1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) D.B. CRIMINAL APPEAL NO.720/2008 (Farid Khan Vs. State of Rajasthan) (2) D.B. CRIMINAL APPEAL NO.784/2008 (Irshad Ahmed @ Bhattu @ Chikna @ Nafis Vs. State of Rajasthan) (3) D.B. CRIMINAL APPEAL NO.284/2009 (Mohd. Salim @ Sarif & Anr. Vs. State of Rajasthan) D.B. CRIMINAL APPEALS AGAINST THE JUDGMENT DATED 18.09.2008 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE (FAST TRACK), ABU ROAD, DISTRICT SIROHI IN SESSIONS CASE NO.3/2008. DATE OF JUDGMENT : 28th April, 2009 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Dhirendra Singh ) Mr. Mridul Jain ) Mr. P.C. Solanki ) 2. Mr. Shitan Singh Badgujar ) for the respective appellants. Mr. K.R. Bishnoi ) Public Prosecutor. BY THE COURT : (PER THANVI, J.) 1. These are three criminal appeals, one filed by accused appellant Farid Khan being D.B. Criminal Appeal No.720/2008, second by accused appellant Irshad Ahmed @ Bhattu @ Chikna @ Nafis being D.B. Criminal Appeal No.784/2008 and third by accused appellants – Mohd. Salim alias Sarif and Baboo alias Bablu being D.B. Criminal Appeal No.284/2009. Since, all these three appeals have been filed against the judgment of the learned Additional Sessions Judge (Fast Track), Abu Road, District Sirohi in Sessions Case No.3/2008, therefore, they are being disposed of by this common judgment. 2. The accused appellants were acquitted for offence under Sections 120-B, 471, 473, 397, 402 IPC and Section 5/27 of the Arms Act, but they were convicted for offence under Section 395 IPC and sentenced for imprisonment of life and to pay a fine of Rs.2000/- each, and in default of 3. payment of fine to further undergo three months' simple imprisonment. Accused Shantilal, Sanjay Kumar and Vishal were also acquitted for offence under Sections 395/397 read with Section 118 IPC and accused Mohd. Javed was acquitted for offence under Sections 120-B, 395/397 read with Section 120-B and Sections 118, 402, 401, 400 IPC. During trial, one of the accused Mohd. Amin alias Aman died, therefore, proceedings against him were dropped by the learned trial court by order dated 9.6.2006. 3. The facts leading to these appeals are that on 23.2.2004, Jalam Singh PW-18 lodged a written report Ex.P-30 at Police Station Sarupganj that he is working as Cashier at Vinayak Road Lines Transport, Banas, where, Radhey Shyam is also working. On that day, at about 11.30 AM, both were going on motor-cycle bearing No.RJ 24/2M- 4276 for taking money from J.K. Puram Branch of the State Bank of India and obtained Rs.5 lacks vide Cheque No.891811. While, they were going back from the Bank with money in the bag, which was of blue colour with an endorsement of Laxmi Cement etc in Gujarati and also some receipt books etc, the bag was with Radhey Shyam 4. and he himself was driving the motor-cycle. At about 1.00 PM, on reaching near J.K. Puram Taxi Stand, they saw one while colour Maruti 800 Car bearing No.GJ-1-AP-6489. They took their motor-cycle one kilometer ahead near village Adarsh, then the driver of the car tried to make cut over the motor-cycle by driving the car with high speed, then, he turned his motor-cycle towards the side lane of the road and they fell down. Then, five persons came out from the Maruti Car, two were having revolver and katta in their hands and they threatened them to deliver the bag, else, they will be killed. One person amongst them, who was wearing blue colour jeans pant and white colour shirt snatched the bag from Radhey Shyam and one of them, who was wearing blue lining jeans pant snatched the key of the motor-cycle from him and they all ran away in the Maruti Car with high speed. Thereafter, one motor-cycle came and they went at the transport company. Upon this, police registered the case and commenced investigation. After usual investigation, police filed challan against accused Mohd. Amin @ Aman, Farid Khan, Mohd. Salim @ Sharif, Babbu @ Bablu, Irshad Ahmed @ Bhattu @ Chikna @ Nafis under Sections 395, 397, 400, 401, 471, 473, 120- 5. B IPC and Section 5/27 of the Arms Act and against accused Shantilal, Sanjay Kumar and Vishal under Section 395, 397/118 IPC and against accused Mohd. Javed under Section 395, 397, 118, 400, 401, 402, 120-B IPC before the learned Judicial Magistrate, Pindwara, who committed the case to the Court of Addl. Sessions Judge, Abu Road. 4. After hearing the arguments on charge, the learned trial Judge framed charges against accused Irshad Ahmed, Babbu @ Bablu, Mohd. Salim, Farid Khan and Mohd. Amin under Sections 120-B, 471, 473, 395, 397, 402 IPC and Section 5/27 of the Arms Act read with Section 120-B and against accused Javed under Section 395/397 read with Section 120-B, 120-B, 395/397 read with Section 118, 400, 401 and 402 IPC and against accused Shantilal, Sanjay Kumar and Vishal under Section 395/397 read with Section 118 IPC, to which, they pleaded not guilty and claimed trial. Prosecution examined 44 witnesses and marked 120 documents in evidence. Statements of the accused appellants were recorded under Section 313 Cr.P.C. Three documents were produced in defence. 