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2011 DIGILAW 815 (GUJ)

ANUJKUMAR NATHUNPRASAD v. STATE OF GUJARAT

2011-12-07

JAYANT PATEL, PARESH UPADHYAY

body2011
JUDGMENT JAYANT PATEL 1. As all the appeals arise from the common incident of alleged dacoity and the charge in both the original Sessions Case No.134 of 2004 and 86 of 2005 are the same as that for the offence under Section 395 read with Section 394 of IPC and under Section 25 of Arms Act, they are being considered by this common judgement. 2. As per the prosecution case, on 3.11.2003, when the Branch Manager Yakubkhan – PW-1 of Surat District Cooperative Bank, Kim Four Roads Branch, was on duty and with him, there were Bank Clerk, Afzal Yakhub Shaikh – PW-2 and Peon Rohit T. Patel, at about 1 O'clock afternoon, five persons entered the Bank, aged between 25 to 30 years, and they pointed Tamancha (revolver) to the manager and gave a threat that if he would shout, he would be shot and he demanded all the cash balance. The another person also threatened Afzal, Clerk of the bank with a knife and when Peon Rohit came from the backside, he was given a kick-blow by one another person having Tamancha (revolver) with him. Thereafter, they compelled them to open cash box and the treasury and they took away the cash by putting it into a bag. They also demanded mobile, to which the bank employees said that they were not having and thereafter, PW-1 and PW-2 were kept inside and the treasury was locked by these persons and they went away on the Honda Motor Cycle. The complaint was filed with the concerned police station by the Branch Manager of the Bank, PW-1, Yakubkhan for the aforesaid incident of bank robbery. 3. The police investigated into the complaint and ultimately filed two charge-sheets; one principal charge-sheet and another supplementary charge-sheet and then the cases were subsequently committed to the Sessions Court being Sessions Case No.134 of 2004 and No.86 of 2005 respectively. In Sessions Case No.134/2004 appellant of Criminal Appeal No.1101 of 2006 was Accused No.1 (A-1), whereas appellant of Criminal Appeal No.1100 of 2006 was Accused No.2 (A-2) and appellant of Criminal Appeal No.1099 of 2006 was Accused No.3 (A-3), whereas in Sessions Case No.86/2005, the appellant of Criminal Appeal No.1098 of 2006 was shown as Accused No.1 (A-1). The another accused of Sessions Case No.86 of 2005, Shaikh @ Shaikh Sanu, Son of Bannemiya Shaikh has not preferred in Appeal. 4. The another accused of Sessions Case No.86 of 2005, Shaikh @ Shaikh Sanu, Son of Bannemiya Shaikh has not preferred in Appeal. 4. The learned Sessions Judge framed the charge against all the accused in both the Sessions Case for the offences under Section 395, 397, and 342 of IPC and under Section 25(1)(1B) and Section 27 of Arms Act. The prosecution, in support of the charge, examined 18 witnesses, whose details are mentioned by the learned Sessions Judge in the impugned judgement at paragraph 2. The prosecution also produced the documentary evidence of 19 documents, details of which are also mentioned in the impugned judgement at paragraph 3. The learned Sessions Judge, thereafter, recorded the statement of the concerned accused under Section 313 of Cr.P.C., P.C., wherein the accused denied the evidence against them by stating that a false case is filed against them. The learned Sessions Judge, thereafter heard the prosecution as well as the defence and found all the accused guilty for the offence under Section 395 read with Section 397 of IPC, but the learned Sessions Judge did not find the accused guilty for the offence under the Arms Act. The learned Sessions Judge thereafter heard the accused on the aspect of sentence and ultimately, has imposed sentence by the impugned judgement dated 31.5.2006, for imposed of life-imprisonment upon all the accused with the find of Rs.500/- and three months' imprisonment for default in payment of fine. The learned Sessions Judge has acquitted all the accused for the offence under Section 25(1)(1B) and (A) and Section 27(2) of the Arms Act. Under these circumstances, the present appeal before this Court. 5. We may state that as the learned Sessions Judge in the common judgement and order has referred to A-1 to A-5 in seriatim, it would be more convenient to refer to those accused concerned accordingly. Again for ready reference, we may state that A-1 of the said judgement has preferred Criminal Appeal No.1101 of 2006; A-2 has preferred Criminal Appeal No.1100 of 2006, A-3 has preferred Criminal Appeal No.1099 of 2006 and A-4 has preferred Criminal Appeal No.1098 of 2006, whereas A-5 Shaikh Sanu has not preferred any appeal. All appeals are considered simultaneously. 6. We have heard Mr.Gajendra P. Baghel, learned Counsel for the appellant of Criminal Appeal No.1101 of 2006 (A-1) and Criminal Appeal No.1098 of 2006(A-4). All appeals are considered simultaneously. 6. We have heard Mr.Gajendra P. Baghel, learned Counsel for the appellant of Criminal Appeal No.1101 of 2006 (A-1) and Criminal Appeal No.1098 of 2006(A-4). We have also heard Mr.Darji, learned Counsel for the appellant of Criminal Appeal No.1100 of 2006 (A-2), appellant of Criminal Appeal No.1099 of 2006 (A-3). We have heard Mr.Pandya, learned APP on behalf of the State in all the appeals. We have considered the entire evidence, which are part of the paper-book and we have also considered the judgement and reasons recorded by the learned Sessions Judge. 