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Gujarat High Court · body

2015 DIGILAW 1106 (GUJ)

State of Gujarat v. Mulu

2015-10-27

G.B.SHAH, K.S.JHAVERI

body2015
JUDGMENT K.S. JHAVERI, J. 1. Heard learned Additional Public Prosecutor Mr. L.R. Pujari for the appellant-State. Learned Additional Public Prosecutor Mr. L.R. Pujari states that the respondent-accused is absconding and is not available at the given address. However, considering the law on the issue as declared by this Court, the present Appeal is decided on merits. 2. By way of these Appeals for enhancement, the Appellant-State has challenged the judgment and order of conviction and sentence dated 29.12.2009 passed by the learned Judicial Magistrate First Class, Khambaliya, District Jamnagar in Criminal Case No. 736 of 2008 and the judgment and order of conviction and sentence dated 30.7.2011 of the learned 4th Additional Sessions Judge, Khambaliya, Jamnagar in Criminal Appeal No. 10 of 2011 whereby the accused therein were awarded the following sentence:- Under Section 465 of the IPC Simple imprisonment for 2 years and fine of Rs. 500/- in default simple imprisonment for 10 days. Under Section 467 of the IPC Simple imprisonment for 3 years and fine of Rs. 1000/- in default simple imprisonment for 15 days. Under Section 468 of the IPC Simple imprisonment for 3 years and fine of Rs. 1000/- in default simple imprisonment for 10 days. Under Section 471 of the IPC Simple imprisonment for 3 years and fine of Rs. 1000/- in default simple imprisonment for 15 days. Under Section 472 of the IPC Simple imprisonment for 3 years and fine of Rs. 1000/- in default simple imprisonment for 15 days. Under Section 417 of the IPC Simple imprisonment for 1 year and fine of Rs. 200/- in default simple imprisonment for 5 days. Under Section 419 of the IPC Simple imprisonment for 2 years and fine of Rs. 500/- in default simple imprisonment for 10 days. Under Section 420 of the IPC Simple imprisonment for 3 years and fine of Rs. 1,000/- in default simple imprisonment for 15 days. 3. The case in brief is as under:- 3.1 It is the case of the prosecution that the complainant is running the Agency for renting/leasing the trucks for bauxite of Ashapura Mines. During the period from 31.1.2008 to 6.2.2008, the accused with a view to fulfill their common intention forged the duplicate bills and receipt of the Royalty. 3. The case in brief is as under:- 3.1 It is the case of the prosecution that the complainant is running the Agency for renting/leasing the trucks for bauxite of Ashapura Mines. During the period from 31.1.2008 to 6.2.2008, the accused with a view to fulfill their common intention forged the duplicate bills and receipt of the Royalty. By endorsing the round seal of the Mines and Mineral Department with the help of a colour printer on these receipts, though knowing that these receipts are forged, they allegedly used them as a genuine one. They also created a duplicate receipt in respect of the weigh-bridge and also created fraudulent record by use of electronic equipment. The accused No. 1 impersonating himself as one Sameer Madam went to the complainant and presented the duplicate record for treating the same as genuine. Thereby, all the accused embezzled a sum of Rs. 6,59,690/- and committed breach of trust and misappropriation. The accused No. 3 though was knowing that this amount has been obtained by his son by cheating, he retained this amount with him and thereby committed the above offences. Accordingly, an offence was registered before Khambaliya Police Station vide I-C.R. No. 29 of 2008 for the offences under Sections 464, 465, 467, 471, 472, 416, 417, 419, 420 and 34 of the Indian Penal Code and a charge-sheet was filed before the Court of learned Judicial Magistrate, First Class, Khambalia which was registered as Criminal Case No. 736 of 2008. 3.2 The learned Judicial Magistrate First Class, Khambaliya by his judgment and order dated 29.12.2009 and convicted the original accused and one another for the offences under Sections 465, 467, 468, 471, 472, 417, 419, 420 and 34 of the Indian Penal Code and ordered to suffer imprisonment and fine. 3.2 The learned Judicial Magistrate First Class, Khambaliya by his judgment and order dated 29.12.2009 and convicted the original accused and one another for the offences under Sections 465, 467, 468, 471, 472, 417, 419, 420 and 34 of the Indian Penal Code and ordered to suffer imprisonment and fine. Being aggrieved and dissatisfied with the judgment and order of conviction, the original accused has preferred Criminal Appeal No. 11 of 2011 before the Court of the learned 4th Additional Sessions Judge, Khambaliya and the learned Sessions Judge after hearing parties from both the sides modified the order passed by the learned Judicial Magistrate First Class, Khambhalia and ordered to suffer imprisonment for 2.5 years for the offence under Sections 467, 468, 471, 472 and 420 of the Indian Penal Code instead of imprisonment for a period of three years for the offences under Sections 467, 468, 471, 472 and 420 of the Indian Penal Code and no modification in respect of fine was made. 3.3 At the time of the trial, the prosecution examined the following witnesses:- S. No. Particulars Exhibit PW-1 Vinodbhai Tulsidas Barai 49 PW-2 Mavjibhai Meghjibhai Davda 51 PW-3 Gagabhai Kanabhai 60 PW-4 Vejanandbhai Meramanbhai 62 PW-5 Karshanbhai Aalabhai Raval 65 PW-6 Arvindbhai Harilal Dave 66 PW-7 Bashirbhai Adambhai 68 PW-8 Ibrahimbhai Abbasbhai 70 PW-9 Bhupatsinh Devubha 71 PW-10 Devanand Karnabhai Dangar (Complainant) 80 PW-11 Sanjaybhai Kanhaiyalal 85 PW-12 Varish Pratapchandra Madlani 87 PW-13 Bipinbhai Vashrambhai 90 PW-14 Laljibhai Devjibhai Nakum 93 PW-15 Mamlatdar Chaudhari Naranbhai Fatabhai 95 PW-16 Ashraf Hussain Rukhda 97 PW-17 Raghuvirbhai Bachubhai Chudasma 98 PW-18 Shantilal Harishankar Joshi 99 PW-19 Sureshbhai Arjanbhai 100 PW-20 Ranmalbhai Kanabhai 101 PW-21 Hussain Suleman 103 PW-22 Jatinbhai Nathalal Thanki 104 PW-23 Girishbhai Hemantlal Bhayani 105 PW-24 Tansukhbhai Ratilal Joshi 106 PW-25 Samatbhai Markhibhai Gojiya 107 PW-26 Narendrabhai Tulsidas 108 PW-27 Mukeshbhai Ramaniklal 109 PW-28 Rajeshbhai Anantrai Raval 110 PW-29 