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2015 DIGILAW 1150 (GUJ)

Sagramji Umaji Thakor v. State of Gujarat

2015-11-03

K.J.THAKER, M.R.SHAH

body2015
JUDGMENT : M.R. Shah, J. 1. All these appeals are interconnected and arise out of the impugned judgment and order passed by the learned trial Court and with respect to the same incident/offence and as such, out of the three appeals, one appeal, i.e. Criminal Appeal No. 461 of 1996, is preferred by the original accused Nos. 2 and 3, convicting them for the offence punishable under Section 307 read with Section 34 of the IPC, whereas, Criminal Appeal No. 594 of 1996 is preferred by the State against the impugned judgment and order passed by the trial Court, acquitting the original accused from the offence punishable under Sections 397 read with Section 34 of the IPC and Criminal Appeal No. 595 of 1996 is also preferred by the State for enhancement of the sentence imposed by the trial Court on the original accused, while convicting them for the offence punishable under Section307 read with Section 34 of the IPC, all these appeals are taken-up for final hearing and disposal, today. 2. At the outset, it is required to be noted that so far as original accused No. 2, appellant No. 1 in Criminal Appeal No. 461 of 1996, namely Sagram Umaji Thakore is concerned, it is reported that he expired during the pendency of the present appeal filed by the accused and the other appeals filed by the state being Criminal Appeal Nos. 594 & 595 of 1996. This Court, therefore, vide order dated 15.04.2015 dismissed the present appeals qua deceased original accused No. 2 as having been abated. Under the circumstances, present appeals, now, survive qua original accused No. 3, namely Kuraji Umaji Thakore, only. 3. Here, it may be noted that, as such, original accused No. 3, Kuraji Umaji Thakore, has been served with bailable warrant and despite of having been served with the bailable warrant issued by this Court, original accused No. 3 has chosen to remain absent. However, original accused No. 3 is already represented by Shri. Vijay Patel, learned Advocate, in Criminal Appeal No. 461 of 1996, and therefore, we have heard Shri. Vijay Patel, learned Advocate appearing on behalf of the original accused No. 3, Kuraji Umaji Thakore, in Criminal Appeal Nos. 594 & 595 of 1996, also. 4. However, original accused No. 3 is already represented by Shri. Vijay Patel, learned Advocate, in Criminal Appeal No. 461 of 1996, and therefore, we have heard Shri. Vijay Patel, learned Advocate appearing on behalf of the original accused No. 3, Kuraji Umaji Thakore, in Criminal Appeal Nos. 594 & 595 of 1996, also. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, i.e. learned Additional Sessions Judge, Mehsana, Camp at Patan, Dated. 24.05.1996, rendered in Sessions Case No. 158 of 1993, whereby, the learned trial Court has convicted the original accused No. 3 along with other accused for the offence punishable under Section 307 read with Section 34 of the IPC and sentenced them to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for six months and by which the trial Court has also convicted the original accused No. 3 along with the other accused for the offence punishable under Sections 135 of the Bombay Police act and inflicted the punishment of payment a fine of Rs. 50/- by each of them, original accused Nos. 2 and 3 has preferred Criminal Appeal No. 461 of 1996, which shall now survive qua original accused No. 3 only. 4.1 Feeling aggrieved and dissatisfied with the impugned judgment and order, as above, acquitting the original accused No. 3 along with other accused for the offence punishable under Section 397 read with Section 34 of the IPC, State has preferred Criminal Appeal No. 594 of 1996. 4.2 Criminal Appeal No. 595 of 1996 has also been preferred by the State for enhancement of sentence inflicted by the learned trial Court while convicting the original accused for the offence punishable under Section 307 read with Section 34 of the IPC and sentencing them to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for six months. 5. One Ajmalji Meruji Thakore, i.e. the father of the injured eye-witness Dasrath Ajmalji Thakore, filed a complaint/FIR against three persons, i.e. original accused Nos. 500/- by each of them and in default to undergo further rigorous imprisonment for six months. 