7. The testimony of two important eye-witnesses, Yakubbhai – PW-1 Exh.17, who is also complainant and the testimony of Afzal – PW-2 Exh.18, fully supports the case of the prosecution for the incident in question of dacoity/bank robbery by all the accused. As per the testimony of Yakubbhai H. Pathan – PW-1, at about 1 O'clock in the afternoon, when PW-1 Peon Rohitbhai and Clerk Afzalbhai – PW-2 were in the bank, 5 persons of blackish skin, approximately aged of 30 years had come if they were customers. He has described that one person entered, other three persons entered subsequently. The person, who entered first through the wooden gate, which was open, pointed Tamancha (revolver) to PW-1 and gave a threat that no shout should be made, otherwise he will be shot and he demanded of the balance. The said accused came near and pointed Tamancha (revolver) on the head. Simultaneously, the other four persons also came near to PW-1 and Afzal – PW-2 was sitting in front of PW-1 was also given threat by pointing knife on his head and they started putting cash from the cash box in the bag of Vimal Brand. As per the said witness, the another accused was also having Tamancha (revolver) and gave threat to Afzal and at that time Peon Rohit came from the backside and the said another person, who was having Tamancha (revolver) gave kick blow to Rohit and took away all the cash from the cash box. Thereafter, they took keys of the treasury and caught hold of by the color of PW-1 and made a demand to open treasury and they pulled PW-1 and other two employees to the treasury and they got opened the treasury and all the monies were taken up in the bag. Thereafter, they took keys of the treasury and caught hold of by the color of PW-1 and made a demand to open treasury and they pulled PW-1 and other two employees to the treasury and they got opened the treasury and all the monies were taken up in the bag. As per the said witness, the accused had given fist-blows and told that if any mobile phone was there, the same should be given, but the said witness replied that they were not having any mobile. Thereafter, they looked all the three employees, including the witness – PW-1 and gave a threat that for half-an-hour they should not make any attempt to phone otherwise they will be killed. As per the said witness thereafter the accused closed collapsible gate of the treasury and applied lock and kept the keys with them, and went away. When the said witnesses saw from the space of the shutters, they found that the accused were trying to go away through their Honda Motor Cycle. Thereafter, the said witness had started shouting and the people had come but by that time, the accused had already gone away on their Motor Cycle. The said witness has not been contradicted on the aspects of the incident in question in the cross-examination by the defence. Further, the said witness has also identified in the identification parade all the five accused in two steps namely; three accused were identified in the first identification parade held on 30.1.2004 and other two on 13.12.2004. He has also identified all the accused in the Court. 8. The another eye-witness Afzalbhai – PW-2 Exh.18, who was the clerk of the Bank at the relevant point of time has fully supported the case of the prosecution for the incident in question. The executive magistrate Mohanbhai Patni has been examined by the prosecution as PW-4, whose deposition is at Exh. 25 and he has supported the case of the prosecution for both the test identification parades and the identification by the complainant of the concerned accused. As per the testimony of Afzabhai – PW-2, he had also identified all the three accused in the identification parade held on 30.1.2004 and other two accused were identified in the identification parade held on 13.12.2004. As per the testimony of Afzabhai – PW-2, he had also identified all the three accused in the identification parade held on 30.1.2004 and other two accused were identified in the identification parade held on 13.12.2004. The prosecution has been able to prove the pointing out Panchnama for the scene of offence through the testimony of the I.O. Under these circumstances, as such the prosecution could prove the case against all the accused. 9. However, the learned Counsel appearing for all the appellants raised the contention that both the eye-witnesses namely; Yakubbhai – PW-1 and Afzal – PW-2 are not reliable witnesses, since in their contention neither any details are given by any of the witnesses about availability of the actual cash amount or the register of the cash and/or the record of the bank at the relevant point of time. It was submitted that the recovery of the cash amount is also not made by the police, nor any evidence has come on record for the utilization of the amount of cash by the accused. Additionally, it was also submitted that the police had taken all the accused to the bank and, therefore, the identification parade would be rendered unreliable. In the submission of both the learned Counsel for the appellant accused, if the evidence/testimony of PW-1 and PW-2 is not proved, the same would be fatal to the case of the prosecution and the accused would be entitled to the benefits and consequentially the acquittal. It was submitted that the learned Sessions Judge has not considered the aforesaid aspect and, therefore, this Court may consider the same. 10. We have gone through the entire evidence led by the prosecution of Yakubbhai – PW-1 Exh. 17 and Afzal – PW-2 Exh. 18. Both the witnesses are eye-witnesses to the incident and their presence at the scene of the offence was natural inasmuch as they were bank employees at the relevant point of time. PW-1, was the manager of the Bank and PW-2 was the clerk of the bank. In the cross-examination, such witnesses have not been