In acquittal appeals, the presumption of innocence prevails unless the trial court's findings are perverse, and two reasonable interpretations of evidence favoring the accused must be upheld.

JUDGMENT :

GITA GOPI, J.

1. The challenge is given to the judgment and order of acquittal dated 20.05.1999 passed by the learned Sessions Judge, Vadodara in Sessions Case No.279 of 1997 whereby the two accused came to be acquitted under the charge of Section 302 , 354 and 109 of the INDIAN PENAL CODE (IPC).

2. Learned Additional Public Prosecutor Ms. Monali Bhatt took us to the charge framed below Exhibit 10. As per the charge, accused No.1-Shanabhai Mohanbhai Gohil was forcing deceased-Gita Shankarbhai Padhiyar to fall in love with him, while the charge says that deceased was against it. As per the prosecution case, accused No.2-Ravjibhai Becharbhai Padhiyar used to always accompany accused No.1 and accused No.1 would follow the instructions of the accused No.2. Accordingly, on 13.08.1997, it is alleged that deceased-Gita was visiting the field in the morning for collecting fodder and at about 10.30, when she was returning back home, at that time, near the Canal, accused obstructed her with an intention to physically harass and asked her “tu maine prem kare che ke nahi?’, and when the deceased refused accused No.1 got angry and with an intention to kill Gita, he gave blow on the head and on the shoulder with a sickle and thereby, caused death. Therefore, the charge was framed for the offences punishable under Sections 302 , 354 and 109 of the IPC.

3. Against accused No.2, the charge was that he was inciting accused No.1 to do whatever he pleases assuring that he was there to protect him and that he would help in releasing him. The charge is that he had indirectly assisted accused No.1 in the commission of the crime and therefore, he was tried under Section 302 read with Section 109 of the IPC.

4. Learned Additional Public Prosecutor Ms. Monali Bhatt submitted that the PW1-Thakorbhai Mahijibhai Padhiyar- Uncle of the deceased is the complainant, who is the eye witness to the incident. Learned APP has referred to the deposition of the PW1 to submit that the learned trial Court has erred in not believing the evidence of the eyewitness who is the complainant and the uncle of the deceased. The complainant has very categorically stated about the incident and has seen accused No.1 giving blow to the deceased and also the fact that after hearing the shouts of Gita, he and his brother-Kanubhai rushed to the place. The complainant had seen accused No.1 giving one blow with a danti (rake) and that thereafter, his niece had fallen down. They shouted at accused No.1 asking him to wait but he ran away. Learned APP submitted that this evidence of the complainant was required to be believed. The complainant had seen his niece in a pool of blood where she had received a blow on the head and they found that she was dead. APP Ms. Bhatt contented that the blow on head proved fatal.

5. The evidence of the PW1-complainant would refer to the fact that at the time of the incident, he was in his own field and the deceased-niece-Gita had come to collect fodder who was in her own field. The fact thus, becomes clear that the complainant was in his own field while the deceased had come to collect grass from her own field. It is only when the complainant heard her shouts to protect, which were coming from the canal, going towards the village, he and his brother rushed there. The learned trial Court Judge has pertinently noted that this brother- Kanubhai has not been examined during the trial. According to the complainant, he and Kanubhai were the eye witnesses to the incident. Unfortunately, the evidence of Kanubhai is not on record. The