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Wednesday, July 24, 2013

driver of the said taxi involved in the offence undergone seven years and six months in jail, reduced from 10 years to served setence = even if the prosecution case is accepted that the appellant had facilitated in the commission of crime, considering the fact that he did not enter the jewellery shop and was not armed with any weapon, the maximum sentence of 10 years is excessive. On going through all the aspects, particularly, the entire evidence of the owner of the taxi PW-12, we inclined to accept the claim of Mr. Ghosh. - It is relevant to point out that PW-12, nowhere in his statement has described about any illegal activity on the part of the appellant who was his taxi driver. Inasmuch as no adverse statement has been made by him and also of the fact that till date, he had already undergone seven years and six months in jail, while confirming his conviction, we feel that ends of justice would be met by altering his sentence to the period already undergone. 11) In view of our conclusion on the sentence, we direct that the appellant be released forthwith, if he is not required in any other case. The appeal is disposed of on the above terms.

                           published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40568
     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1109 OF 2009



Rajendra Sharma                                 .... Appellant(s)

      Versus

State of West Bengal                               .... Respondent(s)

                                      2





                               J U D G M E N T



P.Sathasivam,J.

1)    This appeal is filed  against  the  final  judgment  and  order  dated
09.04.2008 passed by the Division Bench of the High  Court  at  Calcutta  in
C.R.A. No. 81 of 2006 whereby the High Court dismissed the appeal  preferred
by the appellant herein by confirming his conviction and sentence passed  by
the Court of 1st Additional Sessions Judge, Alipore dated  19/20.12.2005  in
Sessions Trial No. 1(2) of 2000 for the offence  punishable  under  Sections
395/397 of the Indian Penal Code, 1860 (in short  ‘IPC’),  Section  25  (1a)
(b) of the Arms Act, 1959 and Sections 3 and 5 of the  Explosive  Substances
Act, 1908.
2)    Brief facts:
(a)   As per the prosecution case, on 07.12.1998, at about 13:15 hours,  the
accused persons, viz., Rajendra Sharma, Sk. Muktar  @  Dabbu,  Sarban  Singh
and 2/3  others,  armed  with  revolvers,  khojali,  bombs  etc.,  committed
dacoity in gold jewellery workshops at  Gopal  Bose  Lane  and  looted  gold
ornaments weighing about 1820 grams approx. and fled away in two taxis.
(b)   With regard to the above incident, a written FIR being No.  234  dated
07.12.1998 was registered by Arun  Hazra  (PW-3)  at  P.S.  Cossipore  under
Sections 395/397 IPC and Sections 25/27 of the  Arms  Act,  1959  read  with
Sections 3 and 5 of the Explosive Substances Act, 1908.
(c)   After investigation, the case  was  committed  to  the  Court  of  1st
Additional Sessions Judge, Alipore and was numbered as  Sessions  Trial  No.
1(2) of 2000.
(d)   The trial Court, by order dated 19/20.12.2005 convicted the  appellant
along with other co-accused under Sections 395/397 IPC and directed  him  to
suffer rigorous imprisonment  (RI)  for  10  years  along  with  a  fine  of
Rs.5,000/-, in default, to further undergo RI  for  a  period  of  2  years.

(e)   Being aggrieved of  the  above  said  order,  the  appellants  therein
preferred separate appeals before the High Court at Calcutta.
(f)   The High Court, by impugned judgment dated 09.04.2008,  dismissed  the
appeal  of  the  appellant  (A-1)  and  one  Sarban  Singh  affirming  their
conviction and sentence and set aside the order of conviction  and  sentence
of other co-accused - Ranjit Kumar.
(g)   Being aggrieved, the appellant (A-1) alone  has  preferred  the  above
appeal by way of special leave before this Court.
3)    Heard Mr. Pradip Ghosh, learned  senior  counsel  for  the  appellant-
accused and Mr. Chanchal Kumar Ganguli, learned counsel for the  respondent-
State.
4)    Mr. Pradip Ghosh, learned senior  counsel  for  the  appellant,  after
taking us through the entire materials submitted that in the absence of  any
individual  overt  act  committed  by  him,  particularly,  even  when   the
prosecution witnesses  identified  the  appellant  as  the  person  who  was
sitting inside the taxi in which the other dacoits got up  after  committing
dacoity, awarding maximum punishment of 10 years is not warranted.  He  also
submitted that even if the conviction is sustainable,  taking  note  of  his
limited role, namely, keeping taxi near the spot and of the  fact  that  out
of 10 years of sentence, so far he had served seven years and six months  in
jail, the  same  may  be  considered  sufficient  and  he  may  be  released
forthwith.  On  the  other  hand,  Mr.  Ganguli,  learned  counsel  for  the
respondent-State submitted that  the  prosecution  witnesses,  particularly,
PWs 3, 4 and 5 and the owner of the taxi, viz., Kartik Santra (PW-12)  amply
prove  the  involvement  of  the  appellant.   He  also  pointed  out   that
considering the seriousness of the offence, the  sentence  awarded,  namely,
10 years cannot be construed as excessive or unreasonable.
5)    We have carefully considered the rival  submissions  and  perused  all
the relevant materials.


