Harishankar Shivshankar Gupta vs State of Gujarat

Honourable Mr. Justice Jayant Patel

The present appeal is directed against thejudgement and order passed by the learnedSessions Judge in Sessions Case No.145/2006,whereby the appellant - accused has beenconvicted for the offence punishable underSection 328 and Section 394 of IPC and sentencehas been imposed upon him for 5 years'' R.I., withthe fine of Rs.1,000/-and 2 months'' S.I., fordefault in payment of fine and 10 years'' R.I.,with the fine of Rs.500/-and one year''s S.I.,for default in payment fine for the respectiveoffences.

As per the prosecution case, the complainant,Pappukumar Ramanandsinh - PW-6, when had startedhis journey in passenger train on 19.12.2004 atSurat, the accused came inside the train and hestated that he belongs to Bihar and then he offered ''liti sattu'' (one particular food likepakkoda, which is popular in Bihar area) and thecomplainant and his cousin brother Ravishconsumed the same and they became unconsciouswithin half-an-hour. Thereafter, when they camein conscious condition, they were at NandurbarHospital and they found that the said unknownperson - accused herein had offered intoxicatedfood and, therefore, they had become unconsciousand when they came in conscious condition at thehospital, they came to know that all theirbelongings amounting to Rs.8,800/-were notthere. Therefore, they filed complaint with theSurat Railway Police Station.

The complaint was investigated and thereafterthe charge-sheet was filed and the case wascommitted to the Court of the learned SessionsJudge being Sessions Case No.145/2006. TheProsecution, in order to prove the guilt of theaccused, examined 10 witnesses, details of whichare mentioned by the learned Sessions Judge atparagraph 3 of the judgement and the prosecutionalso produced documentary evidences of 9 documents, the details of which are mentioned bythe learned Sessions Judge at paragraph 4 of thejudgement. The learned Sessions Judge,thereafter, recorded the statements of theaccused u/s 313 of Cr.P.C., wherein theaccused denied the evidence against them and inthe further statements they stated that they arewrongly involved in the case by the police. Thelearned Sessions Judge, thereafter, heard theprosecution as well as the defence and ultimatelythe learned Sessions Judge found that theprosecution has not been able to prove the caseagainst the original accused No.2 to 5 and,therefore, they were acquitted. However, so faras the appellant herein - original accused No.1,the learned Sessions Judge found that theprosecution has been able to prove the case for the offences u/s 328 and Section 394 ofCr.P.C., P.C., and, therefore, held the appellantguilty for the offences. The learned SessionsJudge thereafter also heard the prosecution aswell as the defence for sentence and imposedsentence as referred to herein above. Under thesecircumstances, the present appeal before thisCourt.

The learned Counsel appearing for both the sideshave taken us to the entire evidences on record.We have considered the judgement and the reasonsrecorded by the learned Sessions Judge. We haveheard the learned Counsel, Mr.Baghel for theappellant and Ms. Shah, learned APP for theState.

We may record that the learned Counsel for theappellant, has not challenged the judgement and order of the learned Sessions Judge for holdingthe appellant - accused guilty for the offenceand for conviction of him. The learned Counselonly raised the contention for the imposition ofthe sentence upon the accused for the offenceunder Section 394 of IPC. It was submitted by thelearned Counsel for the appellant thatconsidering the aspect that even as per theprosecution case, liti sattu was offered by theappellant to the complainant and his cousinbrother, but the fact remains that as per theprosecution case that the offer was accepted by the victim and his cousin brother and it is onlythereafter they have, as per the prosecutioncase, become unconscious. It has also beensubmitted that it is not a case where any injuryis caused and immediately the complainant and hiscousin brother were discharged from the hospital.It was also submitted that there is no recoveryof any material from the appellant - accused and,therefore, it was submitted that the gravity ofthe offence, even if accepted that the convictionis valid, would be too less, which was requiredto be taken into consideration by the learnedSessions Judge while imposing sentence. Hesubmitted that the convict is a very poor personand, therefore, keeping in view the said aspect,this Court may appropriately reduce the sentenceby the period of sentence undergone, since, asper the learned Counsel for the appellant, by nowhe must have completed six years or more in jail.

Whereas, the learned APP, while supporting thejudgement of the learned Sessions Judge forconviction as well as on the aspects of sentence,submitted that it was a case where the accused made the victim and his brother to consumeintoxicated food and thereafter there was mensrea for committing theft and robbery and,therefore, the sentence imposed by the learnedSessions Judge is just and proper by the exerciseof discretion.

As the conviction is not under challenge, wefind that it is not necessary for us toelaborately deal with the evidence on record forholding the appellant - accused guilty, as heldby the learned Sessions Judge, and only aspectchallenged in the appeal is the quantum ofsentence. Therefore, we find it appropriate toconsider the only contention raised forimposition of punishment by appropriate sentenceupon the accused.

The principles of sentencing the convict are bynow well settled. Broadly, the Court has to keepin mind the gravity of the offence, the deterrenteffect to be created in the society and personalmitigating circumstances of the convict.

On the first aspect of the gravity of theoffence, we find that there is no physical injury caused or received by the victim. Further, therole is also played by the victim, inasmuch asliti sattu - food was offered and the victim hadoption to decline, but the victim, may bebonafide, accepted the offer and consumed thefood, which resulted into the incident. Further,the appellant - accused is also a very poor. Atthe same time, since such incidents are beingrepeated, deterrent effect in the society is alsorequired considered, but the fact remains thatsince none has sustained injury or there is alsorole played by the victim, the gravity of theoffence could be said as diluted substantially.

Under these circumstances, we find that itwould be appropriate to reduce the sentence for the alleged offence u/s 394 of IPC to 7(seven) years'' R.I., with the fine of Rs.500/-,and one month''s further S.I., for default inpayment of fine. So far as the sentence imposedfor the offence u/s 328 is concerned,by now the accused - appellant has alreadyundergone the sentence, as all the sentences haverun concurrently. Therefore, we are not inclined to reduce the sentence for the offence u/s 328 of IPC.

In view of the aforesaid observations anddiscussions, the judgement and order passed bythe learned Sessions Judge for the convictionunder Section 328 and Section 394 of IPC is notinterfered with and the sentence imposed for theoffence u/s 328 of IPC is also notinterfered with. However, the sentence for theoffence punishable u/s 394 of IPC shallbe 7 (seven) years'' R.I., with the fine ofRs.500/-and one month''s further S.I., fordefault in payment of fine. The other directionsissued by the learned Sessions Judge are notinterfered with.

The appeal is partly allowed to the aforesaid extent.