IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

CRIMINAL APPEAL NO. :

OF 2012

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR

......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT

LIST OF EVENTS 1. This is a love story turned into a rape case. 2. Two young persons love has a tragic end due to the wife of the Ex.father of the victim. 3. The victim had been abondoned in her childhood as her mother married to someone else.Since then the victim was craving for love and feelings. 4. The victim voluntarily telephoned the appellant and called him to have a bike-ride with him.

5. The complainant knew the appellant prior to this alleged offence.

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6. The complainant lodged the complaint on July 17 of 2009 wide I CR No.: 184 of 2009.(u/s.363 &366).The offence of S.376 of IPC was added afterwards. 7. Since the day of arrest i.e. July 17 of 2009 the appellant is behind the bars.

8. The victim confessed her love for the appellant before the Honble Trial Court.

9. The victim also admitted that she has not raised any hue and cry amdist the cluster of people at the public places like Kankaria Lake.

10. The victim had had a photo session with the appellant.The two photos are on record.

11.

The mother of the victim stated before the Court of

Law that she did not know the date of birth of the victim.

12. The Certificate of Birth was brought on record by the public prosecutor during the Evidence of Defence wide Exhibit No. : 30.And due to this the defence is vitiated.

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13. The officer who deposed to establish the Certificate of Birth of the victim gave vague and unreliable answers. 14. No ossification test is carried out to give a supportive proof by the Investigation Agency. 15. The Investigation Officer did not investigate the case honestly.He confessed that he had investigated the case to secure justice in favour of the prosecutrix. 16. The victim did not utter a word in respet of the rape.She simply said about some Kharab Kharab Kam which can never be interpreted as rape. 17. The Trial Court did not consider the large number of Judgments produced by the defence and neither discussed nor gave reasons for not accepting the same.

18. Ld.Judge Mr. D.V. Jhala conducted the entire trial incamera and recorded the evidence in a question-answer form.And did not allow to sit the three defence advocates on record during the trial.

19. The panchnamas of the pancha witnesses who were declared hostile by the court at the request of the prosecutor,were aproved by the Trial Judge as a proved one.

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20. The appellant is impotent to perform coitus with any one.Yet he is wrongfully nailed with the punishment of rape offence. 21. No semen stains were found out from anywhere as the appellant is impotent.

22. No statement of a single non-interested witness is recorded by the police.

23. The earlier advocate of the appellant and the filing department of the court had shown such a negligence that the earlier appeal was decided without hearing on merits.As the original brief of the Court which had been taken away for the removal of office objections was found out after a period of about 11 months.

24. The appellant filed two other petitions to restore the earlier appeal i.e. a petition of condonation of delay for the restoration petition and a petition for restoration of appeal. 25. The above mentioned two petitions were withdrawn with the permission to file a fresh appeal and thus the present petition is before this Honble Court.
AHMEDABAD DATED : _________________________ MR ANAND BRAHMBHATT ADVOCATE FOR THE APPELLANT Page 4 of 36

IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

CRIMINAL APPEAL NO. :

OF 2012

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR

......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT

LIST OF DOCUMENTS
ANNEXTURE DETAILS OF THE DOCUMENTS
ORDER OF CONVICTION

DATE

PAGING AT

MARCH 29 OF 2011

COPIES OF THE PHOTOS WRITTEN ARGUMENTS PRESENT BEFORE THE TRIAL COURT WITH LIST OF 22 JUDGMENTS.

AHMEDABAD DATED :

_________________________
MR ANAND BRAHMBHATT
(ADVOCATE FOR THE APPLICANT)

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IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

CRIMINAL APPEAL NO. :

OF 2012

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR Aged about 25 years (At present in the Sabarmati Jail Since the dt. of arrest i.e. July18,2009)
PERMANENT RESIDENTIAL ADDRESS : Vikas Mandal Juni Dudhwali Chali,Baherampura,Ahmedabad.
......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT (NOTICE TO BE SERVED THROUGH THE LD.PUBLIC PROSECUTOR,having his office at Honble High Court of Gujarat)

AN APPEAL U/S. 374 (2) OF THE CODE OF CRIMINAL PROCEDURE,1973

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MOST RESPECTFULLY SHEWTH THAT......... 1.The appellant is a citizen of our country and is entitled to the rights guaranteed under the Constitution of India. 2.The appellant had been accused of and convicted as under : ALLEGED OFFENCE PLACE OF OFFENCE POLICE STATION FIR NUMBER DATE OF FIR DATE OF ALLEGED INCIDENT INITIAL OF OFFENCE ADDITION OF OFFENCE
CHARGE SHEET FILED ON

S.363,366 & 376 OF IPC AHMEDABAD VATAVA I CR. 184 OF 2009 JULY 17 OF 2009 JULY 17 OF 2009 S.363 & 366 OF IPC S.376 OF IPC
SEPTEMBER 24 OF 2009

ARRESTED ON SESSIONS CASE NO.

JULY 18 OF 2009 29 OF 2009 ADDI. SESSIONS JUDGE

BEFORE THE HON'BLE TRIAL COURT OF CONVICTED ON COMPLAINANT

D.V.JHALA OF AHMEDABAD CITY SESSIONS COURT MARCH 29 OF 2011 PRABHABEN B. PARMAR [EX.WIFE OF MAHESHBHAI PARMAR]

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3. DETAILS OF CONVICTION :
RIGOROUS IMPRISONMENT OF

07
S. 363 OF IPC

YRS &

FINE OF RS.5000/IN DEFAULT OF PAYMENT OF FINE FURTHER SIMPLE IMPRISONMENT OF 3 MONTHS RIGOROUS IMPRISONMENT OF

10
S. 366 OF IPC

YRS &

FINE OF RS.5000/IN DEFAULT OF PAYMENT OF FINE FURTHER SIMPLE IMPRISONMENT OF 3 MONTHS RIGOROUS IMPRISONMENT OF

10 S.376 OF IPC

YRS &

FINE OF RS.5000/IN DEFAULT OF PAYMENT OF FINE FURTHER SIMPLE IMPRISONMENT OF 3 MONTHS

ORDER OF COMPENSATION OF

RS. 15,000/- TO BE PAID TO THE VICTIMS MOTHER FROM THE AMOUNT OF ABVOE STATED FINE

(ORDER OF CONVICTION : ANNEXURE : A ) 4. FACTS OF THE CASE.......

AS PER PROSECUTION :
(a) The complainant Mrs.Prabhaben is an Ex.wife of Maheshkumar Shankarlal Parmar and working as a nurse in a

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Private Hospital. By the grace of her first husband she gave birth to a female child i.e. the so called victim of this case. (b) Married step daughter of the complainants second husband named Shilpa informed the complainant at her Hospital on telephone about the so called kidnapping incident.She informed her foster mother that a resident of Dudhwali Chali named Prakash @ Pappu, the present appellant came there riding a bike and took away the victim from her (i.e.Prabhabens)house. (Neither any telephone call details were produced nor Shilpa who had witnessed the so called kidnapping was examined by the prosecution.) (c) The prosecution also alleged that the same victim had also been kidnapped earlier by the same boy (i.e. the appellant)prior to 15 days of the incident alleged in the FIR. (But surprisingly no complaint had been filed in relation to the first alleged incident by the complainant and the complainant settled out the issue amicably with the appellant.) (d) The prosecution also developed a story of rape but could neither locate the place of incident nor could prove conclusively that whether the appellant is sexually potent to perform coitus or not.
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(No name of the hotel - no room number mentioned in panchnama - no register of hotel produced or recovered no incriminating article seized against the accused - no hotel staff has been examined )

AS PER VICTIM :
(Victim was examined with the exhibit no. : 28 ; ANNEXURE : )

Victim says before the Honble Trial Court that ....... (i) She has had a love affair with the applicant.She admitted her love for the applicant in the very second paragraph of the Examination-in- Chief of the prosecution. (ii) She kept her lips shut when the defence council raised the questions pertaining to her love story. She was asked to answer two questions : (TRANSLATION.........) Que.: 01 How did you recognise that Pappu loved you and not anyother else ? Ans. : This question was remained unanswered. Que. : 02 Did you conceal your love affair with Pappu from others ? Ans. : This question was remained unanswered.

