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CR.A/1377/1993 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1377 of 1993
With
CRIMINAL
APPEAL No. 412 of 1994
=========================================================
AMICHANDBHAI
ALIAS AMABHAI BHIKHABHAI & 1 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
UTKARSH SHARMA FOR MR VIJAY PATEL
for
Appellant(s) : 1 - 2.
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for
Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Challenge
in these two appeals is to the correctness of the judgment and order
dated 16.12.1993 rendered in Sessions Case No.50 of 1993 by the
learned Addl.Sessions Judge, Sabarkantha at Himmatnagar by which
appellants No.1 and 2 of Criminal Appeals No.1377 of 1993, who were
original accused Nos.1 and 2 came to be convicted for the offences
punishable under Sections 498-A and 306 r/w.Section 34 IPC and both
of them have been sentenced to suffer RI for two years and fine of
Rs.300/-, in default, RI for three months for each offences. It is
also ordered that both the offences shall run concurrently.
Aggrieved
by the aforesaid judgment and order the appellant No.1 –
Amichandbhai alias Amabhai Bhikhabhai Patel and appellant No.2 –
Laliben Bhikhabhai have filed Criminal Appeal No.1377 of 1993 with
the aid of Section 374(2) of the Cr.P.C. challenging the order or
conviction and sentence recorded against them, whereas State of
Gujarat has filed Criminal Appeal No.412 of 1994 with the aid of
Section 377 of the Cr.P.C. challenging the order of sentence on the
ground of same being inadequate and for enhancement of sentence.
At
the time of hearing of these appeals, we have noticed the submission
made by the Registry of this Court, wherein it is inter-alia stated
that Mr.H.L.Patel, learned advocate, who has filed appearance on
behalf of both the appellants has expired. Therefore, this Court has
issued notice to both the appellants informing them to remain
present before the Court personally or by an advocate or someone by
law authorised to act on their behalf. The said notice has returned
unserved, as both of them have expired. The death certificate is
also attached along with the note at Flag A & B.
Upon
perusal of the copy of death certificates issued by Talati –
cum – Mantri, Kesharganj Gram Panchayat, Taluka Vadali,
District Sabarkantha, it is seen that appellant No.1 Amichandbhai
alias Amabhai Bhikhabhai Patel has died on 22.11.2000 and appellant
No.2 Laliben Bhikhabhai has died on 30.06.2003. In this connection,
statement of Dhulabhai Bhikhabhai Patel, who is brother of appellant
No.1 and son of appellant No.2, is also recorded, who has produced
the xeroz copies of death certificates, wherein inter-alia he has
confirmed the death of both of them before the concerned police
officer who has gone for serving the notice of this Court.
Therefore,
the death of both the appellants – accused is now confirmed.
In
view of this, so far as Criminal Appeal No.1377 of 1993 is
concerned, it is filed under Section 374(2) of the Cr.P.C. by the
appellants challenging the conviction and sentence, and since they
died during the pendency of the appeal and none of their relatives
has applied to this Court within 30 days for leave to continue
appeal, the appeal filed by the appellants is abated by virtue of
proviso to Sub-section 2 of Section 394 of the Cr.P.C. Whereas
appeal No.412 of 1994 filed by the appellant – State of
Gujarat u/s.377 of the Cr.P.C. on the ground of same being
inadequate and for enhancement of sentence stands abated by virtue
of the proviso to Sub-section 1 of Section 394 of the Cr.P.C.
Therefore,
both the appeals stand abated.
(A.M.KAPADIA,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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