6. 5. Accused Mohd. Javed, Shantilal, Sanjay Kumar and Vishal were acquitted for the charges levelled against them and proceedings against accused Mohd. Amin @ Aman were dropped on 9.6.2006 on account of his death. Rest of the four accused appellants namely Farid Khan, Irshad Ahmed @ Bhattu @ Chikna @ Nafis, Mohd. Salim alias Sarif and Baboo alias Bablu have been convicted for offence under Section 395 IPC and sentenced as indicated above. These accused appellants were acquitted for rest of the charges. 6. We have heard learned counsel for the parties and perused the record of the case. All the learned counsel for the appellants does not want to question the legality of the conviction arrived at by the learned trial court, but they simply submit that accused appellants are in custody for a period of more than five years, therefore, they should be sentenced to the period already undergone. In support of their contention, learned counsel for the accused appellants have placed reliance on the decision of Shivappa and Others Vs. The State of Mysore, reported in 1970 SCC (Cr.) 215, in which, it has been held that in the case of decoity, if no injury is caused, then, the sentence of three years has been 7. held to be sufficient instead of five years. In the cited case, two traders in cloth sent their wares in carts for sale. When the carts reached a Nala called Hori Nalla about three miles from Lingsugur at about 11.30 PM, 20 persons approached the carts and pelted stones in the dark night. Thereafter, four out of the six carts escaped, but two carts were looted. The learned trial court as well as the High Court have disbelieved that it is a case of stolen property on the basis of the presumption under Section 114 of the Evidence Act. The Hon'ble Supreme Court has held that the High Court has rightly observed that inference of presumption has been drawn against the accused in the light of the facts and circumstances of the case. In view of the circumstance of the cited case, the sentence was reduced from five years to three years. 7. Learned counsel for the accused appellants have cited one more case i.e. Babu Kuttan R. Pillai and Another Vs. State of Maharashtra, reported in (2001) 9 SCC 409. In this case, the accused appellants demanded for Rs.10 lakhs from the builders, which was finally settled at Rs.5 lakhs. In the cited case, the accused appellants were convicted for 8. offence under Section 395 IPC and sentenced to five years' rigorous imprisonment and to pay a fine of Rs.500, and in default of payment of fine to further undergo six months' rigorous imprisonment. In appeal, the High Court upheld the sentence and the same was confirmed by the Hon'ble Supreme Court. 8. In the present case, the alleged decoity is said to have been taken place when the complainant along with Radhey Shyam were coming back after taking cash amount of Rs.5 lakhs, which has been recovered later on. Looking to the facts and circumstances of the case and the circumstance under which, the offence has been committed and in the light of the cited judgments by the learned counsel for the accused appellants, we deem it just and proper that the ends of justice would meet, if the sentence of the accused appellants is reduced to the period already undergone. 9. Consequently, these criminal appeals are partly allowed. While maintaining the order of conviction for offence under Section 395 IPC against accused appellants Farid Khan, Irshad Ahmed @ Bhattu @ Chikna @ Nafis, 9. Mohd. Salim alias Sarif and Baboo alias Bablu passed by the learned Addl. Sessions Judge (Fast Track), Abu Road, District Sirohi by his judgment dated 18.09.2008, their sentence is reduced to the period already undergone, which is more than five years. However, the order of fine is maintained. The accused appellants namely Farid Khan, Irshad Ahmed @ Bhattu @ Chikna @ Nafis, Mohd. Salim alias Sarif and Baboo alias Bablu shall be released forthwith, if not required in any other case on depositing of the fine. (DEO NARAYAN THANVI), J. (A.M. KAPADIA), J. ms rathore