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2017 DIGILAW 1836 (GUJ)

State of Gujarat v. Bhura Maiya Sindhi (Dafer)

2017-12-01

A.G.URAIZEE, ANANT S.DAVE

body2017
JUDGMENT : ANANT S. DAVE, J. In this appeal under Section 377 of the Code of Criminal Procedure, 1973 (for short, “the Code”) the challenge is to the sentence imposed by judgment and order dated 30.5.2005 passed by learned Presiding Officer, Fast Track Court No. 7, Gandhinagar, in Sessions Case No. 128 of 2004 whereby the respondent is convicted for the offence under Section 395 of the Indian Penal Code (for short, “IPC”) but awarded sentence of simple imprisonment for one year only. 2. The facts of the case of the prosecution has genesis in a complaint filed by PW-2, Dashrathji Pujaji Thakor, that on 25.3.2001 when the complainant with his wife Champaben, PW-7, son Vijay and sister Revaben had gone to a nearby village and were returning around 20.30 hours, on the highway one person with weired gesture came on the road and the complainant immediately applied break and slowed down his scooter and immediately that person had inflicted blow of wooden log on the hand of the complainant, who lost balance of the two wheeler and fell down on the road and soon thereafter four persons also arrived at the place of incidence having sticks in their hands etc. and abetted in commission of crime and robbed the wife of the complainant of gold ornaments and, thereafter, investigation was completed and the case was tried by the competent Court resulting into conviction and sentence of respondent to which reference is made earlier. 3. In the trial, mainly eleven witnesses were examined and particularly, PW-2, complainant and PW-7, his wife Champaben both have supported the case and it was believed by the trial Court. Panchas of T.I. Parade, recovery of muddamal, scene of offence and discovery etc. have turned hostile and in all PW-3, PW-4, PW-5, PW-6, PW-8 and PW-10 have turned hostile. According to learned APP, when conviction of the respondent is recorded for offence under Section 395 of IPC for which maximum sentence under the provision is upto ten years and robbery was committed on the highway during night hours in which wife of the complainant was injured, a case was made out to award maximum sentence so provided. 4. According to learned APP, when conviction of the respondent is recorded for offence under Section 395 of IPC for which maximum sentence under the provision is upto ten years and robbery was committed on the highway during night hours in which wife of the complainant was injured, a case was made out to award maximum sentence so provided. 4. Accordingly, learned Judge ought to have appreciated and considered the gravity and seriousness of offence proved by the prosecution beyond reasonable doubt and, therefore, this Court while exercising powers under Section 377 read with Section 386 of the Code may consider the case of the appellant for enhancement of sentence. 5. In the backdrop of the arguments so canvassed, we have perused the evidence viz. oral as well as documentary. The complaint lodged by PW-2 on 25.3.2001 was against unknown persons, who used to speak tribal language and disappeared thereafter. No doubt, the complainant, PW-2 along with his wife Champaben, PW-7, supported the case of prosecution but at the same time, all other panch witnesses have turned hostile. That the discretion exercised by learned trial Judge about the manner in which the crime was committed in which medical certificate of injury of issued by Dr. Vinodkumar Patel, PW-9 of Civil Hospital reveal about abrasion on forearm of PW-7. At the same time the crime was committed on a highway during night hours and overall appreciation of evidence by learned trial Judge resulting into conviction for which sentence of one year awarded to the respondent appears to be just and proper. While exercising appellate powers, we do not find any error as such of appreciating the evidence leading to conviction of the respondent and sentence for one year warranting any interference, as prayed for. 6. In view of above, this Criminal Appeal for enhancement of sentence is dismissed. The impugned judgment and order dated 30.5.2005 passed by learned Presiding Officer, Fast Track Court No. 7, Gandhinagar, convicting the accused for the offence punishable under Section 395 of the Indian Penal Code and imposing sentence of one year's simple imprisonment is confirmed. The bail bond, if any, stands cancelled. Record and Proceedings be sent back to the trial Court concerned forthwith.