CR.A/930/1999 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 930 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE DN PATEL ========================================================= 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 ? ========================================================= SHARFUDDIN KAMARUDIN & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS REKHA H KAPADIA for the Appellants. Ms. D.S.Pandit, Addl. PUBLIC PROSECUTOR for the respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH and HONOURABLE MR.JUSTICE DN PATEL Date : 03/12/2008 ORAL JUDGMENT CR.A/930/1999 2/17 JUDGMENT This appeal is under section 374 read with section 386 of the Code of Criminal Procedure by original accused nos. 1 and 2 of Sessions case no. 114 of 1998 tried by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad. The appellants have challenged legality and order of conviction and sentence dated 6th August, 1999 hereby both the accused have been held guilty for the offence punishable under section 376(2) read with section 34, section 342 read with section 34, section 394 read with section 34 of the Indian Penal Code and under section 25(1 a) of the Arms Act. Both the accused have been ordered to undergo imprisonment for life and to pay fine of Rs. 500/- each qua for the offence punishable under section 376(2) read with section 34 of the Indian Penal Code. They are sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 500/- for the offence punishable under section 342 read with section 34 of the Indian Penal Code. They have been imposed life imprisonment and to pay a fine of Rs. 1000/- for the offence punishable under section 394 read with section 34 of the Indian Penal Code and undergo rigorous imprisonment for five years and pay fine of Rs. 500/- for the offence punishable under section 25(1a) of the Arms Act, in default, punishment is simple imprisonment for one month, except for the offence punishable under section 394 read with section 34 of the Indian Penal Code, in default punishment for the said offence is simple imprisonment for two months. CR.A/930/1999 3/17 JUDGMENT 2. Initially, learned advocate Ms. Shilpa Shah was appointed to represent the case of appellant no. 1 and Ms. Rekha Kapadia for appellant no. 2. But because of personal inconvenience on the part of Ms. Shilpa Shah, Registry has appointed Ms. Rekha Kapadia to represent case of appellant no.1 on the strength of the order passed by this Court on 28th November, 2008. We have heard learned advocate Ms. Kapadia for both the appellants and learned Additional Public Prosecutor Ms. Pandit for the respondent State. 3. The case of the prosecution in nutshell is reflected in charge-sheet exh. 4. It is alleged that both the appellants (hereinafter referred as accused), with a common intention entered the field of the complainant located in the sim of village Bakrol, Ta: Dascroi on 27th/28th September, 1994 at about 2.00 a.m. and their intention was to commit loot (robbery). Both the accused then reached near bore well of the field where the complainant and the prosecution witnesses were sleeping. All of them were threatened on the gunpoint of country made pistol, their hands and legs were tied and the, ornaments- golden as well as silver- were looted by both the accused. They also snatched a wrist watch worth Rs. 100/- and cash of Rs. 360/- and Rs. 3000/- from two different prosecution witnesses. While committing the offences of robbery, the complainant as well as witnesses were forced to go inside the small room erected adjacent to bore well and they were confined CR.A/930/1999 4/17 JUDGMENT inside. It is alleged that after committing robbery and bolting witnesses in the room the accused forcibly took away minor daughter of the complainant behind one small room erected adjacent to bore well and both the accused committed rape on her one after another. According to prosecution, the accused firstly had entered the field of prosecution witness Mahobbatsinh Mohanbhai at about 11.00 p.m. some time prior to midnight on 27th September, 1994 and locked the witness. This witness and his wife were threated by showing a country made pistol and dharia which the accused were holding and their legs and hands were also tied by the accused. At that time, the accused had fired the country made pistol, as a result of which, the sari put on by the wife of witness Mahobbatsinh sustained damages. It is alleged that thereafter at about 1.00 a.m., immediately after mid night, the accused entered the field of PW Mohanbhai Somabhai and under threats, his both hands were tied by the accused and he was robbed, Rs. 169.20 ps. were snatched way by the accused under force and coercion. He was also threated by country made pistol that the accused were holding. Thus, according to prosecution, the accused, while committing these offences, used country made pistol and unlicensed fire arm and thereby committed the offence punishable under section 25(1a) of the Arms Act. In the trial, the accused were facing a specific charge that they committed three offences, one after another in the same sequence between 11.00 p.m. on 27th September, 1994 and 2.00 a.m. on 28th September, 1994. The CR.A/930/1999 5/17 JUDGMENT investigating agency ultimately filed a common charge-sheet for these three criminal wrong committed in sequence. 4. To prove the charge Exh. 4, the prosecution has examined total 17 witnesses and has placed 21 different documents including medical evidence and FSL report. After evaluating the evidence, the learned Trial Judge found that the prosecution has successfully proved charge beyond reasonable doubt and while holding so, the learned Trial Judge has placed reliance on deposition of eye witnesses and more particularly the complainant and his victim daughter who was raped by both the accused. The learned Trial Judge has also considered one crucial document, that is, TI parade panchnama drawn and proved by the Executive Magistrate PW 15 Exh. 41 Mahendrabhai Ramjibhai. 