Discussion:
6)    Among the witnesses, the evidence of  Arun  Hazra  (PW-3)  is  heavily
relied on by the prosecution and accepted by  both  the  courts  who  was  a
goldsmith in the shop of Uttam Majhi at 2F Gopal Bose Lane.  It was  he  who
made a complaint under Exh. 3-3/3.  In his evidence,  he  asserted  that  on
07.12.1998, at about 1.30 p.m., while he was working in the  shop  of  Uttam
Majhi along with others, suddenly a man of 25-30 years  entered  into  their
shop through their collapsible gate with a pistol. 4-5 persons also  entered
into their shop following him.  They all were  armed  with  pistols,  knives
and curbed knives.  They were running here and there and they picked up  the
manufactured gold ornaments from their workers and kept the same in  a  jute
bag.  Some persons  also  entered  into  the  gold  shops  of  Prosanta  and
Nasiruddin.  When people assembled in  front  of  their  shops  and  shouted
‘dacoits dacoits’, the said persons, on hearing the  same,  fled  away.   He
also stated that when he came out while following them, he noticed that  the
engines of two taxis, viz.,  yellow  and  black  yellow  were  on  with  the
drivers standing outside the taxis.  He noted down the registration  numbers
of the taxis.  He identified the appellant as one  of  the  person  standing
with the taxi on.
7)    The next witness examined on the side of the prosecution was Asim  Das
(PW-4).  He also worked as a goldsmith  in  a  jewellery  factory  of  Uttam
Majhi at 2F Gopal Base Lane, Kolkata.  He narrated the incident  similar  to
one as mentioned by PW-3.  PW-4 also came to the road  and  shouted  ‘dacoit
dacoit’ and noted that two hired taxis were standing on the road with  start
condition and drivers were standing besides them.  He  also  identified  the
appellant who, according to him, standing near the taxi in start  condition.
 In the same effect, PW-5 also deposed before the Court.
8)    Apart from the evidence of PWs 3, 4 and 5, the  prosecution  has  also
examined one Kartik Santra as PW-12 who is the owner of a  yellow  taxi  No.
WB/237672.  He admitted that the appellant Rajendra  Sharma  (A-1)  was  the
driver of the said taxi.  He identified him in the  dock.   He  also  stated
that Rajendra Sharma took the vehicle on 07.12.1998 at about 7.00  a.m.  and
returned the same at 3.00 p.m.  on  that  day.  On  08.12.1998,  the  police
informed him that there was a dacoity in which his taxi  was  involved.   On
inquiry by  the  police,  he  took  them  to  his  driver’s  residence  and,
thereafter, the police arrested him from his house and the taxi  was  seized
on the very same day.  He also produced the Garage  Register  maintained  by
him which has been marked as Exh.-10.
9)    A conjoint reading of the evidence of PWs 3, 4 and 5 and the owner  of
the taxi, namely, PW-12 clearly establish the involvement of  the  appellant
in the commission of the offence.  There is no reason  to  disbelieve  their
versions and we are satisfied that both the courts  below  rightly  accepted
their statements.
10)   Relating  to  sentence,  Mr.  Ghosh  pointed  out  that
even  if  the
prosecution case is accepted that  the  appellant  had  facilitated  in  the
commission of crime,  considering  the  fact  that  he  did  not  enter  the
jewellery shop and was not armed with any weapon, the  maximum  sentence  of
10 years is excessive.  
On going through all the aspects, particularly,  the
entire evidence of the owner of the taxi PW-12, we inclined  to  accept  the
claim of Mr. Ghosh.  
It is relevant to point out that PW-12, nowhere in  his
statement has described about any  illegal  activity  on  the  part  of  the
appellant who was his taxi driver.  
Inasmuch as  no  adverse  statement  has
been made by him and also of  the  fact  that  till  date,  he  had  already
undergone  seven  years  and  six  months  in  jail,  while  confirming  his
conviction, we feel that ends of  justice  would  be  met  by  altering  his
sentence to the period already undergone.
11)   In view of  our  conclusion  on  the  sentence,  we  direct  that  the
appellant be released forthwith, if he is not required in  any  other  case.
The appeal is disposed of on the above terms.





                                  ………….…………………………J.


                                       (P. SATHASIVAM)




























                                    ………….…………………………J.


                                      (J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.
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