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(iii)

She had had a photo session with the applicant. And there are two photographs on record with exhibit list no. : 24/1 and 24/2.

(These photos were not exhibited by the Ld. F.T.C. Judge during the course of trial even after the admission of the two witnesses of prosecution. So the copies of the same photos were again submitted before the Court of Law during the further statement u/s 313 of Code of Criminal Procedure. But its reference is no where in the Judgment.)(Copies of the photos : ANNEXURE : B ) (iv) Victim stated about her love relationship before the Investigaton Officer..The Investigation Officer named AMRUT SOLANKI admitted in his crossexamination that Que. : 80 In your presence the victim dectated in her statement that and love sprang between us and when this fact was disclosed to my mother during vacation,she scolded me and warned me for not to keep relations with Prakash.whether such writings existed in the statement before you ? Ans.: It is true. (Que. : 80; Page : 17; Exhibit No.: 54)

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Thus this is a story of a love.(If such voluntary confession of any accused about crime had been made before a third party,he would have been convicted.Then why benefit of this tacit consent of love has not been taken into account.The term tacit consent is focused in the judgment of : F.NATARAJA VERSUS THE STATE (2010
CRI.L.J. 2180)

(v)

As per her own story the victim neither alarmed anywhere at the thickly populated public places nor she mentioned any hue and cry even in the police statement.She categorically admitted before the Honble Court in her cross-examination that (Page : 09 Exhibit No.: 28)

On road I did not complain to anyone regarding Pappu.It is true that there were two traffic points on the way where I went with Pappu on bike.I did not complain to traffic police.It is true that if anyone wants to have a seat with the fencing wall of the Kankaria Lake,one has to take ticket even at that point of time.Pappu brought this tickets.It is true that there lies the police security where the tickets are being sold. I did not try to escape even.I did not shout when I was on bike ride.

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(vi)

Victim did not complain to any person gathered at the place nor she ran away when there occured a dramatic incident of an accident during her bikeride.(Page :10; Exhibit No.: 28)

AS PER APPELLANT :
A. Appellant and the victim had been in love with eachother. B. Mother of the victim has not been in agreement with this love relationship. C. The appellant is impotent and is not in a capacity to perform sexual act with anyone.So far as the Medical Injury Certificate of the appellant(Exhibit No.:35)is concerned ; that is totally faulty and aslo against the basic principles of Medical Jurisprudence.And this Certificate issued by Dr.Barnwal is strongly challenged during the cross-examination of this doctor as it is implied to be a concoctated and manipulated one. D. The appellant is innocent and wrongly trapped by the police and also falsely convicted by the Ld.Trial Judge Mr.D.V.Jhala.This order of conviction dated March 29 of 2011 in the Sessions Case No. : 29 of 2010(charged u/s. 363,366 & 376 of IPC)is under challange on following grounds :
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GROUNDS OF APPEAL :
1. Corrupt and shabby Investigation : It is discussed many a times in connection with the issue that the Honble Indian Courts are not having Judicious control over the Investigation Agency.But the convicting court i.e. the trial court must be jealous enough to observe that the Investigation is beng carried out to protect the rights of a citizen or not. In this case the investigation carried out by the Investigation Officer is corrupt and shabby.The Investigation Officer admitted in his cross-examination that he has carried out the investigation to seek justice for the prosecutrix of this case.He was asked a specific question : Que. : 90 Whether the Investigation carried out by you was performed only by keeping the prosecutrix at sight or also keeping the accused with that ? Ans. : I carried out this investigation to secure justice for the prosecutrix of this case.