5. Learned advocate Ms. Kapadia has taken us through the judgment under challenge and the relevant part of the oral as well as documentary evidence led by the prosecution. But before making submissions on merits, she has drawn our attention to one aspect that the present appellants have been sentenced for life in the background of scheme of section 75 of the Indian Penal Code and the learned Trial Judge, while imposing life imprisonment to the accused qua offence punishable under section 394 read with section 34 of the Indian Penal Code, has mainly considered the provisions of section 75 of the Indian Penal Code. It is also submitted by her that considering the nature CR.A/930/1999 6/17 JUDGMENT of evidence led by the prosecution, the learned Trial Judge ought not to have imposed life imprisonment for the offence punishable under section 376(2) of the Indian Penal Code to the accused persons. It is submitted that no punishment more than minimum prescribe could have been imposed. Backbone of the story of the prosecution is that the intention of the accused was to commit loot, that is, offence punishable under section 394 of the Indian Penal Code and not a rape or gang rape. The victim girl was not successful in identifying one of the accused as person committing rape on her. Only accused no.1 has been identified by victim girl during TI parade. True it is that he could have been held guilty for the very offence considering the scheme of section 34 and/or section 114of the Indian Penal Code as there is some evidence as to commission of rape by the accused no.1 and victim girl was able to identify the accused no.1, that is, appellant no.1 in the present case. But in such a situation, imprisonment for life imposed by the learned Trial Judge, at least, should be held to be harsh punishment and it needs to be reduced to minimum prescribed. 6. It is submitted that she has instructions from both the appellants not to press this Appeal against order of conviction and concentrate arguments on the point of quantum of punishment imposed by the learned Trial Judge. It is submitted that the present accused were charged for similar offence and they CR.A/930/1999 7/17 JUDGMENT were tried by the very Judge as accused of Sessions case no. 115 of 1998. Copy of the judgment delivered by the learned Additional Sessions Judge in the said Sessions case is part of record of the present case because a copy of the judgment of conviction and sentence was relevant and important evidence in subsequent case of similar nature in the background of Section 75 of the Indian Penal Code. The learned Additional Public Prosecutor conducting trial against the accused had, therefore, placed the order of conviction recorded by the Sessions Court dated 1st June, 1999 on record. It is submitted by learned advocate Ms. Kapadia, after taking us through relevant part of the judgment under challenge, wherein the learned Sessions Judge has observed that the accused deserve severe punishment in the background of provisions of section 75 of the Indian Penal Code so that correct message deterrence reaches to the society, to the accused as well as to the persons intending to commit such or similar offence. 7. Today, Ms. Kapadia has tendered the judgment of this Court delivered in Criminal case no. 630 of 1999 dated 25th November, 2004 (Coram: D.K.Trivedi and S.R.Brahmbhatt,JJ). Justice D.K.Trivedi (As he then was), on behalf of the Bench, said for the Bench that the prosecution has failed in establishing the charge beyond reasonable doubt and therefore, they deserve acquittal and they are entitled to benefit of doubt. While acquitting the accused, this Court in the said judgment, has considered one decision of the CR.A/930/1999 8/17 JUDGMENT Apex Court in the case of Daya Singh vs. State of Haryana reported in 2001 SC 1188 and also one judgment of Kerala High Court in the case of George and others vs. State of Kerala and another reported in 1998 Criminal Law Journal, 2034. But ultimately decided that the accused deserve acquittal and they should be given benefit of doubt considering the nature of evidence available on record. The conviction recorded by the learned Additional Sessions Judge in Sessions case no. 115 of 1998 was not found sustainable by this Court and there is nothing on record to show, at least, today that judgment and order of acquittal of this Court in above said Criminal Appeal has been challenged by the State before the Apex Court. It is argued by the learned advocate Ms. Kapadia that in the background of the acquittal recorded, the case of the accused in the present appeal requires to be considered on different footing and they should not be viewed as habitual offender or persons held guilty of the offence punishable under section 394 of the Indian Penal Code and obviously therefore, section 75 of the Indian Penal Code would lose its relevance. It is apparent from the judgment under challenge that they have been imposed life imprisonment, considering the case against the accused as the second case, after conviction. This Court can reduce the period of substantive punishment imposed for the offence found proved, from life imprisonment to 10 years imprisonment. It is submitted by her that considering the totality and nature of evidence, the CR.A/930/1999 9/17 JUDGMENT punishment to undergo rigorous imprisonment for 7 to 10 years for the offence punishable under section 376 read with section 34 of the Indian Penal Code