5. One Ajmalji Meruji Thakore, i.e. the father of the injured eye-witness Dasrath Ajmalji Thakore, filed a complaint/FIR against three persons, i.e. original accused Nos. 1 to 3, for the offences punishable under Sections 307, 397 read with Section 34 of the IPC and Section 135 of the Bombay Police Act, with Vagdod Police Station, being I-C.R. No. 10 of 1993. It was the case on behalf of the complainant as well as the prosecution that on 28.01.1993, at about 04:00 p.m., while the injured eye-witness, Dashrathji Ajmalji, had gone to cut babool tree branches, all the accused, with a view to commit robbery inflicted injuries on Dashrathji Ajmalji with knives on the vital part of the injured eyewitness, more particularly, abdomen and head. It was also alleged in the complaint that all the accused also looted gold ornaments, which he was wearing. Thereafter, the injured eye-witness, Dashrathji Ajmalji, become unconscious due to severe injuries received by him. Thereafter, the complainant took the injured eye-witness, firstly, to the Civil Hospital, Patan, from where the injured eye-witness was transferred to Civil Hospital, Mehsana and lastly the injured eyewitness was transferred to Civil Hospital, Ahmedabad, for further treatment. The injured eye-witness was operated thrice during the course of his treatment and he remained hospitalized for about one month. On the registration of the FIR, Shri. Hamirji Takhuji, PSI, Vagdod Police Station investigated the same. During the course of investigation, the I.O. recorded the statements of the witnesses and he also collected the documentary evidences, such as medical certificates, injury certificates of the injured eye-witness, Dashrathji Ajmalji. On completion of the investigation, as there were sufficient evidence, the I.O. filed the charge-sheet against all the accused persons for the offences punishable under Sections 307, 397 and Section 34 of the IPC and Section 135 of the Bombay Police Act. However, since, the case was exclusively triable by a Court of Sessions, it was committed to the Sessions Court, Mehsana, which thereafter was transferred to the Court of the learned Additional Sessions Judge, Mahesana, Camp at Patan. 6. From the record it appears that after the filing of charge-sheet, but, before the framing of charge, original accused No. 1, namely Udaji Sagramji Thakore, expired, and therefore, the learned trial Court framed the charge against original accused Nos. 6. From the record it appears that after the filing of charge-sheet, but, before the framing of charge, original accused No. 1, namely Udaji Sagramji Thakore, expired, and therefore, the learned trial Court framed the charge against original accused Nos. 2 and 3, namely Sagramji Umaji Thakore and Kuraji Umaji Thakore vide Exhibit-11. At the time of trial both original accused Nos. 2 and 3 pleaded not guilty, and therefore, both of them came to be tried by the trial Court. 7. To prove its case against the accused Nos. 2 and 3, the prosecution examined as many as 11 witnesses, as under; Prosecution Witness Number Name of the witness Exhibit Number 1 Dr. Kantilal Ranchhoddas 15 2 Ajmalji Meruji 18 3 Dashrathji Ajmalji 20 4 Mandanji Gambhirji 21 5 Chavda Manubhai Kanjibhai 31 6 Nanjibhai Kaluji 34 7 Meruji Sardarji 36 8 Talsi Devkaran 38 9 Karmanbhai Haribhai, Clerk of Mamlatdar Office 41 10 Punaji Suraji 43 11 Hamirji Takhuji, PSI 44 7.1 The prosecution through the aforesaid witnesses brought on record the following documentary evidences; Sr. No. Particulars of the Document Exhibit Number 1 Memorandum, whereby, the statement in connection with N.C. Entry No. 14/1993 was stated to be recorded 22 2 Report of handing over the investigation to Vagdod Police Station, as the offence took place within the limits of the said police station. 47 3 Complaint of Thakore Ajmalji Meruji 19 4 Panchnama of place of offence 35 5 Recovery panchnama of Udaji Sagramji 39 6 Panchnama of recovery of weapons and muddamal articles at the instance of Thakore Sagramji Umaji and Kuraji Umaji 37 7 Panchnama of seizure of clothes 40 8 Medical certificate of Dashrathji Ajmalji 16 9 Memorandum written to Executive Magistrate for recording D.D. 22 10 Memorandum written to Executive Magistrate, Ahmedabad, Patan, for recording D.D. 23 11 Memorandum written to Circle Inspector for map 24 12 Map of place of offence 33 13 Forwarding letter sent along with the muddamal sent to FSL 25 14 Muddamal Despatch Note 26 15 Receipt issued by FSL on receiving muddamal articles 27 16 Forwarding letter of FSL sent with report 28 17 Reports of FSL 29 18 A copy of the public notification 42 7.2 At the end of recording of the evidence, the statements of the accused under Section313 of the Code of Criminal, came to be recorded. In their further statements, except, denial and that they have not committed any offence or that they have been falsely implicated in this case, nothing else has been stated by any of the accused. 7.3 Thereafter, on appreciation of the material evidence on record, oral as well as documentary, the learned trial Court, acquitted the accused for the offence punishable under Sections 397 read with Section 34 of the IPC, but, held them guilty for the offence punishable under Section 307 read with Section 34 of the IPC as well as under Section135 of the Bombay Police Act and sentenced them, as referred to herein above. Hence, the present appeals by the original accused Nos. 2 and 3 and also by the State, as above. 