The appellants - original accused have filed this Criminal Appeal against the Judgment and order dated 31.12.2008 passed by the learned Principal Sessions Judge, Bharuch, in Sessions Case No. 64 of 2008, whereby the learned Sessions Judge has held the appellants
- accused guilty of the offence punishable under Section 395 of I.P. Code and sentenced them to suffer rigorous imprisonment of 7 (seven) years and to pay a fine of Rs.1000/- each and i/d to further undergo simple imprisonment of 6 (six) months.
It is the case of the prosecution that on the date of incident i.e. on 17.10.2008 in the midnight when the complainant came to his house at that time his parents were sleeping on the terrace and his wife Madhuben and daughter were sleeping on the Osari. It is alleged that at about 3.00 AM the wife of the complainant made hue and cry and on being asked, she has informed the complainant that about 2 to 3 unknown persons have looted her golden ornaments. The complainant has thereupon immediately informed PSI Shri D.H. Bhatt, Bharuch Rural Police Station, and also informed the Bharuch Control through Phone. Thereafter, some of the accused were arrested with the help of village people and police personnel and some of the accused were ran away, including the present appellants. Thereafter, after some time, rest of the accused were also arrested by the Police.
Thereafter, the investigation was carried out and the accused were arrested by the Police. Thereafter, after completion of investigation, the police filed charge-sheet against the accused for the offence under Section 395 of I.P. Code before the Court of learned Magistrate, Bharuch. As the offence was exclusively triable by a Court of Sessions, the learned Magistrate committed the said case to the Court of Sessions at Bharuch.
Thereafter, the charge against the accused was framed. The accused pleaded not guilty to the charge and claimed to be tried.
To prove the case against the accused, the prosecution has examined the witnesses and also produced and relied upon the documentary evidence. Thereafter, further statement of the accused was recorded under Section 313 Cr. P.C. in which the accused have denied the charges alleged against them. After hearing the parties, the learned Judge has held the accused guilty for the offence under Section 395 of I.P. Code and sentenced them to suffer rigorous imprisonment of 7 (seven) years and to pay a fine of Rs.1,000/- each i/d to undergo SI for 6 (six) months.
Being aggrieved by the aforesaid Judgment and order of conviction rendered by the learned Principal Sessions Judge, Bharuch the original accused have preferred this Criminal Appeal.
Heard learned Advocate Mr. Mrudul Barot, learned Advocate for the appellants - original accused and learned A.P.P. Mr. H.L. Jani, appearing on behalf of the State. Learned Advocate Mr. Rajesh Chauhan for Mr. Kanara has also appeared with prosecution.
Learned Advocate, appearing on behalf of the appellant - accused, has contended that the appellant - accused have not committed any offence as alleged against them in the charge. He has contended that without properly appreciating the evidence in its true perspective and without considering the defence raised by the accused, the trial Court has booked the accused just for the sake of conviction. He has contended that the prosecution has not produced any documentary evidence to establish the case against the appellants - accused. He has contended that there are material contradictions in the evidence of witnesses. He has contended that looking to the evidence produced on the record, the prosecution has failed to establish its case beyond reasonable doubt that the accused have committed the offences as alleged against them. Learned Advocate has not much argued the matter on merit and contended that the accused are young aged and this is their first offence. They have responsibility to maintain their family and that the sentence awarded by the learned Judge is also very harsh and, therefore, looking to the facts of the case, some lenient view may be taken towards the appellants.
Learned APP has supported the Judgment and order passed by the learned Judge and contended that looking to the seriousness of offence, no interference of this Court is called for. He has contended that looking to the facts and evidence produced on the record, the appellants - accused have been properly held guilty for the offence under Section 395 of I.P. Code. Looking to the facts of the case, no interference is required to be called for.
I have gone through the Judgment and order passed by the learned Sessions Judge and also gone through the documents produced before me. I have also considered the submissions made by the learned Advocates for the parties. I have gone through the record and proceedings of the case. I have also gone through the evidence of the prosecution witnesses and other material evidence. I have also considered the Judgment of the trial Court. From the evidence on record, it clearly appears that the learned Judge has not committed any error in holding the appellants - accused guilty of the offences under Section 395 of I.P. Code. However, looking to the peculiar facts of the case, in my opinion, the sentence awarded by the learned Judge is very harsh. The learned Advocate appearing on behalf of the appellants has also contended that the appellants - accused are poor person and they are bread-winner of their family and, therefore, some leniency may be shown towards the appellants. I am, therefore, of the opinion that, while maintaining rest of the order, if the sentence awarded by the learned Judge is reduced to an extent of 5 (five) years, instead of 7 (seven) years, the same would serve the ends of justice.
In view of above, this Appeal is partly allowed. The Judgment and order of conviction dated 31.12.2008 passed by learned Principal Sessions Judge, Bharuch, in Sessions Case No. 64 of 2008 is hereby confirmed. However, the sentence awarded by the learned Sessions Judge, vide impugned judgment, holding the appellants - accused guilty for the offences under Section 395 of I.P. Code, is modified and reduced to an extent of 5 (five) years R.I., instead of 7 (seven) years R.I. Rest of the Judgment and order passed by the learned Sessions Judge shall remain unaltered. Record & Proceedings be sent back to the trial Court immediately.
(Z.K.SAIYED, J.) sas Top