Reserved
Case :- CRIMINAL APPEAL No. - 6730 of 2017
Appellant :- Pappu @ Sabir
Respondent :- State of U.P.
Counsel for Appellant :- Sushil Kumar Pandey,Arvind Singh,Diwan Saifullah Khan,Shams Uz Zaman Counsel for Respondent :- G.A.
And
Case :- CRIMINAL APPEAL No. - 6641 of 2017
Appellant :- Khalid
Respondent :- State of U.P.
Counsel for Appellant :- Sushil Kumar Pandey,Arvind Singh,Diwan Saifullah Khan
Counsel for Respondent :- G.A.
Hon'ble Subhash Chandra Sharma,J.
1. These appeals emanate from the common judgment and order dated 26.10.2017 passed by learned Additional Sessions Judge, Court No. 16, Muzaffar Nagar in Sessions Trial No. 1353 of 2015 (State Vs. Pappu @ Sabir and another) arising out of Crime No. 333 of 2014, under Sections 392, 307, 411, 420 IPC; Sessions Trial No. 1354 of 2015 (State Vs. Pappu @ Sabir) arising out of Crime No. 334 of 2014, under Section 25 Arms Act and Sessions Trial No. 1355 of 2015 (State Vs. Khalid) arising out of Crime No.
352 of 2014, under Section 25 Arms Act, Police Station Mansoorpur, District Muzaffar Nagar by which appellants have been convicted and sentenced under Section 392/34 IPC for a period of seven years rigorous imprisonment with fine of Rs. 10,000/- for each, in default of payment rigorous imprisonment for a period of one year; under Section 420/34 IPC for a period of five years imprisonment with fine of Rs. 5,000/- for each, in default of payment imprisonment for a period of six months and under Section 411 IPC for a period of two years imprisonment with fine of Rs. 2,000/- for each, in default of payment imprisonment for a period of three months which are to run concurrently, therefore these appeals are heard and being decided together.
2. The prosecution case in brief is that on 10.08.2014 informant Devendra Kumar, resident of Almaspur, Police Station Mansurpur was going to his Sasural with his wife Smt. Pooja at about 10.30 a.m. As he arrived at the bridge of Kali River, two robbers came from behind on their motorcycle bearing no. U.P.-12 AC 5118 and barred his way by stopping their motorcycle in front of the scooty. They robbed Rs. 5000/- from the pocket of informant and golden ear-ring, golden chain, mangalsutra and mobile from his wife at gun point. Meanwhile, Anuj and Neeraj reached there by their car, those were resident of his Sasural. On making noise both the robbers ran towards Jadauda. They followed them. The robber sitting on the back of motorcycle made a fire to kill them but they did not stop. In front of Gupta Resort, motorcycle of robbers collided with divider and they fell down. One of the robbers was caught by people with a country-made pistol and mobile. On query, he told his name Pappu s/o Ayub r/o Harsauli, P.S. Shahpur, District Muzaffar Nagar and also tell the name of other robber Khalid s/o Abdulla r/o Harsauli. Pappu was brought to the police station by the informant with motorcycle, country-made pistol and one mobile and got Tahreer scribed by one Govind Kumar. Case was registered at Police Station as Crime No. 333 of 2014, under Section 392, 307, 411 IPC and Crime No. 334 of 2014 under Section 25 Arms against Pappu s/o Ayub and Khalid s/o Abdulla.
3. Recovery memo was prepared by the police regarding aforesaid articles.
4. Investigation of the case was handed over to S.I. Kishna Autar. During investigation, he took police custody remand and recorded statement of appellant Khalid who went into jail by getting his bail cancelled in some other case just after commission of this incident. During police custody remand, on the instance of appellant Khalid in pursuance of his statement made before Investigating Officer on 04.09.2014, one pair of golden ear ring and one country-made pistol 315 bore were recovered from a bush behind a factory near Gupta Resort. Recovery memo was prepared and separate Crime No. 352 of 2014 under Arms Act was registered against the appellant Khalid. The investigation of the case was handed over to S.I. Rashid Ali.
