(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As all the appeals arise from the common judgement and order passed by the learned Sessions Judge, they are being considered simultaneously.
2. All the appeals are directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.166 of 2006, whereby the accused have been convicted for the offence under Section 393 of IPC and the sentence has been imposed of 10 years' R.I., with the fine of Rs.5,000/- and further 3 (three) months' S.I., for default in payment of fine. The sentence is also imposed of 4 (four) months' R.I. for the offence punishable under Section 135 of Bombay Police Act with the fine of Rs.100/- and 7 (seven) days' further S.I. For default in payment of fine.
3. As per the prosecution case, a complaint was filed by Sundarlal Pyarelal Kori (PW-1), stating that on 5.8.2005, when he was on duty he was informed that the passengers, who had engaged Qualis were to be taken to Ambaji and after Darshan they had to come back to Mount Abu. Therefore, he took all the passengers in the vehicle Qualis. They were in all five persons. After Darshan, when they informed him that their family members were to be taken and, therefore, they gave direction to take the vehicle and after driving the vehicle from Ambaji to Ahmedabad for about 1 k.m., one person pointed knife on his neck and pulled his hair and applied hand-brake and he was taken on the back side and one slim person came on the front side, started driving the vehicle. Thereafter, nearby Taranga Road, the turn of the vehicle was taken and he was thrown away, but before doing so, one mobile after removing sim card and Rs.250/-, which was in his pocket and other papers were already taken away. Thereafter, the complainant went to the temple and ultimately the complaint was filed stating that a robbery was made of the vehicle and other items. The said complaint was filed with Satlasna Police Station.
4. The Police investigated into the complaint and the charge-sheet was filed against all the accused and the case was thereafter committed to the Court of the learned Sessions Judge being Sessions Case No.166 of 2006.
5. The prosecution, in order to prove the guilt of the accused, examined 19 witnesses and produced documentary evidences of 17 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 6 of the judgement. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein the accused denied the evidence against them and they stated that they were innocent and they were falsely implicated in the case. The learned Sessions Judge thereafter heard the prosecution as well as the defence and found that the prosecution has been able to prove the case against the accused for the offence under Section 395 of the IPC read with Section 135 of Bombay Police Act and, therefore, held all the accused guilty for the offence. Thereafter, the learned Sessions Judge heard the prosecution as well as the defence on the aspects of sentence and imposed sentence as referred to be herein above. Under these circumstances, the present appeals before this Court.
6. We may state that the original accused No.1 has preferred Criminal Appeal No.1926 of 2008, original accused No.2 has preferred Criminal Appeal No.2133 of 2008 and original accused No.3 has preferred Criminal Appeal No.1716 of 2008. As all the appeals arise from the common judgement, they are considered simultaneously and for the purpose of convenience, the appellants – accused shall be referred to as per their original status before the Sessions Court like; A-1, A-2 and A-3.
7. The learned Counsel appearing for all the appellants as well as the learned APP have taken us to the entire evidences on record. We have considered the judgement and reasons recorded by the learned Sessions Judge. We have heard the learned Counsel, Mr.Barot for A-1, Ms.Kapadia, learned Counsel for A-2, Mr.Dave, learned Counsel for A-3 and learned APP, Ms.Shah for the State in all the appeals.
8. All the learned Counsel appearing for the appellants, at the outset, declared before us that they are not challenging the conviction as held by the learned Sessions Judge, but they are only raising the contention on the aspects of quantum of sentence imposed by the learned Sessions Judge. It was submitted by the learned Counsel appearing for the appellants that even if the evidences as laid by the prosecution are considered and accepted, then also it is a fact that no injury was caused to anybody out of the incident. Further, the vehicle is not sold away or dismantled and the parts are sold away by the accused, but even as per the prosecution case, the vehicle thereafter was found in abandoned condition at Umrala. Therefore, had the intention of the accused been to commit robbery of vehicle, such abandonment of the vehicle would not have been there. It was also submitted that the only evidence against the accused is that of the complainant and the identification parade and at the most pointing panchnama for the scene of the offence. It was submitted that there was no recovery of any weapon or any amount or mobile phone. Under these circumstances, it was submitted by the learned Counsel appearing for the appellants that the sentence imposed by Judge.
9. We may record that when conviction is not under challenge as held by the learned Sessions Judge, it may not be required for us to deal with the evidence laid by the prosecution for showing the guilt of the accused and the involvement in the incident. Under these circumstances, the conviction recorded for the offence under Section 395 of IPC and for the offence under Section 135 of Bombay Police Act would not called for any interference.
10. However, on the aspect of sentence, we may record that the principles of sentencing are by now well settled. Broadly the gravity of the offence, deterrent effect to be created in the society and personal mitigating circumstances of the accused, are the general principles to be taken into consideration while imposing sentence. Section 395 of IPC does provide for the punishment for life or RI, which may be extended to 10 years, but we do find that the gravity of the offence also would be an aspect to be taken into consideration at the time when the sentence is to be imposed. The peculiar circumstance, which we find in the present matter is that the vehicle Qualis is found in abandoned condition and it is not a case where the vehicle is used for any offence or the vehicle was dismantled or sold to any third party and the money was realized therefrom. The another circumstance is that thee was no evidence led by the prosecution for showing any injury sustained by the complainant – PW-1, may be through knife or may be when he was said to be thrown away from the vehicle. These two circumstances, in our view, could be said as a relevant circumstance for considering the gravity of the offence at the time of imposing sentence. If the personal mitigating circumstances of the accused are to be considered, so far as A-1 is concerned, he is not involved in any other offence even as per the jail report after the incident. However, the other two accused, A-2 and A-3 are involved in other offences, including the offences under Section 395, of course, the cases are yet to be finalized. It is true that at the time when the learned Sessions Judge considered the matter for imposing sentence, such circumstances were brought to his notice, but he has referred to the said aspects generally, without considering the involvement of each of the accused separately. Under these circumstances, we find that appropriate sentence deserves to be imposed upon A-1 of 7 (seven) years' RI with fine of Rs.5,000/- and the same default sentence as observed by the learned Sessions Judge. However, so fa as A-2 and A-3 are concerned, since they are involved in other criminal cases also, appropriate sentence should be of 8 (eight) years' RI with the fine of Rs.5,000/- and with the same default sentence. No interference is called for the sentence imposed for the offence under Section 135 of Bombay Police Act.
11. In view of the aforesaid observations and discussion, the judgement and order passed by the learned Sessions Judge in Sessions Case No.166 of 2006 for holding the accused guilty and for conviction is not interfered with. However, the sentence for the offence under Section 395 upon CR.A/1716/2008 10/10 JUDGMENT Accused No.1 is imposed of 7 (seven) years' R.I., upon Accused No.2 and Accused No.3 are imposed of 8 (eight) years' R.I., each. The imposition of fine of Rs.5,000/- and 3 (three) months' S.I., for default in payment of fine, as ordered by the learned Sessions Judge, is not interfered with. Further, the sentence imposed by the learned Sessions Judge for the offence under Section 135 of Bombay Police Act is also not interfered with. The other directions issued by the learned Sessions Judge in the operative portion of the judgement also does not call for any interference. The appeals are partly allowed to the aforesaid extent.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod