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Judgment
Ilesh J. Vora, J
This enhancement appeal is being filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’, in short) against the common judgment of conviction and order of sentence dated 16.05.2009 passed by the learned Additional Sessions Judge, Surat in Sessions Case nos. 154 of 2004 and 245 of 2005, wherein, the respondents - original accused no. 7 and 9 alongwith other accused came to be tried for offences punishable under Sections 394/397 and 120-B read with Section 34 of the Indian Penal Code, 1860 (old) (‘IPC’, for short) and Section 25(1B) of Arms Act, 1959 and Section 135 of Bombay Police Act, 1951 (‘B.P. Act’, in short). The trial Court, after appreciation of the evidence, convicted the respondents under Sections 394/397 of the IPC and they were sentenced as under:
Accused
Sections of IPC
Punishment
Fine
In default
Accused no. 7 – Amarsinh Churamani Yadav @ Pappu
394/397
SI for seven years
Rs.5000 /-
SI for three months
Accused no. 9 – Kishanlal @ Kishnakumar Mekulal Japya
394/397
SI for seven years
Rs.5000 /-
SI for three months
Facts and circumstances giving rise to file this appeal are that, respondents accused along with other 10 persons were tried for the offence of robbery with attempt to cause death or grievous hurt. The respondents accused – original accused nos.7 and 9 hit witness Bharatbhai on his head with iron rod and witness Pravanbhai PW:3 with country-made pistol caused grievous hurt and took away the bag filled with the diamonds, whereby they tried to cause death of the witnesses and committed an offence of robbery with an attempt to cause death or grievous hurt. In these background facts, it is the case of the prosecution that on 07.10.2003, the act of robbery was executed at the place near Varachha Umiya Temple. The complainant PW:1 was in business of Rough Diamonds at Surat and was used to purchase it from one Jagdishbhai. The accused no.1, in connivance with the co-accused, have had hatched criminal conspiracy with a common object to rob the huge quantity of diamonds from the employee of the complainant PW:1. They made racky before the execution of the plan. They hired the persons from Uttar Pradesh viz. accused nos.7 and 9. They imported the arms from the Uttar Pradesh. On the day of execution of the offence, accused no.7 armed with country-made pistol along with other were kept vigil and waited at the place of the offence and accused no.9 armed with iron rod was also accompanied to the accused no.7. On the day of incident as per the plan, when PW:2 Bharatbhai Sambhubhai and PW:3 Pranav Deepakbhai, while they were passing the road, on their bike, accused nos.7 and 9 hit the PW:2 Bharatbhai with an iron rod and accused no.7 Amarsingh sought Pravanbhai PW:3 with country-made pistol and took away the diamonds filled bag. In the circumstances, the complainant PW:1 lodged an FIR for the alleged offence of robbery with an attempt to cause death or grievous hurt. The Surat Police, during the course of investigation, learnt that the accused no.1 in connivance with the accused nos.4, 5 and 6, made a plan to loot the rough diamonds of the complainant and in order to execute the act of robbery, they contacted accused nos.7, 8, 9 and others, who belong to State Uttar Pradesh and after knowing the rout of transportation of diamonds to be carried by the employee PW:1, executed a plan of robbery on 07.10.2003, in the manner, as narrated above. The police arrested the 14 persons, who were either actively participated in the offence or aided the co-accused in the commission of the offence. The police had recovered the case as well as the rough diamonds from the accused. During the test identification parade, accused nos.7 and 9 were identified by Pws:2 and 3.
At the end of investigation, the chargesheet came to be filed against accused nos.1 to 13 which had culminated into Sessions Case No.154 of 2004 and thereafter, supplementary chargesheet was being filed against accused no.14 which was registered as Sessions Case No.245 of 2005.
On the basis of material on record, the charge was framed against the respondents to which they pleaded not guilty and therefore, they came to be tried by the trial Court, accordingly.
In order to prove the case against the respondents, prosecution has examined 116 witnesses and exhibited 52 documents to prove its case as per the following table:
Oral evidence
PW 1 – Exh. 61
Bharatbhai Jadavjibhai Khaini, complainant
PW 2 – Exh. 113
Bharatbhai Shambhubhai Rubapara
PW 3 – Exh. 114
Pranavbhai Dipakbhai Timaniya
PW 4 – Exh. 128
Kishorbhai Vallabhbhai Ghelani, panch witness
PW 5 – Exh. 134
Tarunbhai Babubhai, panch witness
PW 6 – Exh. 142
Sunil Pravinchandra Jinwala, panch witness
PW 7 – Exh. 155
Lalitbhai Gemani, panch witness
PW 8 – Exh. 157
Sandip Eknath Patil, panch witness
PW 9 – Exh. 170
Firoz Aiyub Shaikh, panch witness
PW 10 – Exh. 171
Jivrajbhai Ranchhodbhai, panch witness
PW 11 – Exh. 175
Rahimkhan Shabbirkhan Pathan, panch witness
PW 12 – Exh. 177
Kaluram Dulaji Prajapati, panch witness
PW 13 – Exh. 178
Babubhai Savjibhai, panch witness
PW 14 – Exh. 185
Abdul Raul Abdul Samad Shaikh, panch witness
PW 15 – Exh. 187
Dhirubhai Arjanbhai, panch witness
PW 16 – Exh. 194
Vikesh Krushnachand Dholakiya, panch witness
PW 17 – Exh. 196
Pareshbhai Jagdishbhai Patel, panch witness
PW 18 – Exh. 201
Jagreshbhai Babubhai Shah, panch witness
PW 19 – Exh. 209
Bhupatbhai Bhikhabhai Barad, panch witness
PW 20 – Exh. 207
Rahimkhan Shabbirkhan Pathan, panch witness
PW 21 – Exh. 218
Dilipbhai Ranchhodbhai, panch witness
PW 22 – Exh. 221
Manjibhai Vasrambhai, panch witness
PW 23 – Exh. 225
Rajeshbhai Amitbhai Patoriya, panch witness
PW 24 – Exh. 241
Dhirajlal Haribhai, panch witness
PW 25 – Exh. 256
Manjibhai Valjibhai Mangukiya, panch witness
PW 26 – Exh. 263
Akshaybhai Chandulal Patel, panch witness
PW 27 – Exh. 269
Mahammed Ikbal Gulammustafa, panch witness
PW 28 – Exh.
Mahammed Riyaz Ismail Shaikh, panch witness
PW 29 – Exh. 283
Dhirubhai Balubhai Vaghasiya, panch witness
PW 30 – Exh. 288
Saiyed Ibrahim Kazi, panch witness
PW 31 – Exh. 293
Virendra Mahendrabhai Modi, panch witness
PW 32 – Exh. 299
Mohammed Riyaz Ismail Shaikh, panch witness
PW 33 – Exh. 304
Rameshbhai Vitthalbhai, panch witness
PW 34 – Exh. 318
Rajendra Bhavrav Patil, panch witness
PW 35 – Exh. 325
Popatbhai Manjibhai Savani, panch witness
PW 36 – Exh. 338
Vijaybhai Natvarlal Bansilal
PW 37 – Exh. 345
Rameshbhai Shamjibhai Vaghasiya, panch witness
PW 38 – Exh. 364
Arjunbhai Bhamar Kathva, panch witness
PW 39 – Exh. 377
Nanalal Bhairaji
PW 40 – Exh. 382
Bhikhubhai Babubhai Talaviya
PW 41 – Exh. 405
Kishorbhai Vallabhbhai Sangani
PW 42 – Exh. 411
Himmatbhai Ukabhai
PW 43 – Exh. 424
Pravinbhai Ramjibhai Sutaria
PW 44 – Exh. 431
Dr. Manoj Narang
PW 45 – Exh. 443
Dr. Odhavjibhai Dhanjibhai
PW 46 – Exh. 452
Nanubhai Jivrajbhai
PW 47 – Exh. 457
Vijay Narsingh Chudasama, panch witness
PW 48 – Exh. 458
Rakeshkumar Sumatilal Desai
PW 49 – Exh. 461
Rajesh Raghavji Shah
PW 50 – Exh. 462
Dilipbhai Amulak Shah
PW 51 – Exh. 470
Hariomji Bhagvandas
PW 52 – Exh. 471
Sharif Bashirbhai
PW 53 – Exh. 472
Balkishan Shriganeshdutt Garg
PW 54 – Exh. 477
Gautambhai Udesinghbhai Barot
PW 55 – Exh. 481
Dhansukhbhai Khodabhai Ghelani
PW 56 – Exh. 482
