IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Appeal No.08211 of 2009 (Defect) Sagar Mal son of Shri Krishna Ram and Another VERSUS State of Rajasthan and Others Date of Order :::: 17/12/2009 Hon'ble Mr. Justice Dalip Singh Mr. Ajay Gupta, Counsel for the accused-appellants Mr. Surendra Singh and Mr. Sultan Singh, Counsel for the respondents Mr. Sanjeev Kr. Mahla, Public Prosecutor for the State *** By the Court :
Office has pointed out the defect that the appeal is barred by limitation by two-days.
An application under Section 5 of the Limitation Act has been filed for condonation of delay.
Notices were issued vide order dated 12.10.2009 and the accused-respondent Nos.2 to 8 have put in their appearance through their Counsel.
Heard learned counsel for the parties on the application under Section 5 of the Limitation Act.
On the ground mentioned in the application and looking to the fact that the delay is only of two-days, I am inclined to accept this application under Section 5 of the Limitation Act and condone the delay in filing this appeal.
The application under Section 5 of the Limitation Act stands allowed.
Heard learned counsel for the parties on the merits of the appeal.
It has been brought to the notice of this Court that the appellant had earlier preferred S.B. Criminal Revision Petition No.1109 of 2009 (Sagar Mal and Another Vs. State of Rajasthan and Others) against the judgment of the learned trial Court dated 30.06.2009, which is the impugned judgment in the present appeal also.
The said revision petition came to be dismissed by the learned Single Judge of this Court vide order dated 27.08.2009.
The learned Single Judge while dismissing the revision petition by the said order has observed as follows :
Having considered the submissions made by the learned counsel for the petitioners and on careful perusal of the order passed by the learned trial Court on 30.06.2009, I am of the considered opinion that there is no illegality or infirmity in the same. The learned trial Court has clearly discussed and held that in absence of any evidence to the effect of threat to life or that the abduction of the petitioner was that he may be murdered or may be so disposed of as to be put in danger of being murdered, the offence under Section 364 is not made out. However, the learned trial Court has convicted the accused-respondents for the offence under Section 365 I.P.C.
Consequently, this criminal revision petition is dismissed as devoid of merits.
It is after the aforesaid order that the present appeal has been preferred by the learned counsel for the appellant against the judgment dated 30.06.2009 passed by the learned Court below.
Learned counsel for the accused-appellant further submitted that in the appeal the principal submission is against the order passed by the learned trial Court granting the benefit of probation to the accused-respondent.
So far as the aforesaid submissions of the learned counsel for the accused-appellants is concerned, it is apparent from perusal of the memo of revision petition (S.B. Criminal Revision Petition No.1109 of 2009) more particularly the Grounds in Paras G. H. & I, the appellant has stated as follows :
(g) THAT the learned trial Court while giving the benefit of probation to the accused- respondents came to the conclusion that the accused-persons are labourers and they are facing trial since five years. This fact was totally incorrect. The accused respondents are land holders. They are doing the business of property and not a single person is doing the work of labouring. It is also incorrect to say that they are facing trial since five years. Most of the accused persons were absconding during trial and filing the applications for recording their attendance through counsel. Hence the impugned judgment regarding giving the benefit of probation on the basis of aforesaid grounds deserves interference of this Hon’ble Court.
(h) THAT there were grievous injuries on the person of petitioner but this fact has been ignored by the learned Court below while giving the benefit of probation and hence the impugned judgment deserves interference of this Hon’ble Court.
(i) THAT if the impugned judgment is allowed to stand and the accused respondents are acquitted for offence under Section 364 and are given the benefit of probation under the Probation of Offenders Act, there will be failure of justice and the petitioners would suffer a great irreparable injury.
A perusal of the above grounds raised in the revision petition go to show that the appellant had raised specific grounds with regard to the grant of benefit of the probation to the accused by the learned trial Court in the revision petition.
As has been quoted here-in-above, the learned Single Judge dismissed the revision petition on merits.
In the facts and circumstances, the learned Single Judge while deciding the revision having upheld the judgment passed by the learned trial Court dated 30.06.2009 and having observed that there is no illegality or infirmity in the same.
The appellant cannot be allowed to raise the submissions, which were raised in the grounds of the memo of revision petition in the present appeal against the same judgment dated 30.06.2009.
Consequently, this appeal is dismissed summarily.
(Dalip Singh), J.
ashok/