5. During investigation, statements of witnesses were recorded. After inspection of place of occurrence site plans were prepared and sanction was taken for prosecution under Arms Act with District Magistrate concerned. After conclusion of investigation charge sheets were submitted before the court concerned.
6. The court concerned took cognizance of the offences and provided copies of papers to appellants in compliance of Section 207 Cr.P.C. The cases were committed for trial to the court of session.
7. On the basis of material on record charges under Sections 392, 307/34, 411, 420 IPC were framed against the appellants. Further, charges under Section 25 Arms Act were also framed against them which were read-over and explained to them. They did not plead guilty but denied and claimed for trial.
8. In support of its case prosecution examined P.W.1 Devendra Kumar (informant). P.W.2 Smt. Pooja wife of informant as witness of fact. P.W.3 constable Pramod Kumar who prepared F.I.R. in Crime No. 333 of 2014 & Crime No. 334 of 2014 and entered the detail in G.D. P.W. 4 constable Pushpendra Kumar who prepared chik F.I.R. in Crime No. 352 of 2014, under Section 25 Arms Act.
P.W. 5 S.I. Krishna Autar who investigated the Crime Nos. 133 of 2014 & 134 of 2014. P.W. 6 S.I. Rashid Ali who investigated the Crime No. 352 of 2014 under 25 Arms Act.
9. After conclusion of prosecution evidence statements of accused-appellants were recorded under Section 313 in which appellants stated about the incident to be false and told that no recovery was made from him and it was false and fabricated.
10. No any evidence in defence was adduced by the appellants.
11. After hearing the arguments for accused/appellants as well as the State, learned trial court passed the impugned judgment and order in question while convicting and sentencing the appellants as aforesaid.
12. Being aggrieved with the conviction and sentence these criminal appeals have been preferred by the appellants.
13. Heard Shri Bablu Pant, Advocate holding brief of Shri Arvind Singh, learned counsel for appellants as well as Shri J.B. Singh, learned A.G.A. for the State and perused the record.
14. Learned counsel for the appellants submitted that the learned trial court has not considered the evidence on record. There is no cogent and credible evidence against the appellants. There are material contradictions in the statements of prosecution witnesses. No any independent witness has been examined by the prosecution. P.Ws. 1 & 2 are relative witnesses i.e. husband and wife. Alleged recovery of golden kundal (ear rings) and mobile is not proved and connected. False recovery of country-made pistol was shown from the appellants but prosecution failed to prove the recovery, as a result appellants were acquitted of the charges thereto. Golden kundal (ear rings) are said to have been recovered at the instance of appellant Khalid and mobile at the instance of appellant Pappu @ Sabir. Except kundal (ear rings), no other jewellery has been recovered from the possession of appellants. Appellant Pappu @ Sabir is said to have caught on the spot and appellant Khalid was made accused on the basis of confessional statement made by appellant Pappu @ Sabir. Anuj and Neeraj are said to come on the spot and to catch the appellant Pappu but those witnesses have not been examined by the prosecution before the court which makes the prosecution story improbable. Even though, learned trial court has convicted the appellants on such shaky evidence. From evidence on record, offence under Section 392 IPC is not made out and where appellants have been acquitted of the charges under Section 25 Arms Act the whole prosecution story becomes unreliable. In this way, the finding recorded by learned trial court is perverse and conviction made against the appellants is not sustainable in the eye of law.
It is further submitted that appellants have been sentenced for a period of seven years rigorous imprisonment which is more sever than the nature of the offence. It is not in proportion. In case, charges against the appellants are found to be proved, the punishment be awarded in proportion to the offence committed by them. The conviction and sentence is liable to be set aside and appeal be allowed.
15. Learned A.G.A. has vehemently opposed the argument advanced by learned counsel for appellants and submitted that in this case, there is clinching and credible evidence on record against the appellants which is reliable. Learned trial court has convicted and sentenced the appellants on the basis of evidence on record. P.W. 1 and P.W. 2 are husband and wife. Incident took place with them. They are eye witnesses of the incident. Their testimony cannot be discarded only on being husband and wife. So far as the examination of Neeraj and Anuj is concerned, it is noteworthy that no one wants to become a witness against criminals on account of their fear in the society or in future. The recovery made from the possession of appellants has been proved by the prosecution and the golden kundal (ear rings) at the instance of appellant Khalid belong to P.W. 2. She identified them and mobile belong to P.W.1 which was recovered from the possession of appellant Pappu who was caught on the spot. A motorcycle which was used by the appellants while committing the offence was bearing forged number plate which has been proved by the Investigating Officer during his examination before the court by comparing it with the original registration number of the motorcycle. In this way, their remains no any suspicion about the fact that appellants had committed the offence. Appellants were acquitted of the charges under Section 25 Arms Act only on the basis of technical grounds of obtaining sanction after submission of charge sheet. Therefore, it cannot be said to falsify the whole prosecution story. In this way, the argument made by learned counsel for appellants is not tenable and judgemnt & order passed by learned trial court is sound and appeal being devoid of merit is liable to the dismissed.
16. Before dealing with the contentions raised by learned counsel for the appellants, it will be convenient to take note of the evidence as adduced by the prosecution.
17. P.W. 1 Devendra Kumar has stated that he knew accused Pappu @ Sabir and Khalid from the time of incident. On 10.08.2014 at about 1.30 p.m. he along with his wife was going to his sasural Lachheda. When he reached at about bridge of Kali River, accused persons came by motorcycle from behind and held up their way by stopping their motorcycle in front of his scooty, placed country-made pistol on his occipital region and snatched Rs. 5000/- and mobile. They also snatched golden mangalshutra, golden ear rings and golden chain from his wife. In the meantime, Anuj and Neeraj arrived their from the side of Lachheda in a vehicle. He shouted then he along with those persons followed them. Accused persons opened fire with intention to kill. In front of Gupta resort, motorcycle of accused persons collided with divider where they caught one robber named Pappu with the help of public. One country-made pistol and mobile were recovered from the possession of accused Pappu, other accused fled away from there. Accused Pappu was brought to the police station with country-made pistol & mobile and also with motorcycle. F.I.R. was lodged at the police Station on the basis of Tahreer given by him after getting it prepared by Robin which is proved as Ext. Ka-1. Police prepared fard recovery relating to country-made pistol, mobile and motorcycle on which he made his signature and proved it as Ext. Ka-2. About 25 days later, police brought accused Khalid and at his instance one pair of kundal (ear rings) were recovered from behind the factory situated near Gupta Resort and also a country-made pistol was recovered from bush just a feet away. Fard recovery was prepared by the police, his signature and his wife's signature were also taken on the fard recovery which he proved as Ext. Ka-3. Fard recovery relating to country-made pistol- 315 bore was also prepared at the place of recovery on which he made his signature which he proved as Ext. Ka-4.
18. P.W. 2 Smt. Pooja has stated that on 10.08.2014 at 1.30 p.m. She was going to the village Lachheda from her sasural Almaspur. As she arrived at the bridge of Kali River, accused persons came there by a motorcycle and stopped it in front of her scooty. They placed country-made pistol on the occipital region on her husband and started robbery. They took golden mangalsutra, golden kundal (ear rings), mobile and Rs. 5000/-. In the meantime, Neeraj and Anuj reached there by a swift car. Those are resident of village Lachheda. Seeing them, she made noise. At this, they followed accused persons and she also followed them. Near to Gupta Resort motorcycle of accused persons collided with the divider then they with the intention of killing them opened fire but they were caught by Neeraj and Anuj. She also arrived there. From the possession of accused Pappu mobile of her husband and a country-made pistol was recovered. Accused Khalid fled away from there. Golden kundal (ear rings), money and mobile were recovered by the police at the instance of accused Khalid. At that time, she was also present there. She also proved the recovery of country-made pistol and mobile phone that was produced before the court.