Pradipbhai Lallubhai Chauhan
PW 57 – Exh. 491
Sanjaybhai Nanjibhai Bhalala
PW 58 – Exh. 492
Ashwinbhai Babubhai Dobariya
PW 59 – Exh. 494
Nileshbhai Chandrakantbhai Patel
PW 60 – Exh. 498
Dipakbhai Ishwarbhai Patel
PW 61 – Exh. 499
Bharatbhai Dhirajsingh Solanki
PW 62 – Exh. 503
Dineshbhai Ravjibhai Virani
PW 63 – Exh. 505
Labhubhai Bavsingbhai
PW 64 – Exh. 509
Gaurang Mahendrabhai Patel
PW 65 – Exh. 511
Nilesh Kapilchand Varani
PW 66 – Exh. 516
Durlabhji Laljibhai
PW 67 – Exh. 518
Pravinbhai Lakshmanbhai, panch witness
PW 68 – Exh. 524
Ashwin Govindbhai Kukadiya
PW 69 – Exh. 536
Jagdishbhai Dhirubhai Khunt
PW 70 – Exh. 544
Pappu Naranji Rawat
PW 71 – Exh. 549
Devilal Vardhaji Rawat
PW 72 – Exh. 553
Raghavbhai Parshottambhai Maniya
PW 73 – Exh. 557
Rasikbhai Batukbhai Thummar
PW 74 – Exh. 563
Arvind Mohanbhai
PW 75 – Exh. 564
Kanchanben Ranchhod Patel
PW 76 – Exh. 571
Hemrajbhai Naran Patel
PW 77 – Exh. 572
Bavchand Valjibhai Galani
PW 78 – Exh. 575
Sureshbhai Babaldas Patel
PW 79 – Exh. 582
Pankajbhai Jawaharlal Jariwala
PW 80 – Exh. 590
Kalubhai Lakshmanbhai Sisodiya
PW 81 – Exh. 596
Jatinbhai Dhansukhbhai Ghelani
PW 82 – Exh. 602
Abdul Rasid Abdul Latif Shaikh
PW 83 – Exh. 603
Arvind Jivabhai Patel
PW 84 – Exh. 610
Ghanshyam Kalubhai Khunt
PW 85 – Exh. 616
Umeshbhai Shrimuni Rammishra
PW 86 – Exh. 631
Naranbhai Jadavbhai Patel
PW 87 – Exh. 651
Sandipbhai Eknath Patil, panch witness
PW 88 – Exh. 652
Ravindra Ramdas Patil, panch witness
PW 89 – Exh. 663
Bhupatbhai Fikrabhai, panch witness
PW 90 – Exh. 665
Ravjibhai Govindbhai, panch witness
PW 91 – Exh. 683
Rameshbhai Arjundas Israni, Executive Magistrate
PW 92 – Exh. 709
Manish Kanaiyalal, panch witness
PW 93 – Exh. 711
Pravinbhai Kalyanbhai
PW 94 – Exh. 712
Mahendrasingh Mansingh Jadeja, panch witness
PW 95 – Exh. 713
Dharmendrasingh Sardarsingh, panch witness
PW 96 – Exh. 715
Dilipbhai Bhaktiram Bavaji
PW 97 – Exh. 717
Kalabhai Masabhai Dangar
PW 98 – Exh. 722
Himmatsingh Kesarisingh Chavda
PW 99 – Exh. 736
Dineshbhai Ravjibhai
PW 100 – Exh. 741
Lavjibhai Parshottambhai Vasani
PW 101 – Exh. 755
Meena Rajnikant Dave
PW 102 – Exh. 762
Vishnubhai Sharma
PW 103 – Exh. 763
Ajitbhai Laljibhai Gameti
PW 104 – Exh. 766
Pritamsing Indersing, Assistant Sub- Inspector
PW 105 – Exh. 780
Bharatbhai Kapilrav Mistry
PW 106 – Exh. 784
Dineshbhai Dipchandbhai Damor, Police Sub-Inspector
PW 107 – Exh. 787
Govindbhai Virsingbhai Chaudhary, Police Inspector
PW 108 – Exh. 794
Dalsukhbhai Ukkadbhai, Head Constable
PW 109 – Exh. 805
Mahendrasinh Amarsinh Chaudhary, Police Sub-Inspector
PW 110 – Exh. 807
Kanubhai Kishorbhai Patel, Police Inspector
PW 111 – Exh. 822
Janakbhai Rawatbhai Vala, Police Inspector
PW 112 – Exh. 814
Lakshmanbhai Nanjibhai Patel
PW 113 – Exh. 823
Ajabsingh Muksingh Rathod, Police Inspector
PW 114 – Exh. 851
Ajaykumar Vidhyadhar Gakkhar, Police Inspector
PW 115 – Exh. 892
Manharbhai Lakshmanbhai Patel, Addl. Head Constable
PW 116 – Exh. 898
Ketalabhai Khatrabhai Dama, Police Constable
Documentary evidence
Exh. 62
Complaint
Exh. 129
Panchanama of place of offence
Exh. 130
Panchanama of recovery of clothes of injured person
Exh. 135
Panchanama of recovery of bullet from the body of injured person
Exh. 143
Panchanama of seizure of Page 130 from Register of Hotel Dimple
Exh. 147
Panchanama of seizure of Hero Honda from accused Sanjay
Exh. 156
Panchanama of taking signatures of accused Kishanlal, Rajeshwaridevi, Tejsingh
Exh. 172
Panchanama of production of cash by witness Raghavbhai
Exh. 176
Panchanama of production of cash by witness Ravjibhai
Exh. 179
Panchanama of seizure of cash from witness Arvindbhai
Exh. 186
Panchanama of seizure of cash from witness Rajeshbhai
Exh. 188
Panchanama of production of cash by Kanchanben
Exh. 195
Panchanama of production of cash by Hemrajbhai
Exh. 197
Panchanama of production of cash by father of accused Jagdish
Exh. 202
Panchanama of seizure of cash from witness Rakeshbhai
Exh. 208
Panchanama of production of Hero Honda by accused Manoj
Exh. 211
Panchanama of seizure of cash from witness Dhansukhbhai
Exh. 219
Panchanama of seizure of cash from witness Pravin
Exh. 220
Panchanama of seizure of cash from witness Ramesh
Exh. 222
Panchanama of seizure of articles from witness Kalabhai
Exh. 227
Panchanama of examination of cash recovered from accused Rajeshwaridevi
Exh. 229
Panchanama of seizure of Hero Honda and articles from witness Nathubhai
Exh. 249
Arrest Panchanama of accused Bharatbhai and others
Exh. 260
Panchanama of production of cash by witness Vijaybhai
Exh. 266
Panchanama of seizure of diamonds produced by witness Kishorbhai
Exh. 270
Panchanama of seizure of vehicle and diamonds
Exh. 284
Panchanama of seizure of cash from witness Gautambhai
Exh. 289
Panchanama of seizure of cash from witness
Exh. 300
Panchanama of weight of articles recovered from accused Narsinh
Exh. 317
Panchanama of seizure of articles recovered from home of accused Narsinh
Exh.346, 347,
350, 353 to 355
Certificates of diamonds from witness Rameshbhai
Exh. 435
Certificate of medical treatment of witness Pranav
Exh. 445
Certificate of medical treatment of witness Bharatbhai
Exh. 519
Panchanama of test identification parade of accused
Exh. 664
Panchanama of articles seized from Dilipkumar
Exh. 666
Panchanama of seizure of cash from Dineshbhai
Exh. 710
Panchanama of recovery of cash from witness Mahendrabhai
Exh. 756
Report of Serology Department
Exh. 765
Report of Biology Department
Exh. 769
Photocopies of papers of vehicle seized under Section 41 and 102 Cr.P.C.at Agra
Exh. 770
Page no. 200-201
Exh. 781
Ballistics Report
Exh. 788
Computer letter produced by complainant
Exh. 806
Panchanama of recovery of cash from witness Lakshmanbhai
Exh. 824
Copy of letter of sending articles to FSL
Exh. 825
Receipt by FSL regarding receiving articles
The accused upon being questioned under Section 313 of the Cr.P.C. with regard to incriminating circumstances made against them in the evidence rendered by the prosecution and they denied it and not lead any evidence in defence.
