CR.A/1345/2003 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1345 of 2003 with CRIMINAL APPEAL No. 1443 OF 2003 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== MOHMAD NAJIRKHAN MOHMAD BASIR-KHAN PATHAN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ===================================================== Appearance : CRIMINAL APPEAL NO. 1345 OF 2003 MR SHAKEEL A QURESHI for Appellants MR. R.C.KODEKAR, ASSISTANT PUBLIC PROSECUTOR for Opponent CRIMINAL APPEAL NO. 1443 OF 2003 MS. KRUTI SHAH FOR MR. M.P.SHAH FOR Appellant MR. R.C.KODEKAR, ASSISTANT PUBLIC PROSECUTOR for CR.A/1345/2003 2/16 JUDGMENT Opponent ===================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 30.4.2008,1.5.2008,5.5.2008,13.5.2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.M.KAPADIA) 1. These two Criminal Appeals under Section 374 of the Code of Criminal Procedure (“the Code” for short) are directed against the judgment and order dated 29.9.2003 rendered in Sessions Case Nos. 59 of 2000 and 38 of 2002, by the learned Additional Sessions Judge, Vyara, District Surat, by which the Appellants of both these Criminal Appeals, who are original Accused No.1, 2 and 4 (“A-1”, “A-2” and “A-4” for short), have been convicted for commission of the offence punishable under Section 395 read with Section 397 of the Indian Penal Code (“IPC” for short) and all of them have been sentenced to imprisonment for life and fine of Rs.1000/- i.d. RI for further period of 6 months. 2. The prosecution case as disclosed from the FIR and unfolded during trial is as under: 2.1 PW-1 Maraswami Durai Pandi, who originally belonged to Thana, West Mumbai, was CR.A/1345/2003 3/16 JUDGMENT serving as a Manager since 10 months from the date of incident in the Central Bank of India at its Branch at village Gangadhara Taluka, Palsana, District Surat. 2.2 One U.A.Shaikh was working as Cashier, Kiransinh Raisinh Chaudhary was working as Clerk, Bhikhubhai Ramabhai Ahir was a Watchman, Rameshbhai Bhavarbhai Patel was a Peon and Biluben Mansing Chaudhary was a Part-Time Sweeper in the said Bank at the relevant time. 2.3 As per the case of the prosecution, on 13.3.2000, at about 12:45 pm, the Watchman was standing at the gate. At that time a person told the Watchman that fake currency notes of Rs.500/- denomination were deposited in the Bank and they have come from Surat for inspection and checking. That man caught hold of the Watchman and another person went to the Manager and put the revolver on his forehead and asked him to show the currency notes of Rs.500/- denomination for checking and also asked him to give the keys to the Cashier. Therefore, PW-1 Maraswami Durai Pandi handed over the keys to the Cashier – U.A.Sheikh. Thereafter the Manager, the Watchman, the Clerk, the Peon and one customer named Sureshbhai Govindbhai Patel, were forcibly taken to the bathroom and confined therein, and the door was closed and stopper was applied. They were about four persons. Thereafter, U.A.Sheikh, Cashier was also taken to bathroom and confined therein and the door was locked from outside. After about five minutes, the CR.A/1345/2003 4/16 JUDGMENT persons inside the bathroom, heard the noise of starting of motor vehicle. They immediately broke open the mosquito net fixed in the ventilation of the bathroom and U.A.Sheikh came out from the said ventilation and broke open the lock of the door and took the other persons out of the bathroom. 2.4 PW-1 Maraswami Durai Pandi thereafter telephoned to the Palsana Police Station from Phone No. 63196 of Niruben who resided beside the Bank. Police came with Jeep at 13:05 hours and sent the police staff in different directions for inquiry. During this period, Rs.10,00,000/- of Patel Filing Station, Gagadhara, Rs.3,00,000/- of saving Account and Rs.8,00,000/- of previous day balance, total amounting to Rs.21,00,000/- were looted from the Bank. The persons who looted the Bank were six in numbers. Out of them, three had revolver, two had saw-shaped knives and one fat person had a mobile phone with him. The said fat person told that the work has been done (kam ho gaya). These persons, thereafter, took away the double barrel rifle of the Watchman of the Bank. The persons who had come for robbery were aged about 25 to 30 years and were speaking Hindi language. Thereafter all the said persons ran away in black coloured Tata Sumo. 2.5 The sum and substance of the complaint filed by PW-1 Maraswami Durai Pandi is that on 13.3.2000 at 12:45 pm, six persons entered the Central Bank of India, Gangadhara, Taluka CR.A/1345/2003 5/16 JUDGMENT Palsana, District Surat with deadly weapons and threatened him and other employees of the Bank and thereafter forcibly took the keys of the locker and committed robbery and looted approximately Rs.21,00,000/- and thereafter they ran away in black coloured Tata Sumo. 2.6 The complaint for the aforesaid incident was taken by PW-31-Naransinh Galpathsinh Dodia, PI, at the Central Bank of India, Gangadhara, Taluka Palsana, District Surat and thereafter it was sent for registration at Palsana Police Station, which is on record at exh. 42. 2.7 On registration of the offence, the investigation was put into motion. During the course of investigation, PW-31-Naransinh Galpathsinh Dodia, PI, sent a wireless message to his higher officers. He has also arranged to call officers from the FSL as well as finger print expert and photographer. He has drawn the panchnama of the scene of offence. The statement of witnesses was also recorded. PW-32-Ranjit Labshankar Kelaiya, PSI, Vapi Out Post, Valsad, found one Tata Sumo bearing Registration No. KA 38 M 792 lying near Railway Garden Traffic Yard, R.P.F.Office. He, therefore, recovered the said Tata Sumo in the presence of panch witnesses after drawing panchnama. 2.8 Thereafter, investigation was handed over to PW-33-Dineshbhai Bhimjibhai Barwalia, PI, LCB, Surat. During the course of CR.A/1345/2003 6/16 JUDGMENT investigation, on the basis of the railway ticket and bus ticket found from the Tata Sumo, A-1 was found to be involved in the said crime. He was, therefore, arrested from Bombay. From his statement names of other accused were divulged. A-1 has shown his willingness to give the information. Therefore, discovery panchnama was drawn at his instance. Thereafter, he arranged for TI parade. Thereafter A-2 and A-3 were also arrested and at the end of the investigation, since sufficient incriminating evidence was found against the accused persons, he filed charge sheet against the accused persons before the Court of learned JMFC, Palsana after showing the other accused persons absconding for the offence punishable under Sections 147, 148, 149, 120B, 395, 397, 342 as well as under Section 25(1)(A) of the Arms Act. Thereafter A-4 was also arrested. Therefore supplementary charge sheet was filed against A-4 in the Court of the learned JMFC, Palsana for the aforesaid offences. 2.9 As the offences with which accused were charged are exclusively triable by the Court of Sessions, the leaned JMFC, Palsana committed the case to the Court of Sessions, at Vyara, where it was registered as Sessions Case Nos. 59 of 2000 and 38 of 2002. 2.10 The learned Additional Sessions Judge, Vyara (“Trial Court” for short) to whom the case was made over for trial, consolidated both the CR.A/1345/2003 7/16 JUDGMENT Sessions cases as they are arising out of the same incident and same CR, and thereafter, framed charge against A-1, A-2 and A-4 for commission of the offences punishable under Sections 395, 397, 342 of the IPC as well as under the Arms Act. The charge was read over and explained to A-1, A-2 and A-4. They pleaded not guilty to the charge and claimed to be tried. Therefore, they were put to trial by the learned Additional Sessions Judge, Vyara in Sessions Case No. 59 of 2000 and 38 of 2002. 2.11 In order to bring home the charge leveled against the Accused persons, the prosecution has examined in all 33 witnesses and relied upon their oral testimony, the details of which have been narrated in paragraph 2 of the impugned judgment and order. 2.12 To prove the culpability of the Accused, the prosecution has also produced number of documents, such as the complaint, panchnama of the scene of offence, panchnama of the recovery of weapons well as Tata Sumo and FSL report etc., and relied upon the contents of the same, the details of which are mentioned in paragraph 3 of the impugned judgment and order. 2.13 After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them in CR.A/1345/2003 8/16 JUDGMENT the evidence of the prosecution witnesses and recorded their further statements as required under Section 313 of the Code. In their further statement they stated that false case has been filed against them. They denied the prosecution case in its entirety and stated that they are innocent persons and they have been falsely trapped in this case. However, they did not lead any evidence nor did they examine any witness in support of their defence. 2.14 On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court has recorded its finding in paragraph 34 of the impugned judgment and order and held that prosecution has established the complicity of A-1, A-2 and A-4 for commission of the offences punishable under Sections 395 read with Section 397 of the IPC, and accordingly sentenced them to imprisonment for life and fine of Rs.1000/- i.d. R.I. for further period of 6 months, which has given rise to the instant two Criminal Appeals being Criminal Appeal No. 1345 of 2003 by A-1 and A-4 and Criminal Appeal No. 1443 of 2003 by A-2. It may be noted that the trial Court has acquitted Accused CR.A/1345/2003 9/16 JUDGMENT No.3 of the offence with which he was charged. 3.Mr. Shakeel A. Qureshi, learned advocate who has filed Criminal Appeal No. 1345 of 2003, representing A-1 and A-4, and Ms. Kruti Shah, learned advocate who has filed Criminal Appeal No. 1443 of 2003 representing A-4, at the outset candidly submitted that they are not challenging the order of conviction recorded against the accused persons on merits. However, they prayed that a sympathetic view may be taken so far as imposition of sentence is concerned. According to them, Trial Court has imposed imprisonment for life to all the accused. As per the prosecution case, nobody has received injury, either simple or grievous in nature. Therefore, mercy may be shown to the accused so far as imposition of sentence is concerned. It is also emphasized by them that normally in such type of cases, it can be seen from catena of decisions of the Supreme Court that Supreme Court has imposed sentence which varies from 3 to 7 years. They have also highlighted the grounds for taking sympathetic view in the matter of imposition of sentence upon the accused CR.A/1345/2003 10/16 JUDGMENT persons, for which they have pressed into service following decisions of Supreme Court as well as other High Courts: (i) Subhash v. State of Haryana, AIR 2008 SC 448. (ii) Kusho Mahton and another v. The State of Bihar, AIR 1980 SC 788. (iii) Shivappa and others v. The State of Mysore, AIR 1971 SC 196. (iv) Subhaya Perumal Pilley and etc., v. The State, 1997 CRI.L.J.922. It is therefore urged that in view of the facts and circumstances of the case, for taking lenient view for imposition of sentence, the period of imprisonment undergone by the accused, which according to them is more than 8 years, may be treated as substantive sentence and the accused persons may be released, if their presence is not required in connection with any other offence. They, therefore, urged to allow the Appeal partly qua sentence and pass appropriate orders in this regard. 4.In counter submission, Mr. R.C.Kodekar, learned APP for the Respondent – State of CR.A/1345/2003 11/16 JUDGMENT Gujarat has submitted that no leniency may be shown to the accused persons so far as imposition of sentence is concerned. According to him, the accused persons are involved in a very serious crime of dacoity and robbery. Therefore, with a view to set an example in the society, the accused persons must be punished heavily. The trial Court has very rightly imposed the sentence of imprisonment for life. He, therefore, urged that there is no substance in the submissions advanced by the learned advocates appearing for A-1, A-2 and A-4 for taking liberal view in the matter of imposition of sentence. He, therefore, urged to dismiss both the Appeals. 5.This Court has considered the submissions advanced by Mr. Shakeel A. Qureshi, learned advocate for A-1 and A-4, Mr. Kruti Shah, learned advocate for A-2 as well as Mr. R.C.Kodekar, learned APP for the Respondent – State of Gujarat. This Court has also considered the grounds stated by the accused persons for taking liberal view for imposition of sentence and has also considered the decisions cited at the bar. CR.A/1345/2003 12/16 JUDGMENT 6.So far as A-1 is concerned, he is aged about 34 years and is residing at Amrut Nagar, Mumra Road, District Thane, State of Maharashtra. He has got his wife and children. At the time of incident he was doing the labour work and was earning from the said labour work. He has undergone almost 8 years of imprisonment and therefore, his family is ruined. The life of his father and mother is also ruined. Therefore, he has urged to take a sympathetic view for imposition of sentence. 