2008 Supreme(Guj) 412

2009(1) GCD 585(Guj)(DB)
Hon’ble Mr. Justice C.K. Buch &
Hon’ble Mr. Justice D.N. Patel
Sharfuddin Kamarudin & Ors.
Versus
State of Gujarat
Criminal Appeal No. 930 of 1999—Decided on 03/12/2008

Whether in the facts of the case trial Judge was justified in awarding enhanced punishment of imprisonment for life in the case?

Headnote:Head Note :

       [Indian] Penal Code, 1860(Central Act 45 of 1860) — Sections 376(2)/34, 342/34 and 394/34 and 75 — Arms Act — Section 25(1a) — Criminal Procedure Code, 1973(Central Act 2 of 1974) — Sections 211 and 298 — Robbery and Rape — Conviction — Also convict in similar offences — Enhance punishment — Award of — Sustainability — Finding of — Prosecution case is that appellant accused went to the field of complainant and threatened complainant and prosecution witnesses who were sleeping there on gun point, tied their hands and legs and looted property — They forced them to go inside a small room and then forcibly took away minor daughter of complainant behind one small room and committed rape on her one after the other — Prosecution has alleged that accused that night committed similar offences of looting at other places also — To prove the charge the prosecution has examined total No. of 17 witnesses and has placed 21 documents including medical evidence and FSL report — The Ld. trial Judge placing reliance on deposition of eye witnesses and T.I. Parade Panchnama held that prosecution has successfully proved charge beyond reasonable doubt — Ld. Advocate did not press the appeal on merits but submitted that appellants have been sentenced for life in view of Section 75 of the Penal Code — The Ld. Advocate has referred two judgments one in Case No. 630 of 1999 and other in 115 of 1998 which have been invoked by trial Judge to sentence accused appellant for life imprisonment with the help of Section 75 Penal Code and submitted in the said cases accused was acquitted — He submitted that in the background of acquittal present appeal is required to be considered on different footing and appellant should not have been awarded imprisonment for life — That apart for enhanced punishment with the help of Section 75 Indian Penal Code, the accused must have been made aware of the fact that he may be awarded enhanced sentence in view of his previous conviction — The learned trial Judge had never so pointed out to the accused appellant — For the reasons Court reduced the quantum of period of imprisonment while maintaining sentence of fine imposed by trial Court.

       Held :

       Additional Public Prosecutor has submitted that in view of the acquittal recorded by this Court, accepting appeal of the accused qua order of conviction and sentence recorded by the Additional Sessions Judge, Ahmedabad(Rural) in Sessions Case No. 115 of 1999, Section 75 of the Indian Penal Code, now shall have no relevance and this Court will have to consider quantum of punishment in the background of the subsequent development, that has taken place. When two persons have been found guilty of the charge of committing rape on minor girl, the age of minor girl needs consideration and the girl allegedly raped by the accused was not below 11-12 years. So, punishment more than minimum prescribed if imposed to the accused would meet the ends of justice. She has also drawn our attention to certain decisions, wherein the accused found guilty of the charge for the offence punishable under Section 376 of the Indian Penal Code have been awarded punishment for 10 yeas rigorous imprisonment. [Para 8]

       Having considered the submissions made, more particularly, submissions made by the Advocate for the appellant accused Ms. Rekha Kapadia, Court feeled that there is enough force in her submissions when the accused have fairly accepted that this is a case where order of conviction need not be challenged, but quantum of punishment requires to be challenged, more particularly, in the background of the quality and quantity of the evidence led by the prosecution. The plain reading of concluding paragraphs are challenged, it is apparent that imprisonment for life has been awarded to the accused as they were held guilty of similar offence in Sessions Case No. 115 of 1998 tried earlier by the very Presiding Officer. The first judgment is of 01.06.1998 in Sessions Case No. 115 of 1998 and the judgment under challenge in the present appeal in Sessions Case No. 114 of 1998 is of 08.08.1998. So, on the date of delivery of the judgment under challenge, Section 75 of the Indian Penal Code had its application and, therefore, the learned Trial Judge held that the accused deserve severe punishment. [Para 9]

       Scheme of Section 211 of the Criminal Procedure Code, if read carefully, it says about contents of the charge and the provisions of Section 75 of the Indian Penal Code, say about enhanced punishment in certain cases the accused thus should be made aware of the fact that he may be imposed punishment of either life or of 10 years, if he is held guilty being accused of second or third offence of a particular category. On close reading of the statement recorded by the learned Trial Judge under Section 313 of the Criminal Procedure Code, of the accused, we do not find that the trial Judge had ever attempted to point out one clear thing to the accused that the conviction recorded by the Court in Sessions Case No. 115 of 1998 dated 01.06.1999 would go against them and they may be imposed enhanced punishment contemplated under Section 75 of the Indian Penal Code. [Para 10]

       In view of the provision of Code of Criminal Procedure, under Section 298 there is a set and prescribed method of proving fact of previous conviction. If at all, the prosecution is relying upon it for getting awarded enhanced punishment, as required under Section 75 of Indian Penal Code. Looking to the evidence on record and looking to the documents presented by the prosecution before the trial Court, no certified copy of judgment and order of conviction and sentence awarded by Sessions Court, in Special Case No. 11 of 1999 was laid before the trial Court. Thus, in absence of any such judgment no reliance can be placed upon the previous conviction of the appellant, much less upon judgment and order of conviction in Special Case No. 11 of 1999. We are not deciding whether a separate charge ought to be framed under Section 211 of the Code of Criminal Procedure, 1973 or not? Likewise we are also not deciding an impact of, not asking a question to the accused while recording his further statement under Section 313 of Code of Criminal Procedure, 1973. Thus, there is clear breach of Section 298 of the Code of Criminal Procedure, 1973 about his previous conviction. The previous conviction in Special Case No. 11 of 1999 by the Sessions Court cannot be relied upon for awarding enhanced sentence under Section 75 of the Indian Penal Code. [Para 11]

       Court is inclined to accept the submissions made by the learned Advocate Ms. Kapadia and reduce the quantum of punishment imposed by the Trial Court to rigorous imprisonment for 10 years. Both the accused, are now ordered to undergo rigorous imprisonment for 10 years for the offence punishable under Section 376 of the Indian Penal Code and also rigorous imprisonment for 10 years for the offence punishable under Section 394 of the Indian Penal Code. There is no need to alter the quantum of punishment imposed by the trial Court qua other two offences, that is, offence punishable under Section 342 of the Indian Penal Code and Section 25(1a) of the Arms Act. Obviously, both the sentences would run concurrently and therefore, it is hereby ordered. [Para 13]

       Law Laid Down :

       Enhanced punishment in certain cases the accused should be made aware of the fact that he may be imposed punishment of either life or 10 years if he is held guilty being accord in second or third offence of a particular category.