Gujarat High Court
Anil vs State on 16 August, 2011
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
CR.A/53820/2007 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 538 of 2007
With
CRIMINAL
APPEAL No. 1092 of 2007
With
CRIMINAL
APPEAL No. 1403 of 2007
With
CRIMINAL
APPEAL No. 579 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ANIL
RATIBHAI DAVDA(MISTRI) - Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
Cri.Appeal
no.538/2007
Mr.
N.A.Acharya for Mr. B.S.Supehia for the appellant.
Mr.K.P.Raval,
APP for the respondent.
Criminal Appeal no.1092 of 2007
Mr. Vilas G. Goswami for the
appellant.
Mr.
K.P.Raval, APP for the respondent.
Criminal
Appeal no.1403 of 2007 Mr.
Mukesh Dave for Mr. U.A.Trivedi for the appellant.
Mr.
K.P.Raval, APP for the respondent.
Criminal
Appeal no.579 of 2007
Mr.
Anil S. Dave for the appellant.
Mr.
K.P.Raval, APP for the respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 08/07/2009
COMMON
ORAL JUDGMENT
1. All these appeals arise out of the common the judgment and order of conviction and sentence dated 25th January, 2007 passed by the learned Additional Sessions Judge, Court no.16, Ahmedabad City, Ahmedabad in Sessions Case no.128 of 2005 whereby each of the present appellants original accused nos.1,2,3, and 4 (of respective criminal appeals) came to be convicted for the offence punishable under Sections 489(B) and 489(C) of the Indian Penal Code and awarded sentence of R.I. for seven years and to pay fine of Rs.15,000/- in default, 6 months S.I. and five years R.I. and fine of Rs.10,000, in default 3 months S.I. respectively. Both the setences were ordered to run concurrently and set off was also given for the period already undergone by the accused as under trial prisoners.
2. Brief facts of the prosecution case as emerging from the record of the trial Court are as under:
2.1 That on 29-9-2004, the Police Inspector Shri Barot of Bapunagar Police Station while he was on patrolling duty with other police officials received secret information from the informant to the effect that Siraj-accused no.1 is to deliver fake currency notes to Saurabh, the accused no.2 on that day near the gate of Panna Estate Chemcial, Bapunagar on motor bike no.GJ-1-DP-3848 at about 15.00 hrs. Acting on that information two Panchas, namely, Yogesh Jayantilal Bhavsar and Rameshji Laxmanji Thakor were called. Both the Panchas, Shri Barot and other police officials then left by private vehicles from Bapunagar Police Station to Panna Estate. The Panchas and other staff members were given to understand that the accused should be cordoned when indication is given. Thus, the raid was arranged. After about half an hour one person came near Arti Chemical Zampa on motor cycle bearing no.GJ-1-DP-3648 and thereafter within 10 minutes another person came on motor cycle bearing no.GJ-1 1-CN-6867. Soon, signal as arranged was given and both these persons were cordoned. On enquiry they were identified as Siraj and Saurabh. The person of the accused Siraj was searched and 80 fake currency notes in the denomination of Rs.100/- were seized from the left pocket of his pant and Rs.350/- were recovered from the right pokcet of his pant and one driving licence, identity card issued by the postal department and the motorcycle were seized from his possession. Then search of the person of Saurabh was carried out and 15 fake currency notes in the denomination of Rs.100/- and two notes in the denomination of Rs.50/-
were recovered from the right pocket of his pant and Rs.560/- were recovered from the left pocket of his pant. The motor cycle was also seized. As they failed to give satisfactory explanation with regard to possession of fake currency notes, FIR was lodged in Bapungar Police Station for the offence udner Sections 120-B, 489(A), 489(B)(, 489(C) and 489(D) of the Indian Penal Code. Thereafter, during investigation, at the instance of the accused Siraj, a raid was carried out in the residential house of Sabbir Hussain at Vijapur. Upon search of the person of Sabbir Hussain six fake currency notes in the denomination of Rs.100/- were found from the pocket of his pant and Panchnama to that effect was drawn. Similarly, as per the informaton given by Siraj one Anil was interrogated who has admitted having dealt with fake currency notes and from the terrace of B Block of Srinathji Apartment, 15 fake currency notes in the denomination of Rs.100/- were seized. During further investigation Siraj admitted that the machinery for preparing fake currency notes is kept in the house of his sister Sairabanu i.e. at house no.4 Nr. Fazle Rehman Society from where the police had seized scanner, printer, colour xerox, copier, papers, colour cartridge, CD Cassette, paper cutter, power cable, computer cable, guidance to operate machine, sclae, rectangle glass piece etc. under a Panchnama. Thereafter, charge-sheet came to be submitted in the Court of learned Metropolitan Magistrate, Ahmedabad. As the offence with which the accused was charged was exclusively triable by the Sessions Court, the case was committed to the Sessions Court. The learned Additional Sessions Judge , Court no.17 Ahmedabad City has framed charge Exh.7 against the accused persons for the offence under Sections 120-B, 489(A), 489(B), 489(C) and 489(D) of the Indian Penal Code on 18-8-2005 which was read over and explained to the accused persons. The accused pleaded not guilty to the charge and claimed to be tried.
3. To prove its case against the appellants-original accused the prosecution has examined several witnesses and also produced documentary evidence. After recording the evidence of prosecution witnesses was over, the further statement of the appellants-accused under Section 313 of the Criminal Procedure Code came to be recorded in which the defence of the accused was of total denial and that they were falsely implicated in the case.
4. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution both oral as well as documentary, the learned Presiding Officer, Fast Track Court no.10, Surat,passed the judgment and order of conviction and sentence as stated in para-1 of the judgment. It is against this judgment and order of conviction and sentence that the accused no.1-Siraj Ahmed Kamruddin Shaikh has preferred Criminal Appeal no.579 of 2007, the accused no.2-Saurabhai Madhukar Naigaokar has preferred Criminal Appeal no.1403 of 2007, the accused no.3 Sabbir Husain @ Chidi Anverhusain Kurashi has preferred Criminal Appeal no.1092 of 2007 and the accused no.4-Anil Ratibha Dawda(Mistri) has preferred Criminal Appeal no.538 of 2007.
5. I have the learned Counsel for the respective parties in each of these appeals as well as the learned Public Prosecutors.
6. Mention requires to be made here that, at the outset, the learned Counsel for the present appellants-original accused of each of these appeals have submitted that each the appellants are not pressing their respective appeals on merits of conviction. The learned Counsel, however, urged the Court to reduce the sentence and had confined arguments only on the point of reduction in the sentence.
7. Learned Counsel Mr. Anil S.Dave for the present appellant-original accused- Siraj of Criminal Appel no.579 of 2007 has in order to substantiate his prayer for reduction in sentence submitted that the accused no.1-Siraj that he has an old aged mother of 70 years, wife and two school and college going boys, that this is his first offence and there he has no criminal antecedents; that he has put in 24 years of service with the GPO, Mirzapur, that he has already under 5 years two months and 61 days of setence including set off, and therefore, the sentence imposed may be reduced to the sentence undergone by him.
8. Learned Counsel for the appellant Mr. Mukesh Dave for Mr. U.A.Trivedi for the present appellant-Saurabhai Madhukar Naigaokar of Criminal Appeal no.1403 of 2007 in support of his request for reduction in sentence has submitted that he has no criminal antecedents and that this is his first offence; that his father and mother are quite old and suffering from various diseases; that till date he has remained in jail for four years and nine months.
9. Learned Counsel for the appellant Mr.Sabbir Hussain @ Chidi Anwar Hussain Kureshi of Criminal Appeal no.1092 of 2007 for the present appellant-Saurabhai Madhukar Naigaokar of Criminal Appeal no.1403 of 2007 in support of his request for reduction in sentence has submitted that he has no criminal antecedents and that this is his first offence; that his father and mother are quite old and suffering from various diseases; that till date he has remained in jail for four years and nine months.
10. Learned Counsel for the appellant Mr. N.A.Acharya for Mr. B.S.Superhia for the present appellant-Anil Ratiba Dawda(Mistri) of Criminal Appeal no.538 of 2007 on the point of quantum of setnecne submitted that he has no criminal antecedents and that this is his first offence; that his father and mother are quite old doing miscellaneous carpentry work and household work respectively; that they are very poor and that that till date he has remained in jail for five years and two months.
11. Learned Addl Public Prosecutor in each of these appeals however, contended that taking into consideration the offence committed by each of the appellant-accused, the Court may award appropriate sentence.
12. This Court has gone through the entire record of the case including the judgment and order of conviction and sentence dated 25th January, 2007 passed by the learned Additional Sessions Judge, Court no.16, Ahmedabad City, Ahmedabad in Sessions Case no.128 of 2005. I am in complete agreement with the reasonings adopted and the conclusions arrived at by the learned trial Judge in the impugned judgment so far as the conviction of the present appellants is concerned, however, the sentence part requires modification since having heard the learned Counsel for the respective parties and taking into account the relevant aspects of the matter I find that the sentence imposed against each of the appellants , in the facts of this case are harsh.
13. In this connection reference will have to be made to the decitions rendered in the case of (1)Ghasita Sahu v. State of Madhya Pradesh reported in AIR AIAR (Criminal) 277 , the Apex Court considering the poor background of the accused reduced from 5 years to one already undergone(about 4 years as noticed by the Apex Court) and also reduced the fine from Rs.20,000/- to Rs.10,000/- and imposed the default sentence of six months and (2) Shanti Lal v. State of M.P. reported in 2007(2) EFR 702, wherein in para 36 the Apex Court observed has observed that the accused appellant is very poor person and it was his first offence and considering that fact reduced the sentence, and (3) Balwinder Singh vs. Asstt. Commissioner, Customs and Central Excise reported in 2005(2) EFR 420 = AIR 2005 SC 2917) wherein considering the fact that the accused was a first time offender, sentence of 14 years of imprisonment imposed by the Courts below was reduced to minium prescribed under the Act that of 10 years.
14. Thus, having regard to the peculiar facts of the present case, including the fact that the appellants are very poor; that this is their first offence as also considering the period of sentence already undergone,I am of the considered opinion, that the ends of justice would be met if all these appeals are partly allowed by modifying the sentence only.
15. In the result, all these appeals succeed in part and accordingly, they are partly allowed qua the sentence only as indicated hereinbelow. The judgment and order of conviction and sentence dated 25th January, 2007 passed by the learned Additional Sessions Judge, Court no.16, Ahmedabad City, Ahmedabad in Sessions Case no.128 of 2005 so far as the conviction of the present appellants original accused nos.1,2,3, and 4 for the offence punishable under Sections 489(B) and 489(C) of the Indian Penal Code is hereby confirmed and maintained.
So far as the sentence is concerned, each of the appellant-original accused nos.1, 2, 3 and 4,(of the respective appeals) are sentenced to suffer R.I for five years for each of the offence under Sections 489(B) and 489(C) of the Indian Penal Code. The rest of the judgment and order shall remain intact.
(M.D.Shah,J.) lee.
Top