STATE OF GUJARAT Vs. SHABBIRBHAI ALIAS KALUBIHARI ALIAS REHMATALI SIKANDAR ALIAS RAJAK ALIAS YAKUB SHEKH

JUDGEMENT

(1.) PRESENT application is filed by the applicant herein " State of Gujarat under Section 5 of the Limitation Act to condone delay of 748 days in preferring the Criminal Appeal challenging the judgment and order of acquittal dated 06. 04. 2004 passed by the learned Sessions Judge, Kheda at Nadiad in Sessions Case No. 86 of 2003 acquitting the respondent " original accused for the offences punishable under Sections 302, 120 (B), 307 read with Section 120 (B), 201 and 34 of the Indian Penal Code and Section 25 (1) (B) of the Arms Act and Section 135 of the Bombay Police Act.

(2.) AFTER considering the averments in the application in support of the prayer to condone the delay and considering huge delay of 748 days in preferring the criminal appeal, we have considered prima " facie case on merits so that ultimately if it is found that there is meritorious case, delay can be condoned otherwise, if it is found that there is no merit, then to condone delay would be exercising futility. We have considered the judgment and order passed by the learned Trial court acquitting the respondent herein.

(3.) WE have heard the learned Advocates appearing on behalf of the respective parties prima-facie on merits. Considering the judgment and order passed by the learned Trial Court, it appears that initially the complaint was against 10 (ten) accused persons for the offences alleged to have happened on 14. 12. 2000 alleging inter-alia that original accused No. 1 " Mehbub Beug @ Chino Mohmedbeug Mirza due to business rivalry and other accused created conspiracy with other accused persons and gave 'supari' of Rs. 10 lacs to the respondent herein and the respondent- herein prepared plan to commit the murder of one 'abdul Karim @ Vepari Yusufbhai Vora' at Gymkhana of the accused " Mehbub Beug @ Chino at Anand and the respondent herein provided weapons for committing crime and the said businessman 'abdul Karim' was done to death. It appears that as the accused was not arrested and was absconding, charge-sheet was filed against accused " Mehbub Beug @ Chino and others, except the respondent herein and the case against them was committed to the learned Sessions Court being Sessions Case Nos. 113 of 2001 and 227 of 2002. All the accused i. e. Mehbub Beug @ Chinu Mehmed Mirza and others came to be tried and thereafter acquitted by the learned Additional Sessions Judge, Kheda at Nadiad vide judgment dated 26. 09. 2002 in Sessions Case Nos. 113 of 2001 and 227 of 2001. It appears from the record that being aggrieved and dissatisfied with the judgment and order of acquittal dated 26. 09. 2002 passed by the learned Sessions Judge, Nadiad in Sessions Case Nos. 113 of 2001 and 227 of 2001, State of Gujarat preferred Criminal Appeal 338 of 2003 before this Court. The Division Bench of this Court (Coram : D. K. Trivedi and S. R. Brahmbhatt,jj) vide order dated 01. 11. 2004 dismissed the Criminal Appeal confirming the order dated 26. 09. 2002 of acquittal passed by the learned Sessions Judge, Nadiad acquitting the others co-accused. Thus, other accused against whom similar allegations were made which are made against the respondent herein and the accused Mehbub Beug @ Chino against whom allegations with regard to giving 'supari' is acquitted and whose acquittal is confirmed by the Division Bench of this Court, there is no substance in the main appeal challenging the judgment of acquittal of the respondent herein as the appeal against the other accused filed by the State of Gujarat challenging there acquittal has been dismissed by the Division Bench of this Court and their acquittal has been confirmed. Mr. Dipen Desai, learned APP is not in a position to establish and/or submit that the allegations against the respondent herein and other accused who were acquitted are different.