could be adequate punishment and the equal punishment for 10 years also can be imposed for the offence punishable under section 394 of the Indian Penal Code read with section 34 of the Indian Penal Code. The imprisonment for life would be too harsh punishment when they have been acquitted by this Court in one similar case. 8. In response of the query raised by the Court, the learned Additional Public Prosecutor has submitted that in view of the acquittal recorded by this Court, accepting appeal of the accused qua order of conviction and sentence recorded by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions case no.115 of 1999, section 75 of the Indian Penal Code, now shall have no relevance and this Court will have to consider quantum of punishment in the background of the subsequent development, that has taken place. When two persons have been found guilty of the charge of committing rape on minor girl, the age of minor girl needs consideration and the girl allegedly raped by the accused was not below 11-12 years. So, punishment more than minimum prescribed if imposed to the accused would meet the ends of justice. She has also drawn our attention to certain decisions, wherein the accused found guilty of the charge for the offence punishable under section 376 of the Indian Penal Code CR.A/930/1999 10/17 JUDGMENT have been awarded punishment for 10 yeas rigorous imprisonment. 9. Having considered the submissions made, more particularly, submissions made by the learned advocate for the appellant accused Ms. Rekha Kapadia, we feel that there is enough force in her submissions when the accused have fairly accepted that this is a case where order of conviction need not be challenged, but quantum of punishment requires to be challenged, more particularly, in the background of the quality and quantity of the evidence led by the prosecution. The plain reading of concluding paragraphs are challenged, it is apparent that imprisonment for life has been awarded to the accused as they were held guilty of similar offence in Sessions case No. 115 of 1998 tried earlier by the very Presiding Officer. The first judgment is of 1st June, 1998 in Sessions case no.115 of 1998 and the judgment under challenge in the present appeal in Sessions case no. 114 of 1998 is of 8th August, 1998. So, on the date of delivery of the judgment under challenge, section 75 of the Indian Penal Code had its application and therefore, the learned Trial Judge held that the accused deserve severe punishment. It would be beneficial for us to reproduce relevant portion of section 75 of the Indian Penal Code which reads as under: "75. Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction-Whoever, having CR.A/930/1999 11/17 JUDGMENT been convicted- (a) by a Court in (India) of an offence punishable under Chapter XII or Chapter XVII of this Code with imprisonment of either description for a term of three years or upwards (***) shall be guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to (imprisonment for life) or to imprisonment of either description for a term which may extent to ten years)." 10. Scheme of section 211 of the Criminal Procedure Code, if read carefully, it says about contents of the charge and the provisions of section 75 of the Indian Penal Code, say about enhanced punishment in certain cases the accused thus should be made aware of the fact that he may be imposed punishment of either life or of 10 years, if he is held guilty being accused of second or third offence of a particular category. On close reading of the statement recorded by the learned Trial Judge under section 313 of the Criminal Procedure Code, of the accused, we do not find that the learned Trial Judge had ever attempted to point out one clear thing to the accused that the conviction recorded by the Court in Sessions case no.115 of 1998 dated 1st June, 1999 would go against them and they may be imposed enhanced punishment contemplated under section 75 of the Indian Penal Code. 11. Same is the situation qua one another judgment in the case tried against the present accused by the learned Additional Sessions Judge as CR.A/930/1999 12/17 JUDGMENT the accused of Special case no.11 of 1999. Ms. Rekha Kapadia has fairly drawn the attention of this Court to one judgment delivered by this Court in Criminal Appeal no. 880 of 2000- decided on 11th October, 2007. (Coram: C.K.Buch,J). She has pointed out that the accused were held guilty by the learned Additional Sessions Judge, Nadiad vide judgment dated 17th July, 2000. Total three accused persons, including both these appellants were held guilty of the charge of offence punishable under sections 397, 376, 342, 366,428 read with section 114 of the Indian Penal Code. So the conviction recorded by the learned Trial Judge, came to be confirmed by this Court. Thus the conviction of offence punishable under section 397 read with section 114 of the Indian Penal Code are concerned, would become relevant. However, her submission needs consideration that the prosecution has not cared to prove this fact of conviction recorded by the learned Additional Sessions Judge, Nadiad in Special Case no. 11 of 1999. True it is that the judgment of this Court was not there on the day of conclusion of trial in Sessions case nos.114 and/or 115 of 1998 came to be concluded. But it was possible for the prosecution to place certified copy of the judgment of order and conviction recorded by the learned Additional Sessions Judge, Nadiad keeping in mind the scheme of section 298 of the Code of Criminal Procedure. It is submitted by the Counsel for the appellant that Section 75 of the Indian Penal Code ought not to have been invoked by the trial Court for awarding enhanced CR.A/930/1999 13/17 