CR.A/862/1990 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 862 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE D.N.PATEL ========================================= 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 ? ========================================= HASMUKH @ RAJUKASHINATH DEVRE - Appellant Versus STATE OF GUJARAT - Opponent ========================================= Appearance : MR P.J.YAGNIK for the Appellant. MS D.S.PANDIT, APP for the Opponent. ========================================= ================ CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE D.N.PATEL CR.A/862/1990 2/4 JUDGMENT Date : 17/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.N.PATEL) 1. The present appeal has been preferred against the judgement and order of conviction and sentence dated 23rd August,1990 passed by learned Additional City Sessions Judge, Court No.16, City of Ahmedabad in Sessions Case No.127 of 1990, whereby the present appellant has been convicted for an offence punishable under Section 302 of the Indian Penal Code for life imprisonment. 2. The appellant-accused is facing charge of causing murder of his wife on the ground of suspecting her character. 3. An appeal of the present appellant was admitted by this Court vide order dated 27th February,1991, thereafter, upon his application, he was released on parole on 9th February,1991. Thereafter, he has not surrendered to the jail authority and has remained absconding. The Superintendent, Central Jail, Ahmedabad vide his report dated 19th July,1999, has informed that the appellant-accused has not yet surrendered to the jail authority and is absconding, after getting released on parole on 9th February,1991. Learned Additional Public Prosecutor stated that CR.A/862/1990 3/4 JUDGMENT even on today, the present appellant-accused is absconding since 9 th February,1991 . It is further submitted by learned Additional Public Prosecutor that in view of the decision rendered by this Division Bench in Criminal Appeal No.1131 of 1997, dated 23rd October,2008, this appeal may be dismissed as accused is absconding. 4. In view of the decision dated 23rd October,2008 rendered by this Division Bench in Criminal Appeal No.1131 of 1997, it has been observed in para-8(vi) and 8(vii), as under: “8. (vi) ....... Thus, deliberate action or positive action reveals the intention of the appellant which shows that he has no respect to the Constitution of India and he has committed breach of the fundamental duty enshrined under Sub-article (a) of Article 51-A of the Constitution of India or it also reveals intention of the appellant that he has no faith in justice delivery system. ......... ........ Those, who are expecting their criminal appeals against conviction, to be heard on merits, cannot remain absconding. ..... (vii) ..... This appeal is hereby dismissed only on the ground that the appellant-accused is absconding and is not available to the Court, nor is present in the Court. As and when he surrenders or is arrested by the police, he may prefer an application for restoration of the appeal. We do not want to encourage the absconding accused for remaining absconding by hearing his criminal appeal on merits. It also encourages, who are in jail to jump the bail or furlough. Leniency shown towards criminals is a threat to innocent persons......” (Emphasis supplied) CR.A/862/1990 4/4 JUDGMENT 5. In view of the aforesaid decision and also keeping in mind the fact that the present appellant-accused is absconding since 9th February,1991, the present appeal is dismissed only on this ground. As and when the appellant-accused surrenders to the jail authority or is arrested by the police, he is at liberty to prefer an application for revival of this appeal and if such application is not unreasonably excessively time-barred as stated in the aforesaid judgement, then, this Criminal Appeal will be revived or restored. 6. In view of the aforesaid reasons, this appeal is hereby dismissed only on the ground that the appellant-accused is absconding. (C.K.BUCH,J) (D.N.PATEL,J) *dipti