8. Shri. Vijay Patel, learned Advocate appearing on behalf of the original accused No. 3, has vehemently submitted that the learned trial Court has committed a grave error in holding the accused guilty for the offence punishable under Section 307 of the IPC. He has further submitted that while holding the accused guilty for the offence under Section307 of the IPC, the learned trial Court has materially erred relying upon the depositions of injured eye-witness, Dashrathji Ajmalji (PW-3), as well as the original complainant, Ajmalji Meruji (PW-2). He has submitted that, as such, the presence of the original complainant, Ajmalji Meruji, at the place of incident is absolutely doubtful, and therefore, learned trial Court has materially erred in relying upon the deposition of Ajmalji Meruji (PW-2). He has further submitted that the panchnama of the discovery of weapons and ornaments alleged to have been lotted, which have been recovered/discovered at the instance of the original accused, has not been established/proved by the prosecution. He has further submitted that the panchas of discovery/recovery panchnama of the weapons and ornaments, at the instance of the accused, did not support the case of the prosecution and the turned hostile. He has submitted that, therefore, the learned trial Court ought not to have relied upon the panchnama of recovery or discovery of knives and the ornaments and or the learned trial Court ought not have believed the recovery/discovery of the knives and ornaments at the instance of the accused persons. He has submitted that there are even material contradictions in the depositions of the injured eye-witness, Dasrath Ajmalji (PW-3), and other witnesses examined by the prosecution. He has submitted that there are even material contradictions in the depositions of the injured eye-witness, Dasrath Ajmalji (PW-3), and other witnesses examined by the prosecution. It is, therefore, prayed that the trial Court ought to have acquitted the accused of the offence punishable under Section 307 of the IPC by giving him the benefit of doubt. 9. Now, so far as the appeals preferred by the State against the impugned judgment and order of acquittal passed by the trial Court, acquitting the original accused for the offence punishable under Section 397 of the IPC is concerned, it is vehemently submitted by Shri. Vijay Patel, learned Advocate appearing on behalf of the original accused, that the trial Court has committed no error in acquitting the accused of the offence punishable under Section 397 of the IPC. It is submitted that, even if, the original complainant, Ajmalji Meruji (PW-2), is believed and whatever is stated by him in his complaint (Exhibit-19) is believed to be true, in that case also it cannot be said that there was an intention on the part of the accused either to commit theft or robbery and or to loot the ornaments, and therefore, the ingredients of Section 397 of the IPC are not satisfied or fulfilled. He has further submitted that as per the original complainant, Ajmalji Meruji (PW-2), the injured eye-witness, Dashrathji Ajmalji (PW-3), told him that firstly Udaji Sagramji, accused No. 1, caught hold of his hand and when Dashrathji hurled filthy abuses against him and due to that all the three accused got angry, and thereafter, they caused injuries on Dashrathji Ajmalji (PW-3), and therefore, it is submitted that the ingredients of Section 397 are not satisfied. Hence, the learned trial Court has committed no error in acquitting the accused of the offence punishable under Section 397 read with Section 34 of the IPC. 10. So far as Criminal Appeal No. 461 of 1996 preferred by the original accused against the judgment and order of conviction passed by the learned trial Court, convicting the accused for the offence punishable under Section 307 read with Section 34 of the IPC is concerned, same is vehemently opposed by Shri. Himanshu Patel, learned APP appearing on behalf of the State. He has submitted that in the present case, the prosecution has been successful in establishing and proving the case against the accused by examining the injured eye-witness, Dashrathji Ajmalji (PW-3), whose deposition is further corroborated by the evidence of other witnesses. He submitted that, therefore, the learned trial Court has committed no error in holding the accused guilty for the offence punishable under Section 307 of the IPC. He has submitted that the injuries caused by the accused on the vital parts of the body of Dashrathji Ajmalji (PW-3) has been established and proved by the prosecution by leading cogent and reliable evidences. He has submitted that the learned trial Court, however, committed an error in imposing the sentence of only three years rigorous imprisonment, after having held the accused guilty for the offence punishable under Section 307 of the IPC. He, therefore, submitted that the Criminal Appeal No. 461 of 1996 preferred by the original accused deserves to be dismissed. 