Shri Patel Sanjay Vinubhai vs The State of Gujarat

K.S. Jhaveri, J.—This appeal is directed against the judgment and order dated 12.10.2006, passed by the learned Additional Sessions Judge, Gandhinagar in Sessions Case No. 28 of 2006, whereby the appellants-original accused No. 1 is convicted for the offences punishable u/s 149, 365, 323, 506(2), 395 r/w. Section 114 IPC.

For conviction u/s 365, the appellant was sentenced to undergo R.I. for seven years and fine of Rs. 5,000/- and in default of payment of fine, S.I. for a further period of three months; for conviction u/s 323 IPC, he was sentenced to undergo R.I. for three months and fine of Rs. 500/- and in default of payment of fine, S.I. for a further period of seven days; for conviction u/s 506(2) IPC, he was sentenced to undergo R.I. for six months and fine of Rs. 1,000/- and in default of payment of fine, S.I. for a further period of fifteen days and for conviction u/s 395 IPC, he was sentenced to undergo R.I. for ten years and fine of Rs. 10,000/- and in default of payment of fine, S.I. for a further period of six months.

All the sentences were ordered to run concurrently.

The brief facts of the prosecution case are as under:

2.1. The complainant-Ketulbhai Thakkar, is the resident of Gandhinagar and is doing the business of Finance. On 30.09.2005, at about 0830 hours, the appellants-original accused Nos. 1 and 2 came to the house of the complainant on a motor-cycle bearing No. GJ-18 D 7799 and abducted the complainant and took him to Sector-15. Thereafter, the appellants physically assaulted the complainant and asked him to pay Rs. 25,000/-. During that period, the appellants-original accused No. 1 forcibly took Rs. 100/- from the pocket of the complainant.

2.3 Therefore, on 30.09.2005, a complaint regarding the alleged incident was filed with Sector-6 Police Station, Gandhinagar. However, as the Police authorities did not registered the offence, the complainant filed another complaint before the learned JMFC, Gandhinagar. The learned JMFC, Gandhinagar, by exercising powers u/s 156(3) of Cr.P.C. directed the Police authorities to investigate the case and submitted the report. Consequently, M. case No. 8 of 2005 for the offence u/s 395, 365, 149, 323, 504, 506(2) and 114 IPC, came to be registered with Sector-7 Police Station, Gandhinagar. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, as sufficient material was found against the accused, he was arrested. After completion of investigation, charge-sheet was filed in the Court of learned JMFC, Gandhinagar but, the same was committed to the Sessions Court, Gandhinagar for trial.

2.4. During the trial, the prosecution has examined nine witnesses viz. PW-1 Rameshchandra Nandlal Jani at Exhibit-8. PW-2 Ashokkumar Vitthalbhai at Exhibit-9, PW-3 Sikandar Yusuf at Exhibit-11, PW-4 Ketulkumar Krishnakant at Exhibit-15, PW-5 Bhartiben Krishnakant at Exhibit-18, PW-6 Ashokkumar Ambalal at Exhibit-19, PW-7 Babubhai Somabhai at Exhibit-21, PW-8 Gopalsinh Jagatsinh at Exhibit-22 and PW-9 Manharsinh Savsinh at Exhibit-44.

2.5. The prosecution had also placed reliance upon several documentary evidence, more particularly, the ''panchnama'' of the scene of offence at Exhibit-12, the complaint at Exhibit-16, the copy of the complaint filed before the learned JMFC at Exhibit-17, the FIR at Exhibit-20, the ''panchnama'' of the seizure of the vehicle at Exhibit-23, the discovery ''panchnama'' at Exhibit-24.

2.6. At the end of trial, the Court below convicted the accused and imposed sentenced as narrated in the earlier part of this judgment. Hence, this appeal.

The learned Counsel for the appellant has submitted out of five accused persons, only the appellant has been convicted for the offence punishable u/s 395, 365, 149, 323, 504, 506(2) and 114 IPC. He has further submitted that in view of the definition of ''dacoity'' as defined nuder Section 391 IPC, the conviction passed u/s 149 & 395 IPC is bad and erroneous. In support of his submission, he has placed reliance upon the decision of the Apex Court in the case of Ram Lakhan Vs. State of U.P., , wherein the Court has held that conviction of appellant alone is unsustainable as assembly of five persons is necessary to make offence u/s 395 IPC.

