published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40568
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 1109 OF 2009
Rajendra Sharma …. Appellant(s)
State of West Bengal …. Respondent(s)
J U D G M E N T
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
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-
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.
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
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.
JULY 17, 2013.