10.1 It is, further, submitted by Shri. Himanshu Patel, learned APP, that in the facts and circumstances of the case, the learned trial Court has committed a grave error in imposing sentence of only three years' rigorous imprisonment and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for six months. He has submitted that, in the present case, the injured eye-witness, Dashrathji Ajmalji (PW-3) sustained serious injuries (as many as 11 in numbers) on the vital parts of his body, i.e. abdomen and head, which were caused by the original accused. He has further submitted that the injured eyewitness, Dashrathji Ajmalji (PW-3), had to be operated thrice and he had to remain in hospital as indoor patient for about one month, and therefore, the learned trial Court has materially erred in imposing the sentence of only three years' rigorous imprisonment on the accused. 10.2 Shri. Himanshu Patel, learned APP, further, submitted that the trial Court has also committed a grave error in imposing the fine of Rs. 50/- only on each of the accused for the offence under Section 135 of the Bombay Police Act. 10.2 Shri. Himanshu Patel, learned APP, further, submitted that the trial Court has also committed a grave error in imposing the fine of Rs. 50/- only on each of the accused for the offence under Section 135 of the Bombay Police Act. He has submitted that the minimum sentence for offence punishable under Section 135 of the Bombay Police Act, in case of breach of notification issued under Section 37(1) of the Bombay Police Act, is four months, and therefore, the learned trial Court could not have imposed the punishment less than the minimum prescribed sentence. He has further submitted that the learned trial Court has assigned no reasons for inflicting lesser punishment, than, the minimum sentence provided in case of breach of notification issued under Section 37(1) of the Bombay Police Act. He, hence, has submitted that the Criminal Appeal preferred by the State, being Criminal Appeal No. 595 of 1996, deserves to be allowed. 10.3 Insofar as the Criminal Appeal No. 594 of 1996 preferred by the State against the impugned judgment and order of the trial Court, acquitting the accused of the offence punishable under Section 397 of the IPC is concerned, it is vehemently submitted by Shri. Himanshu Patel, learned APP, that in the present case there is discovery of the ornaments looted by the accused from the body of the injured eye-witness, Dashrathji Ajmalji (PW-3), and that too at the instance of the accused persons, and therefore, merely because the panch witnesses have not supported the recovery/discovery panchnama of weapons and gold ornaments, more particularly, when the same stands corroborated by the deposition of I.O.-PW-11, the trial Court has committed an error in acquitting the accused for the offence under Sections 397 of the IPC. He, therefore, has prayed that the trial Court ought to have held the accused guilty of the offence punishable under Section 397 of the IPC. 10.4 In support of his above submissions, Shri. Patel, placed reliance on the following decisions in support of his above submissions; (1) "ALISTER ANTHONY PAREIRA VS. STATE OF MAHARASHTRA", (2012) 2 SCC 648 ; (2) "STATE OF MADHYA PRADESH VS. BABLU NATT", (2009) 2 SCC 272 ; (3) "STATE OF PUNJAB VS. PREM SAGAR AND OTHERS", (2008) 7 SCC 550 ; 11. Heard, the learned Advocates for the respective parties, at length. STATE OF MAHARASHTRA", (2012) 2 SCC 648 ; (2) "STATE OF MADHYA PRADESH VS. BABLU NATT", (2009) 2 SCC 272 ; (3) "STATE OF PUNJAB VS. PREM SAGAR AND OTHERS", (2008) 7 SCC 550 ; 11. Heard, the learned Advocates for the respective parties, at length. We have appreciated and re-appreciated the entire evidence on record, both oral as well as documentary. 11.1 By the impugned judgment and order, the learned trial Court has convicted the original accused for offence punishable under Section 307 read with Section 34 of the Indian Penal Code as well as for the offence punishable under Section 135 of the Bombay Police Act. By the impugned judgment and order, while convicting the original accused for the offence under Section 307 of the IPC, the learned trial Court has inflicted the punishment to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for six months and while convicting the accused for the offence punishable under Section 135 of the Bombay Police Act, the learned trial Court has imposed fine of Rs. 50/-only on each of the accused, whereas, by the impugned judgment and order the learned trial Court has acquitted the accused of the offence punishable under Section 397 of the IPC. Therefore, in this group of appeals, this Court is required to consider; (1) As to whether, the learned trial Court is justified/committed any error by convicting the accused for the offence under Section 307 of the IPC and Section 135 of the Bombay Police Act or not? (2) As to whether, the learned trial Court has committed an error in acquitting the original accused for the offence under Section 397 read with Section 34 of the IPC or not? (3) As to whether, the learned trial Court has committed an error in inflicting the sentence of rigorous imprisonment for three years and to pay fine of Rs. 500/- by each of them and in default to undergo further rigorous imprisonment for six months and fine of Rs. 50/- only on each of the accused for the offence punishable under Section 135 of the Bombay Police Act or not? 12. 