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2016 DIGILAW 536 (GUJ)

Janak Kantilal Patel v. State of Gujarat

2016-03-04

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. All the above Appeals are directed against the judgment and order of conviction and sentence dated 28.02.2005 passed by the learned Additional Sessions Judge, Court No. 13, Ahmedabad City in Sessions Case No. 250/2003 whereby the original accused No. 1 and 4 were convicted for the offences punishable under Sections 489(B) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and fine of Rs. 5,000/- each, and in default of payment of fine, rigorous imprisonment for 3 months; the original accused No. 1 to 4 were convicted for the offences punishable under Section489(C) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 5,000/- each, and in default of payment of fine, rigorous imprisonment for three months; the original accused No. 5 to 7 were convicted for the offences punishable under Section 489(C) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and six months and fine of Rs. 5,000/- each, and in default of payment of fine, rigorous imprisonment for three months; the original accused No. 2 and 3 were convicted for the offences punishable under Sections489(B) read with Section 114 of the Indian Penal code and was sentenced to undergo rigorous imprisonment for five years and fine of Rs. 5,000/- each, and in default of payment of fine, rigorous imprisonment for three months. However, the original accused No. 8 to 11 were acquitted of the offences punishable under Section 489(A), 489(D),120(B), 201 read with Section 114 of the Indian Penal Code. 2. Criminal Appeal No. 461/2005 is preferred by original accused No. 4 - Janak Kantilal Patel and learned Advocate Mr. E.E. Saiyed appears for him, Criminal Appeal No. 533/2005 is preferred by original accused No. 7 - Mohammed Shoeb alias Bablu Maqboolbhai Diwan and learned Advocate Mr. Umesh A. Trivedi appears for him, Criminal Appeal No. 712/2005 is preferred by original accused No. 2 - Anish Mansukhbhai Panchal and learned Advocate Mr. A.M. Parekh appears for him, Criminal Appeal No. 797/2005 is preferred by original accused No. 5 - Bipinkumar Ramanlal Patel and original accused No. 6 - Baldevbhai Ranchhodbhai Chaudhary and learned Advocate Mr. A.M. Parekh appears for learned Advocate Mr. A.M. Parekh appears for him, Criminal Appeal No. 797/2005 is preferred by original accused No. 5 - Bipinkumar Ramanlal Patel and original accused No. 6 - Baldevbhai Ranchhodbhai Chaudhary and learned Advocate Mr. A.M. Parekh appears for learned Advocate Mr. Pankaj K. Soni for the two accused, Criminal Appeal No. 933/2005 is preferred by original accused No. 1 - Ajitkumar Pravinbhai Patel and original accused No. 3 - Atul Narandas Patel and learned Advocate Mr. E.E. Saiyed appears for them, whereas Criminal Appeal No. 1103/2005 is an Appeal preferred by the State seeking enhancement of sentence qua the original accused Nos. 1 to 7. 3. The case in brief is as under :-- "3.1. It is the case of the prosecution that on 11.11.2002, an information was received through one informant by witness No. 3 - Police Constable Prakashbhai Chhappanbhai who narrated the same to his superior Officer Mr. J.G. Parmar who is witness No. 1 in this case. Again, another information was received through the same informant by the same person and it was narrated again to Mr. Parmar, who is the complainant and raiding Officer. Pursuant to the said information, a raid was arranged and as per the case of the prosecution, near Thakkar Bapanagar on the four roads Junction, the original accused No. 1, 3 and 4 were arrested with fake currency notes. On interrogation, it surfaced that one colour photocopy Machine was used for manufacture of these fake currency notes and it was at Nidradh, a village situated in Sanand Taluka. The police officers went to Village Nidradh and the said photocopy machine was seized. 3.2. A complaint was registered and the investigation was carried out by PSI Mr. R.M. Mavani. It is the case of the prosecution that on the spot, at the time of the first raid, interrogation was carried out by Mr. J.G. Parmar from which certain facts had transpired and it is stated that the accused Nos. 1, 2 and 3 had supplied fake currency notes at half the price of the denomination and they were to be circulated in the market. 