Jagadish Mulajibhai Patel vs State of Gujarat

K.S. Jhaveri, J.—The present appeal, u/s 374 of the Code of Criminal Procedure, 1973, is directed against the judgement and order of conviction dated 09.05.2005 passed by the Additional Sessions Judge, Fast Track Court No. 4, Ahmedabad City in Sessions Case No. 199 of 2003, whereby the accused has been convicted of the charges leveled against him u/s 392 & 397 of the Indian Penal Code. The accused is ordered to undergo rigorous imprisonment for three years for offence u/s 392 of Indian Penal Code and fine of Rs. 2000/- in default simple imprisonment for three months and ten years u/s 397 of Indian Penal Code with fine of Rs. 3000/- in default simple imprisonment for six months. He has, however, been acquitted of the charge u/s 135 of the B.P Act.

It is the case of the prosecution that on 16.12.2002, the complainant travelled in Saurashtra Express train in General Coach and at about 06.00 am the train stationed at Ahmedabad railway station. At that time, three people entered the general coach and sat beside the complainant. One was wearing a shawl and the other one was short whereas the third person was lean.

2.1 After some time, one of the them put the shutter of the train''s window down and thereafter threatened the complainant with knife to part with his belongings. The other two persons checked the pockets of the complainant as well as other passengers. They then took Rs. 2000/- from the complainant and other belongings from other passengers.

2.2 After the three persons left towards the engine, the complainant informed two police officials in plain clothes carrying a lathi on the platform. When the complainant alongwith the police officials went towards the area where the three persons had gone, they found three people sitting at the edge of the platform. They tried to run away however the person with the shawl-present appellant was caught by the police whereas the other two escaped.

2.3 Thereafter on the strength of the complaint filed by the complainant, the offence was registered against the present appellant. Investigation was carried out and chargesheet was submitted against the appellant for commission of offence punishable u/s 392, 397 r/w 114 of Indian Penal Code and Section 135(1) of B.P. Act. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2.4 The trial was initiated against the appellant and during the course of trial the prosecution examined 9 witnesses as oral evidences as under:

P.W. 1 Prahladbhai Somabhai Patni Ex. 11

P.W. 2 Irshadhusain Abdhulrahim Shaikh Ex. 12

P.W. 3 Arvindkumar Budhalal Ex. 14

P.W. 4 Chinubhai Jogibhai Ex. 15

P.W. 5 Premjibhai Mogjibhai Patel Ex. 16

P.W. 6 Somu Shukatbhai Ex. 28

P.W. 7 Yakubkhan Samratkhan Pathan Ex. 30

P.W. 8 Vinodbhai Shankarbhai Prajapati Ex. 37

P.W. 9 Sartansinh Magansinh Chavda Ex. 41

2.5 The prosecution also examined 9 documents as documentary evidences as under:

Complaint Ex. 29

Report of charge officer Ex. 31

Panchnama of scene of offence Ex. 32

Panchnama of catching accused Ex. 33

Panchnama regarding seizure of Rs. 500/- Ex. 34

Special Report Ex. 35

Notification of Police Commissioner Ex. 36

Letter regarding deletion of name of accused No. 3 Ex. 39

Xerox copy of the post mortem note of accused No. 3 Ex. 40

2.6 At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant of the charges leveled against him u/s 392 and 397 and acquitted him u/s 135 of B.P. Act by judgement and order dated 09.05.2005.

2.7 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant has preferred the present appeal.

Ms. Rekha Kapadia, learned advocate appearing on behalf of the appellant has fairly conceded on the part of conviction of the appellant. She has concentrated on the sentence awarded to the appellant.

3.1 Ms. Kapadia has submitted that the sentence awarded by the court below is on the higher side and the same may be reduced. She has submitted that the knife alleged to have been used by the appellant was not recovered from him. She has also submitted that considering the nature of injury inflicted upon the complainant and the non-discovery of knife, the court may consider reducing the sentence to already undergone.

We have gone through the judgement and order passed by the court below. We have also perused the oral as well as documentary evidence led by the trial court and also considered the submissions made by learned Advocate for both the sides.

The trial court has examined the evidences on record in detail. It is borne out that the accused No. 2 had surrendered before the police on 30.12.2002 whereas the accused No. 3 expired. However, it is also clear that the knife alleged to have been used in the said extortion was not discovered from any of the accused. Moreover, it is also required to be considered that there are no serious injuries said to have been caused upon the complainant.

5.1 We find that the findings recorded by the trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of conviction recorded by the court below and hence find no reasons to interfere with the same.

In view of the above discussion, it is though clear that the appellant was involved in the alleged offence, however, looking to the nature of injury and the fact that no discovery of weapon was made from the accused, this Court thinks it fit to reduce the sentence awarded to the appellant.

In the above view of the matter, we are of the considered opinion that the trial court was completely justified in convicting the appellant of the charges leveled against him. However interest of justice shall be met by reducing the sentence of ten years u/s 397 of Indian Penal Code to seven years.

This appeal is partly allowed.

(i) The conviction of the appellants under Sections 392 & 397 of the Indian Penal Code vide judgment and order dated 09.05.2005 passed by the learned Additional Sessions Judge, Fast Track Court No. 4 Ahmedabad in Sessions Case No. 199 of 2003 is upheld.

(ii) However, the sentence imposed by the Additional Sessions Judge, Ahmedabad u/s 397 of Indian Penal Code is modified and the sentence of ten years is reduced to seven years. The sentence imposed upon the appellants u/s 392 of Indian Penal Code is confirmed. Both the sentences shall run concurrently.