Other glaring instances of bias and corrupt investigation are as follows :

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a. The police officer admitted that the writings of the panchnamas were in his own wordings.He also stated that his writer wrote what he dictated.(Que.-Ans. : 07 & 13) b. No DNA test has been performed though there is a harmonizing condition(having the same group) so far as the blood group of the victim and the the appellant is concerned.Without performing a DNA test it is quite impossible to distiguish one from the other. c. The Investigation Officer of this case is neither having the knowledge of the Code of Criminal Procedure nor acquainted with the Police Manual. d. The appellant has declared that he is impotent and even after that the Investigation Agency has tried to nail him under the punishment of s.376 of IPC.The appellant could not ejeculate his semen so he was taken away to the doctor for the second time and even there he was beaten by the Investigation Officer as he could not ejeculate. Though the appellant failed to submit his semen sample, the Investigation Officer made a panchnama of semen collection in the absence of the appellant.This is to be taken very seriously as the way of collecting a

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vital evidene against the appellant must be in his presence but that implies that for grabbing the innocent the Panchnama of so called semen of the appellant was carried out in his absence.Here it is to be noticed that the Public Prosecutor of this case get this panchnama exhibited without examining the panchas of this panchnanma. e. No telephone calls detail is collected even though the entire episode of prosecution begins with the telephonic intimation of Shilpa to her step mother Prabhaben. f. No statements of the non-interested witnesses have been recorded. g. No record of the so called raping place is collected. Nothing incriminating like pubic hair,buttons,semen stained bed-sheet ,hukes of bra or pieces of broken bengals have been collected by the Investigation Agency.The height of the Investigation is that in the fabricated panchnama of the hotel the officer failed to mention the room number of the hotel at where the so called sexual coitus has been taken place.

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2. No kidnapping No abduction as per S.363 & S.366 of IPC :

(i)

As stated in the Judgment of LAWRENCE

KANNANDAS V. STATE OF MAHARASHTRA (1983 CRI.L.J. 1819) :

The two expression taking and enticing evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful custody of her guardians. Neither of the sections would have any application if the girl has of her own accord come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place. (Para-30) In order to hold that the accused en-ticed away the girl, it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresitable force upon the girl. (Para-31) So far as the facts of this case are concerned neither any force has been applied by the appellant nor any temptation nor any promise nor any assurance nor any allurement administered by the appellant towards the victim.

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(ii)

The term Lawful Guardian is of very much importance in the cases of kidnapping and abduction.

In this case the mother of the victim has abndoned the victim before 10-12 years prior to the incident. The victim of this case admitted before the Trial Court in her cross-examinantion (Para 04)that She has been living with her maternal grandmother and maternal uncle right from her birth. and further she said As my mother got married for the second time then after I used to live with my maternal uncle. She also stated before the Court that It is true that I failed to get the love of my parents. In her statement before the police she stated that My mom took divorce before ten to twelve years back. Since then I have been living with my maternal grandmother Lakshmiben and maternal uncle Kamleshbhai. And living there only. Even the complainant stated before the Court that It is true that as soon as my daughter entered into the age of discretion I have not brought her up. Thus the complainant is not come in the perview of a care-taker.So she cannot be ascertained as a lawful
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guardian.In this respect she cannot be a complainant to be claimed that the victim is taken away from the Lawful Guardianship of hers. (iii) Before coming to the third ground of appeal I would like to urge before this Honble Court to go through the Judgment of S. Gopal Reddy Versus State of A. P. [1996(4) SSC Page 596] in which
Honble Supreme Court observed that -

............. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do so as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. And held that it is a well known rule of interpretation of Statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a Statute and that the Courts must look to the object which the Statute seeks to achieve while interpreting any of the provisions of the Act and a purposive approach is necessary.
The same point is discussed in the well known book of Honble Justice J.P. Singhs Principles of Statutory Interpretation(Page-58 &

751 Ninth Edition) :

It is well settled principle that the intention of the Legislature is primarily to be gathered from the language
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used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and

dangerous to proceed by substituting some other words for words of the statute. The fact that an
enactment is a penal provision is in itself a reason for hesitation before ascribing to phrases used in it a meaning broader than that they would ordinary bear. In relation to the above submissions here I have a just and proper reason to state that

*Penetration is sine qua non for the offence of rape.* The victim of this case no where stated before the trial court that she was subjected to sexual coitus. In S.375 of IPC it is clearly stated that
Explanation

Penetration is sufficient to constitute the

sexual intercourse necessary to the offence of rape.

The above point has been logically raised before the Honble Trial Court but the Ld.Judge Mr.Jhala failed to appreciate this mandatory issue.Though in the Judgment it is admitted by this Ld. Judge that the semen of the accused is not found out from anywhere and yet the accused is

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presumed to be guilty of offence.Such kind of presumption is not valid so far as the Criminal Jurisprudence is conerned. In support of above submissions the appellant again relies upon the two authorities ; as these authorities were not logically taken into account and no genuine specific reasons were given by the Ld. Trial Judge for not to accept them.
(1) KAILASH LAXMAN KHAMKAR VERSUS STATE OF MAHARASHTRA (2010 Cri. LJ. 3255)

(2)

TARKESHWAR SAHU VERSUS STATE OF BIHAR (2006 CRIMES (SC) 4 Page 171)

(iv)

The victim ot this case merely stated that the accused did kharab kharab kaam. Here I repeat the wordings of Justice J.P.Singh,

Similarly it is wrong and dangerous to

proceed by substituting some other words for words of the statute. So these wordings
of the victim kharab kharab kaam. are also not sufficient to punish the accused by substituting the word Balatkar at ones own whim and fancy. The terms such as Galat Kam,Bura Kam OR Durvehohar can never be interepreted as

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BALATKAAR.And this is not our own interepretations.The Honble Court of Madhya Pradesh in the Judgment of : MAHESH KUMAR BHERULAL V. STATE OF

M.P.(1995CRI.L.J. 2021) and the Honble Court of Uttar Pradesh also observed in the Judgment of : ZAHOOR ALI V. STATE OF U.P. ( 1989 CRI.L.J. 1177) ,in this respect.

(v)

The appellant has submitted earlier in the facts of his own(i.e. AS PER APPELLANT)at the running page : in the Para : C that the evidence of

prosecution in connection to establish his potentiality to perform sex is a concoctated and manipulated one. It is discussed at length in the said para so I omit the repeatition of the same.But I would like to draw the humble attention of this Honble Court that the doctor(Mr.Barnwal) who examined the appellant was quite bias and vague in his deposition before the Trial Court during the cross-examination.Its a matter of shame to say that the doctor was so prejudiced during his

deposition that it seems as if he were a prosecution witness.

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(vi)

So far as the age of the victim is concerned the public prosecutor has submitted the document of birth certificate during the course of crossexamination of the victim and for that the advocate of the appellant has strongly opposed and made a specific note of objection in the belated list submitted by the prosecutor with
Exhibit No. : 30 ; as this sort of practice by the

prosecutor during the course of defences crossexamination would definitely vitiate the entire defence strategy.And such an act should have not been entertained by any Court of Justice.

(vii)

I am confident enough to state that the witness who was examined by the prosecution for the purpose of age of the victim ; is not clear in her deposition.(Witness No. : 12; Exhibit No.: 48)

The following three questions answered by her ; made her entire deposition doubtful and clumsy. These questions are :
Que. : Had you been physically present there when the entry of the victims birth was being registered ? Ans. : No.

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Que. : Can you explain who intimated you on the day on which the child took birth ? Ans. : No. Que. : Is it true that you cannot state regarding the merits and demerits of the entry of birth-register unless the person who made the entry is being examined ? Ans. : It is true.

