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2006 DIGILAW 671 (GUJ)

STATE OF GUJARAT v. BASINDAR SHIVJI CHAUHAN

2006-10-09

C.K.BUCH, SHARAD D.DAVE

body2006
C. K. BUCH, J. ( 1 ) HEARD Mr. K. C. Shah, learned counsel appearing for the applicant-State. The present application is preferred by the applicant-State under Section 5 of the Limitation Act for condonation of delay, whereby the applicant-State has prayed for condonation of delay caused in preferring the appeal against the judgment and order of acquittal dated 10th February, 2004, recorded by the learned Additional Sessions Judge, Fast Track Court No. 6, Porbandar, in Sessions Case No. 18 of 2003, whereby the learned Judge acquitted the opponent-accused from the charge of offence punishable under Sections 376, 323 and 452 of the Indian Penal Code. It is contended that for the reasons mentioned in paragraph nos. 3,4,5 and 6 of the memo of the application, the delay of 399 days caused in preferring the appeal may kindly be condoned. ( 2 ) ACCORDING to us, this is a case of gross delay and the applicant-State is under obligation to convince this Court by assigning sufficient and convincing reasons for causing such an inordinate delay of 399 days. It is averred that the certified copy of the judgment and order was applied for by the learned Public Prosecutor on the very day of the judgment and order i. e. on 10th February, 2004 and it was ready for delivery on 23rd April, 2004. Thereafter, the learned Public Prosecutor had forwarded the proposal for filing appeal to the Legal Department on 25th May, 2004 i. e. after a month. It was received by the said Department on 28th May, 2004 and ultimately, the State decided that the appeal against the judgment and order of acquittal should be filed and the papers of investigation were submitted to the Deputy Secretary Incharge. As per the decision taken by the Deputy Secretary on 25th June, 2004, the concerned Branch was handed over the papers. So it can be said that about a month s time was taken by the officer who was to instruct the concerned Branch to proceed further in the matter. The Government issued necessary resolution and it was sent to the office of the Public Prosecutor in the High Court and ultimately the appeal came to be filed on 23rd August, 2004. The State has preferred appeal after a delay of 399 days. The Government issued necessary resolution and it was sent to the office of the Public Prosecutor in the High Court and ultimately the appeal came to be filed on 23rd August, 2004. The State has preferred appeal after a delay of 399 days. The maximum period of delay is found to have been caused by the learned Public Prosecutor, who was appearing at the trial Court because after receipt of certified copy on 23rd April, 2004, he had sent the proposal after a lapse of about one month and the office of the Public Prosecutor in the High Court took more than one year in preferring the appeal because the papers were received by the office of the Public Prosecutor in the High Court on 25th June, 2004 but the appeal has been preferred on 23rd August, 2005. No reasonable satisfactory explanation is coming forth and we are not convinced with the arguments of Mr. Shah that the office of the Public Prosecutor in the High Court was all throughout waiting for the copies of the documents, including the depositions recorded by the trial Court. ( 3 ) WE are aware that no genuine litigant should be permitted to suffer on account of any lethargy on the part of a lawyer or his clerk and the Court should consider the request for condonation of delay liberally and approach of the Court should be practically liberal in such cases. But the Court is supposed to see that the genuine litigant does not suffer on mere technical ground of limitation. So while dealing with the application under Section 5 of the Limitation Act wherein it is prayed that inordinate delay is also required to be condoned, then the strength in the case of such litigation can be looked into prima facie and the Court can ascertain before exercising discretionary jurisdiction whether the applicant has any fair and strong arguable case and from that point of view, we have gone through the judgment intended to be assailed by filing leave to appeal, and according to us, on merit also there is no strength in the say of the applicant-State. ( 4 ) IN a rape case, it is observed by the learned trial Court that neither the victim girl nor her mother was examined. ( 4 ) IN a rape case, it is observed by the learned trial Court that neither the victim girl nor her mother was examined. To secure the presence of these two witnesses, many attempts were made by the learned Public Prosecutor as well as the Court and on more than one occasion, the Court had issued bailable as well as non-bailable warrants against them, so that their presence could be secured and their evidence can be recorded. The allegation against the opponent-accused before the learned trial Court was that the accused aged about 19 years entered into the house of the victim-girl and raped her. Mere offence of causing simple hurt was also committed by the accused, but there is no evidence worth the name available which can corroborate the theory of assault or forcible entrance of the accused into the house of the victim-girl. Dr. Aminaben Umarbhai of Bhavsinhji Hospital has observed that there are no marks of violence or commission of rape was seen when the victim was brought before her for medical examination. The victim was about 17 years of age at the relevant point of time is the say of the said doctor. The history recorded by the said doctor cannot be looked into or read over for any purpose because it would fall in the category of hearsay evidence within the meaning of Section 60 of the Indian Evidence Act as there is no evidence on record of the victim-girl. The history given to the said doctor can be used as corroborative piece of evidence provided that some direct evidence of the person who had given history is available. In the same way, the Forensic Science Laboratory report also is not able to take the case of the prosecution any further because the Forensic Science Laboratory experts were not able to ascertain the group of semen found on muddamal chorni , and no blood of the applicant-accused was found on the clothes of the applicant-accused. In such a case when the Court is able to consider that there is no prima facie case, the request for condonation of delay of 399 days should not be accepted casually and each request for condonation of delay should not be accepted for the sake of accepting it. In such a case when the Court is able to consider that there is no prima facie case, the request for condonation of delay of 399 days should not be accepted casually and each request for condonation of delay should not be accepted for the sake of accepting it. The ultimate anxiety of the Court should be that the substantive justice is done and there is no miscarriage of justice and the Court is of the view that dismissal of the delay condonation application would not result into miscarriage of justice, the Court can dismiss the prayer for condonation of delay caused in preferring the appeal. ( 5 ) IN the case of State of Rajasthan v. Sohan Lal, reported in AIR 2004 SC 4520 , the Apex Court has observed that the leave to appeal against the order of acquittal cannot be refused mechanically on cryptic or ready-made observations; and the Court while granting leave to appeal shall have to see the scope of success or failure of appeal and if the Court finds that there is no scope of success in the background of settled legal position for appellant/prosecution, then mechanically leave to appeal should not be granted and it is rightly argued that while exercising discretion under Section 5 of the Limitation Act, the strength of the case can be looked into. The Division Bench of the Patna High Court in the case of State of Bihar v. Durga Pd. Saha, reported in 2005 Cr. L. J. 2072, has refused the leave to appeal, where the leave to appeal was prayed for after about 183 days by the State. Merely because the State or CBI or Union of India submits that certain slow motion working of Government or any department of the Government has resulted into delay, the Court should not condone the delay, otherwise the delay would have to be condoned in almost every case. ( 6 ) SO in view of above observations and above cited decisions, we do not find any merit in this application and hence, the same is hereby dismissed. Obviously, therefore, the appeal also shall not survive and the same is also dismissed. Rule is discharged so far as present application is concerned.