BHARATBHAI DAHYABHAI VAGHARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Service of Rule is waived by ld. APP Mr. Pandya for the respondent State. By consent of the parties, this matter is taken up for final hearing today.

(2.) The applicant has preferred this application for condonation of delay caused in preferring criminal appeal against the impugned order of conviction and sentence. The applicant accused is undergoing imprisonment imposed by the ld. Addl. Sessions Judge, Ahmedabad (Rural), Gandhinagar in Sessions Case No.41/99 vide judgment and order dated 2.6.2001. It is submitted by the applicant accused that he is in jail and not aware about his right to file an appeal against the order of conviction and sentence and so he could not prefer an appeal in time. The 2nd ground placed before the Court for praying for condonation of delay is that when he was appraised about his right to file an appeal, he started making arrangements for expenses and he being poor, could not arrange for the amount required for the purpose as he is hailing from a very poor family. Therefore also, the delay caused in preferring appeal should be condoned.So, it can be said that the applicant accused has prayed his physical disablement as he was in jail, intellectual disablement as he was not aware about his right and financial disablement as he was not able to raise funds for the expenses.

(3.) The delay caused in preferring appeal is of 840 days. This period requires to be explained to the satisfaction of the Court and I am of the view that the applicant accused has failed in explaining this period of delay by showing sufficient cause within the meaning of Sec.5 of the Limitation Act. The jail record produced by ld. APP Mr.Pandya in response to the query raised by the Court reveals that the applicant accused is undergoing imprisonment for a period of 7 years and he was granted parole from 28.8.2001 to 14.9.2001 i.e. 22 days on the ground and purpose that he can arrange for filing of an appeal in the High Court against the order of conviction. The other ground pleaded by the applicant accused was that he was sick. This alleged sickness is neither pleaded or shown as one of the causes for delay caused. So, it would be incorrect to say that he was not aware about his right to file an appeal against the order of conviction till 23.1.2004- the day on which he was granted parole on the second occasion. The say is not found acceptable that though the applicant was undergoing imprisonment along with many other such convict persons, nobody had informed or appraised him about his right to appeal. The endorsement in the jail record submitted to the Court falsifies alleged innocence or ignorance of law pleaded in the present application. On the contrary, I am inclined to comment that this application has been preferred on false and created ground. It seems that the accused had accepted the sentence and had decided not to prefer an appeal and that too after some consultation in the year 2001 itself and the present memo of appeal with application for condonation of delay is submitted in the month of November-2003, is an afterthought.