(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.145/2006, whereby the appellant – accused has been convicted for the offence punishable under Section 328 and Section 394 of IPC and sentence has been imposed upon him for 5 years' R.I., with the fine of Rs.1,000/- and 2 months' S.I., for default in payment of fine and 10 years' R.I., with the fine of Rs.500/- and one year's S.I., for default in payment fine for the respective offences.
2. As per the prosecution case, the complainant, Pappukumar Ramanandsinh – PW-6, when had started his journey in passenger train on 19.12.2004 at Surat, the accused came inside the train and he stated that he belongs to Bihar and then he offered 'liti sattu' (one particular food like pakkoda, which is popular in Bihar area) and the complainant and his cousin brother Ravish consumed the same and they became unconscious within half-an-hour. Thereafter, when they came in conscious condition, they were at Nandurbar Hospital and they found that the said unknown person – accused herein had offered intoxicated food and, therefore, they had become unconscious and when they came in conscious condition at the hospital, they came to know that all their belongings amounting to Rs.8,800/- were not there. Therefore, they filed complaint with the Surat Railway Police Station.
3. The complaint was investigated and thereafter the charge-sheet was filed and the case was committed to the Court of the learned Sessions Judge being Sessions Case No.145/2006. The Prosecution, in order to prove the guilt of the accused, examined 10 witnesses, details of which are mentioned by the learned Sessions Judge at paragraph 3 of the judgement and the prosecution also produced documentary evidences of 9 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 4 of the judgement. The learned Sessions Judge, thereafter, recorded the statements of the accused under Section 313 of Cr.P.C., wherein the accused denied the evidence against them and in the further statements they stated that they are wrongly involved in the case by the police. The learned Sessions Judge, thereafter, heard the prosecution as well as the defence and ultimately the learned Sessions Judge found that the prosecution has not been able to prove the case against the original accused No.2 to 5 and, therefore, they were acquitted. However, so far as the appellant herein – original accused No.1, the learned Sessions Judge found that the prosecution has been able to prove the case for the offences under Section 328 and Section 394 of Cr.P.C., P.C., and, therefore, held the appellant guilty for the offences. The learned Sessions Judge thereafter also heard the prosecution as well as the defence for sentence and imposed sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
4. The learned Counsel appearing for both the sides have taken us to the entire evidences on record. We have considered the judgement and the reasons recorded by the learned Sessions Judge. We have heard the learned Counsel, Mr.Baghel for the appellant and Ms. Shah, learned APP for the State.
5. We may record that the learned Counsel for the appellant, has not challenged the judgement and order of the learned Sessions Judge for holding the appellant – accused guilty for the offence and for conviction of him. The learned Counsel only raised the contention for the imposition of the sentence upon the accused for the offence under Section 394 of IPC. It was submitted by the learned Counsel for the appellant that considering the aspect that even as per the prosecution case, liti sattu was offered by the appellant to the complainant and his cousin brother, but the fact remains that as per the prosecution case that the offer was accepted by the victim and his cousin brother and it is only thereafter they have, as per the prosecution case, become unconscious. It has also been submitted that it is not a case where any injury is caused and immediately the complainant and his cousin brother were discharged from the hospital. It was also submitted that there is no recovery of any material from the appellant – accused and, therefore, it was submitted that the gravity of the offence, even if accepted that the conviction is valid, would be too less, which was required to be taken into consideration by the learned Sessions Judge while imposing sentence. He submitted that the convict is a very poor person and, therefore, keeping in view the said aspect, this Court may appropriately reduce the sentence by the period of sentence undergone, since, as per the learned Counsel for the appellant, by now he must have completed six years or more in jail.
6. Whereas, the learned APP, while supporting the judgement of the learned Sessions Judge for conviction as well as on the aspects of sentence, submitted that it was a case where the accused made the victim and his brother to consume intoxicated food and thereafter there was mens rea for committing theft and robbery and, therefore, the sentence imposed by the learned Sessions Judge is just and proper by the exercise of discretion.
7. As the conviction is not under challenge, we find that it is not necessary for us to elaborately deal with the evidence on record for holding the appellant – accused guilty, as held by the learned Sessions Judge, and only aspect challenged in the appeal is the quantum of sentence. Therefore, we find it appropriate to consider the only contention raised for imposition of punishment by appropriate sentence upon the accused.
8. The principles of sentencing the convict are by now well settled. Broadly, the Court has to keep in mind the gravity of the offence, the deterrent effect to be created in the society and personal mitigating circumstances of the convict.
9. On the first aspect of the gravity of the offence, we find that there is no physical injury caused or received by the victim. Further, the role is also played by the victim, inasmuch as liti sattu – food was offered and the victim had option to decline, but the victim, may be bonafide, accepted the offer and consumed the food, which resulted into the incident. Further, the appellant – accused is also a very poor. At the same time, since such incidents are being repeated, deterrent effect in the society is also required considered, but the fact remains that since none has sustained injury or there is also role played by the victim, the gravity of the offence could be said as diluted substantially.
10. Under these circumstances, we find that it would be appropriate to reduce the sentence for the alleged offence under Section 394 of IPC to 7 (seven) years' R.I., with the fine of Rs.500/-, and one month's further S.I., for default in payment of fine. So far as the sentence imposed for the offence under Section 328 is concerned, by now the accused – appellant has already undergone the sentence, as all the sentences have run concurrently. Therefore, we are not inclined to reduce the sentence for the offence under Section 328 of IPC.
11. In view of the aforesaid observations and discussions, the judgement and order passed by the learned Sessions Judge for the conviction under Section 328 and Section 394 of IPC is not interfered with and the sentence imposed for the offence under Section 328 of IPC is also not interfered with. However, the sentence for the offence punishable under Section 394 of IPC shall be 7 (seven) years' R.I., with the fine of Rs.500/- and one month's further S.I., for default in payment of fine. The other directions issued by the learned Sessions Judge are not interfered with.
12. The appeal is partly allowed to the aforesaid extent.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod