CR.A/221/1994 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 221 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= AYUBKHAN MOMINKHAN PTHAN - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : NOTICE SERVED for Appellant(s) : 1, MS PUNANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/05/2008 ORAL JUDGMENT 1. Appellant was original accused No.1. By impugned judgment and order dated 31st January, 1994 passed by the learned Additional Sessions Judge, CR.A/221/1994 2/4 JUDGMENT Ahmedabad in Sessions Case No.319 of 1989, he was convicted for offence punishable under Section 323 of IPC and sentenced to R.I. for 3 months. He was also directed to pay fine of Rs.500/-. In default, he was to undergo R.I. for 15 days. 2. As per charge Exh.2, it was alleged inter- alia that appellant along with other accused had formed unlawful assembly. Appellant had given a pipe blow to Mohmmad Yusuf and caused simple injuries. The other accused was acquitted. Appellant No.1 was however, convicted and sentenced as noted above. 3. Since learned advocate Shri B.N.Keshwani earlier appearing for the appellant had expired, notice was issued to the appellant to engage another advocate, if he so desires. Though, such notice has been duly served, nobody has appeared for the appellant. 4. Having, however, heard learned APP for the State and with her assistance having also examined the case of the appellant, in view of the ultimate CR.A/221/1994 3/4 JUDGMENT conclusion that I have arrived at, I do not find it necessary to discuss the evidence in detail. Suffice it to say that there was sufficient evidence in nature of eye-witnesses' accounts and other corroborative evidence to hold that the appellant on the date of the incident had given a pipe blow on the hand of the complainant. The evidence, however, suggests that the injury caused was of simple nature. This can be gathered from the evidence of Dr.Virendra Kaniyalal Shah, Exh.21 and the injury certificate Exh.22. 5. Thus, for the incident of the year 1989, the appellant was convicted for offence punishable under Section 323 and sentenced to 3 months of R.I. As noted, the charge proved against him was of having given pipe blow on the hand of the complainant which resulted into a simple injury. There was also a cross case in which charge under Section 307 IPC was framed against the other side. 6. Considering all these aspects of the matter, considering the passage of time and the nature of CR.A/221/1994 4/4 JUDGMENT involvement of the appellant, I do not find it appropriate that at this distant point of time, the appellant should be made to serve out the sentence. He should be given benefit of probation. It is not the case of State that the appellant has criminal antecedents. Considering all these aspects of the matter, though the conviction and sentence of the appellant is confirmed, he is given benefit of probation. 7. In the result, appeal is disposed of in following terms: 1. Conviction and sentence of the appellant is upheld. 2. He is, however, given benefit of probation and shall not have to serve out the sentence, if he executes bond of good behavior for a period of one year before the Trial Court latest by 30st June, 2008. 3. If there is any breach in the condition, he shall have to serve out the sentence. 4. Appeal is disposed of accordingly. Registry to communicate the order to the appellant. (AKIL KURESHI, J.) ashish//