Kilanbhai Mathurbhai Sangada vs State of Gujarat

Z.K. Saiyed, J.—The present appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 30.6.2006 passed by the learned Addl. Sessions Judge, Fast Track Court No. 3, Navsari in Sessions Case No. 2/2006, whereby, the learned Judge has convicted the appellant u/s 395 of IPC and sentenced to undergo R/I for 7 years and to pay a fine of Rs. 1000/-, in default, to undergo further R/I for three months. The appellant is convicted u/s 397 of IPC and sentenced to undergo R/I for 7 years and the appellant is also convicted u/s 25(1B)(A) of Arms Act and sentenced to undergo R/I for one year and to pay a fine of Rs. 200/-, in default, to undergo further R/I for fifteen days, which is impugned in this appeal.

The brief facts of the prosecution case is as under:

That the complainant and his son came to their petrol pump on 17.10.2000 and were busy in account of collection and one Bhikhubhai Lad was working as cashier and one helper Jitubhai Patel was also working at the petrol pump and at about 6.50pm, in the evening, suddenly the stone pelting was done and the glass of the cabin was broken and one of the stone was also thrown to the Ashokbhai and he was injured and immediately he came to see what is done the outside of the petrol pump and he saw that some persons were coming for looting the cash and one of them has fired and threw some powder in the cabin and because of this powder, the smokes have been come out and taking advantage of this situation, the persons who have come for looting have taken the cash of Rs. 70,000/- from the cashier Bhikhubhai and they have created the danger atmosphere by firing from the fire arms.

Therefore a complaint came to be filed by the complainant before the Chikhali Police Station. The panchnama of the place of offence was prepared in the presence of panch witness and statements of witnesses were recorded and on completion of the investigation, charge-sheet was filed in the Court of learned JMFC, Chikhali. Thereafter, as the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was given number as Sessions Case No. 2/2006.

Thereafter, the charge was framed at Ex. 2 against the appellant. The appellant - accused has pleaded not guilty and claimed to be tried.

In order to bring the home the charge levelled against the appellant - accused, the prosecution has examined the witnesses and also produced documentary evidence before the trial Court.

Thereafter, after examining the witnesses, further statement of the appellant-accused u/s 313 of CrPC 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 Judge vide impugned judgment and order dated 30.6.2006 held the appellant - accused guilty to the charge levelled against him u/s 395 and 397 of IPC and u/s 25(1B)(A) of the Arms Act and convicted and sentenced the appellant accused, as stated above.

Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Navsari, the present appellant has preferred this appeal.

Heard Mr. B.K. Oza, learned advocate for the appellant and Mr HH Parikh learned APP for the respondent-State.

Mr. B.K. Oza learned advocate appearing for the appellant has fairly admitted that he is not arguing the matter on merits, but he is arguing the matter only on the point of quantum of punishment. He has read the charge and the judgment and order of conviction and sencence and contended that the learned Judge has not considered the age of the appellant and harshly convicted and sentenced the appellant. Mr Oza learned advocate has contended that the amount of loot is very small amount and, therefore, the sentence imposed upon the appellant to undergo R/I for 7 years is very harsh and requires to be reduced.

Learned APP Mr. Parikh appearing for the State has no objection if the conviction is reduced to 5 years from 7 years.

I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and also perused the charge framed against the appellant. I have also considered the submissions made by Mr B.K. Oza learned advocate for the appellant. This Court, without entering into the merits of the matter, the sentence to undergo R/I for 7 years imposed upon the appellant by the learned Addl. Sessions Judge is requires to be reduced.

In the result, this appeal is partly allowed. The impugned judgment and order of conviction dated 30.6.2006 passed in Sessions Case No. 2/2006 by the learned Addl. Sessions Judge & Presiding Officer, Fast Track Court No. 3, Navsari convicting the appellant-accused u/s 395 and 397 of IPC and u/s 25(1B)(A) of the Arms Act, is hereby confirmed. However, the order of sentence sentencing the appellant-accused to undergo R/I for 7 years for the offence u/s 395 and 397 of IPC is hereby reduced to the extent that instead the appellant-accused is hereby sentenced to undergo R/I for 5 years. Rest of the impugned judgment and order of conviction and sentence is hereby confirmed.