CR.A/1233/1992 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1233 of 1992 With CRIMINAL MISC.APPLICATION No. 13265 of 2007 In CRIMINAL APPEAL No. 1233 of 1992 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 ? ========================================================= HARIJAN KARSANBHAI PITHABHAI & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR HARIN P RAVAL for Appellant(s) : 1 - 4. MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/01/2008 ORAL JUDGMENT 1. The appeal arises out of judgement and order dated 22.10.1992 rendered by learned Additional CR.A/1233/1992 2/5 JUDGMENT Sessions Judge, Amreli in Sessions Case No.79/87. 2. The appellants were the original accused who were charged with offences punishable under Sections 323, 326 read with Section 114 of the Indian Penal Code. Considering the nature of injuries, however, learned Additional Sessions Judge convicted all the appellants for offences punishable under Section 324 of the Indian Penal Code as well as Section 323 of the Indian Penal Code and sentenced them to rigorous imprisonment for one year and six months respectively and also ordered them to pay fine. 3. During the pendency of the appeal, the appellants nos. 1 to 3 i.e. the accused nos. 1 to 3 expired. The appeal qua these appellants have therefore, abated. Present appeal therefore, survives only qua the appellant no.4 original accused No.4. 4. On behalf of the appellant, Criminal Misc. Application No.13265/2007 has been filed seeking benefit of probation mainly on the ground that the appellant is aged more than 50 years and is suffering from cancer. In the application it is contended that he has a tumor on the left side of the tounge and he has already undergone one operation on 23.2.2007. Necessary documents in this regard are produced along with the CR.A/1233/1992 3/5 JUDGMENT application. 5. Learned Single Judge of this Court by order dated 30.10.2007 had called for report of the Probation Officer to consider the request of the appellant for being granted probation under Section 4 of the Probation of Offenders Act and Section 361 of the Criminal Procedure Code. 6. Pursuant to the above-mentioned order, Probation Officer has submitted his report dated 20.11.2007. In the report, it is stated that the appellant no.4 is aged about 60 years. His conduct is good. He has no bad habits except for consumption of tobacco. His nature is simple and he is otherwise a quite person. It is stated that he suffers from cancer. He has already undergone one operation at Rajkot. The said appellant is a poor person. Though he owns 10 Vigas of agricultural lands, there is no facility of irrigation. He therefore, depends on agricultural labour work. He has three children. One son and one daughter are yet not married. As he suffers from cancer, since long time he is unable to do the labour work. His sons sustain him. Before the Probation Officer, he admitted his guilt but requested that he may be given benefit of probation. In the conclusion, the probation officer recommended that benefit of probation may be given to the convict. 7. In addition to taking into account the above CR.A/1233/1992 4/5 JUDGMENT material on record, I have also heard learned advocates appearing for the parties. Learned advocate for the appellant points out that said appellant had given only one blow to the brother of the complainant. Resultant injury was not serious and though the blow was given on the head, injury did not cause grievous hurt. He further submitted that the incident took place in the year 1991 and many years have passed since then. The appellant is not a habitual offender and he may therefore, be granted benefit of probation. 8. Insofar as the guilt of the said appellant is concerned, there is hardly any dispute possible. I have considered the judgement passed by the learned Additional Sessions Judge convicting the appellant for offence punishable under Sections 323 and 324 of the Indian Penal Code. There was voluminous evidence in the form of eyewitness account. In fact, the said appellant has not even seriously disputed his involvement and virtually admitted the charge. 9. Insofar as question of granting benefit of probation to the appellant no.4 is concerned, I find that it is a fit case where same should be granted. As noted earlier, the incident took place in the year 1991. The appellant is not a habitual offender. He is not involved in any other criminal case before or after the incident CR.A/1233/1992 5/5 JUDGMENT in question. His conduct after his conviction is also stated to be good. He is suffering from cancer since quite sometime. Even after undergoing operation, he is required to have a further treatment. His financial condition is extremely poor. He earlier relied entirely on labour work. Presently he is dependent on his sons. 10.Considering all these aspects of the matter, the appellant however, is given benefit of probation even while confirming his conviction and sentence. He shall file bond for one year of good behaviour before the trial Court. In case of breach of the bond, he shall serve out the sentence awarded by the Court below. 11.With these directions, the appeal as well as criminal misc. application is disposed of (Akil Kureshi,J.) (raghu)