3.3. At the time of the trial, the prosecution examined the following witnesses :-- Particulars Exh. J.G. Parmar from which certain facts had transpired and it is stated that the accused Nos. 1, 2 and 3 had supplied fake currency notes at half the price of the denomination and they were to be circulated in the market. 3.3. At the time of the trial, the prosecution examined the following witnesses :-- Particulars Exh. PW1 – Police Inspector Jaysinghji Gulabsingh Parmar 30 PW2 – Nehalkumar Manubhai Trivedi (Panch Witness) 40 PW3 – Police Constable Prakash Chhappanbhai Patni (Witness) 50 PW4 – Jitendra Muldas Sadhu (Panch Witness) 51 PW5 – Sudhir S. Jadav (Panch Witness) 53 PW6 – Umeshkumar Mafatbhai Patel (Panch Witness) 56 PW7 – Parvinkumar Jayantilal Patel (Panch Witness) 57 PW8 – Majidbhai Razakbhai Memon (Panch Witness) 58 PW9 – Narendrabha Baburao Soni (Panch Witness) 60 PW10 – Vitthalbhai Chhaganbhai (Panch Witness) 62 PW11 – Vinodkumar Sudamalal Gupta (Panch Witness) 63 PW12 – Parsottambhai Bapabhai Parmar (Panch Witness) 64 PW13 - Mavjibhai Narsinhbhai Chaudhary (Panch Witness) 65 PW14 – Haribhai Lakshmanbhai Bhaidari (Witness) 66 PW15 – Jayrajsinh Kanubhai Chavda (Witness) 68 PW16 – Hemant Shantilal Shah (Seller of the photocopy machine) 80 PW17 – Hemendra Natverkak Trivedi (employee of Bank of Baroda) 84 PW18 – Bhupesh Parashram Koshti 85 PW19 – Omprakash Bhagwatiprasad Dixit 88 PW20 – Pravin Purshottamdas Shrimali 90 PW21 – Ramjibhai Lakshmanbhai Mavani (the PSI who investigated the metter) 103 PW22 – Chandrakantbhai Bhavanbhai Patel (the PSI who investigated some part of the metter) 148 The prosecution also relied upon various documentary evidence, some of them are :- Particulars Exh. Report of the PSO 34 Complaint 31 Panchnama of the notes recovered from the four accused 32 Panchnama of the muddamal recovered from the accused – Ajit 33 Panchnama of the muddamal recovered from the accused – Baldev 113 Panchnama of the muddamal recovered from the accused – Bipinkumar 116 Panchnama of the muddamal recovered from the accused – Mohammed Shoaeb 119 Panchnama of the seizure of the photocopy machine from the accused – Saurav Suthar and Ramesh 89 Panchnama of search of the house of the accused – Ketan Desai 122 Panchnama of the mobile of Ritesh Desai 123 Panchnama of the place shown by the accused – Babubhai 124 Installation Report of Vishnu M. Panchal 82 Call details of the accused – Ketan Desai 147 Telephonr Bill of Diwan Maqboolshah 125 Yadi written for providing medical treatment to the accused 137 Panchnama of search of the house of the accused – Anees 91 Panchnama of search of the house of the accused – Janak 92 Panchnama of search of the house of the accused – Atul 93 Discovery panchnama of the place from where the accused - Ajit had stolen the Hero Honda 120 Panchnama of the production of Hero Honda Splendour by the witness – Khodaji Dhulaji 121 Yadi pertaining to the treatment of the accused 133 Panchnama of the house of the accused – Mohammed Shoaeb 94 Panchnama of the house of the accused – parmodbhai Somnath 95 Panchnama of the closed residence of the accused – Rameshbhai Mohanlal Chauhan 96 Panchnama of the body search of the accused – Saurav and Ramesh 97 Yadi written for conducting the medical treatment of the accused 98 Panchnama of the position of the body of the accused – Ketan Desai 99 Letter regarding the treatment of the accused 100 Information received from the RTO regarding LML Vespa 131 Panchnama of the residence of the accused – Babubhai 101 Letter written regarding addition of Section 489(D) and 201 of the Indian Penal code 132 Forwarding letter of the FSL 126 Receipt of the FSL 127 FSL Report 128, 129 Telephone Slip received for the telephone call made from Harsha Telephone 67 Letter for approval of the chargesheet 134 Slips containing the signatures of the panchas 41-47, 52, 114, 117 Telephone Bill 115, 118 3.4. At the end of the trial, further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which the accused pleaded not guilty and stated that they had been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid." 4. Heard learned Advocates appearing for the respective parties. 