CR.A/682/1997 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 682 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE J.C.UPADHYAYA =============================================== 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 ? =============================================== STATE OF GUJARAT. Versus KIRITKUMAR CHANDULAL PATEL. =============================================== Appearance : Mr. MUKESH PATEL, APP, for the Appellant. NOTICE UNSERVED for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 17/09/2008 ORAL JUDGMENT :- (Per : UPADHYAYA, J.) CR.A/682/1997 2/8 JUDGMENT 1. The State of Gujarat preferred this appeal challenging the judgment and order rendered by learned Additional Sessions Judge, Valsad, at Navsari, on 15th April, 1997, in Sessions Case No.40 of 1996. The learned Additional Sessions Judge convicted the respondent herein, who was original accused No.1 in the aforesaid Sessions Case, for the offences punishable under Sections 394, 452 and 342 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment of three years and six months and pay a fine of Rs.500/-, in default, to undergo simple imprisonment for two months for the offence punishable under Section 394 of the I.P.C. No separate sentences were imposed so far as the offences punishable under Sections 452 and 342 of the I.P.C. were concerned. The appellant-State, feeling aggrieved by the sentence imposed by the learned Additional Sessions Judge upon the respondent-accused No.1 for the offence punishable under Section 394 of the I.P.C., preferred this appeal for enhancement of sentence under Section 377 of the Code of Criminal Procedure. 2. The present appeal was preferred in the year 1997. By order dated 2nd March, 1998, the appeal came to be CR.A/682/1997 3/8 JUDGMENT admitted. Till date, no notice could be served upon the respondent-accused. Considering the record of the appeal, it clearly transpires that several attempts were made to see that the respondent is served, but no service could be effected. In other words, though the appeal is of the year 1997, till today, i.e. after the lapse of a period of about eleven years, the respondent could not be served by the police agency. As per the order dated 5th August, 2008 passed in this matter, the learned Additional Public Prosecutor representing the appellant was requested to verify and report whether any appeal against the acquittal or against the conviction of the respondent has been filed or not. The Registry was also directed to report accordingly. Thereupon, the Registry reported that no cognate appeal has been filed till today. The respondent-accused was acquitted for the offences punishable under Sections 302, 397 and 450 read with Section 34 of the I.P.C. The State did not challenge the said acquittal by preferring any appeal. Likewise, the respondent did not prefer any appeal challenging his conviction for the offences punishable under Sections 394, 452 and 342 of the I.P.C. In this view of the matter, we deemed it expedient to hear and decide this appeal finally. CR.A/682/1997 4/8 JUDGMENT 3. The case of the prosecution, in a nutshell, is as under : 3.1 It is the case of the prosecution that on 28th March, 1995, at about 10.00 A.M., the respondent herein, who was accused No.1 in the aforesaid Sessions Case, along with one deceased accused, Ajay alias Vijay Rameshbhai Patel, entered the house of complainant-Dhavalkumar Hiteshbhai with a view to committing robbery and accused No.2, Babubhai Shivabhai Prajapati, according to the case of the prosecution, took the respondent and deceased-Ajay alias Vijay Rameshbhai on his scooter upto the house of complainant-Dhavalkumar Hiteshbhai. The respondent and the deceased accused-Ajay alias Vijay Patel, while committing the robbery, caused murder of mother of the complainant, named Jayaben. According to the prosecution case, the respondent caught hold of Jayaben and the deceased accused-Ajay alias Vijay inflicted blows on the body of Jayaben. It is alleged that the accused thereby committed the offences punishable under Sections 302, 397, 450 and 452 read with Section 34 of the I.P.C. CR.A/682/1997 5/8 JUDGMENT 3.2 In connection with this offence, complainant- Dhavalkumar Hiteshbhai lodged an F. I. R. before police. After completion of the investigation, the police filed charge sheet for the offences referred above against the respondent- original accused No.1 and co-accused, Bhabubhai Shivabhai Prajapati, in the Court of learned Judicial Magistrate, First Class, Navsari. Since the offences punishable under Sections 302 and 397 of the I.P.C. were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge framed charge against the accused at Exhibit 1. The accused did not plead guilty and claimed to be tried. Therefore, the prosecution adduced its oral and documentary evidence. 3.3 The learned Additional Sessions Judge, after appreciating the evidence on record and after hearing arguments advanced by both the parties, delivered the impugned judgment and order, whereby the learned Additional Sessions Judge was pleased to convict the respondent-original accused No.1 for the offences punishable under Sections 394, 452 and 342 of the I.P.C. and passed the order of sentence for the said offences and, as stated above, the appellant-State of Gujarat, feeling aggrieved by the order CR.A/682/1997 6/8 JUDGMENT of sentence passed by the learned Additional Sessions Judge, preferred this appeal. 4. Learned Additional Public Prosecutor, Mr. Patel, for the appellant-State submitted that the order of sentence passed by the learned Trial Judge for the offence punishable under Section 394 of the I.P.C. is quite inadequate; that considering the facts and circumstances of the case and the gravity of the offence, the learned Trial Judge should have adequately punished the respondent-accused; that the order of sentence is quite lenient and is not proportionate to the sentence provided in the I.P.C.; and that while fixing the sentence, the learned Trial Judge did not record any reasons for taking a lenient view. Therefore, it is submitted that the appeal be allowed and the respondent-accused be appropriately sentenced for the offence punishable under Section 394 of the I.P.C. 5. Considering the above facts and the submissions made by the learned Additional Public Prosecutor, we closely scrutinized the impugned judgment delivered by the learned Additional Sessions Judge and the record and the proceedings CR.A/682/1997 7/8 JUDGMENT to see whether any fruitful purpose would be served in keeping this appeal pending. Considering the judgment and order delivered by the learned Additional Sessions Judge, we feel that, when the respondent was convicted for the offences punishable under Sections 394, 452 and 342 of the I.P.C. and when he was acquitted for the offences punishable under Sections 302, 397 and 450 read with Section 34 of the I.P.C. and the acquittal was not challenged by the State of Gujarat by preferring any appeal under Section 378 of the Code of Criminal Procedure, the order of sentence recorded by the learned Additional Sessions Judge cannot be said to be grossly inadequate or any way lenient. In the impugned judgment, while considering the extent of sentence and fixing the quantum of sentence, the learned Additional Sessions Judge observed that when the trial was pending, the father of the accused died; that his aged mother was solely dependent upon him; and that he remained under-trial prisoner for the period of about two years and, therefore, the accused prayed for mercy. Considering the punishment prescribed under Section 394 of the I.P.C., the offence is punishable with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and with fine. In the impugned judgment, the learned Trial Judge sentenced the respondent-accused to CR.A/682/1997 8/8 JUDGMENT undergo rigorous imprisonment for three years and six months and pay fine of Rs.500/-, in default, to undergo simple imprisonment for two months for the offence punishable under Section 394 of the I.P.C. Considering the facts and circumstances of the case and the role attributed to this accused by the prosecution in connection with this offence, it cannot be said that the sentence imposed by the learned Additional Sessions Judge can be termed as grossly inadequate or insufficient. 6. For the foregoing reasons, we do not find any merits in the appeal. The appeal, therefore, stands dismissed. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt