Gujarat High Court
Abdul Rahim Yakubbhai Gudala vs State Of Gujarat on 28 December, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
R/CR.MA/22992/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22992 of 2018
ABDUL RAHIM YAKUBBHAI GUDALA
Versus
STATE OF GUJARAT
Appearance:
MR VIJAL P DESAI(5505) for the PETITIONER(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 2,3,4,6
NOTICE SERVED(4)-G/4 for the RESPONDENT(s) No. 5
MS MONALI H BHATT APP for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
and
HONOURABLE MR.JUSTICE V. B. MAYANI
Date : 28/12/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE K.M.THAKER) Heard Mr. Buch, learned advocate for the applicant, Mr. Saiyad, learned advocate for the opponent and Ms. Bhatt, learned APP.
The applicant herein is victim / original complainant who who had filed FIR on 9.12.2014 (being CR.I No. 104 of 2014, registered with Dahod Police Station) for offence punishable under Sections 307, 324, 323, 114 of I.P.C. and Section 25(1)(b) and 25(1A) of the Arms Act. The said complaint culminated into Sessions Case No. 126 of 2016 wherein learned Trial Court rendered judgment and order dated 24.10.2018 whereby the learned Trial Judge was pleased to convict the respondent number 3 to 6 herein for the offence punishable under Section 323, 324 of the Indian Penal Code and was pleased to impose 2 years simple imprisonment and fine of Rs. 3000/- for the offence punishable under Section 324 and in default of fine more 3 months simple imprisonment was imposed to the respondent number 3 to 6 herein. The learned trial judge Page 1 of 3 R/CR.MA/22992/2018 ORDER was pleased to impose 6 months simple imprisonment to the respondent number 3 to 6 herein for the offence punishable under Section 323 of the Indian Penal Code and fine of Rs.1000/- and in default of fine more 1 month simple imprisonment was imposed by the learned Additional District and Sessions judge, Dahod in Sessions Case No. 126/2016.
The victim / original complainant is aggrieved and dissatisfied with the judgment and sentence. According to the appellant the learned trial court has convicted the accused persons for lesser offence and that the accused person should be held guilty for the offence punishable under section 307 read with section 114 of I.P.C.
Against the said judgment original accused persons have filed Criminal Appeal No. 1676 of 2018 and Criminal Appeal No. 1775 of 2018.
According to present appellant in light of the judgment in case of Malikarjun Kodagai vs. State of Karnataka, 2018 SCC online SC 1941 and in case of Bhavuben Dineshbhai Makwana vs. State of Gujarat, 2013 (1) G.L.H. 265, the victim / original complainant need not seek leave from High Court and the victim / original complainant can maintain appeal even without seeking leave from the Court. Mr. Buch, learned advocate for the applicant / appellant submitted that in light of the said judgments the applicant could have taken out the application however, by way of abandoned caution the applicant has taken out application seeking leave to appeal. However by way of abandoned Page 2 of 3 R/CR.MA/22992/2018 ORDER caution and to avoid any technicality or objections the applicant has filed present application. In present application the applicant has prayed, inter alia that:-
"6(b) Allow this Criminal Misc. Application and be pleased to grant leave to appeal against the judgment and order passed by the Learned Additional District and Sessions Judge, Dahod in Sessions Case No. 126 of 2016 by passing judgment and order dated 24.10.2018 and be pleased to admit the appeal."
In response to the notice Mr. Saiyad, learned advocate has appeared. He relied on the decision in case of State of Uttar Pradesh vs. Anil Kumar, (2018) 9 SCC 492. Mr. Saiyad, learned advocate for the opponent initially raised some objection however, subsequently he fairly submitted that subject to the opponent's right to opposed applicant's appeal on merits and all available ground the Court may pass necessary and appropriate order.
Having regard to the submissions and having considered the judgment and considering the submission that the appeal filed by accused persons are admitted, the application is allowed in terms of paragraph No. 6(b). Leave to Appeal is granted. Rule is made absolute to the aforesaid extent.
The application stands disposed of accordingly.
Sd/-
(K.M.THAKER, J) Sd/-
(V. B. MAYANI, J) SURESH SOLANKI Page 3 of 3