Gujarat High Court Case Information System
Print
CR.A/1483/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1483 of 2010
=========================================
NANABHAI
RUMALBHAI KHANT - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
AY KOGJE for
Appellant(s) : 1,
MS CM SHAH, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 23/12/2010
ORAL
ORDER
The
appellant has preferred the present appeal under Section 374 of the
Code of Criminal Procedure, 1973 against the judgment and order of
conviction and sentence dated 30th June 2008
passed by the learned Special Judge in Special Case No.02 of 2008,
whereby the appellant has been held guilty for the offences
punishable under Sections 4(1)(3) of the Probation of Offenders Act.
It
is the case of the prosecution that while the complainant was
passing through the land of the appellant-accused in night hours, he
had been injured by the appellant-accused along with other persons
with wooden stick. It is also the case of the complainant that when
the complainant was shouted, brother of the complainant along with
one other person arrived at the place of offence and saved the
complainant from the appellant-accused. Thereafter, seeing the crowd
gathering at the place of offence, the appellant-accused and others
were went away. Therefore, a complainant to the said effect was
filed.
After
filing of closing pursis by the prosecution, further statement under
Section 313 of the Code of Criminal Procedure, 1973 of the appellant
was recorded. The appellant has denied the case of the prosecution
and claimed to be tried.
Thereafter,
trial was conducted before the learned Judge. To prove the case of
the prosecution, prosecution has produced oral as well as
documentary evidence.
After
hearing both the sides, the learned Special Judge by his judgment
and order dated 25th
June 2008 convicted the appellant-accused under Section 323 of the
Indian Penal Code. Thereafter, when the appellant-accused was asked
by the learned Judge about his sentence, the appellant-accused
conveyed that he was a government servant and he was at the fag end
of his retirement and therefore, the appellant-accused prayed to
give benefit of Probation.
Therefore,
Probation Officer’s Report was called for. Probation Officer also
reiterated to give benefit under the provision of Section 4(1) of
the Probation of Offenders Act. Therefore, after going through the
Report of Probation Officer and as the appellant-accused was a
government employee, by order dated 30th
June 2008 the learned Special Judge, Panchmahal, Godhra,
has been pleased to give benefit under Section 4(1)(3) of the
Probation of Offenders Act on the condition of a Character Bond in
the sum of Rs.05,000/- and a Personal Bond of the like amount
instead of convicting the appellant-accused under Section 323 of the
Indian Penal Code.
Being
aggrieved by and dissatisfied with the said judgment and order of
conviction dated 30th
June 2008 passed by the learned Special Judge, Panchmahal, Godhra in
Special Case No.02 of 2008, the appellant hereinabove has preferred
the present Criminal Appeal before this Hon’ble Court.
Heard
Mr.A.Y. Kogje, learned counsel for the appellant and Ms.C.M. Shah,
learned Additional Public Prosecutor, appearing on behalf of the
respondent-State.
Mr.Kogje
has contended that the order passed by the learned Judge is bad in
law and the same is passed without appreciating the facts and
circumstances of the case and evidence on record, provisions of law
and settled legal position. He has also contended that there are
material omissions in the evidence of prosecution, which has been
overlooked by the learned Judge. He has also contended that case of
the prosecution rests on the circumstantial evidence, but the
prosecution has also not conclusively proved the individual
circumstances. He, therefore, contended that the order passed by the
learned Judge is required to be quashed and set aside.
I
have
gone through papers produced before me and the judgment and order
passed by the learned trial Court. I have also perused the oral as
well as documentary evidence led before the trial Court and also
considered the submissions made by learned counsel for the parties.
Looking
to the facts and circumstances of the case and looking to the
evidence on record, it appears that the appellant-accused choose
Probation of Offenders Act to come out from the conviction under
Section 323 of the Indian Penal Code and now by way of present
appeal, he is challenging the conviction order. Thus, when the
appellant has chosen provision of Probation of Offenders Act, I am
of the opinion that he has no right to challenge the order of
conviction.
When
this Court has made it clear that the present appeal is not tenable,
Mr.Kogje, learned counsel for the appellant, after arguing the
matter at length, seeks to withdraw the present appeal.
In
view of prayer prayed by Mr.Kogje, learned counsel for the
appellant, permission is granted. Hence, the present appeal is
disposed of as withdrawn. Record and Proceedings, if any, be sent
back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J)
Anup
Top