Babubhai Harisingh 111 PW-30 Jimlabhai Jeevabha 112 PW-31 PSI Madhubhai Ratnabhai Nakum 113 3.4 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Complaint 81 Panchnama regarding the search of the house of the accused 50 Panchnama of the scene where the records were destroyed 52 Panchnama of the currency notes produced by the accused No. 3 61 Panchnama of the currency notes recovered from the accused Mukesh 63 Panchnama of the currency notes recovered from the accused Narendra Tulsidas 64 Panchnama of the muddamal presented by witness Babubhai Harisinh 67-A Panchnama of the 'Bilti' presented by the witness Sanjay Kanhaiyalal 67-B Panchnama of the muddamal presented by the witness Rameshbhai Muljibhai 69 Panchnama of the muddamal presented by witness Jimalba Jivabha 72 Total number of receipts produced vide muddamal receipt no. 32 of 2008 by way of Article No. 1 of non-valuable muddamal register entry no. 32 of 2008 by way of Article No. 1 of non-valuable muddamal register entry no. 3 of 2009 22 Receipt issued by the Geology and Mines Department and one pink and two yellow coloured receipts issued by Ashapura Chemicals and Mine Limited 29 Estimate Bill No. 391 of Shrenik Printer Binder 30 Information given to the Mamlatdar regarding the identification parade with regard to C.R. No. 29 of 2008 96 Written information given to the Police Sub-Inspector for carrying the identification parade 97-A Panchnama of the identification parade and Rojkam 94 Letter to the PSO regarding the identification parade 98-A Panchnama of the muddamal regarding the literature submitted by witness Vipin 102 Panchnama regarding the seizure of computer, printer and the documents used in the alleged commission of the crime from the accused Niranjan's STD/PCO 114 4. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the learned Judge has erred in reducing the sentence from 3 years simple imprisonment to 2.5 years simple imprisonment for the offences under Sections 467, 468, 471, 472 and 420 of the Indian Penal Code. He further submitted that the learned Judge has failed to appreciate that so far offence under Section 467 of the Indian Penal Code is concerned, it provides for life imprisonment or upto 10 years and fine, whereas qua the offence under Sections 420 and 468 of the Indian Penal Code, it provides for sentence upto seven years and fine and similarly for the offence under Section 472 of the Indian Penal Code, it provides for life imprisonment or upto seven years has been prescribed. It is also submitted that the learned Judge has failed to appreciate the gravity and seriousness of the offence and thereby has taken a lenient view while reducing the sentence. Considering the above, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned. 5. We have heard learned Additional Public Prosecutor for the appellant-State and perused the records of the case. It is well settled that a question of sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for a very strong reason which must be disclosed on the face of the judgment. It is well settled that a question of sentence is a matter of discretion and when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for a very strong reason which must be disclosed on the face of the judgment. In a matter of enhancement, there should not be interference when the sentence passed imposes substance. Interference is only called for when it is manifestly inadequate. 6. Moreover, recently, it has been held by the Hon'ble Apex court in the decision in the case of Raj Bala vs. State of Haryana and Others, Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18.8.2015, in para 1 and 2 held as under:- "1. In Gopal Singh vs. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant facts which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. ON such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." (Emphasis added) 2. Seven years prior to that, in Shailesh Jasvantbhai vs. State of Gujarat, it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of order should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that - State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society. Therefore, in operating the sentencing system, law should adopt the corrective machinery of deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. Therefore, in operating the sentencing system, law should adopt the corrective machinery of deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is therefore, 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. This position was illuminatingly stated by this Court in Sevaka Perumal vs. State of Tamil Nadu. (Emphasis supplied). And again:- "The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal. 7. It transpires that the respondent has remained un-served. These appeals are preferred by the State for enhancement of sentence by only six months. This Court is in full agreement with the reasons given and findings recorded by the Trial Court while handing over the punishments as stated hereinabove. Apart from that, the learned Additional Public Prosecutor Mr. L.R. Pujari for the appellant-State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the Trial Court has ignored the material evidence on record. L.R. Pujari for the appellant-State is not in a position to show any evidence to take a contrary view in the matter or that the approach of the trial court is vitiated by some manifest illegality or that the decision is perverse or that the Trial Court has ignored the material evidence on record. In that view of the matter, we are in complete agreement with the reasons recorded by the learned Trial Court and in our view, the impugned Judgment is just, legal and proper and requires no interference by this Court. 8. The Appeals are devoid of merits and stand dismissed. The judgment and order dated 30.7.2011 of the learned 4th Additional Sessions Judge, Khambaliya, Jamnagar in Criminal Appeal No. 10 of 2011 stands confirmed. Bail and bail bond, if any, stands cancelled. If the accused has not undergone the prescribed period of sentence, he shall surrender to the jail authority within 10 weeks from today. Record and proceedings be sent to the concerned Trial Court forthwith. Appeal Dismissed.