5. Learned Advocate Mr. E.E. Saiyed appearing for the original accused No. 1, 3 and 4 has taken this Court to the evidence of the complainant, the version of the Police Inspector, the panchnama drawn and has submitted that the prosecution has failed to prove its case beyond reasonable doubt. It is further contended that the investigating agency in a hurried manner cordoned all the four persons before the actual delivery of the alleged fake currency notes could occur. It is further submitted that since original accused No. 7 did not agree to become witness, the panchnama was prepared on 19th being Exhibit 119. It is also alleged that the prosecution has miserably failed to prove its case against any of the accused. Learned Advocate Mr. E.E. Saiyed has also taken this Court to the evidence of PW2 - Nehalkumar Manubhai Trivedi, the crucial witness - Mr. R.M. Mavani and other witnesses and has contended that the trial Court has committed an error in convicting the accused. 6. Learned Advocate Mr. Umesh A. Trivedi appearing for the original accused No. 7 has drawn attention of this Court to Paragraph 10 of the cross examination of the Police Inspector Mr. R.M. Mavani and also to paragraphs 78 and 77 of the cross examination of accused No. 7 and has contended that the prosecution has miserably failed to prove its case. On the contrary, blank signatures were taken on 16th and the panchnama was drawn on 19th and it is submitted that on the basis of the above, no case is made out by the prosecution against the original accused No. 7. 6.1. To substantiate his contentions, learned Advocate Mr. On the contrary, blank signatures were taken on 16th and the panchnama was drawn on 19th and it is submitted that on the basis of the above, no case is made out by the prosecution against the original accused No. 7. 6.1. To substantiate his contentions, learned Advocate Mr. Umesh A. Trivedi has also placed reliance on the following decisions :-- "a) Bhugdomal Gangaram and Others v. The State of Gujarat, reported in AIR 1983 Supreme Court 906; b) Vijender; Devinder alias Bhinder; Mukesh Kumar v. State of NCT of Delhi reported in 1997 Law Suit (SC) 248; c) Kaptan Singh v. State of Madhya Pradesh, reported in 1997 Law Suit (SC) 702; d) Umashanker v. State of Chhattisgarh, reported in AIR 2001 SC 3074 (1) and; e) Ashu Mondal alias Ashu Khamaru v. State of West Bengal, reported in 2013 Cri.L.J. 715" 7. Learned Additional Public Prosecutor Mr. Hardik Soni for the State has taken this Court to the statements of the accused recorded under Section 313 of Code of Criminal Procedure. 7.1. While supporting the judgment and order so far as conviction qua original accused No. 1 to 7, learned Additional Public Prosecutor Mr. Hardik Soni has contended that when the offence is already proved by the prosecution against the said accused beyond reasonable doubt, the trial Court has committed an error in imposing lesser punishment to the original accused No. 1 to 7. Moreover, he submitted that looking to the provisions of relevant law itself and the gravity of the offence, maximum sentence, provided for the offence punishable under Section 489(C) of the IPC i.e. imprisonment of seven years, was required to be imposed upon the original accused No. 1 to 7 and accordingly, the trial Court has committed error in awarding lesser punishment for such a grave offence, without assigning any cogent and sufficient reasons. Our attention is also drawn to the recent judgment in the case of Raj Bala v. State of Haryana and Others etc. in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18/08/2015, more particularly, para 1 and 2, which reads as under :-- "1. In Gopal Singh v. 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. 1049 to 1050 of 2015, decided on 18/08/2015, more particularly, para 1 and 2, which reads as under :-- "1. In Gopal Singh v. 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 sometime 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 emphasise, there 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 factors 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. 