State of Gujarat. Vs. Chimanbhai @ Hitesh Nagjibhai Patel and ors. - Court Judgment

Excerpt:
[p. sathasivam ; h.l. gokhale, j.j.] - the indian penal code, 1860 section 302 - punishment for murder -- sunil yadav s/o musafir yadav was instituted. sunil yadav was instituted. on 29.04.1997, about 5:30 a.m., at nawada sadar hospital, si anil kumar gupta recorded the statement of sunil yadav s/o musafir yadav and on the basis of his statement fir no 12/97 was registered with govindpur p.s under sections 147, 148, 149, 323, 324, 307, 447 ipc against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, suresh yadav, umesh yadav, muni yadav and naresh yadav. the charge-sheet bearing no. 12/97 was submitted in fir no. 11/97 p.s. govindpur, on 30.06.1997 against brahamdeo yadav, sunil yadav, darogi mahto, maho yadav, paro mahto, kuldeep yadav, sudhir yadav, bale yadav, shivan yadav and suraj yadav and sunil yadav who was later instituted. the charge sheet bearing no. 36/97 was also submitted in fir no. 12/97 p.s. govindpur, on 17.12.1997 against upendra yadav, rambalak yadav, basudev yadav, anil yadav, manager yadav, ganuari yadav, damodar yadav, umesh yadav, muni yadav and naresh yadav except suresh yadav s/o kesho yadav as he had died. informant-naresh yadav (pw-9) informant-sunil yadav (a9 in fir 11/97) brahmdeo yadav, darogi mahto, sunil s/o bale yadav, maho yadav, kuldeep yadav, bale yadav, suraj yadav, shiv nandan yadav, sunil yadav s/o musafir yadav, sudhir yadav and paro mahto, total 11 persons forming a group came there and surrounded them. brahmdeo yadav, sunil yadav, darogi mahto and maho yadav were armed with rifle. bale yadav, kuldeep yadav, shiv nandan yadav and suraj yadav were armed with gandassa. kuldeep yadav gave gandassa blow to munshi yadav.1. rule. mr. utkarsh sharma, learned advocate appears and states that h.l. patel, advocates has received instructions to appear on behalf of the respondents-accused but shall file its appearance/note of appearance representing the respondents-accused within a period of one week. therefore, service is complete.2. having regard to the facts of the case, the application is taken up for hearing today.3. by filing instant application under section 5 of the limitation act, 1963, (`the act' for short), the applicant has prayed to condone delay of 19 days caused in filing criminal appeal no. 369 of 2010.4. having heard mr. j.m. panchal, learned special public prosecutor and mr. utkarsh sharma, learned advocate for the respondents and on perusal of the averments made in the application which have remained uncontroverted and also the celebrated principles governing discretionary exercise of power conferred under section 5 of the act, so also considering the reported decisions of the hon'ble supreme court construing section 5 of the act liberally, we are of the considered opinion that delay caused in filing the appeal has been sufficiently explained. the record does not indicate that there was inaction or negligence on the part of the applicant in prosecuting the appeal. on the contrary, the applicant has never abandoned the lis. the explanation offered by the applicant for condonation of delay is not only plausible but acceptable. in view of this, since delay has been sufficiently explained, application deserves to be allowed by condoning the delay of 19 days caused in filing the appeal.5. for the foregoing reasons, the application succeeds and accordingly it is allowed. delay of 19 days caused in filing the appeal is condoned. rule is made absolute.

Judgment:
1. Rule. Mr. Utkarsh Sharma, learned advocate appears and states that H.L. Patel, Advocates has received instructions to appear on behalf of the respondents-accused but shall file its appearance/note of appearance representing the respondents-accused within a period of one week. Therefore, service is complete.

2. Having regard to the facts of the case, the application is taken up for hearing today.

3. By filing instant application under Section 5 of the Limitation Act, 1963, (`the Act' for short), the applicant has prayed to condone delay of 19 days caused in filing Criminal Appeal No. 369 of 2010.

4. Having heard Mr. J.M. Panchal, learned Special Public Prosecutor and Mr. Utkarsh Sharma, learned advocate for the respondents and on perusal of the averments made in the application which have remained uncontroverted and also the celebrated principles governing discretionary exercise of power conferred under Section 5 of the Act, so also considering the reported decisions of the Hon'ble Supreme Court construing Section 5 of the Act liberally, we are of the considered opinion that delay caused in filing the appeal has been sufficiently explained. The record does not indicate that there was inaction or negligence on the part of the applicant in prosecuting the appeal. On the contrary, the applicant has never abandoned the lis. The explanation offered by the applicant for condonation of delay is not only plausible but acceptable. In view of this, since delay has been sufficiently explained, application deserves to be allowed by condoning the delay of 19 days caused in filing the appeal.

5. For the foregoing reasons, the application succeeds and accordingly it is allowed. Delay of 19 days caused in filing the appeal is condoned. Rule is made absolute.