KOLI THAKARDA BABUBHAI BHAGABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The inevitable outcome of this appeal at the instance of the appellant-original accused is failure and rejection being totally meritless. The factual scenario emerging from the record of the present case has not only shocked us but has also squeezed our conscience, particularly in view of the wanton apathy and violent or militant indifference on the part of the respondent-State in acquiescing in acquittal of the accused under Sees. 366, 302 and 376 of the I.P.C., and also judicial treatment meted out in the trial and confusion of not only the concept of law but of the concerned authority. We are sorry to place the aforesaid observations, but we cannot resist our temptation of placing the same on record after having extensively explored the entire testimonial collection and the submissions during the course of hearing.

(2.) A short resume of the prosecution case giving rise to birth of this appeal, may be, narrated at the outset. The appellant, herein, is the original accused came to be charged by the trial Court for the offences punishable under Sees. 366, 376 and 302, I.P.C., and also under Sec. 135(1) of the Bombay Police Act, in view of the ghastly incident stealing the heart which occurred on 8-1-1991 in the evening at 6 p.m., in the sim behind Khodiyar temple in village Undai in Banaskantha District. The prosecution case has been that the appellant allured and kidnapped one baby girl Takhi, aged about 5 years, daughter of complainant Rama Shendha so as to satisfy his lust. The appellant after taking baby Takhi along with him, committed rape and also injured her private part with the help of knife and thereafter satisfied his lust like a Demon and intentionally killed baby Takhi. Charge came to be framed by the learned Sessions Judge, on 15-5-1991. The appellant pleaded innocence and thereafter the trial Court, upon assessment and examination of the evidence, reached the conclusion, whereby, the accused was granted unmerited acquittal of the charges under Sees. 366, 302 and 376, I.P.C., and also under Sec. 135(1) of the Bombay Police Act. Instead, the trial Court found the appellant guilty for the offence under Sees. 304-11 I.P.C., and sentenced him to undergo R.I. for ten years and to pay fine , of Rs. 1,000.00, in default, to undergo S.I. for six months. The trial Court also found the accused guilty for offence under Sec. 376 read with Sec. 511 I.P.C., and for that, imposed sentence of R.I. for five years and fine of Rs. 1,000.00 and in default, to undergo S.I., for six months. Again, the trial Court directed the appellant to undergo both the sentences concurrently giving benefit of period as undertrial prisoner and also directed for disposal of muddamal blood-stained clothes, knife and other articles, vide judgment and order recorded on 21-6-1991 in Sessions Case No. 45 of 1991 which is precisely challenged by the original accused by filing this appeal through jail.

(3.) The order of conviction and sentence challenged in this appeal, obviously, cannot be as in our opinion, prima facie, acquittal from the main offences under Secs. 366, 302 and 376 appears to us unmerited. Therefore, upon a pointed query to the learned Additional Public Prosecutor, we were shocked to learn that the State had acquiesced in the manner and mode in which the trial is conducted before the learned Sessions Judge and the way in which the impugned order is acquiesced by the State can, hardly, receive any acknowledgment of conscience part. We have not been able to comprehend as to what and how the State chose to acquiesce in this case when a baby of 5 years is mercilessly not only physically exploited and emotionally ruined but also became the victim of lust of the appellant.