The Trial Court convicted and sentenced the respondents accused and directed them to undergo 7 years rigorous imprisonment with fine, as enumerated above, whereas rest of the accused have been acquitted from the all charges.
Being aggrieved and dissatisfied with the quantum of sentence awarded by the learned trial Court, the State has preferred this appeal for enhancement of sentence.
Learned APP Mr.L.B. Dabhi for the appellant – State, assailing the order of conviction, has submitted that, the learned Trial Court has awarded a minimum sentence as prescribed and that too without recording sufficient reasons thereof. The offence of robbery is grievous and affecting society at large and in the present facts, respondents accused used country-made pistol which has not been properly considered by the Trial Court. In such circumstances, he would urge that this is a fit case to impose a maximum sentence as prescribed upon the respondents accused.
Mr.J.R. Shah, learned advocate and Mr.Mafatar Pandey, learned advocate appearing for and on behalf of the respondents accused, opposed the contentions raised by the learned APP and contended that the accused respondents having no any past records and the learned Trial Court after considering the attending circumstances of the case and background facts of the accused, imposed 7 years imprisonment which cannot be said to be an inadequate sentence and therefore, no case is made out warranting interference with the findings recorded on the aspect of sentence.
We have heard learned counsels for the respective parties at length and perused the case records and the reasons recorded by the Trial Court in the impugned judgment.
It is useful to make a reference of the judgment of the Supreme Court, in the case of Bed Raj Vs. U.P. (AIR 1955 Supreme Court 778), wherein it was held and observed that, “A question of sentence is a matter of discretion and when it has been exercised properly, the Appellate Court should not interfere to the detriment of the accused person, except for very strong reason which must be disclosed on the face of the judgment.”
In the facts of present case, accused nos.7 and 9 were imposed 7 yeas imprisonment and fine amount. The minimum sentence prescribed is 7 years. The learned Trial Court while imposing the sentence has taken into account the background facts of the accused and attending circumstances. In the circumstances, we are of the considered opinion that the learned Trial Court after perusal of the entire record and evidence, imposed the sentence, as referred above and therefore, the discretion exercised by the Trial Court cannot be said to be arbitrary and against the settled principle of sentencing policy. Thus, therefore, the sentence imposed on the respondents accused is adequate and proper and does not warrant any interference.
For the reasons recorded and considering the peculiar facts and circumstances of present case, the present appeal fails and is hereby dismissed. The bail bonds if any stands cancelled. Surety, if any, given stands discharged. R & P to be sent tot he Trial Court concerned.