CR.A/41/1998 of RAVSAHEB @ RAVIRAJ VIKRAM PATIL Vs STATE OF GUJARAT on 29 December 2008

ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE DN PATEL)

1. This Criminal Appeal has been preferred against the judgement and order of conviction and sentence dated 31[st ]December,1997 passed by learned Additional Sessions Judge, Surat in Sessions Case No.15 of 1997, whereby the present appellants have been convicted for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/-, in case of default, further simple imprisonment for six months has been awarded. The appellants have also been convicted for an offence punishable under Section 498-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in case of default, further simple imprisonment for three months has been awarded. Against this judgement and order, the present appeal has been preferred by the appellants.

2. The appellants are facing charge of committing murder of Sunanda – wife of accused No.1. Deceased was forced to bring money from her parental house. Likewise, on 4[th] November,1996, when appellant no.1 told her to prepare break-fast, deceased replied that it will take some time and, therefore, appellants set the deceased to fire. This is a charge, which they are facing in Sessions Case No.15 of 1997.

3. Learned counsel for the appellants submitted that appellant No.1 is absconding, as per report dated 23[rd] April,2002 given by Inspector General of Police and also as per the report dated 28[th] April,2008 recently received from Baroda Central Jail. It is also submitted by learned counsel for the appellants that appellant No.2 has expired on 12[nd] October,2003. Learned Additional Public Prosecutor has produced death certificate of appellant no.2 and submitted that death of appellant no.2 has been registered at Village: Mangrul, Taluka: Parola, District: Jalgaon, Maharashtra. A photocopy of the same is taken on the record of the case.

4. Looking to the aforesaid submission and looking to the fact that appellant No.2 has expired, appeal qua appellant no.2 is abated.

5. In view of the judgement delivered by this Court vide order dated 17[th] November,2008 passed in Criminal Appeal No.1375 of 1993 read with judgement dated 23[rd] October,2008 delivered by this Division Bench in Criminal Appeal No.1131 of 1997, as the appellant No.1 is absconding, appeal qua appellant No.1 deserves to be dismissed.

6. In the decision dated 23[rd] October,2008 rendered by this Division Bench in Criminal Appeal No.1131 of 1997, it has been observed in para-8(vi) and 8(vii), as under:

“8.(vi).......Thus, deliberate action or positive action reveals theintention of the appellant which shows that he hasno respect to the Constitution of India and he hascommitted breach of the fundamental dutyenshrined under Sub-article (a) of Article 51-A of theConstitution of India or it also reveals intention ofthe appellant that he has no faith in justice deliverysystem. ......... ........ Those, who are expectingtheir criminal appeals against conviction, to beheard on merits, cannot remain absconding. ..... Thus, deliberate action or positive action reveals theintention of the appellant which shows that he hasno respect to the Constitution of India and he hascommitted breach of the fundamental dutyenshrined under Sub-article (a) of Article 51-A of theConstitution of India or it also reveals intention ofthe appellant that he has no faith in justice deliverysystem. ......... ........ Those, who are expectingtheir criminal appeals against conviction, to beheard on merits, cannot remain absconding. .....

(vii) ..... This appeal is hereby dismissed only on--the ground that the appellantaccused is abscondingand is not available to the Court, nor is present inthe Court. As and when he surrenders or is arrestedby the police, he may prefer an application forrestoration of the appeal. We do not want toencourage the absconding accused for remainingabsconding by hearing his criminal appeal onmerits. It also encourages, who are in jail to jumpthe bail or furlough. Leniency shown towardscriminals is a threat to innocent persons......” and is not available to the Court, nor is present inthe Court. As and when he surrenders or is arrestedby the police, he may prefer an application forrestoration of the appeal. We do not want toencourage the absconding accused for remainingabsconding by hearing his criminal appeal onmerits. It also encourages, who are in jail to jumpthe bail or furlough. Leniency shown towardscriminals is a threat to innocent persons......”

(Emphasis supplied)

7. In view of the aforesaid decision and also keeping in mind the fact that the appellant No.1- original accused No.1 is absconding, the present appeal qua appellant No.1 is dismissed only on this ground. As and when appellant No.1 -original accused No.1 surrenders to the jail authority or is arrested by the police, he is at liberty to prefer an application for revival of this appeal and if such application is not unreasonably excessively time-barred as stated in the aforesaid judgement, then, this Criminal Appeal will be revived or restored.

8. For the aforesaid reasons, as appellant No.1 – original accused no.1 is absconding, appeal qua appellant no.1 is dismissed. So far as appellant No.2 is concerned, as appellant No.2 has expired, the appeal qua appellant No.2 is treated as abated. This Criminal Appeal is hereby disposed of accordingly.

[C.K.BUCH,J]

[D.N.PATEL,J]

*dipti