500/- by each of them and in default to undergo further rigorous imprisonment for six months and fine of Rs. 50/- only on each of the accused for the offence punishable under Section 135 of the Bombay Police Act or not? 12. Now, so far as the impugned judgment and order passed by the trial Court, holding the original accused guilty for the offence punishable under Section 307 of the IPC is concerned, it is required to be noted that in the case on hand, the prosecution has been successful in establishing and proving the case against the accused persons for the offence punishable under Section 307 of the IPC. In the present case, there are three eye-witnesses. The injured eyewitness, Dashrathji Ajmalji, PW-3 has been examined at Exhibit-20. PW-3 has named all the accused and he specifically stated that all the accused inflicted knives blows on his abdomen and head. All the accused were known to the injured eye-witness, PW-3 and PW-3 has identified them before the Court also. The injuries caused by knives by the accused on the vital parts of the body of the injured eye-witness, PW-3, have been proved by the prosecution by leading cogent evidence of Dr. Kantilal Ranchhoddas, who has been examined as PW-1 at Exhibit-15. Whatever has been stated by PW-3, stands corroborated by the evidence of two other eye-witnesses, i.e. Ajmalji Meruji, who was examined as PW-2 at Exhibit-18, and Mandanji Gambhirji, who was examined as PW-4 at Exhibit-21. All of them have fully supported the case of the prosecution and there is nothing to doubt their credibility or trustworthiness. Considering the aforesaid evidence on record, more particularly, the deposition of the injured eye-witness Dashrathji Ajmalji, PW-3, it cannot be said that the learned trial Court has committed any error in holding the accused guilty for the offence under Section307 of the IPC. It has been established and proved beyond doubt that only surviving original accused No. 3, Kuraji Umaji Thakore, inflicted knife blows on the injured eye-witness Dashrathji Ajmalji, PW-3. According to the injured eyewitness Dashrathji Ajmalji, PW-3, Original accused No. 3 inflicted knife blows on his abdomen and head. It has been established and proved beyond doubt that only surviving original accused No. 3, Kuraji Umaji Thakore, inflicted knife blows on the injured eye-witness Dashrathji Ajmalji, PW-3. According to the injured eyewitness Dashrathji Ajmalji, PW-3, Original accused No. 3 inflicted knife blows on his abdomen and head. The learned Advocate appearing on behalf of the original accused No. 3 is not in a position to satisfy this Court, as to how the findings recorded by the learned trial Court, holding the original accused guilty for the offence punishable under Section 307 of the IPC can be said to be perverse or contrary to the evidence on record. We are unable to agree with the submissions made by Shri. Patel, learned Advocate appearing for the original accused and we are in complete agreement with the view taken by the learned trial Court, holding the original accused guilty for the offence punishable under Section 307 of the IPC. We, therefore, confirm the findings recorded by the learned trial Court, convicting the accused for the offence punishable under Section 307 of the IPC. Further, considering the notification, Exhibit-42, issued by the District Magistrate under Section 37(1) of the Bombay Police Act, it has been established and proved that the accused used prohibited weapons, i.e. knives. We, therefore, also confirm the findings recorded by the trial Court convicting the original accused for the offence under Section 135 of the Bombay Police Act. 13. Now, the next question which is posed for the consideration of this Court is as to whether, the learned trial Court committed any error in acquitting the accused for the offence punishable under Section 397 of the IPC, which has given rise to the Criminal Appeal No. 594 of 1996. Assuming that there was discovery of the ornaments, which were on the body of the injured eye-witness Dashrathji Ajmalji, PW-3, which was at the instance of the accused, in that case also considering the allegations made in the complaint, which was given by the complainant Ajmalji Meruji, PW-2, it cannot be said that a case has been made out or the prosecution has been successful in proving the case under Section 397 of the IPC against the accused. In the complaint, the original complainant, Ajmalji Meruji, PW-3, has specifically stated that when he inquired from the injured eye-witness Dashrathji Ajmalji, PW-2, who at the relevant point of time was conscious, had told him that when Thakore Udaji Sagramji, i.e. original accused No. 1, caught the hands of the injured eye-witness Dashrathji Ajmalji-PW-3, PW-3 hurled filthy abuses at him, and therefore, all the accused got angry and they inflicted injuries on him with knives. In the above back drop, now, this Court has to consider, as to whether the prosecution has been successful in proving the offence punishable under Section 397 of the IPC against the accused. Section 397 of the IPC reads as under; "397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." In the case on hand, can it be said that the intention on the part of the accused was to commit robbery with attempt to cause grievous hurt. The term 'robbery' is defined under Section 390 of the IPC, which reads as under; "390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carving away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily cause or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint." Now, as to whether the act of the accused can be said to commit theft as contained in Section 378 of the IPC. Section 378 of the IPC reads as under; "378. Theft.-Whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.-A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.--A moving effected by the same act which affects the severance may be a theft. Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for the purpose authority either express or implied." 13.1 Considering the aforesaid provisions of law, i.e. Sections 397, 390 and 378 of the IPC, as reproduced herein above, vis-a-vis case of the prosecution, more particularly, as set out by Ajmalji Meruji, PW-2, in his complaint Exhibit-19, we are of the opinion that in the facts and circumstances of the case, it cannot be said that there was any intention on the part of the accused either to commit robbery or even theft. Under the circumstances, it cannot be said that the learned trial Court has committed any error in acquitting the accused of the offence punishable under Section 397 read with Section 34 of the IPC. We, therefore, confirm the findings recorded by the learned trial Court, acquitting the accused of the offence punishable under Section 397 read with Section 34 of the IPC. 14. We, therefore, confirm the findings recorded by the learned trial Court, acquitting the accused of the offence punishable under Section 397 read with Section 34 of the IPC. 14. Now, this takes us to the appeal preferred by the State being Criminal Appeal No. 595 of 1996, i.e. the appeal preferred for the enhancement of the sentence of three years' rigorous imprisonment imposed by the learned trial Court for the offence punishable under Section 307 read with Section 34 of the IPC along with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months as well as imposing fine of Rs. 50/- only for the offence under Section 135 of the Bombay Police Act. 14.1 At the outset, it is required to be noted that all the accused, including original accused No. 3, Kuraji Umaji Thakore, used deadly weapons, i.e. knives, and inflicted as many as 11 injuries on the vital parts, i.e. abdomen and head, of the body of the injured eyewitness Dashrathji Ajmalji, PW-3. As per the evidence of Dr. Kantilal Ranchhoddas, PW-1, Medical Officer, Civil Hospital, Ahmedabad, and as per the medical certificate produced at Exhibit-16, the injured eye-witness Dashrathji Ajmalji, PW-3, sustained following 11 injuries; "(1) A stab wound on Rt. Hypochondria 6 c.m. X 0.5 c.m.; (2) Stab wound of 2 c.m. X 0.5 c.m. On left side of unbiticale region; (3) Stab wound of 3 c.m. X Rt. Renal angle; (4) Stab wound upper region 1 1/2 c.m. X 0.5 c.m.; (5) I/w. Of 5 1/2 c.m. On occipital region; (6) I/w. On nape of neck on right side 1 c.m. X 1/2 c.m. Skin deep; (7) I/w. On the tip of nose extending from right nostril of the middle of Lt. Lower eyelid 2 1/2 c.m. X canti by of nose; (8) I/w. On the 1/2 part on part spot, of Lt. Forearm 1/2 c.m. X 1/2 c.m.; (9) I/w. On ulner side 4 c.m. Below Lt. Elbow joint 1 c.m. X skin deep; (10) I/w. On the part aspect of Lt. Index finger nail cut. 1 c.m. X 1/2 c.m. X index finger nail cut. 1 c.m. X muscle deep; (11) In Lt. Patilla 1 c.m. Skin deep" 14.2 As per the deposition of PW-1, Dr. Elbow joint 1 c.m. X skin deep; (10) I/w. On the part aspect of Lt. Index finger nail cut. 1 c.m. X 1/2 c.m. X index finger nail cut. 1 c.m. X muscle deep; (11) In Lt. Patilla 1 c.m. Skin deep" 14.2 As per the deposition of PW-1, Dr. Kantilal Ranchhoddas, all the injuries were very serious and if the immediate treatment would not have been given, it could have resulted into the death of the injured eye-witness Dashrathji Ajmalji, PW-3. It has come on record that the injured eye-witness Dashrathji Ajmalji had to be operated thrice and that he had to remain in hospital as indoor patient for about one month, who, at the relevant point of time, was aged only 11 years. Despite the above and having held the accused guilty for the offence under Section 307 of the IPC, the learned trial Court has inflicted the sentence of only three years rigorous imprisonment with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months. While inflicting the lesser punishment on the original accused No. 3, namely Thakore Kuraji Umaji, (who, after the death of original accused No. 1, has been described as accused No. 2 by the learned trial Court), the learned trial Court has observed that he is aged, and therefore, inflicted the punishment of only three years rigorous imprisonment with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months. However, from the material on record it emerges that, as such, accused No. 3, Thakore Kuraji Umaji, at the relevant point of time, i.e. at the time of recording of his further statement on 01.02.1996, stated his age to be 40 years. Meaning thereby, at the time of incident, he was aged about 37 years. Therefore, a person aged 37 or 40 years cannot be said to be an aged person. Under the circumstances, it appears that the learned trial Court has committed a grave error and has shown undue sympathy towards the accused and has not exercised the discretion judiciously, while inflicting proper and adequate sentence. 