Thus the entry in the register of birth is not conclusively proved as the person who made the entry is not examined by the prosecution and the primary document from which the registrar of birth made the entry in the register is also neither produced before court nor proved by the prosecution. So in respect of the S. 67 of Evidence Act it is very much clear that : If a document is alleged to be signed or have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. In this case a registrar who made the entry is not examined to prove the age of the victim conclusevely by the prosecution and benefit of the same should be extended in favour of the appellant. (viii) The prosecution examined 15 witnesses and out ot them 06 witnesses did not support the case of
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prosecution and by the request of the prosecutor these witnesses were declared HOSTILE by the Trial Court. It is the settled principle of law that the content of the panchnamas has to be proved in accordance with law and yet the Ld. Judge specifically made a non-judicial note in the Judgment that(Para : 68 to 71 of the Judgment) : Though the panch witnesses turned hostile and did not support the prosecution story but the prosecution proved the same panchnamas in the deposition on oath of the Investigation Officer. Besides this,the deposition of the most of the witnesses were recorded in the question answer form in the court of this Ld.Judge.And out of the three advocates of defence side as mentioned on recorded vakaltnama; only advocate Mr.Anand Brahmbhatt was allowed to conduct the trial.I mean to say that the entire trial was forced to be conducted under due pressure.And above all the Ld.Trial Judge seems to be pre-decided to convict the appellant as in the entire Judgment of this trial the Ld. Judge discussed the Judgment of the Prosecution Line in detail i.e. with the related

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paragraphs of the Judgments of Conviction Line and not discussed the Judgments of Defence Line in this fashion. (ix) The Ld. Judge of the Trial Court has not evaluated the submissions of the appellant in the further statement of S.313 of Code of Criminal Procedure of 1973. (x) The learned Judge of the Trial Court has not considered the oral as well as the written arguments.The copy of the arguments is annexed herewith as ANNEXURE :C)

(xi)

The Ld. Judge of the Trial Court failed to appreciate that the prosecution has to prove its case as a whole beyond reasonable doubt and not by one circumstance itself. Besides in the Judgment of SHARAD BIRDHICHAND SARDA
VERSUS STATE OF MAHARASHTRA (1984 Cri. LJ. 1738(1)) it is made clear by the Honble apex court our country that

It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. (Para. :150)

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(xii)

The appellant who is behind the bars since the day of his arrest since July 17 of 2009 ; is not a habitual offender. He is one of the sole earnig members of his family and a helping hand or a stick of his old parents.The rigorous imprisonment for a period of 10 yrs in addition to a fine of Rs. 15000/- as a whole is an extreme punishment in a case of love affair.Looking to the age of the appellant and the circumstances of the case on hand, I pray before this Honble Court to consider the above grounds of the petition and admit the appeal in the wide interest of Justice and Truth.

(xiii)

I crave leave of this Honble Court to make more presentation at the time of arguments.

(xiv)

The petitioner has not filed any other petition with regard to the subject-matter of this petition in any Court of Law in India except referred to hereinabove.

(xv)

On the premises of the facts and circumstances mentioned hereinabove, the applicant further prays to Your Lordship that :

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(A) May be pleased to dispense with the filing of the affidavit of the petitioner, as he is in the Judicial Custody. (B) May be pleased to call the record of the Trial Court. (C) May be pleased to allow this petition in the wide interest of justice or reduce the imprisonment. (D) May be pleased to pass such other and further orders as may be deemed fit and proper in the interest of justice.
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE APPLICANT ,AS IN DUTY BOUND, SHALL FOR EVER PRAY.

AHMEDABAD DATED :

_________________________ MR ANAND BRAHMBHATT

(ADVOCATE FOR THE APPLICANT)

ENCLOSED :

1. VAKALATNAMA 2. LIST OF EVENTS & DOCUMENTS.

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IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

MISC.CRI.APPLICATION NO. :
(IN CRIMINAL APPEAL NO. :

OF 2012
OF 2012)

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR

......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT

LIST OF EVENTS
OFFENCE REGESTERED ON : ACCUSED ARRESTED ON TRIAL COURT CONVICTED ON CONVICTION APPEAL FILED ON FOR REMOVAL OF OFFICE OBJECTIONS TIME LIMIT WAS GIVEN UPTO PETITION OF APPEAL REMAINED MISSING FROM OFFICE OF FILING DEPARTMENT UPTO FINALLY THE APPEAL DECIDED WITHOUT NON-PROSECUTION ON PETITION FOR RESTORATION OF APPEAL & CONDONATION OF DELAY DECIDED ON : MAY 05 OF 2012.
FEBRUARY 2012

JULY 17 OF 2009 JULY 18 OF 2009 MARCH 29 OF 2011 APRIL 22,2011 JULY 11 OF 2011

(NO SPECIFIC DATE IS KNOWN.) MARCH 16 OF 2012.

AHMEDABAD DATE :

_______________________ MR.ANAND BRAHMBHATT ADVOCATE Page 29 of 36

IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

MISC.CRI.APPLICATION NO. : IN CRIMINAL APPEAL NO. :

OF 2012

OF 2012

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR

......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT

LIST OF DOCUMENTS
ANNEXTURE DETAILS OF THE DOCUMENTS ORDER OF THE HONBLE COURT ORDER OF THE HONBLE COURT
ABDUL GAFUR & ANR. VERSUS STATE OF BIHAR (SUPREME COURT)

DATE

PAGING AT

16/3/2012

05/05/2011 2012 CR CRI.L.R. SC 247

DATE : AHMEDABAD

____________________ MR ANAND BRAHMBHATT ADVOCATE

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IN THE HIGH COURT OF GUJARAT AT ABAD

CITY AND DISTRICT AHMEDABAD

MISC.CRI.APPLICATION NO. : IN CRIMINAL APPEAL NO. :

OF 2012

OF 2012

PRAKASH @ PAPPU S/O PUNJABHAI PARMAR Aged about 25 years (At present in the Sabarmati Jail Since the dt. of arrest i.e. July18,2009)
PERMANENT RESIDENTIAL ADDRESS : Vikas Mandal Juni Dudhwali Chali,Baherampura,Ahmedabad.
......... APPLICANT (ORIGINAL PETITIONER) VERSUS

THE STATE
......... RESPONDENT (NOTICE TO BE SERVED THROUGH THE LD. PUBLIC PROSECUTOR,having his office at Honble High Court of Gujarat)

APPLICATION FOR CONDONATION OF DELAY UNDER S.05 OF LIMITATION ACT,1963 & S.401 OF CODE OF CRIMINAL PROCEDURE,1973.
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TO THE HONBLE THE CHIEF JUSTICE AND THE OTHER HONBLE COMPANION JUDGES OF HIGH COURT OF GUJARAT AT AHMEDABAD. The Applicant above named MOST RESPECTFULLY SHEWETH THAT : 1. The applicant states that he has preferred a Criminal Appeal No. : 523 of 2011 on April 22,2011 against the judgment of the Addi.City Sessions Judge Shri D.V. Jhala Saheb of Bhadra City Sessions Court,

Ahmedabad; for the offence punishable u/s 363, 366 and 376 of IPC in the Sessions Case : 29 of 2010 (DATE OF JUDGMENT MARCH 29 OF 2011)

2. The applicant states that some of the office objections

were not removed and therefore, the aforesaid petition was notified before the Addl.Registrar (Judicial) on Board for non-removal of office objections ; for that a time limit was given upto July 11 of 2011.

3. Due to the sheer negligence of the earlier advocate

Mr Kirti R. Brahmbhatt and his clerk the matter, which

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was taken away for the removal of office objection, had been missing from the courts office records for a very long time. And the missing matter was found out by the intervention of the present advocate of the petitioner.

