Ramesh Kitta Pujari vs State of Gujarat

J.R. Vora, J.—Both the above said Appeals filed u/s 374 of the Code of Criminal Procedure Code are arising from the same judgment and order and, hence, both the Appeals have been admitted by this Court vide order dated 30.12.2008 and are directed to be tagged and heard together.

Both these Appeals are preferred against the judgment and order delivered by Additional Sessions Judge and Presiding Officer, 5th Fast Track Court, Vyara, on 22.02.2008, in Session Case No. 62 of 2006 and Session Case No. 63 of 2006. Appellant Ramesh Kitta Pujari was accused in Session Case No. 62 of 2006 and appellant Viky @ Vivek Bhagvandas Sharma was accused in Session Case No. 63 of 2006. Both the appellants came to be convicted for the offences punishable under Sections 395 to read with Section 397 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment of one month. The accused were also convicted for the offence punishable u/s 25(1)(b) to read with Section 27(1) of the Indian Arms Act and each of the appellant was sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs. 1,000/-, in default, to undergo simple imprisonment of one month.

Appellant -Viky @ Vivek Bhagvandas Sharma has preferred Criminal Appeal No. 2819 of 2008 and appellant Ramesh Kitta Pujari has preferred Criminal Appeal No. 2719 of 2008 against their conviction and sentence awarded by the Trial Court. Record and Proceedings were called for from the Trial Court by order of this Court passed on 30.12.2008.

Learned Advocate for the appellants Mr. Gajendra P Baghel and learned APP Mr. L.R. Pujari for the Respondent - State, in both the Appeals were heard.

Learned Advocate Mr. Baghel for the appellants in both the Appeals raised a very short point and the quantum of sentence is disputed. Contention is that, in fact, what is proved against the present accused - appellants is offences punishable under Sections 392 and 394 of the Indian Penal Code, for which the learned Single Judge of this Court, vide judgment delivered in Criminal Appeal No. 1176 of 2007, on 02.09.2008, reduced the sentence of that accused appellant to four years imprisonment on both the counts i.e. under Sections 392 and 394 of the Indian Penal Code. Therefore, the learned Advocate for the appellants in both the Appeals raises an issue as to the nature of offence committed by the appellants and the quantum of sentence awarded to them.

As per the brief facts of the case, the incident occurred on 16th of February, 2004. Tulsibhai Ganeshbhai Raval - PW-3 along with Driver Rajeshbhai, Sanmukhbhai, Pareshbhai and with Watchman Vinodbhai were going to Surat from village Madhi at about 7.20 a.m. in one Safari Tata Car, bearing Registration No. GJ-5-PP-8785, for the purpose of handing over the polished diamonds to trade men. The diamonds in question were worth of Rs. 70 lacs. Driver Rajeshbhai was driving the car. Complainant Tulsibhai was sitting in front seat of the car with the Driver and others were sitting in the back seat of the car. One Esteem car came from behind the said Tata Safari Car and overtook near Manekpore Road. The said Esteem car thereafter halted in center of the road, so Safari Car had to stop. Thereafter from the Esteem car, five persons stepped out with the weapons like iron bar, knife, sticks, etc and started hitting the glass panes of the safari car. One person was carrying tamancha, attacked the driver of the car and asked about the diamonds. Forcibly attackers opened the door of the vehicle and the bag which was with the complainant on the floor of the car was snatched away by attackers. In this process, complainant received injuries with knife. Watchman Vinodbhai had a gun in his hand and in this scuffle that attackers tried to snatch the guns, but gun went off accidentally. The attackers also caused injuries to the passengers of the Safari car by iron bar, and that too, on the head of Vinodbhai, watchman. Vinodbhai was also stabbed by one person. Pareshbhai also got some injuries. Those unknown persons were speaking in Hindi language and were well built. They were wearing pants and shirts. Accused persons after looting diamonds, fled away from the scene of offence in Esteem car towards Bardoli. The Registration Number of the said Esteem Car was MH-01-5322. Complainant Tulsibhai gave the complaint and crime came to be registered. Accordingly, accused were arrested and charge sheet was filed against the accused. Noteworthy here that, at first instance, there were four charge sheets came to be filed in four Sessions Cases by the Police and those Sessions Cases were 8 of 2005, 40 of 2005, 41 of 2005 and 43 of 2005. There were in all six accused in those sessions cases. Out of those six accused, accused No. 4 Ramesh @ Limbushetty Vitthal Nayak came to be convicted for the offences punishable under Sections 392 and 394 of the Indian Penal Code and all others were acquitted for other offences. Accused Ramesh @ Limbushetty Vitthal Nayak came to be convicted for the above said offences and was sentenced to undergo five years rigorous imprisonment for the offence punishable u/s 392 of the Indian Penal Code and to pay fine of Rs. 2,000/- in default, to undergo simple imprisonment of six months. The said accused Rameshbhai also came to be sentenced for the rigorous imprisonment of seven years and to pay fine of Rs. 3,000/- in default to undergo nine months simple imprisonment for the offence punishable u/s 394 of the Indian Penal Code. Accused Ramesh @ Limbushetty Vitthal Nayak preferred a Criminal Appeal against his conviction and sentence, being Criminal Appeal No. 1176 of 2007. The Hon''ble learned Single Judge of this Court decided the said Appeal by judgment on 2nd of September, 2008 and came to dismiss the Appeal so far as the conviction was concerned, but sentence of that accused was reduced to four years for the offence punishable u/s 392 of the Indian Penal Code and four years imprisonment for the offence punishable u/s 394 of the Indian Penal Code. The order of payment of fine on both the counts was not altered. Thereafter, it appears that, both the present appellants were arrested in the same crime and Sessions Case No. 62 of 2006 and 63 of 2006 were tried, in which both the appellants came to be convicted, as afore-stated.

While going through the evidence recorded during the trial, it appears that, so far as number of the accused are concerned, the evidence is not cogent. Though the learned Trial Judge has observed that the complainant had stated that there were five accused and, therefore, the offence punishable u/s 397 of the Indian Penal Code was proved, but on going through the evidence, it appears that, so far as the numbers of the accused are concerned, there is no uniformity and cogency among the witnesses. Witness PW-9 Pareshbhai Lalitbhai Pawar stated that there were five persons, but in his cross-examination, admitted that there were three persons. Even the Investigating Officer had stated that there were four persons on the spot. While complainant Tulsibhai stated that there were five persons. PW- 8 Rajeshbhai stated that there were three/four persons at the time of the incident. In any case, it is on record that, in all eight accused came to be tried, out of which, three accused were identified by the witnesses in T.I. Parade and those three persons were accused Ramesh @ Limbushetty Vitthal Nayak, who was convicted earlier and the present appellants. The rest were acquitted and that their acquittal has become final as till today no appeal against their acquittal has been preferred by the State. In these circumstances of the fact about the number of the accused and having regard to the observations made by the Apex Court in the matter of R.N. Gosain Vs. Yashpal Dhir, that when more than one persons were tried and less than five persons were convicted and others acquitted, such conviction of the accused u/s 395 of the Indian Penal Code would be unsustainable as other accused were acquitted. It was the case where in all 08 persons were tried for the offence punishable u/s 395 of the Indian Penal Code. Out of which, only one appellant was convicted for the offence u/s 395 of the Indian Penal Code and the Apex Court stated that the conviction of the appellant u/s 395 of the Indian Penal Code was not sustainable.

Likewise, in the present set of facts, conviction of present appellants under Sections 395 and 397 of the Indian Penal Code is not sustainable. At the same time, there is nothing on record that either of the appellants had any arms and, therefore, the conviction of the appellants u/s 25(1)(b) read with Section 27(1) of the Indian Arms Act appears to be erroneous.

Learned Advocate for the appellants then contended about the reduction of sentence as has been done earlier by the Hon''ble learned Single Judge of this Court in respect of the accused of the same incident in Criminal Appeal No. 1176 of 2007. Though, it is contended by learned APP that sentence is not required to be reduced, but we have no reason to take a different view than already taken by this Court in Criminal Appeal No. 1176 of 2007 for the accused of the same incident and, hence, the following orders are passed.

Criminal Appeal No. 2819 of 2008:

Criminal Appeal No. 2819 of 2008 is partly allowed. Judgment and order of the Trial Court convicting and sentencing the appellant Viky @ Vivek Bhagvandas Sharma u/s 25(1)(b) to read with Section 27(1) of the Arms Act is set aside and appellant is acquitted from the charges levelled against him u/s 25(1)(b) to read with Section 27(1) of the Arms Act.

At the same time, we also set aside the judgment and order of the Trial Court convicting the appellant Viky @ Vivek Bhagvandas Sharma, for the offences punishable u/s 395 to read with Section 397 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1,000/- , in default, to undergo one month simple imprisonment, instead we find accused appellant Viky @ Vivek Bhagvandas Sharma guilty for the offence punishable under Sections 392 and 394 of the Indian Penal Code. We sentence accused appellant for the rigorous imprisonment of four years and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment of one month for the offence punishable u/s 392 of the Indian Penal Code and we also find accused - appellant guilty for the offence punishable u/s 394 of the Indian Penal Code and we sentence him to undergo rigorous imprisonment of four years and to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment of one month. Both the above sentences of imprisonment shall run concurrently. The accused is also entitled to get the benefit of set off as has been granted by the Trial Court. When the accused - appellant has served the above said sentences including remission, he shall be set to liberty if he is not required to be detained in jail.

Criminal Appeal No. 2719 of 2008:

Criminal Appeal No. 2719 of 2008 is partly allowed. Judgment and order of the Trial Court convicting and sentencing the appellant Ramesh Kitta Pujari u/s 25(1)(b) to read with Section 27(1) of the Arms Act is set aside and appellant is acquitted from the charges levelled against him u/s 25(1)(b) to read with Section 27(1) of the Arms Act.

At the same time, we also set aside the judgment and order of the Trial Court convicting the appellant Ramesh Kitta Pujari, for the offences punishable u/s 395 to read with Section 397 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment of 10 years and to pay fine of Rs. 1,000/- , in default, to undergo one month simple imprisonment, instead we find accused appellant Ramesh Kitta Pujari guilty for the offence punishable under Sections 392 and 394 of the Indian Penal Code. We sentence accused appellant for the rigorous imprisonment of four years and to pay fine of Rs. 1,000/- in default to undergo simple imprisonment of one month for the offence punishable u/s 392 of the Indian Penal Code and we also find accused - appellant guilty for the offence punishable u/s 394 of the Indian Penal Code and we sentence him to undergo rigorous imprisonment of four years and to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment of one month. Both the above sentences of imprisonment shall run concurrently. The accused is also entitled to get the benefit of set off as has been granted by the Trial Court. When the accused - appellant has served the above said sentences including remission, he shall be set to liberty if he is not required to be detained in jail.

Office is directed to transmit back the Record and Proceedings to the Trail Court. DS permitted.