14.3 In the case of "ALISTER ANTHONY PAREIRA" (Supra), the Hon'ble Apex Court had an occasion to consider, as to what would be the proper, just and adequate sentence. 14.3 In the case of "ALISTER ANTHONY PAREIRA" (Supra), the Hon'ble Apex Court had an occasion to consider, as to what would be the proper, just and adequate sentence. It is observed and held, therein, that one of the prime objectives of imposing just, proper and adequate sentence is commensurate with the nature and gravity of the crime and the manner in which the crime is committed. In Paragraphs-84 and 85, the Hon'ble Apex Court has observed and held as under; "84. Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. 85. The principle of proportionality in sentencing a crime-does is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime-does. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence." 14.4 In the case of "STATE OF PUNJAB VS. PREM SAGAR AND OTHERS" (Supra), the Hon'ble Apex Court has observed that, although, a wide discretion has been conferred upon the Courts, same must be exercised judiciously. It would depend upon the circumstances in which the crime is committed and the mental state, age of the accused etc. are also relevant. After referring to the decisions of the Hon'ble Supreme Court in (1991) 3 SCC 471 as well as in (2006) 2 SCC 359 , it is held that it is the duty of every Court to award proper sentence, having regard to the nature of offence and the manner in which it is executed or committed etc. 14.5 Here, it would also be relevant to refer to a recent decision of the Apex Court in "SATISHKUMAR JAYANTILAL DABGAR VS. 14.5 Here, it would also be relevant to refer to a recent decision of the Apex Court in "SATISHKUMAR JAYANTILAL DABGAR VS. SATE OF GUJARAT", (2015) 7 SCC 359 , while considering the issue, as to whether, in the facts and circumstances of the case, the learned trial Court was justified in inflicting the punishment of rigorous imprisonment for three years with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months on the accused for the offence punishable under Section 307 of the IPC. 14.6 Applying the ratio laid down by the Supreme Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that by inflicting the punishment of rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months in the case of this nature, the learned trial Court has committed a grave error, which has resulted into miscarriage of justice by imposing inadequate sentence. 14.7. Under the circumstances, undoubtedly, the despicable gravity of the offence warrants punishment proportionate to the crime. A11 year aged boy sustained injuries on the vital parts of his body, which were inflicted by the accused persons, including the original accused No. 3, Kuraji Umaji Thakore, who at the relevant point of time was aged about 39 years. The injured eye-witness, Dashrathji Ajmalji, PW-3, sustained as many as 11 injuries, and thereafter, he became unconscious. He was, firstly, taken to the Civil Hospital, Patan and from there he was transferred to Civil Hospital, Mehsana and lastly he was shifted to Civil Hospital, Ahmedabad, for further treatment. During the course of treatment, the injured eyewitness, Dashrathji Ajmalji, was operated thrice and he had to remain in hospital as indoor patient for about one month. Considering the aforesaid facts and circumstances of the case and the manner in which the alleged incident took place as well as the nature of offence committed by the accused, we are of the opinion that the learned trial Court has committed a grave error in inflicting the sentence of only three years rigorous imprisonment on the accused. Which has resulted into miscarriage of justice, and therefore, the punishment inflicted by the learned trial Court cannot be said to be proportionate to the crime committed by the accused. Which has resulted into miscarriage of justice, and therefore, the punishment inflicted by the learned trial Court cannot be said to be proportionate to the crime committed by the accused. 14.8 It is required to be noted that, as observed herein above, the learned trial Court has imposed the sentence of rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months on the accused, including accused No. 3, Kuraji Umaji Thakore, by wrongly observing that he is an aged person. However, factually, at the relevant point of time, he was aged 37 years. Under the circumstances, the learned trial Court appears to have shown undue sympathy to the accused No. 3, Kuraji Umaji Thakore, on the wrong premise that accused No. 3 is an aged person, who at the time of offence, in fact was aged about 37 years, and therefore, he cannot be said to be an aged person. 