DAHYABHAI CHHAGANBHAI VAVEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal is preferred by the convict against the judgment and order dtd. 15/4/2004 in Sessions Case No.160 of 1990 by the Presiding Judge of Fast Track Court, District: Kheda at Nadiad.

(2.) At the outset, learned advocate for the appellant has submitted that after the conviction recorded, the appellant was enlarged on bail by this Court by an order dtd. 21/9/2005 in Criminal Misc. Application No.9538 of 2005 and pending the appeal, the substantive sentence of imprisonment was suspended till final disposal of the appeal. However, it is reported that the appellant has expired on 10/10/2008 for which learned advocate for the appellant has relied upon the Death Certificate dtd. 10/10/2008 issued by the Talati-cum-Mantri of village - Ratanpur. The appeal being of year 2004 and the appellant having expired in 2008, the appeal would abate. However as the appellant was a government servant and the conviction or otherwise in a criminal offence will have direct effect on the service benefits of the appellant, learned advocate for the appellant has made an oral request that the appeal be proceeded on merits as if the same is being argued on behalf of the legal heir of the deceased appellant.

(3.) Learned advocate for the appellant submitted that the conviction recorded is on an erroneous premise as the trial Court has recorded the conviction by giving importance and treating the dying declaration of the injured witness to be a substantial piece of evidence, whereas, the injured witness having survived, the dying declaration would be merely reduced to a statement, and therefore, the conviction could not have been based on such dying declaration.