19. P.W.3 constable Pramod Kumar has stated that on 10.08.2014, he was posted as C.C. at police Station Mansurpur where informant Devendra Kumar brought one accused person to police station with a country-made pistol. He identified accused Pappu @ Sabir in the court. He proved country-made pistol and cartridge as material Ext. Ka-2. He also stated that at Tahreer given by informant, he lodged an F.I.R. as Crime No. 333 of 2014 under Section 392, 307, 411 IPC & Crime No. 334 of 2014 under Section 25 Arms Act. He has proved the F.I.R. as Ext. Ka-5 and G.D. as Ext. Ka-6 in his writing and signature.
20. P.W.4 constable Puspendra Kumar has stated that he registered Crime No. 352 of 2014 under Section 25 Arms Act against accused Khalid on the basis of fard recovery which he proved as Ext. Ka-7 and G.D. relating thereto as Ext. Ka-8.
21. P.W.5 Sub-inspector Krishna Autar has stated that he was handed over the investigation of Crime No. 333 of 2014, under Section 307, 392, 411, 420 IPC read with Section 34 IPC, Police Station Mansoorpur and Crime No. 334 of 2014 under Section 25 Arms Act against accused Pappu. He further stated that motorcycle C.D. Delux used in the incident bearing no. U.P. 12 AC 5118 was mentioned in the fard. It was disclosed by the accused that number plate used was forged. The original number of the motorcycle was 5188. Registration Certificate was also recovered from the possession of accused which disclosed that original name of accused was Sabir s/o Ayub and also stated that accused Khalid was involved in commission of incident. He also proved the site plan as Ext. Ka-9 and site plan from where recovery was made at the instance of accused Khalid as Ext. Ka-10. Photocopy of number plate recovered from the possession of accused Pappu @ Sabir bearing no. U.P.12 AC5118 has been proved as material Ext. Ka-11. Likewise, R.C. as Ext. Ka-11.
He also proved the charge sheet submitted by him as Ext.
Ka-12 & 13 and the prosecution sanction by D.M. as Ext. Ka-14.
22. P.W.6 Sub-inspector Mohd. Rashid who has investigated the case Crime No. 352 of 2014, under Section 25 Arms Act against appellant Khalid relating to the recovery of one country-made pistol 315 bore, during investigation in case Crime no. 333 of 2014. He proved the investigation and site plan as Ext. Ka-15 and charge sheet as Ext. Ka-16 and prosecution sanction as Ext. Ka-17.
23. From the statements made by prosecution witnesses P.W.1 & P.W. 2, it transpires that both are husband and wife and on the date of incident, they were going to Sasural of P.W. 1 by a scooty when they reached at the bridge of Kali River, appellants came from behind by a motorcycle and held up them by stopping their motorcycle in front of the scooty. Appellant Pappu placed his country-made pistol on occipital region on P.W. 1 and snatched Rs. 5000/- from his packet with his mobile phone. Golden ear rings, mangalsutra and golden chain were also snatched away from P.W. 2, the wife of P.W. 1 by the appellants. In the meantime, Anuj and Neeraj came there from the side of Lachheda in a swift car who chased the appellants on hue and cry made by the P.Ws.1 & 2. At about Gupta Resort the motorcycle of appellants collided with the divider of the road. They fell down and appellant Pappu was caught at that place whereas appellant Khalid ran away. Appellant Pappu also made fire on the P.Ws. 1 & 2 as well as Neeraj and Anuj, though no injury was caused to them. Mobile phone and country- made pistol were recovered from the possession of appellant Pappu in presence of P.Ws. 1 & 2. He was brought to the police station and case was registered. P.Ws. 1 & 2 both are husband and wife. They have clearly stated about incident as taken place, during their examination-in-chief. Cross-examination was made by learned counsel for appellants but during cross-examination nothing came out to make their testimony unreliable. No any other reason has been given by the appellants about P.Ws. 1 & 2 to implicate them falsely. There is no any allegation of enmity among the informant and appellants which could be said to be the reason for their false implication. No any material contradictions appeared in the testimony of both the witnesses which could be said to affect the veracity of their statements.
24. Learned counsel for appellants has placed an argument that Anuj and Neeraj those have been said to reach at the place of incident when it took place but they have not been examined by the prosecution. Only P.Ws. 1 & 2, those are being husband and wife are interested witnesses have only been examined. Therefore, conviction cannot be based on such testimony.
25. It is true that P.Ws. 1 & 2 are husband and wife and they are most interested witnesses but on the basis of witnesses being relative, it cannot be said that they are telling a lie & are not reliable. It is noteworthy that incident took place with them. They were eye witnesses of the incident. No any other person may be better witness of the incident such as robbery. Such incident is not committed by the accused persons on public place. They choose lonely place for such acts. By chance, Anuj and Neeraj reached there on the spot in the meantime. They also chased appellants on hue and cry made by the P.Ws. 1 & 2. When motorcycle of appellants collided with the divider of the road near Gupta Resort appellant Pappu was caught on that place with mobile and country- made pistol in which mobile belonged to P.W. 1 and country-made pistol was used by the appellants in attempting to make the followers away and also kundal (ear rings) belonging to P.W.2 were recovered at the instance of appellant Khalid from the place near Gupta Resort. The recovery made from the possession of the the appellant Pappu and on the instance of the appellant Khalid corroborates the prosecution story as narrated by P.Ws. 1 & 2. It cannot be said to be false, only on the ground that Anuj and Neeraj have not been examined by the prosecution. Law does not require the number of witnesses to be examined to prove the prosecution case. Conviction can be held even on the testimony of single witness, if he is found to be reliable. In the present case, the testimony of P.Ws. 1 & 2 is wholly reliable. There is nothing to make it unreliable or untrustworthy whereas it is supported with the recovery of stolen property from the possession of appellants. In this way, argument made by learned counsel for the appellant have no force.
26. Other argument on behalf of appellants is that appellants have been acquitted of the charges under Section 25 Arms Act which makes the prosecution story suspicious. In this regard, it is noteworthy that prosecution witnesses have proved recovery of stolen articles & country-made pistol from the possession of appellant Pappu and on the instance of appellant Khalid. Learned trial court has acquitted the appellants of the charges under Section 25 Arms Act only on technical grounds. Essential papers with charge-sheet were submitted before the court, thereafter sanction was taken from the District Magistrate. It was found by learned trial court that papers were not taken back from the court by Investigating Officer at the time of obtaining sanction from District Magistrate and no any evidence on record was available that country-made pistol was produced before the District Magistrate. On account of these technicalities the charge under Section 25 Arms Act was not found to be proved and appellant Khalid was acquitted. Likewise, the country-made pistol which was recovered from the possession of appellant Pappu was given to the police at the police station with appellant Pappu and at that time the pistol was found to be damaged but at the time of trial when pistol was produced before the court, it was found in fit condition. On account of this reason, appellant Pappu was acquitted of the charge under Section 25 Arms Act. In this situation, it cannot be said that acquittal of appellants under Section 25 Arms Act which was on technical grounds, makes the whole prosecution story suspicious. In this regard, argument made by learned counsel for appellant cannot be accepted.
27. Thus, the incident of robbery committed by the appellants with P.Ws. 1 & 2 stands proved beyond reasonable doubt.
28. So far as the recovery of mobile phone and kundal (ear rings) from the possession of appellants Pappu @ Sabir and Khalid is concerned, it has been proved by P.W.2 and P.W.5 who investigated the case. Mobile phone was recovered from the possession of appellant Pappu which belonged to P.W.1 informant and kundal (golden ear rings) recovered at the instance of appellant Khalid belonged to P.W. 2 Pooja and they were identified by them. In this way, recovery of stolen property also stand proved beyond reasonable doubt.