contradicted for the incident in question of robbery of the bank by the accused. Under these circumstances, it is not possible for us to accept the contention of the learned Counsel for the appellants that both the witnesses are unreliable or that their testimonies deserve to be discarded. In the cross-examination, such witnesses have not been contradicted for the incident in question of robbery of the bank by the accused. Under these circumstances, it is not possible for us to accept the contention of the learned Counsel for the appellants that both the witnesses are unreliable or that their testimonies deserve to be discarded. On the aspects of test identification parade, the contention is ill-founded inasmuch as PW-1 in the cross-examination has volunteered and stated that at the time when they were brought to the bank, he was not present. So was for PW-2. PW-2 further stated that after the identification parade was held, the accused were also brought to the bank. Under these circumstances, it cannot be said that the test identification parade was not genuine as sought to be canvassed. The same is coupled with the corroborative evidence of Mohan Patni, Exh.25, the Executive Magistrate, who held the identification parade and he has also not been contradicted in his cross-examination on the aspects of genuineness of the identification parade. 11. Merely because the recovery of the cash was not made by the I.O. Or that the prosecution did not lead any evidence for utilization of the amount of robbery or dacoity, in our view would not be fatal to the case of the prosecution, when the two eye-witnesses, who were present at the scene of the offence and they have identified the accused before the executive magistrate who has also fully supported the case of the prosecution. Under these circumstances, the contention raised by the learned Counsel for the appellants is without any merit. 12. The learned Counsel for the appellants next contended that there is self-contradiction in the judgement of the learned Sessions Judge inasmuch as the learned Sessions Judge has acquitted the accused for the alleged offence under Arms Act and, therefore, once the learned Sessions Judge has acquitted the accused for the alleged offence under Arms Act for want of sufficient evidence, he could not have held the accused guilty for the offence under Section 397 of IPC. It was, therefore, submitted that the conclusion recorded by the learned Sessions Judge for finding the accused guilty for the offence under Section 397 of IPC is erroneous and, therefore, consequently the conviction of the accused under Section 397 of IPC would be bad in law. 13. It was, therefore, submitted that the conclusion recorded by the learned Sessions Judge for finding the accused guilty for the offence under Section 397 of IPC is erroneous and, therefore, consequently the conviction of the accused under Section 397 of IPC would be bad in law. 13. The contention prima facie may appear to be attractive but upon the detailed scrutiny it appears that the requirement for proving the offence under the Arms Act would include the production of the weapon, the notification and other incidental aspects, whereas for proving the offence under Section 397 of IPC, the prosecution has first to establish the case of commission of robbery or dacoity and if for commission of such robbery or dacoity it has transpired that the offender concerned has or have used any deadly weapon, and such aspect is proved by material and reliable evidence, it could be said that the offence under Section 397 of IPC is proved. Examining the present case with the said angle, it appears that two eye-witnesses – PW-1 and 2 in their testimonies have clearly stated that Tamancha (revolver) and Chhara (long knife) were used to administer threat by pointing the said weapon on the head and on the neck of the concerned witnesses at the time when the offence of dacoity was committed. Therefore, if such material evidence has come on record by the testimonies of two reliable eye-witnesses, the same can be the basis to trace the guilt of the accused concerned for the offence under Section 397 of IPC. Under these circumstances, it cannot be said that merely because there is acquittal for the offence under the Arms Act given by the learned Sessions Judge, it cannot be said that the offence under Section 397 of IPC was not proved or was not constituted. Hence, the said contention raised by the learned Counsel for the appellants deserve to be rejected. 14. The learned Counsel for the appellants lastly contended that the conviction by the learned Sessions Judge, even if held to be valid for the offence under Section 395 read with Section 397 of IPC, the sentence imposed by the learned Sessions Judge upon all the accused of life-imprisonment is erroneous. 14. The learned Counsel for the appellants lastly contended that the conviction by the learned Sessions Judge, even if held to be valid for the offence under Section 395 read with Section 397 of IPC, the sentence imposed by the learned Sessions Judge upon all the accused of life-imprisonment is erroneous. In the submission of the learned Counsel for the appellants, even if the case is accepted against the accused fully as proved by the prosecution, it would not be a case where sentence of life-imprisonment was warranted since, the weapon namely; tamancha and chhara were not used for causing injuries to any person. It was submitted that when it was only a case of administering threat with the weapon, but as injury was not caused, sentence of life-imprisonment could be said as excessive. 15. The learned APP has supported the sentence imposed by the learned Sessions Judge. 16. We find considerable force in the contention raised on behalf of the appellants on the aspect of sentence. It is true that as per Section 395 of IPC, the punishment provided is of imprisonment for life or rigorous imprisonment for a term which may extend to 10 years. It is also true that as per Section 397 of IPC, the imprisonment provided is not less than 7 years if the offence under Section 397 of IPC is proved. Therefore, it appears from the conjoint reading of Section 395 read with Section 397 of IPC that the minimum punishment shall be 7 years imprisonment in a case where the offence under Section 397 is proved, whereas if the same is with the offence under Section 395, the punishment can be imposed of life imprisonment or R.I. which may extend to 10 years. It is also true that merely because the maximum punishment has been provided by the statute it is not necessary that in every case the Court would impose the sentence to the maximum, but it will be for the Court concerned to exercise the discretion by taking into consideration various factors, such as the age, gravity of offence and other relevant circumstances. At this stage, we may refer to the decision of this Court dated 11.5.2010 in Criminal Appeal No.1800 of 2005, wherein this Court at paragraph 59 on the aspects of imposition of sentence had made certain observations, which reads as under:- “62. At this stage, we may refer to the decision of this Court dated 11.5.2010 in Criminal Appeal No.1800 of 2005, wherein this Court at paragraph 59 on the aspects of imposition of sentence had made certain observations, which reads as under:- “62. The principles of imposition of sentence are by now well settled. Apart from the aspects of personal circumstances of the accused, Court cannot lose sight of the deterrent effect to be created while imposing sentence. But at the same time, the gravity of the offence and the consequential effect arising on account of the commission of offence would also be one of the relevant circumstance while imposing sentence. It does appear from the evidence of the case that the intention was not to cause injury, but was to kill the victim, but the fact remains that because of the injury received on the cheekbone, the victim survived. It is also true that the intention was to create great terror amongst the particular section of the society, but the fact remains that it ended with creation of tensed situation in the society. It has not come on record that any untoward incident or any rioting took place after the incident amongst two sections of the society. Under these circumstances, we find that if the learned Special Judge has exercised the discretion of imposing punishment of 7 years for the offence punishable under section 3(2) of the POTA or for the period of 6 years under section 307 of the IPC or for the period of 6 years for the offence under section 120B of the IPC, it can neither be said that there is improper exercise of the judicial discretion by the learned Special Judge (POTA) nor can be said as principles of deterrent effect was at not at all considered by the learned Special Judge (POTA).” 17. In the present case, it is not the case of the prosecution that any person was injured on account of the use of deadly weapon by the accused while committing the offence of dacoity, but at the same time, we cannot lose sight of the fact that it was a case of bank robbery, which is a public place and the bank money can be said to be more or less at par with the public property. As such, the dacoity itself is a serious offence. As such, the dacoity itself is a serious offence. Therefore, keeping in view all the facts and circumstances of the case, we find that the appropriate punishment ought to have been imposed by the learned Sessions Judge was of 10 years imprisonment instead of life-imprisonment. 18. Under these circumstances, the sentence imposed by the learned Sessions Judge deserves to be altered by R.I. for 10 (ten) years. 19. In view of the aforesaid observation and discussion, the impugned judgement and order passed by the learned Sessions Judge for holding the accused guilty for the offence under Section 395 read Section 397 of IPC does not deserve to be interfered with. However, the sentence imposed by the learned Sessions Judge upon the accused deserves to be modified by imposing sentence of R.I. for 10 years, in place of life-imprisonment. The sentence imposed of fine does not deserves to be interfered with. The sentence imposed shall be undergone concurrently by all the accused. 20. The aforesaid would apply to all the appellants, who are Accused No.1 (A-1) to Accused No.4 (A-4) as referred to herein above. We may record that Accused No.5 (A-5) Shaikh Sanu, S/o Bannemiya Shaikh has not preferred any appeal, may be for his financial constraint or otherwise. Since we have taken the view of altering the sentence upon A-1 to A-4 by the present judgement, we find it proper to direct the High Court Legal Aid Committee as well as to the Jail Authority to specifically intimate A-5, Shaikh Sanu S/o Bannemiya Shaikh, if he is desirous to prefer appeal against the very judgement and order of the learned Sessions Judge. We may rest by stating that in absence of any appeal before us by the said accused A-5, Shaikh Sanu, S/o Bannemiya Shaikh, we are unable to grant the relief to A-5at this stage. 21. The appeals are allowed to the aforesaid extent. It would also be open to the learned Counsel for the appellants to communicate the aforesaid direction to A-5, Sanu Shaikh, S/o Bannemiya Shaikh, who is at present in Vadodara Central Jail.