CR.A/932/1995 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 932 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN 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 ? ========================================================= MUKHTARALI KARAMATALI SHAIKH - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MH BAREJIA for Appellant(s) : 1, MS. DS PANDIT, ADDL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 27/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE DN PATEL) 1. The present appeal has been preferred against the judgement and order of conviction and sentence dated 29th August, 1995 CR.A/932/1995 2/3 JUDGMENT passed by learned Additional Sessions Judge, Ahmedabad [Rural] in Sessions Case No. 170 of 1994, whereby the present appellant has been convicted for offences punishable mainly under Section 302 of the Indian Penal Code for life imprisonment as well as under other sections of I.P.C. 2. As per report dated 23rd April, 2002 given by Inspector General of Police, the present appellant-accused is absconding when he was enlarged on furlough leave w.e.f. 25th December, 1999. He was to report on 15th January, 2000. Inspite of that, from 15th January, 2000, he has been absconding. Even on today, he is absconding. The present appellant-accused is original accused no.1. The appellant- accused is facing charge of causing murder of husband of complainant along with other three accused. Those three accused were already acquitted by the trial court and therefore, conviction is only against present appellant. 3. Learned Additional Public Prosecutor stated that even on today, the present appellant-accused is absconding. 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 CR.A/932/1995 3/3 JUDGMENT 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) 5. In view of the aforesaid decision and also keeping in mind the fact that the present appellant-accused is absconding, 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] pirzada/-