14.9 In the facts and circumstances of the case, taking into consideration the manner in which the alleged offence took place as well as the injuries inflicted by the accused on the injured eye-witness Dashrathji Ajmalji, PW-3, who was a boy aged about 11 years, we are of the opinion that, if, the accused is sentenced to undergo rigorous imprisonment for seven years, while maintaining the amount of fine and default sentences, as inflicted by the learned trial Court, same would meet the ends of justice. 15. Now, this takes this Court to the sentence imposed by the learned trial Court for the offence punishable under Section 135 of the Bombay Police Act. At the outset, it may be noted that in the present case notification was issued by the Magistrate under Section 37(1) of the Bombay Police Act. It is not in dispute that the accused used deadly weapon like knives, which were prohibited in law by the said notification. As per Section 135(1) of the Bombay Police Act, in case of breach of a notification issued under Section 37(1) of the Bombay Police Act, the punishment shall be imprisonment for a term which may extend to one year, but, which shall not be, except, for the reasons recorded in writing, less than four months along with fine. As per Section 135(1) of the Bombay Police Act, in case of breach of a notification issued under Section 37(1) of the Bombay Police Act, the punishment shall be imprisonment for a term which may extend to one year, but, which shall not be, except, for the reasons recorded in writing, less than four months along with fine. No reason has been assigned by the learned trial Court for inflicting the lesser punishment, than, the minimum prescribed punishment of four months under Section 135 of the Bombay Police Act (in the case on hand, in fact, no sentence of imprisonment has been inflicted on the accused). Under the circumstances, the impugned judgment and order passed by the learned trial Court imposing fine of Rs. 50/- only on the accused and in default to undergo further rigorous imprisonment for seven days requires to be modified by imposing sentence of four months rigorous imprisonment for having committed the offence under Section 135 of the Bombay Police Act, while maintaining the amount of fine and the default sentence. 16. The sum and substance of the aforesaid shall be that for the reasons stated herein above, Criminal Appeal No. 461 of 1996, preferred by the original accused against the judgment and order of conviction under Section 307 read with Section 34 of the IPC is hereby, DISMISSED. 16.1 Criminal Appeal No. 594 of 1996, preferred by the State against the impugned judgment and order of acquittal passed by the learned trial Court, acquitting the accused of the offence punishable under Section 397 read with Section 34 of the IPC is also hereby, DISMISSED. 16.2 Criminal Appeal No. 595 of 1995, preferred by the State for enhancement is PARTLY ALLOWED. The impugned judgment and order passed by the learned trial Court inflicting the sentence of rigorous imprisonment for three years and to pay fine of Rs. 500/- and in default to undergo further rigorous imprisonment for six months is, hereby, MODIFIED to that extent and the original accused No. 3, Kuraji Umaji Thakore, is sentenced to undergo rigorous imprisonment for SEVEN YEARS, while MAINTAINING the amount of fine and default sentence. Further, the impugned judgment and order passed by the learned trial Court imposing the fine of Rs. Further, the impugned judgment and order passed by the learned trial Court imposing the fine of Rs. 50/- on all the accused, including the original accused No. 3, Kuraji Umaji Thakore, is also MODIFIED to that extent and the original accused No. 3, Kuraji Umaji Thakore, is sentenced to undergo rigorous imprisonment for FOUR MONTHS for the offence under Section 135 of the Bombay Police Act, while MAINTAINING the amount of fine and the default sentence. Aforesaid sentences shall run concurrently. It is needless to say that the original accused No. 3, Kuraji Umaji Thakore, shall be given the benefit of set-off, if any, and all other benefits available to him under the law. The original accused No. 3, Kuraji Umaji Thakore, is reported to be on bail, and hence, his bail bonds stands CANCELED. At the request of Shri. Vijay Patel, learned Advocate appearing on behalf of the accused, the original accused No. 3, Kuraji Umaji Thakore, is given time upto 7TH DECEMBER, 2015, to surrender before the concerned jail authority to serve the remaining sentence, failing which it shall be open to the concerned jail authority to take necessary steps to secure the custody of the original accused No. 3, Kuraji Umaji Thakore. R&P be sent back to the concerned trial Court, immediately.