Nitin Rameshchandra Bhatt vs State of Gujarat

Z.K. Saiyed, J.—The Appellant has preferred the present appeal against the judgment and order of conviction and sentence dated 24th October 2008 passed by the learned Presiding Officer and Additional Sessions Judge, 4th Fast Track Court, Rajkot, in Sessions Case No. 86 of 2007, whereby the Appellant has been held guilty for the offences punishable under Sections 328 and 379 of the Indian Penal Code.

It is the case of the prosecution that on 19th May 2007 at 07.00 a.m. in the S.T. Bus at S.T. Bus Stand, Rajkot, the present Appellant committed theft after administering stupefying drug in the cup of tea to the original complainant, who was traveling in the Rajkot-Porbandar S.T. Bus. It is the case of the prosecution that thus, the Appellant-accused committed theft of golden chain, cash of Rs. 600/ and bag with clothes, in all valued at Rs. 07,400/- and thereby committed an offence punishable under Sections 328 and 379 of the Indian Penal Code. A complainant to the said effect was filed on 31st May 2007. Thereafter, panchnama of seen of offence was drawn and statements of witnesses were recorded.

Thereafter, as there were sufficient evidence against he Appellant-accused, charge sheet came to be filed against the present Appellant-accused before the learned Judicial Magistrate First Class. Thereafter, as the case was sessions triable, the learned Judicial Magistrate First Class committed the case to the Sessions Court, Rajkot for adjudication.

After filing of closing pursis by the prosecution, further statement u/s 313 of the Code of Criminal Procedure, 1973 of the Appellant was recorded. The Appellant has denied the case of the prosecution and claimed to be tried. The Appellant has stated in his further statement that a false case is filed against him. However, the Appellant has not produced any evidence muchless any evidence on oath.

Thereafter, trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence.

After hearing both the sides, the learned Presiding Officer and Additional Sessions Judge, 4th Fast Track Court, Rajkot, by his judgment and order of conviction dated 24th October 2008 passed in Sessions Case No. 86 of 2007, convicted the Appellant for the offence punishable under Sections 328 and 379 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of three years and fine of Rs. 03,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of three months for the offence punishable u/s 328 of the Indian Penal Code. The Appellant is also convicted for the offence punishable u/s 379 of the Indian Penal Code and ordered to undergo rigorous imprisonment for a period of one year and fine of Rs. 01,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of one month. However, it was clarified that substantive sentences shall run concurrently.

Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 24th October 2008 passed by the learned Presiding Officer and Additional Sessions Judge, 4th Fast Track Court, Rajkot, the Appellant hereinabove has preferred the present Criminal Appeal before this Hon''ble Court.

Heard Mr. S.B. Tolia, learned Counsel for the Appellant and Mr. H.L. Jani, learned Additional Public Prosecutor, appearing on behalf of the Respondent-State.

Mr. Tolia has contended that he is not arguing the matter on merits, but simply praying to reduce the conviction imposed upon the Appellant. He has contended that he is arguing the matter only for the purpose of quantum. He has contended that the order passed by the learned Judge is very harsh in nature. He has also contended that present Appellant has one daughter round about 16 years. He has also contended that mother of the Appellant had expired because of cancer and wife of the Appellant is also not keeping well in health and operated. Mr. Tolia has also contended that family members are dependent upon the Appellant. He has also contended that looking to the overall facts and circumstances of the case, some lenient view is required to be taken in the matter and therefore, conviction imposed upon the Appellant is required to be reduced.

Heard Mr. H.L. Jani, learned Additional Public Prosecutor for the Respondent-State. He has supported the judgment and order of conviction passed by the learned Judge. He has contended that looking to the charge framed against the Appellant, order passed by the learned Judge is absolutely just and proper. He has also read the documentary evidence produced on record and contended that learned Judge has not committed any error in convicting the Appellant-accused. He has also contended that in all nine cases are filed against the Appellant-accused. He, therefore, contended that the present appeal is required to be dismissed.

I have gone through papers produced before me and the judgment and order passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions made by learned Counsel for the parties.

Looking to the facts and circumstances of the case and looking to the evidence on record, it is true that the learned Judge has considered oral as well as documentary evidence and prima-facie agree with the findings recorded by the learned Judge. I have also gone through the jail report produced by Mr. H.L. Jani. Even looking to the submissions advanced by the learned Counsel for the Appellant and circumstances of the case, if the sentence imposed upon the Appellant is reduced, same would meet with the ends of justice. Even on the ground of sympathy also sentence is required to be reduced. I am also of the opinion that the sentence is very harsh in nature and if the same be reduced to one year, the same would meet with the ends of justice.

Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 24th October 2010 passed by the learned Presiding Officer and Additional Sessions Judge, 4th Fast Track Court, Rajkot, in Sessions Case No. 86 of 2007, is hereby confirmed. However, the judgment and order of sentence dated 24th October 2010 passed by the learned Presiding Officer and Additional Sessions Judge, 4th Fast Track Court, Rajkot, in Sessions Case No. 86 of 2007 is hereby reduced and modified to the extent that the Appellant shall undergo R.I. For one year. The rest of the judgment and order of sentence dated 24th October 2010 shall remain unaltered. Bail bond, if any, shall stand cancelled. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.