29. Regarding charge under Section 420 IPC it was found that motorcycle used by the appellants in commission of offence of robbery was owned by appellant Sabir @ Pappu but the number plat was bearing the number U.P.12AC 5118 whereas registration certificate which was recovered from the motorcycle, proved as Ext. Ka-12 disclosed the number of motorcycle U.P.12 AC5188. Engine number and chassis number of the motorcycle was found matching with registration number U.P. 12AC5188. It established that the number plate used by the appellants at the time of commission of offence at the motorcycle did not bear the real number of motorcycle i.e. U.P.12 AC5188 but on that place number U.P.12AC5118 was used. The motorcycle was recovered from the joint possession of appellants and both of them running away after committing the robbery with P.Ws. 1 & 2 and when collided with divider of the road. Appellant Pappu @ Sabir was caught with motorcycle and registration certificate was also recovered from that motorcycle. Recovery of motorcycle has been proved by P.Ws. 1 & 2, it was taken to the police station and handed over to the police, entry of which was made on G.D. report No. 33 which has been proved as Ext. Ka-6 by P.W.3. The recovery of motorcycle and use of different registration number on the place of real one is also proved.
30. Thus, on considering the facts and circumstances of the case with evidence on record, charges under Section 392, 411, 420 IPC read with Section 34 IPC stand proved beyond reasonable doubt and the conviction as recorded by learned trial court is based on the evidence on record, which does not warrant interference at all.
31. It has also been argued on behalf of appellants that the sentence awarded by learned trial court is too severe.
32. So far as the argument of learned counsel for the appellant regarding excessive punishment is concerned, the legal position in this regard requires to be taken into consideration.
33. Section 235 of the Criminal Procedure Code, 1973 reads:
"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".
34. In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble The Apex Court has held that :
"The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity- all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit."
35. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble The Supreme Court has held :
"The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction."
36. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e the Apex Court has held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
37. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court has held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
38. In the present case after the verdict of conviction the accused appellant had, at the time of hearing on the point of quantum of sentence, placed all relevant factors which should have been well thought out for determining the appropriate amount of sentence.
39. It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and in the present case the discretion has not been judiciously applied. In the present case the trial Court had chosen to award sever punishment to appellant without considering the points which should have been taken into account at the time of pre-punishment hearing. This had infringed legal rights of appellant available to him under section 235(2) CrPC. Therefore the impugned judgment warrants interference in the exercise of appellate jurisdiction.
40. Now the matter is limited to the sentence for the offence under Sections 392, 411, 420 IPC, and we have to consider about the appropriate sentence for the appellants in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered.
41. While we see no reason to differ with the findings recorded by the trial court regarding the charged offence, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attendant circumstances, the age of the accused and the fact that he has already been in jail for a considerable period, the Court should take a balanced view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attending circumstances, this Court is of the considered view that ends of justice would be met, if the punishment awarded to the appellant is reduced. So, it appears appropriate that, in present case the sentence should not exceed more than 4 years' imprisonment for each under Sections 392 & 420 IPC respectively.
42. In view of above facts and discussion, the order of conviction under Sections 392, 420 & 411 read with Section 34 IPC imposed on the appellant is hereby confirmed. But the sentence of imprisonment only under Section 392 IPC is modified to imprisonment of 04 years and under Section 420 IPC to imprisonment of 4 years on the place of seven years. Sentence awarded under Section 411 IPC will remain the same. The amount of fine will also remain the same. All sentences will run concurrently. With this modification of sentence, the appeals are partly allowed.
43. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 7th October, 2021 A. Singh (Subhash Chandra Sharma,J.)