7.So far as A-2 is concerned, he is aged 30 years and married person and is residing at Jamshedpur and at the time of incident he was doing some work of iron-smith labour in one motor garage. He has to look after his father and mother who are aged about 72 and 65 years respectively. He is having five sisters and four brothers, out of which two sisters are married and three sisters are unmarried, who are at present residing with father and mother. The three brothers of the accused are residing separately and therefore A-2 has to look after his old aged father and mother, sisters and one CR.A/1345/2003 13/16 JUDGMENT brother. It is also stated by him that just prior to the incident, he has married to Shabnam Ansari, who is waiting for her husband to come out of the jail. It is, therefore, prayed to take a lenient view for imposition of sentence. 8.So far as A-4 is concerned, it is stated that he is in jail since 13.06.2000 and completed 8 years of imprisonment. He is married and is having 2 children. He is the only bread-winner of his family and during his absence in his family for long period of 8 years, it is very difficult for the family to survive at present. They are dependent on other family members. He is not having any criminal antecedents. It is therefore, prayed to take a lenient view for imposition of sentence. 9.In the case of Subhash v. State of Haryana (supra), the Supreme Court has held that sentence of 7 ½ years R.I. has already undergone by the accused, who is convicted under Sections 392, 397, 300 and 304 Part- II, is sufficient. 10.In the case of Kusho Mahton and another v. The State of Bihar (supra), the Supreme CR.A/1345/2003 14/16 JUDGMENT Court while upholding the conviction under Section 395 of the Indian Penal Code has reduced the sentence to the period of actual imprisonment already undergone. 11.In the case of Shivappa and others v. The State of Mysore (supra), the Supreme Court while upholding the conviction under Section 395 of the Indian Penal Code, has imposed sentence of 3 years R.I. as no serious injury was caused to the victim. 12.In the case of Subhaya Perumal Pilley and etc., v. The State (supra), the Bombay High Court while upholding the conviction under Section 395 and 397 has reduced the sentence of 10 years to sentence of 7 years, as there was no grievous hurt had occurred nor any victim had sustained minor injury. 13.Applying the principles laid down by the Supreme Court as well as Bombay High Court in above referred to judgments, to the facts of the instant case, it is not the case of the prosecution that while committing dacoity or robbery, the accused have inflicted either minor or major injury to any of the member of the complainant party. They have committed CR.A/1345/2003 15/16 JUDGMENT dacoity and robbery and looted the cash amount of approximately Rs.25 lacs and thereafter ran away in black coloured Tata Sumo. 14.The trial Court has imposed imprisonment of life to each of the accused and fine of Rs.1000/- i.d. further RI of 6 months, which according to us is little harsh, as no injury is caused by the accused to any of the member of the complainant party. Therefore, according to us, sentence of imprisonment for life is required to be reduced to RI of 10 years and fine of Rs.1000/- i.d. further RI of 6 months, which would meet the ends of justice. 15.For the foregoing reasons, both the Appeals succeed in part and accordingly they are partly allowed qua sentence only. Resultantly, the judgment and order dated 29.9.2003 rendered in Sessions Case Nos. 59 of 2000 and 38 of 2002, by the learned Additional Sessions Judge, Vyara, District Surat, convicting the accused for commission of the offence punishable under Section 395 read with Section 397 of IPC, is hereby confirmed and maintained. However, while upholding the order of conviction, recorded against each of the accused, we reduce the sentence of imprisonment for life to sentence CR.A/1345/2003 16/16 JUDGMENT of R.I. for 10 years and fine of Rs.1000/- i.d. RI for further period of 6 months, and therefore, now the accused are sentenced to RI for 10 years and fine of Rs.1000/- i.d. RI for further period of 6 months. 16.Both the Criminal Appeals are accordingly disposed of. (A.M.Kapadia,J) (R.H.Shukla,J) Jayanti*