JUDGMENT punishment mainly for the following reasons: (i) no charge has been framed, as required under Section 211 of the Code of Criminal Procedure, 1973 for enhanced punishment imposable under Section 75 of the Indian Penal Code; (ii) while recording further statement of the accused-appellant under Section 313 of Code of Criminal Procedure, 1973, no such question of previous conviction has ever been asked by the trial Court, and (iii) there is clear breach of Section 298 of the Code of Criminal Procedure, 1973 by the prosecution. In view of the aforesaid three reasons, the judgment and order of conviction and sentence invoking Section 75 of Indian Penal Code deserves to be quashed and set aside. Looking to the evidence on record led before the trial Court, it appears that judgment and order of conviction by Sessions Court in Special Case No. 11 of 1999, was never presented by the prosecution as required under Section 298 of the Code of Criminal Procedure, 1973. Section 298 of the Code reads as under: "298. Previous conviction of acquittal how proved.- In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other mode provided by any, law for the time being in force,- (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which CR.A/930/1999 14/17 JUDGMENT such conviction or acquittal was held, to be a copy of the sentence or order, or (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was suffered. Together with, in each of such cases evidence as to the identity of the accused person with the person so convicted or acquitted. " In view of the aforesaid provision of Code of Criminal Procedure, there is a set and prescribed method of proving fact of previous conviction. If at all, the prosecution is relying upon it for getting awarded enhanced punishment, as required under Section 75 of Indian Penal Code. Looking to the evidence on record and looking to the documents presented by the prosecution before the trial Court, no certified copy of judgment and order of conviction and sentence awarded by Sessions Court, in Special Case No. 11 of 1999 was laid before the trial Court. Thus, in absence of any such judgment no reliance can be placed upon the previous conviction of the appellant, much less upon judgment and order of conviction in Special Case No. 11 of 1999. We are not deciding whether a separate charge ought to be framed under Section 211 of the Code of Criminal Procedure, 1973 or not? Likewise we are also not deciding an impact of, not asking a question to the accused while recording his further statement under Section 313 of Code of Criminal Procedure, 1973. Thus, there is clear breach of Section 298 of the Code of Criminal CR.A/930/1999 15/17 JUDGMENT Procedure, 1973 about his previous conviction. The previous conviction in Special Case No. 11 of 1999 by the Sessions Court cannot be relied upon for awarding enhanced sentence under Section 75 of the Indian Penal Code. We leave the question open for the decisions in the future cases, whether a separate charge is necessary for awarding enhanced punishment under section 75 of the Indian Penal Code or whether a question should be asked to an accused under Section 313 of the Code of Criminal Procedure,about his previous conviction. 12. Undisputedly, in the present case, neither copy or any extract of the proceedings that were pending before Special Judge, Kheda at Nadiad were there on record before the learned Trial Judge. So, according to us, the accused otherwise, could not have been imposed life imprisonment invoking the provisions of section 75 of the Indian Penal Code. 11. For the reasons aforesaid, we are inclined to accept the submissions made by the learned advocate Ms. Kapadia and reduce the quantum of punishment imposed by the Trial Court to rigorous imprisonment for 10 years. Both the accused, are now ordered to undergo rigorous imprisonment for 10 years for the offence punishable under section 376 of the Indian Penal Code and also rigorous imprisonment for 10 years for the offence punishable under section 394 of the Indian Penal Code. There is no need to alter the quantum of punishment imposed by the trial Court qua other two offences, that is, offence punishable CR.A/930/1999 16/17 JUDGMENT under section 342 of the Indian Penal Code and section 25(1a) of the Arms Act. Obviously, both the sentences would run concurrently and therefore, it is hereby ordered thus: 13. Record and proceedings of Sessions case no.113 of 1998 decided by the learned Additional Sessions Judge, Ahmedabad (Rural), Ahmedabad dated 13th August, 1999 is with the Court docket of the present appeal. The order of conviction and sentence recorded by the learned Additional Sessions Judge in Sessions case no.113 of 1998 has been assailed independently by preferring Criminal Appeal no. 928 of 1998 and the quantum of punishment imposed by the learned trial Judge is of five years. As two different cases have been tried differently, and by two different Presiding Officers, the appeal obviously, shall have to be heard independently and therefore, it was not legally possible for us to deliver common judgment in both the criminal appeals and therefore, no formal orders are passed in Criminal Appeal no. 928 of 1999. The Registry is directed to place Criminal Appeal no.928 of 1999 for hearing before the Bench taking up Criminal Appeals of short sentence. Order and direction accordingly. 14. For the reasons stated in the judgment, this Appeal is partly allowed. The punishment imposed by the trial court considering the provisions of Section 75 of the Indian Penal Code of life imprisonment for the offence punishable under section 394 of the CR.A/930/1999 17/17 JUDGMENT Indian Penal Code is reduced to 10 years. In the same way, quantum