4. The present advocate on roll filed his vakalatnama in the said appeal No. 523 OF 2011 on February 6,2012 and appeared before the corum of Honble Justice Mr. D.H.Vaghela and Mr J.C. Upadhyaya on March 16 of 2012. And the Honble Justices passed an order which is as follows : As the appeal is already disposed of by virtue of the previous order dated 29.06.2011,no further order could be made in the appeal. Under the circumstances, learned counsel Mr.Anand Brahmbhatt proposes to make an application for appropriate relief. If and when such application is made, it may be dealt with in accordance with law. (ANNEXURE : A )

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5. The applicant states that there was no willful negligence or default on the part of the petitioner. But due to the aforesaid circumstances the Criminal Appeal of the petitioner was desposed off. Thus the matter was dismissed for non-prosecution.

6. The

present

applicant

filed

an

application

of

RESTORATION OF APPEAL i.e. Misc.Cri.Application

No.: 4923 of 2012 and even for this petition of RESTORATION OF APPEAL a new issue was raised by the filing department of the court and the applicant was suggested to file an another petition of

CONDONATION OF DELAY FOR GRANTING A RESTORATION PETITION. Having noticed this suggestion of the filing department the present advocate of the petitioner met Honble Addl.Registrar(Judicial). But Ld. Addl.Registrar (Judicial) clinged to the issue which had been raised by the filing department of the court and asked to file an application of condonation of delay for the restoration of appeal no. 523 of 2011.So ultimately the present petitioner filed two petitions i.e.
(1) A PETITION OF RESTORATION FOR CRI. APPEAL NO. : 523 OF 2011 having Cri.Msc.A. No. : 4923
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of 2012 and (2) A PETITION OF CONDONATION OF DELAY i.e. Cri.Msc.No. : 5352 of 2012.

Now these two petitions were kept on board for hearing on May 05 of 2012. The corum of Ld. Honble Justice D.H. Waghela and Justice J.C. Upadhyaya passed an order in these petitions as follows : Learned counsel Mr.Anand Brahmbhatt sought permission to withdraw the applications, if the appellant were to be permitted to file appeal afresh with necessary application for condonation of delay, in view of the fact that the appeal was not duly registered due to office objections and it has never been put up for hearing on merits . Permission being granted, the applications are disposed of with liberty to the original appellant to file fresh appeal with an application for condonation of delay. (ANNEXURE : B ) So the petitioner has filed this petiton of condonation of delay of nearly 10 months before this Honble Court.
7. The petitioner urges that if this petition is not

entertained,the applicant shall suffer irrepairable loss which cannot be compensated in terms of

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money.Therefore, the applicant prays to Your Lordship to be pleased to grant this petition.

8. The petitioner has not filed any other petition with regard to the subject-matter of this petition in any Court of Law in India except referred to hereinabove.

9. On the premises of the facts and circumstances mentioned hereinabove, the applicant prays to Your Lordship that : (A) May be pleased to dispense with the filing of the affidavit of the petitioner, as he is in the Judicial Custody. (B) May be pleased to allow this petition in the wide interest of justice. (C) May be pleased to pass such other and further orders as may be deemed fit and proper in the interest of justice.
AND FOR THIS ACT OF KINDNESS AND JUSTICE THE APPLICANT ,AS IN DUTY BOUND, SHALL FOR EVER PRAY.

AHMEDABAD
Dated : MR ANAND BRAHMBHATT (ADVOCATE FOR THE APPLICANT)
ENCLOSED :

1. VAKALATNAMA 2. LIST OF EVENTS & DOCUMENTS and 3. AN AUTHORITY OF HONBLE SUPREME COURT i.e. ANNEXURE C ABDUL GAFUR & ANR. VERSUS STATE OF BIHAR [2012 CRI.L.R. SC 247] Page 36 of 36