RAJUBHAI JANGUBHAI RATHWAQ Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Appeal is at the instance of two convicts for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 1 st February 2006, passed by the learned Presiding Officer and Additional Sessions Judge, Fast Track Court No.2, Chhotaudepur, District Vadodara in Sessions Case No.31 of 2003. By the aforesaid order, the learned Additional Sessions Judge found the appellants guilty of the offences punishable under Section 302 read with Section 114 of the Indian Penal Code and consequently, sentenced them to suffer Life Imprisonment and a fine of Rs.100/- each. In default of payment of fine, the appellants were directed to undergo further Rigorous Imprisonment for one month. At the same time, the learned Additional Sessions Judge acquitted both the accused appellants of the offences punishable under Sections 143, 147, 148, 307, 325, 323, 324 read with Section 149 IPC. It may not be out of place to state that, in all eleven persons were charge-sheeted for the offences punishable under Sections 143, 147, 148, 149, 302, 307, 323, 324, 325 and 504 IPC and all the eleven accused persons inclusive of the appellants herein were put to trial, out of which the learned Additional Sessions Judge acquitted nine co-accused of all the offences with which they were charged, whereas the present appellants who are convicted for the offences punishable under Section 302 read with Section 114 IPC.

(2.) AT the very outset, Ms.Kruti M. Shah, learned counsel appearing for the appellants, submitted that the accused appellant no.1, Rajubhai Jangubhai Rathwa, has been declared absconding by the jail authorities and, therefore, as on today, when the Appeal is being taken up for hearing, the accused appellant no.1, Rajubhai Jangubhai Rathwa, could not be said to be in custody. Ms.Kruti Shah brought this fact to our notice very fairly, as according to Ms.Kruti Shah, the Division Bench of this High Court in the case of Mahendra Bhogilal Tadvi v/s. State of Gujarat, reported in 2009 Cr.L.J. 1486, has taken a view that appeal preferred by an accused should be dismissed if at the time of taking up the appeal for final hearing it is brought to the notice of the Court that the accused is absconding, with liberty to apply for restoration in the event he surrenders or is re-arrested. We brought to the notice of Ms.Kruti M.Shah, learned counsel appearing for the appellants, that in the aforesaid decision of the Division Bench, a direct judgment of the Supreme Court in the case of Dilip S.Dahanukar v/s. Kotak Mahendra Co. Ltd. and another, reported in AIR 2007 SC (Supp) 1345, was not taken into consideration as it appears that perhaps the decision of the Supreme Court in Dilip S.Dahanukar (supra) might not have been brought to the notice of the Division Bench. This very Bench, while deciding Criminal Appeal No.1066 of 2006, took notice of the decision of Dilip S.Dahanukar (supra), and relying on the said decision, has taken the view that under the Code of Criminal Procedure, once an appeal is admitted, there is no scope of dismissing the appeal on other grounds than merits or on abatement. This Bench has also observed while deciding Criminal Appeal No.1066 of 2006 that in the Code of Criminal Procedure, no power has been given to the Appellate Court to dismiss the appeal merely on the ground that the appellant had, by violating the conditions of temporary bail, failed to surrender or absconded. Once an appeal has been admitted it has to be heard on merits if the learned advocate for the appellant is prepared to argue the matter. This Bench took the view that the Division Bench's decision of this High Court in case of Mahendra Bhogilal Tadvi (supra) could be termed as per incurrium in light of a direct Supreme Court decision in the case of Dilip S.Dahanukar (supra).

(3.) BEING dissatisfied, the accused-appellants have come up with the present Appeal.