Babulal Sardarmal Shivlal Sevak vs State of Gujarat

Z.K. Saiyed, J.—The present Appellant has preferred this Appeal through the jail against the judgment and order of conviction and sentence dated 12.12.2008 passed by the learned Additional Sessions Judge and Fast Track Court No. 2, Ahmedabad in Sessions Case No. 163 of 2008, whereby the learned Sessions Judge has convicted the Appellant u/s 328 of the Indian Penal Code and sentenced the Appellant and the Appellant was ordered to the Appellant undergo R.I. of 5 years and to pay a fine of Rs. 5000/-, in default, to undergo further S.I. for 6 months. Learned Sessions Judge convicted and sentenced the Appellant to undergo R.I. for 1 year for offences punishable u/s 379 of the Indian Penal code and to pay a fine of Rs. 1000/-, in default, further S.I. of one month.

The brief facts of the prosecution case is as under:

As per the case of the prosecution, the complainant Maganlal Mangilal Jain travelling in the train, where the person offered food like Kachori to the complainant and thereafter, complainant slept in the train and thereafter, when he got up, he did not find his beg contained Rs. 9000/-, three demand drafts and Form No. 18-A and also did not find that stranger person. Thereafter, the accused came to be brought from Surat Jail by transfer warrant on 14.5.2007, thereafter, T.I. Parade was held, charge-sheet was filed before the Metropolitan Court No. 24 and thereafter, case came to be committed to the Sessions Court, which was registered as Sessions Case No. 163 of 2008.

Thereafter, statements of the witnesses were recorded, panchnama was drawn and accused was arrested. Thereafter, the charge was framed against the Appellant. The Appellant - accused pleaded not guilty and claimed to be tried.

To prove the case against the Appellant, the prosecution has produced documentary evidence and also examined eight witnesses before the trial Court.

Thereafter, after examining the witnesses, further statement of the Appellant - accused u/s 313 of the Code of Criminal Procedure was recorded in which the Appellant - accused has denied the case of the prosecution.

After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Fast Track Court No. 2, Ahmedabad vide judgment and order dated 12.12.2008 held the Appellant - accused guilty to the charge levelled against him under Sections 328 and 379 of the Indian Penal Code, as stated above.

Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Ahmedabad, the present Appellant has preferred this appeal.

Learned advocate Mr. Bhagel appearing on behalf of the Appellant submitted that there were several contradictions between the documentary evidence and oral evidence. There is no evidence, which shows that the complainant had eaten any poisonous food and, therefore, he became unconscious. The complainant was not in a position to produce the ticket of the railway and even there is no any recovery of any material like currency notes or demand drafts or even Form 18/A. The test identification parade is doubtful and same was held after almost two years. The oral evidence of complainant at Exhibit 12, is in contradictory manner. He further submitted that no independent witness was examined by the prosecution before the trial Court. The evidence of Medical expert Dr. Minakshi Chauhan is not proved beyond reasonable doubt. Therefore, learned Sessions Judge has wrongly convicted the Appellant - accused and therefore, the judgment and order of conviction and sentence is required to be quashed and set aside.

The learned APP Mr. H.L. Jani for the State strongly opposed the submissions made by the learned advocate for the Appellant. It was contended by learned APP that the judgment and order of the Sessions Court is just and proper and as per the provisions of law; the Sessions Court has properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present Appellant. Learned APP has also taken this Court through the oral as well as the entire documentary evidence.

Learned advocate Mr. Bhagel has submitted that he is not arguing this matter on merits, but looking the sentence imposed by the learned Sessions Judge, which is very harsh in nature and the offence in which the Appellant is involved, is not serious one and also looking to the age of the present Appellant and economic condition of the family of the Appellant, the sentence which is imposed by the learned Sessions Judge, is required to be reduced. Learned APP Mr. Jani has supported the submission of the learned advocate Mr. Bhagel. Learned APP Mr. Jani has produced jail report, which is taken on record.

I have perused the judgment and order and reasons given by the learned Judge also. After the considering the evidence, the learned Sessions Judge has rightly held the Appellant guilty of the offences and sentenced the Appellant. The Appellant was ordered to undergo R.I. as stated above. I have considered the submission made by Mr. Bhagel, learned advocate about the quantum of punishment and the Appellant is in jail from 12.12.2008 and the Appellant has undergone the sentence of 2 years, 11 months and 16 days, therefore, looking to the quantum of punishment, the sentence imposed by the learned Sessions Judge for 5 years u/s 328 is required to be modified.

In the result, this Appeal is partly allowed. The judgment and order of conviction and sentence dated 12.12.2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Ahmedabad in Sessions Case No. 163 of 2008 is hereby confirmed. However, the sentence is reduced and modified to the extent of 3 years instead of 5 years awarded by the learned Additional Sessions Judge to the Appellant - accused for the offence punishable under Sections 328 and 379 of the Indian Penal Code. Rest of the judgment and order passed by the learned Additional Sessions Judge is confirmed. R & P to be sent back to the trial Court immediately.