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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A. J. DESAI, SAMIR J. DAVE, JJ.
HANIF @ HANIYO HUSEN CHANGAL– APPELLANT
Versus
STATE OF GUJARAT – RESPONDENT
CRIMINAL APPEAL NO.1629 of 2013
Decided On : 10-12-2021
Code of Criminal Procedure, 1973 - Section 374 and 31 - Indian Penal Code, 1860 - Sections 377, 450, 342, 323 and 506 (2) – Criminal Intimidation and House-trespass in order to the committing of any offence – Order of Conviction – Appeal - Sentences in cases of conviction of several offences at one trial – Appellant submitted that they do not intend to challenge conviction and sentence of appellants imposed by learned Sessions Judge - However, they would like to request this Court to exercise its power under Section 31 of Code and requested this Court to order to run sentences concurrently instead of consequently as ordered by learned Sessions Judge for different offences - Held, A perusal of Section 31 of Code, it appears that each of appellants has been sentenced for different offences for a single crime and single trial and the sentences were ordered to run consecutively - Amount of fine awarded by learned Sessions Judge and the sentences imposed in default of same is also not altered keeping in view gravity of offence - Hence, if appellants pay amount of fine, they shall be released on completion of their sentence of 10 years with benefit of set off - If they fail to pay amount of fine, they shall have to undergo further sentence awarded by learned Sessions Judge for default in payment of fine - Appeal partly allowed.
JUDGMENT :
A. J. DESAI, J.
1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellants - original convicts, namely, Hanif @ Haniyo Husen Changal, Shahejad Daud Sumra and Firoz Harun Fakir have challenged their conviction imposed vide judgment and order dated 30.9.2013 passed by learned Additional Sessions Judge, Bhuj - Kachchh in Sessions Case No.43 of 2013. By the said judgment and order, each of the convicts have been sentenced as under :-
| Sections under which convicts have been sentenced | Period of sentence | Sentence awarded to convicts |
| Section 376 (2) (G) of the Indian Penal Code | Rigorous imprisonment for a period of 10 years and fine of Rs.25,000/- and in default of payment of fine, further simple imprisonment for a period of two years. | Appellant Nos.1,2 and 3 |
| Section 377 of the Indian Penal Code | Rigorous imprisonment for a period of 07 years and fine of Rs.25,000/- and in default of payment of fine, further simple imprisonment for a period of two years. | Appellant Nos.1, 2 and 3 |
| Section 450 of the Indian Penal Code | Rigorous imprisonment for a period of 2 years and fine of Rs.3,000/- and in default of payment of fine, further simple imprisonment for a period of three months. Rigorous imprisonment for a period of 03 years and fine of Rs.3,000/- and in default of payment of fine, further simple imprisonment for a period of three months. | Appellant No.1
Appellant Nos.2 and 3 |
| Section 342 of the Indian Penal Code | Rigorous imprisonment for a period of 06 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. | Appellant Nos.1,2 and 3 |
| Section 323 of the Indian Penal Code | Rigorous imprisonment for a period of 03 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. | Appellant Nos.1,2 and 3 |
| Section 506 (2) of the Indian Penal Code | Rigorous imprisonment for a period of 06 months and fine of Rs.500/- and in default of payment of fine, further simple imprisonment for a period of fifteen days. | Appellant Nos.1,2 and 3 |
The learned Sessions Judge has ordered that the above sentences shall run separately.
2. The appeal came to be admitted by the coordinate Bench of this Court on 25.11.2013. Registry has received Records and Proceedings from the learned Trial Court which have been placed before us.
3. Learned Additional Public Prosecutor has provided Jail records of each of the appellants. From the same, it appears that all the appellants came to be arrested on 16.4.2010 and from the said date, they are behind bars. During the pendency of the trial, they were not released on bail. From the Jail record, it appears that appellant No.1 - Hanif @ Haniyo Husen Changal has undergone sentence of 10 years and 24 days. The Appellant No.3 - Firoz Harun Fakir has undergone sentence of 10 years and 12 months. Both appellant Nos.1 and 2 are at present in Special Jail, Bhuj - Kachchh.
As far as appellant No.2 - Shahejad Daud Sumra is concerned, as per his Jail record, it is found that when he was released on temporary bail on 2.1.2021 for a period of 26 days vide order dated 19.12.2020 passed by this Court, he has yet not surrendered and remained absconded. However, learned advocate appearing for the said convict - appellant No.2 has adopted the contentions raised by learned advocates appearing for other appellants and he would submit that he would abide by the decision that may be rendered by this Court qua other appellants.
4. Learned advocates Mr. Ashish M. Dagli, Pratik Barot and Abhaykumar P. Shah appearing for the respective appellants including the absconding appellant No.2, have submitted that they do not inte
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