3.) THE prosecution has examined all relevant witnesses including doctor who had carried post mortem of deceased Bhikhabhai Ukadbhai Halpati and eye witnesses to the incident. The learned trial Judge has also considered the opinion expressed by the Ballastic expert and so also the report given by FSL expert tendered in the evidence by the prosecution.