3.1. The learned Counsel has relied upon the decision of the Apex Court in the case of Subran alias Subramanian and Ors. v. State of Kerala reported in AIR 1993 SCW 1014, more particularly para 10, which reads as under:

A combined reading of Section 141 and Section 149 IPC (supra) show that an assembly of less than five members is not an unlawful assembly within the meaning of Section 141 and cannot, therefore, form the basis for conviction for an offence with the aid of Section 149 IPC. The effect of the acquittal of the two accused persons by the High Court and without the High Court finding that some other known or unknown persons were also involved in the assault, would be that for all intent and purposes the two acquitted accused persons were not members of the unlawful assembly. Thus, only four accused could be said to have been the members of the assembly but such an assembly which comprises of less than five members is not an unlawful assembly within the meaning of Section 141 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, the conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge u/s 149 IPC. Consequently, the conviction of appellants 2 to 4 for an offence u/s 326/149 IPC cannot be sustained and the same would be the position with regard to the conviction of all the appellants for other offences with the aid of Section 149 IPC also.

3.2 The next Apex Court decision relied upon by the learned Counsel for the appellant is rendered in the case of Om Prakash and Another Vs. State of Rajasthan, more particularly para 7, which reads as under:

It was lastly argued by the learned Counsel that even after believing their evidence the courts below could not have convicted the appellants u/s 395 IPC as the charge of dacoity was against five named persons and out of them two were acquitted by the trial court. Neither the charge nor the finding recorded by the trial court was that accused Om Prakash, Munna, Amarjit Singh and two other unknown persons had committed dacoity. Specifically, the five named accused were alleged to have commit the offence. Two accused having been acquitted it ought to have been appreciated that only the remaining three accused had committed the said offence. Therefore, it was not proper to convict the remaining three accused u/s 395 IPC. Their conviction will have to be altered to one u/s 392 IPC.

3.3. Similar view has been taken by the Apex Court in the case of Raj Kumar @ Raju Vs. State of Uttaranchal, , and by this Court in Criminal Appeal Nos. 164 and 165 of 2005 dated 13.07.2009. The learned Counsel for the appellant has therefore, submitted that the order of conviction passed by the Court below is contrary to the evidence on record and that conviction of appellant alone is unsustainable as assembly of five persons is necessary to make offence u/s 395 IPC.

Mr. Kodekar, learned APP, has supported the impugned judgment and order passed by the Court below and submitted that no interference is warranted from this Court in this appeal.

Heard the learned Counsel for the respective parties. Before the Court below five accused persons were charged for the alleged offences. However, at the end of trial,the Court below acquitted four accused persons out of five accused persons and convicted the appellant herein for the alleged offences. As per the statutory provisions of Section 149 and 395 IPC, it is mandatory that if an offence had to fall within the mischief of the said two sections, the act must be committed by five or more persons. In the present case, originally five accused persons have been charged for the alleged offence. However, at the end of trial, the Court below has acquitted four out of them and has convicted the appellant herein for the alleged offence. In view of the principle laid down by the Apex Court in the cases of Ram Lakhan, Subran alias Subramanian, Om Prakash and Anr., Raj Kumar aias Raju, (Supra), it is well settled that the conviction u/s 149 and 395 IPC cannot be sustained against the appellant herein, since specifically five accused were alleged to have committed the offence and four having been acquitted. In view of this, conviction u/s 149 and 395 IPC are required to be quashed and set aside.

5.1. However, so far as conviction u/s 365, 323, 506(2) are concerned, the same has been established beyond reasonable doubt. The oral as well as documentary evidence on record, clearly established that the appellant is guilty of the offences punishable u/s 365, 323, 506(2) IPC. Therefore, the conviction under Sections 365, 323, 506(2) IPC are required to be confirmed. However, so far as sentence imposed for offence u/s 365 IPC is concerned, we are of the opinion that the same is on higher side. Looking to the facts and circumstances of the case, we are of the opinion that if the sentence already undergone by the accused is treated as sufficient sentence, ends of justice would be met.

For the forgoing reasons, the appeal is partly allowed. The impugned judgment and order dated 12.10.2006 passed by the learned Additional Sessions Judge, Gandhinagar, in Sessions Case No. 28 of 2006 is modified to the extent herein below:

The conviction recorded by the Court below for the offence u/s 149 and 395 IPC are quashed and set aside. The conviction for the offence u/s 365, 323, 506(2) IPC is confirmed. However, so far as the sentence part is concerned, the same is modified to the extent that the sentence already undergone by the accused shall be treated to be sufficient sentence. The jail authority is directed to release the accused from the custody forthwith, if not required in connection with any other case.