Honourable Mr. Justice MD Shah
1. Criminal Appeal No.1400 of 2004 has been filed by the appellant-original accused No.2 against the judgment and order dated 29-7-2001 passed by the learned Addl. City Sessions Judge, Valsad, in Sessions Case No.580 of 2002 whereby the present appellant was sentenced to suffer RI for a period of five years and to pay fine of Rs.1,000/-, in default, to suffer further RI for three months for the offence punishable under Sec. 395 of IPC.
2. Criminal Appeal No.684 of 2007 has been filed by the appellant-original accused against the judgment and order dated 30-12-2005 passed by the learned Presiding Officer, Fast Track Court No.1, Surat, in Sessions Case No.189 of 2002 whereby the present appellant was sentenced to suffer RI for a period of five years and to pay fine of Rs.500/-, in default, to suffer further SI for one month for the offence punishable under Sec. 395 of IPC; RI for a period of seven years and to pay fine of Rs.500/-, in default, to suffer further SI for one month for the offence punishable under Sec. 397 of IPC and RI for a period of six months for the offence punishable under Sec. 342 of IPC. All the sentences imposed on the accused were ordered to run concurrently.
3. Since common questions of facts and law are involved in both these appeals and as the appellant is the same in both the appeals, they are heard together and are being decided by this common judgment.
4. Facts in short are that a complaint was lodged by Kirankumar Babubhai Patel before Valsad Town Police Station inter alia alleging that on 27-2-2001 at night, some unknown persons forcefully entered into his house and looted gold ornaments, cash of Rs.63,000/- and other articles. Thereafter in the morning of next day at about 6 a.m., son of his uncle came and told that yesterday at about 3.00 a.m., some 15-20 unknown persons entered from behind their house by breaking open the door and tried to assault them and all of them including his brother, mother, sister-in-law and his wife frightened and the unknown persons looted gold ornaments, cash of Rs.77,000/- and other articles. They also disconnected their telephone wires. In all, they looted articles worth Rs.3,06,800/-. In pursuance of filing of the same, the Investigating Officer went to place of scene of offence, drew panchnama, took details of looted articles, took statements of witnesses and arrested accused Nos.1 to 5 on 27-6-2001. During the course of further investigation, it was revealed that some of the looted articles were sold to persons residing at Anand and hence, accused Nos.6 and 7 were also arrested and looted muddamal articles were attached under a panchnama in presence of panchas. At the end of investigation, charge sheet came to be filed against accused Nos.1 to 7 in the Court of learned Judicial Magistrate (First Class), Valsad, for the offences punishable under Secs. 395 and 412 of IPC. As the case was exclusively friable by the Court of Sessions, learned Judicial Magistrate (First Class), Valsad, committed the case to the Court of Sessions at Valsad where it was numbered as Sessions Case No.580 of 2002. The learned Judge thereafter framed charge against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. To prove the guilt against the accused, prosecution examined several witnesses and has produced and relied on several documentary evidence. On submission of closing purses by the prosecution, learned Judge recorded further statement of the accused under Sec. 313 of Code of Criminal Procedure. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Additional Sessions Judge, Valsad, delivered the impugned judgment and order convicting and sentencing the appellant as aforesaid in the earlier part of this judgment giving rise to prefer the Criminal Appeal No.1400 of 2004 by the appellant-original accused No.2.
5. Another case being Sessions Case No.189 of 2002 was also tried against the present appellant in the Court of learned Presiding Officer, Fast Track Court, Surat wherein also he was sentenced as aforesaid in the earlier part of this judgment.
6. Heard learned advocate, Mr P.P. Majmudar for the appellant and learned APP, Mr. L.R. Pujari for the State in both the appeals.
7. Learned advocate, Mr P.P. Majmudar, for the appellant-accused does not press these appeals on merits but requested to pass order for the two sentences to run concurrently. It is submitted that in Criminal Appeal No.1400 of 2004 which has arisen out of judgment and order dated 29-7-2004 rendered in Sessions Case No.580 of 2002 by learned Addl. Sessions Judge, Valsad, the appellant was arrested on 26-6-2001 and subsequently in Criminal Appeal No.864 of 2007 which has arisen out of judgment and order rendered dated 30-12-2001 in Sessions Case No.189 of 2002 by the learned Presiding Officer, Fast Track Court, Surat, the appellant was arrested on 2-7-2001. It is further submitted that when he was arrested on 2-7-2011 in connection with Sessions Case No.189 of 2002 of Surat, the appellant-accused was already in custody in connection with Sessions Case No.580 of 2002 of Valsad. It is further submitted that in Sessions Case No.580 of 2002, the appellant was sentenced to suffer RI for a period of five years for the offence punishable under Sec. 395 of IPC whereas in Sessions Case No.189 of 2002, the appellant was sentenced to suffer RI for five years for the offence punishable under Sec. 395 of IPC; RI for a period of seven years for the offence punishable under Sec. 397 of IPC and RI for a period of six months for the offence punishable under Sec. 342 of IPC. According to him, under the provisions of Section 427 of Cr.P.C., he is entitled to get the benefit of getting the sentences of both the Sessions Cases to run concurrently.
8. In this connection, he has relied upon in the case of Ammavasai and another v. Inspector of Police, Valliyanur and others, reported in AIR 2000 S.C. 3544 wherein it has been held in paras 3 and 4 as under:
3. The 2nd appellant-Deivaraj was convicted in 5 different cases the occurrence in all of which took place between 21-10-1989 and 7-5-1990. He was also found guilty u/s 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the benefit conferred u/s 427 is not extended to him, he may have to undergo imprisonment for a total period of 35 years in jail.
4. On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, therefore, we thought of a via-media which would be consistent with the administration of criminal justice. After bestowing our anxious consideration we thought that if the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice.
9. It is to be noted that the learned advocate for the appellant-accused has not argued the appeals on merits. But he has restricted his submissions only on the point of running the sentences in both the Sessions Cases concurrently. Hence, I would not like to reproduce or discuss the entire evidence which is on record as the same remained unchallenged. This Court is also in complete agreement with the reasons adopted and the conclusions arrived at by the learned trial courts in the impugned judgments so far as the conviction of the present appellant-accused in both the cases are concerned. However, the question to be considered is as to whether the appellant-accused in the given facts and circumstances of the case entitled to reduction of sentence which has been awarded by the trial court or not.
10. It is true that when the appellant was arrested on 2-7-2011 in connection with Sessions Case No.189 of 2002 of Surat, he was already in custody in connection with Sessions Case No.580 of 2002 of Valsad and he was awarded sentences in both the cases. Applying the above ratio to the facts of the present cases, since the appellant-accused has been sentenced in two Sessions Cases, one in Sessions Case No.580 of 2002 and another in Sessions Case No.189 of 2002, this Court is of the opinion that the sentences imposed on the appellant in both the cases are required to be ordered to run concurrently to have the benefit of aforesaid reported judgment by allowing him to undergo a total period of 7 years of imprisonment in respect of two convictions passed against him so as to meet the ends of justice.
11. Thus, both the appeals are accordingly partly allowed. The sentences imposed on the appellant-accused in Sessions Case No.580 of 2002 by the learned Addl. City Sessions Judge, Valsad, and in Sessions Case No.189 of 2002 by the learned Presiding Officer, Fast Track Court No.1, Surat, are ordered to run concurrently. The accused is also entitled to set off for the period he has undergone in jail. Rest of the impugned judgments and orders including fine etc. would remain unchanged.
12. Record and proceedings are ordered to be sent back to the courts below forthwith.
13. Office shall keep a copy of this judgment in each matter.
