Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 559 (GUJ)

Rafikmohamad Farukmohmad Khan v. State of Gujarat

2019-05-07

R.P.DHOLARIA

body2019
JUDGMENT : 1. The present appeals have been filed separately by the appellants-accused under Section 374 of the Criminal Procedure Code, 1973, against the common judgment and order dated 23.03.2016 passed by learned Sessions Judge, Valsad in Sessions Case No.38 of 2013, whereby the appellants-accused were convicted for the offences punishable under Sections 452, 398 and 354 read with Section 114 of the Indian Penal Code (herein after referred to as IPC for short) and also under Sections 25(1-B) and 27 of the Arms Act. By the impugned judgment, under Section 452 of the IPC, the appellants were sentenced to undergo simple imprisonment for a period of five years each and ordered to pay Rs.2,500/- fine each and in default of payment of fine, simple imprisonment for a period of six months was imposed and under Section 398 of the IPC, the appellants were sentenced to undergo simple imprisonment for a period of seven years each and ordered to pay Rs.5,000/- fine each and in default of payment of fine, simple imprisonment for a period of one year each and under Section 354 of the IPC, the appellants were sentenced to undergo simple imprisonment for a period of one year each and ordered to pay Rs.2,500/- fine each and in default of payment of fine, simple imprisonment for a period of three months each and and under Section 25(1-B) and 27 of the Arms Act, the appellants were sentenced to undergo simple imprisonment for a period of five years each and ordered to pay Rs.5,000/- fine each and in default of payment of fine, simple imprisonment for a period of one year each was imposed. All the sentences are ordered to run concurrently. 2. The case of the prosecution in short is that on 09.01.2013 at 10:00 a.m. in the morning, when husband of the complainant went to office and children went to school, at that time, one unknown person came to her home having gun in his hand and his face was covered with handkerchief. Thereafter, one another person also came there and they showed gun to the complainant and demanded money from her. Thereafter, the above person laid down the complainant on bed and outraged her modesty and at that time, she shouted for help due to which other neighbours arrived there and therefore, the accused persons ran away from the place of incident. Thereafter, one another person also came there and they showed gun to the complainant and demanded money from her. Thereafter, the above person laid down the complainant on bed and outraged her modesty and at that time, she shouted for help due to which other neighbours arrived there and therefore, the accused persons ran away from the place of incident. Therefore, the complaint was lodged with the police. 2.1 Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2 After filing of closing purshis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused have denied the case of the prosecution and submitted that a false case is filed against them. 2.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellants-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 23.03.2016 passed by learned Sessions Judge, Valsad in Sessions Case No.38 of 2013, the appellants-accused have preferred the present appeals before this Court. 3. This Court has heard learned advocate Mr. Adil Mirza and learned advocate Mr. Amit Chaudhary appearing for the appellants and learned APP Ms. Hansa Punani for the respondent-State. 4. Learned advocates for the appellants fairly pointed out that during pendency of the appeals, present appellants-accused have almost completed their sentence to the extent of about four years and fine amount has also been paid. 5. Both the learned advocates for the appellants-accused further pointed out that since the appellants-accused have already served out substantial part of their sentence and indisputably, neither there was robbery, nor any sort of loot was undertaken by them and it is not even the case of prosecution and nothing was recovered during the course of investigation except only the arms in the nature of country made pistol came to be discovered at their instance. In view of aforesaid nature of evidence available on record, they fairly stated that except the conviction under Section 398 of the IPC, they do not dispute the conviction and further argued that since the accused have no sort of antecedents and also they are young in age, the sentence imposed upon them except the sentence imposed under Section 398 of the IPC may be reduced to the extent of sentence for about 4 years which is already undergone by them. 6. On the other hand, learned APP Ms. Hansa Punani has taken this Court through the entire records and proceedings and pointed out that the present appellants-accused attempted to commit robbery, but they failed and as they are involved in such a heinous crime, no mercy should be shown towards them. 7. This Court has gone through the entire records and proceedings. This Court is satisfied that soon after reporting of crime, the accused came to be apprehended on the following day and they were put to T.I. Parade and they came to be identified by the complainant and also at their behest, the country made pistol came to be discovered and a detailed panchnama came to be drawn thereof. 8. On overall evaluation of evidence of complainant-PW.1- Geetaben in light of her clear admission, it appears that the appellants-accused had neither looted, nor robbed or committed any theft. 9. In view of aforesaid nature of evidence on record, the question arises for determination of this Court is as to whether in view of aforesaid factual scenario, the offence as defined under Section 398 of the IPC would be constituted against the present appellants-accused or not? 10. In order to answer the aforesaid question, the provisions of Section 390, 391 and 398 of the IPC are reproduced herein: “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 carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes 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.” “391.Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". “398-Attempt to commit robbery or dacoity when armed with deadly weapon.—If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.” 11. Section 398 of the IPC clearly provides that if, at the time of attempting to commit robbery or dacoity, if the offender is armed with any deadly weapon, then he shall be punished not less than seven years, however, for constituting the offence of robbery or dacoity, either theft or robbery is a sine qua non which is missing in the present case. 12. In view of factual evaluation of evidence on record, as there were only four persons named by the prosecution and therefore, the offence of dacoity is out of question. Now, the question arise as to whether there was robbery and for commission of robbery, Section 390 envisages that in all cases of robbery, there is either theft, or extortion. As stated above, as the appellants-accused had not committed any theft and even it is not the case of prosecution that the appellants accused had extorted money from the complainant, therefore, Section 398 of the IPC would not be applicable to the facts and circumstances of the case and the appellants-accused wrongly came to be convicted under Section 398 of the IPC. 13. Records and proceedings clearly indicates that the offence under Sections 452 and 354 of the IPC as well as under Sections 25(1-B) and 27 of the Arms Act are clearly constituted. 13. Records and proceedings clearly indicates that the offence under Sections 452 and 354 of the IPC as well as under Sections 25(1-B) and 27 of the Arms Act are clearly constituted. This Court has taken into consideration the arguments advanced by learned advocates for the appellants for reduction of sentence. While taking into consideration the fact that the appellants-accused are of young age at the relevant point of time and they have already served out sentence for about four years, the interest of justice would meet, if the sentence would be reduced to the extent they have undergone. 14. For the reasons recorded above, present appeals stand partly allowed. The conviction recorded under Section 398 of the IPC stands quashed and set aside, while maintaining conviction under Section 452 and 354 of the IPC as well as conviction under Sections 25 (1-B) and 27 of the Arms Act, the sentence imposed by learned trial court by the impugned judgment and order dated 23.03.2016 passed by learned Sessions Judge, Valsad in Sessions Case No.38 of 2013 is reduced to the extent of sentence already undergone. The appellants-accused shall be released forthwith from the jail, if they are no longer required in connection with any other offence. Rest of the judgment shall remain unaltered. R & P be sent back to the learned trial court, forthwith. 15. In view of disposal of main appeal being Criminal Appeal No.1703 of 2016, Criminal Misc. Application (Temporary Bail) No.1 of 2019 in Criminal Appeal No.1703 of 2016 would not survive and stands disposed of accordingly.