- (1.) Feeling Aggrieved And Dissatisfied With The Impugned Judgment and order passed by the learned Sessions Judge, Mehsana (hereinafter referred to as "trial Court") in Sessions Case No.16/2012 by which the learned trial Court while convicting the respondents herein original accused Nos.1 and 2 for the offence punishable under section 394 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") has imposed the sentence of 5 years' Rigorous Imprisonment with fine of Rs.1000/ and in default of payment of fine to undergo further 1 month Simple Imprisonment, the State has preferred the present Criminal Appeal for enhancement of the sentence imposed.
(2.) At the outset it is required to be noted that the impugned judgment and order of conviction passed by the learned trial Court convicting the original accused Nos.1 and 2 for the offence punishable under section 394 of the IPC is not challenged by the original accused Nos.1 and 2 and they have accepted the impugned judgment and order of conviction and as reported both of them have already undergone the sentence imposed by the learned trial Court and they are released after set off of 10 months and 17 days, on 01.12.2015. Under the circumstances, only question posed for consideration of this Court is whether in the facts and circumstances of the case and the manner in which the original accused Nos.1 and 2 have committed the offence under section 394 of the IPC, the sentence imposed by the learned trial Court can be said to be adequate, sufficient punishment commensurate with the gravity of the offence [2.1] At the outset it is required to be noted that as per the prosecution case and so stated by the original complainant Dhuliben Karsanbhai Kashiram, which was recorded by Mehsana City 'B' Division Police Station being ICR No.210/2011, on 16.10.2011 at about 15.30 hours in the afternoon, the original complainant, a lady aged 54 years was present at her home and at that time the accused persons came at her home and rang the doorbell of her house and knocked the door and when she opened the door, the accused told her that they have come for doing painting work. However, she told them to go to the factory and did not permit them to enter the house. However, at that time the accused asked for glass of water for drinking and therefore, she went to bring the water for them and at that time one of the accused opened the grill (Jali) and forcefully entered the house and at that time other two persons who were on the site also came there and all of them entered the house forcefully and they had shown one revolver and knife. As per the case of the prosecution and so stated by the complainant in her complaint, one of the accused put the knife on her neck and asked for the money and the gold and other threatened her and therefore, she gave first Rs.10,000/ which was kept in the cupboard and from another purse which was lying in the cupboard they took out Rs.20,000/ and asked to bring gold and the keys of the locker and caused the injury on her neck and gave the fist blows and during that she sustained the injury by knife on her right hand finger. It was further stated in the complaint that at that stage her daughter in law Kalpa after seeing the accused went to the bedroom and informed the daughter of the complainant and her fatherinlaw through mobile and within short time the husband and the son of the complainant reached there and because of shouting other persons also came there and out of which they arrested two persons (accused herein) and third person ran away. [2.2] Thereafter, after the investigation was concluded, all the accused came to be chargesheeted for the offence punishable under sections 394, 397 of the IPC and section 135 of the Bombay Police Act. That by impugned judgment and order the learned trial Court has convicted the respondent herein original accused Nos.1 and 2 for the offence punishable under section 394 of the IPC and has acquitted the original accused No.3 for the offences for which he was tried. However, the learned trial Court has not believed the prosecution case for the offence punishable under section 397 of the IPC and therefore, has considered the sentence provided under section 394 of the IPC only and by impugned judgment and order and while convicting the original accused Nos.1 and 2 respondents herein has imposed the sentence of 5 years RI with fine of Rs.1000/ and in default to undergo further 1 month SI. [2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order, the State has preferred the present Criminal Appeal under section 377 of the Code of Criminal Procedure, 1973 for enhancement of the sentence imposed by the learned trial Court.
(3.) Shri K.P. Raval, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that while imposing the sentence while convicting the original accused Nos.1 and 2 for the offence punishable under section 394 of the IPC, the learned trial Court has materially erred in imposing the sentence of only 5 years' RI. It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State that while imposing the sentence the learned trial Court has not properly appreciated the fact of the case and the manner in which the accused committed the offence. [3.1] It is submitted that the learned trial Court has as such materially erred in observing that section 397 of the IPC will not be applicable. It is vehemently submitted that from the deposition of the victim original complainant and even so stated by her in the complaint as well as the history given by her before the doctor, one of the accused was having revolver and another was having knife and that she also sustained the injury by knife on her right hand finger and by giving threat by pointing the revolver the accused committed the robbery and looted Rs.30,000/ from the house of the complainant, the learned trial Court ought to have considered and/or applied section 397 of the IPC which provides that the minimum sentence shall be not be less than 7 years. [3.2] It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor appearing on behalf of the State that the sentence imposed by the learned trial Court while convicting the original accused for the offence punishable under section 394 of the IPC cannot be said to be adequate, sufficient punishment / sentence commensurate with the gravity of the offence. [3.3] It is submitted that therefore considering section 394 of the IPC read with section 397 of the IPC and considering the act that such offences are increasing in society, the learned trial Court ought to have imposed the maximum punishment provided under section 394 of the IPC i.e. imprisonment for life. [3.4] It is submitted that even the reasoning given by the learned trial Court while awarding the sentence of 5 years' RI only for the offence punishable under section 394 of the IPC is perverse. It is submitted that while imposing lesser punishment the learned trial Court has observed and considered the fact that the accused are of young age. It is submitted that merely because the accused were of the young age, the learned trial Court was not justified in awarding the lesser punishment. It is submitted that the manner in which the accused committed the offence and that too committed the robbery while entering the house of the complainant and committed the robbery and looted Rs.30,000/ and more particularly when the accused were outsiders i.e. belonging to other State, the learned trial Court ought to have imposed the maximum punishment. Making above submissions and relying upon above decisions on penology and/or sentencing policy and the need to impose adequate punishment commensurate with the gravity of the offence, it is requested to allow the present Criminal Appeal. (1) Aero Traders (P) Ltd. vs. Ravinder Kumar Suri, 2004 8 SCC 307 (2) State of Rajasthan vs. Vinod Kumar, 2012 6 SCC 770(Criminal Appeal No.1887 of 2008) with State of Rajasthan vs. Heera Lal (Criminal Appeal No.1888 of 2008) (3) Sumer Singh vs. Surajbhan, 2014 7 SCC 323 (4) Narinder Singh and others vs. State of Punjab and another, 2014 6 SCC 466 (paras 14 to 17) (5) Satish Kumar Jayantilal Dabgar vs. State of Gujarat, 2015 7 SCC 359 (6) Prahlad and another vs. State of Haryana, 2015 8 SCC 688, (para 16 to 18);