Gujarat High Court Case Information System
Print
CR.A/1400/2004 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1400 of 2004
With
CRIMINAL
APPEAL No. 684 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 ?
=========================================
AKRAMMIYA
AHMADMIYA KAJI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
PP MAJMUDAR for Appellants in both appeals
MR LR PUJARI, APP for
Opponent-State in both
appeals
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 21/10/2011
COMMON
ORAL JUDGMENT
Criminal
Appeal No.1400 of 2004 has been filed by the appellant-original
accused No.2 against the judgment and order dated 29-7-2001 passed
by the learned Addl. City Sessions Judge, Valsad, in Sessions Case
No.580 of 2002 whereby the present appellant was sentenced to suffer
RI for a period of five years and to pay fine of Rs.1,000/-, in
default, to suffer further RI for three months for the offence
punishable under Sec.395 of IPC.
Criminal
Appeal No.684 of 2007 has been filed by the appellant-original
accused against the judgment and order dated 30-12-2005 passed by
the learned Presiding Officer, Fast Track Court No.1, Surat, in
Sessions Case No.189 of 2002 whereby the present appellant was
sentenced to suffer RI for a period of five years and to pay fine of
Rs.500/-, in default, to suffer further SI for one month for the
offence punishable under Sec.395 of IPC; RI for a period of seven
years and to pay fine of Rs.500/-, in default, to suffer further SI
for one month for the offence punishable under Sec.397 of IPC and RI
for a period of six months for the offence punishable under Sec.342
of IPC. All the sentences imposed on the accused were ordered to
run concurrently.
Since
common questions of facts and law are involved in both these appeals
and as the appellant is the same in both the appeals, they are heard
together and are being decided by this common judgment.
Facts
in short are that a complaint was lodged by Kirankumar Babubhai
Patel before Valsad Town Police Station inter alia alleging that on
27-2-2001 at night, some unknown persons forcefully entered into his
house and looted gold ornaments, cash of Rs.63,000/- and other
articles. Thereafter in the morning of next day at about 6 a.m., son
of his uncle came and told that yesterday at about 3.00 a.m., some
15-20 unknown persons entered from behind their house by breaking
open the door and tried to assault them and all of them including
his brother, mother, sister-in-law and his wife frightened and the
unknown persons looted gold ornaments, cash of Rs.77,000/- and
other articles. They also disconnected their telephone wires. In
all, they looted articles worth Rs.3,06,800/- . In pursuance of
filing of the same, the Investigating Officer went to place of scene
of offence, drew panchnama, took details of looted articles, took
statements of witnesses and arrested accused Nos.1 to 5 on
27-6-2001. During the course of further investigation, it was
revealed that some of the looted articles were sold to persons
residing at Anand and hence, accused Nos.6 and 7 were also arrested
and looted muddamal articles were attached under a panchnama in
presence of panchas. At the end of investigation, charge sheet came
to be filed against accused Nos.1 to 7 in the Court of learned
Judicial Magistrate (First Class), Valsad, for the offences
punishable under Secs.395 and 412 of IPC. As the case was
exclusively triable by the Court of Sessions, learned Judicial
Magistrate (First Class), Valsad, committed the case to the Court of
Sessions at Valsad where it was numbered as Sessions Case No.580 of
2002. The learned Judge thereafter framed charge against the
accused. The charge was read over and explained to the accused. The
accused pleaded not guilty to the charges and claimed to be tried.
Hence, the prosecution was asked to prove the guilt against the
accused. To prove the guilt against the accused, prosecution
examined several witnesses and has produced and relied on several
documentary evidence. On
submission of closing pursis by the prosecution, learned Judge
recorded further statement of the accused under Sec.313 of Code of
Criminal Procedure. Upon affording opportunity of hearing to the
learned advocates appearing for the respective parties, learned
Additional Sessions Judge, Valsad, delivered the impugned judgment
and order convicting and sentencing the appellant as aforesaid in
the earlier part of this judgment giving rise to prefer the Criminal
Appeal No.1400 of 2004 by the appellant-original accused No.2.
Another case
being Sessions Case No.189 of 2002 was also tried against the
present appellant in the Court of learned Presiding Officer, Fast
Track Court, Surat wherein also he was sentenced as aforesaid in the
earlier part of this judgment.
Heard
learned advocate, Mr.P.P.Majmudar for the appellant and learned APP,
Mr.L.R.Pujari for the State in both the appeals.
Learned advocate, Mr.P.P.Majmudar, for the appellant-accused does not press these appeals on merits but requested to pass order for the two sentences to run concurrently. It is submitted that in Criminal Appeal No.1400 of 2004 which has arisen out of judgment and order dated 29-7-2004 rendered in Sessions Case No.580 of 2002 by learned Addl. Sessions Judge, Valsad, the appellant was arrested on 26-6-2001 and subsequently in Criminal Appeal No.864 of 2007 which has arisen out of judgment and order rendered dated 30-12-2001 in Sessions Case No.189 of 2002 by the learned Presiding Officer, Fast Track Court, Surat, the appellant was arrested on 2-7-2001. It is further submitted that when he was arrested on 2-7-2011 in connection with Sessions Case No.189 of 2002 of Surat, the appellant-accused was already in custody in connection with Sessions Case No.580 of 2002 of Valsad. It is further submitted that in Sessions Case No.580 of 2002, the appellant was sentenced to suffer RI for a period of five years for the offence punishable under Sec.395 of IPC whereas in Sessions Case No.189 of 2002, the appellant was sentenced to suffer RI for five years for the offence punishable under Sec.395 of IPC; RI for a period of seven years for the offence punishable under Sec.397 of IPC and RI for a period of six months for the offence punishable under Sec.342 of IPC. According to him, under the provisions of Section 427 of Cr.P.C., he is entitled to get the benefit of getting the sentences of both the Sessions Cases to run concurrently.
In this connection, he has relied upon in the case of Ammavasai and another Vs. Inspector of Police, Valliyanur and others, reported in A.I.R. 2000 S.C. 3544 wherein it has been held in paras 3 and 4 as under:
“3. The 2nd appellant-Deivaraj was convicted in 5 different cases the occurrence in all of which took place between 21-10-1989 and 7-5-1990. He was also found guilty under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the benefit conferred under Section 427 is not extended to him, he may have to undergo imprisonment for a total period of 35 years in jail.”
“4. On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, therefore, we thought of a via-media which would be consistent with the administration of criminal justice. After bestowing our anxious consideration we thought that if the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice.”
It is to be
noted that the learned advocate for the appellant-accused has not
argued the appeals on merits. But he has restricted his submissions
only on the point of running the sentences in both the Sessions
Cases concurrently. Hence, I would not
like to reproduce or discuss the entire evidence which are on record
as the same remained unchallenged. This Court is also in complete
agreement with the reasons adopted and the conclusions arrived at by
the learned trial courts in the impugned judgments so far as the
conviction of the present appellant-accused in both the cases are
concerned. However, the question to be considered is as to
whether the appellant-accused in the given facts and circumstances
of the case entitled to reduction of sentence which has been awarded
by the trial court or not.
It is true
that when the appellant was arrested on 2-7-2011 in connection with
Sessions Case No.189 of 2002 of Surat, he was already in custody in
connection with Sessions Case No.580 of 2002 of Valsad and he was
awarded sentences in both the cases. Applying the above ratio to the
facts of the present cases, since the appellant-accused has been
sentenced in two Sessions Cases, one in Sessions Case No.580 of 2002
and another in Sessions Case No.189 of 2002, this Court is of the
opinion that the sentences imposed on the appellant in both the
cases are required to be ordered to run concurrently to have the
benefit of aforesaid reported judgment by allowing him to undergo
a total period of 7 years of imprisonment in respect of two
convictions passed against him so as to meet the ends of justice.
Thus,
both the appeals are accordingly partly allowed.
The sentences imposed on the appellant-accused in Sessions Case
No.580 of 2002 by the learned Addl. City Sessions Judge, Valsad, and
in Sessions Case No.189 of 2002 by the learned Presiding Officer,
Fast Track Court No.1, Surat, are ordered to run concurrently. The
accused is also entitled to set off for the period he has undergone
in jail. Rest of the impugned judgments and orders including fine
etc. would remain unchanged.
Record and
proceedings are ordered to be sent back to the courts below
forthwith.
Office shall
keep a copy of this judgment in each matter.
[M.D.SHAH,J.]
radhan
Top