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 v. 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 or 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, etc. This position was illuminatingly stated by this court in Sevaka Perumal v. State of T.N.3." [Emphasis supplied]. 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, etc. This position was illuminatingly stated by this court in Sevaka Perumal v. State of T.N.3." [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 the 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". 7.2. Making the above submission, the learned Additional Public Prosecutor Mr. Hardik Soni for the State submitted that this is a fit case which calls for interference at the hands of this court and requested to allow the appeal for enhancement of sentence against original accused No. 1 to 7 by upturning and/or modifying the impugned judgment and order. 8. We have heard learned Advocates for the parties and perused the records of the case. Before proceeding any further, it is necessary to state that the incident is of the year 2002 and almost 14 years have elapsed from the date of incident. While going through the well reasoned judgment and order of the learned Sessions Judge, Ahmedabad City, the evidence qua each of the accused has been considered thread bare and taking into consideration the panchnama and other material evidence, the learned Sessions Judge has come to the conclusion that accused No. 1 to 7 are involved in the commission of the crime and has granted benefit of doubt to the original accused No. 8 to 11 since there was no conclusive proof qua the original accused No. 8 to 11. 8.1. From the evidence on record, it is borne out that the prosecution witnesses more particularly the witnesses of the raiding party, panch witnesses and the Investigating Officer have supported the case of the prosecution. It is required to be noted that fake currency notes were found from accused Nos. 1 to 4 from Thakkarbapanagar Cross Roads. 8.1. From the evidence on record, it is borne out that the prosecution witnesses more particularly the witnesses of the raiding party, panch witnesses and the Investigating Officer have supported the case of the prosecution. It is required to be noted that fake currency notes were found from accused Nos. 1 to 4 from Thakkarbapanagar Cross Roads. From the house of accused No. 1, a photocopy machine and the papers used to print fake currency notes were recovered. Fake currency notes were also recovered from the possession of accused Nos. 5 to 7 which has been amply proved by the prosecution by way of appropriate panchnamas and the panch witnesses who in turn have supported the panchnamas. The motorcycle used in the alleged offence was also seized by the prosecution and the panchnama in that regard was also prepared. We are in complete agreement with the reasonings adopted by the trial Court so far as the conviction of accused Nos. 1 to 7 is concerned. 9. While considering the matter, we are of the opinion that qua the evidence which has come on record, we could have enhanced the sentence but looking to the amount involved, the time that has elapsed, to secure the ends of the justice and looking to the evidence that has surfaced on record, and also because some of the accused are not in good health, we maintain the sentence as awarded by the learned Sessions Judge. 10. All the above Appeals are devoid of merits and stand dismissed. The judgment and order of conviction and sentence dated 28.02.2005 of the learned Additional Sessions Judge, Court No. 13, Ahmedabad City in Sessions Case No. 250/2003 stands confirmed. The period of sentence already undergone by the accused shall be considered for remission and set off in accordance with law. If the accused have not undergone the prescribed period of sentence, they shall surrender before the jail authorities within a period of twelve (12) weeks from today to serve the remaining period of sentence, failing which, the jail authorities shall take appropriate steps in accordance with law. Bail bond, if any, of the accused stands cancelled. Record and proceeding be sent to the concerned Trial Court forthwith.