Mohammad Ashif v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 749 of 2011 • Mohammad Ashif son of late Mohammad Faruq, aged about 19 years, R/o. Santoshi Nagar, Chaurasiya Colony, House No. 15, Police Station Tikrapara, Raipur, Distt. Raipur (CG) ---- Appellant

Versus

• State Of Chhattisgarh through the Distt. Magistrate, Raipur, Distt. Raipur (CG) ---- Respondent For Appellant : Mr. Shivendu Pandya, Adv.

For Respondent/State : Avinash K. Mishra, PL Hon'ble Shri Justice Chandra Bhushan Bajpai Judgment 01/05/2015

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 16-8-2011 passed by the 4th Additional Sessions Judge, Raipur in Sessions Trial No. 126/2010 whereby and whereunder learned trial Court after holding the appellant guilty for attempting to commit robbery armed with knife, the deadly weapon voluntarily causing hurt in committing robbery to complainant P.W. 1 Manoj Kumar and looted Rs. 10,000/- in cash, one mobile, one ATM card, copy of PAN Card and identity card, convicted him under Section 394 read with Section 398 of Indian Penal Code (in brevity 'IPC') and sentenced him to undergo RI for 7 years and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo additional RI for 1 month.

2. Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

3. As per case of the prosecution on 16-3-2010, when P.W. 1 Manoj Kumar at about 9.30 PM was returning from Raipur to his village Jamrav on his motorcycle, , the appellant stopped him, threatened by showing knife and snatched Rs. 10,000/-, one mobile, ATM card, PAN care and identify card etc. The complainant lodged FIR before Police Station, Purani Basti. Police registered FIR Ex. P-1 at crime No. 61/2010 against unknown person and started investigation. During investigation, in some other incident, the appellant was arrested. He gave disclosure statement and thereafter during investigation, police seized the remaining cash of Rs. 4,000/-. After completion of investigation, charge sheet is filed before the Judicial Magistrate First Class who in turn committed the case to the Court of Session, Raipur. Learned Additional Sessions Judge received the case on transfer and conducted trial.

4. In order to prove the guilt of the appellant, prosecution examined 9 witnesses in all. Statement of appellant was recorded under Section 313 of the Code of Criminal Procedure (in brevity 'Cr.P.C.') wherein he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. The appellant also examined two defence witnesses D.W. 1 Yashmin Bano Qureshi, mother of the appellant and D.W. 2 Sheikh Aamna, maternal aunt of the appellant. They deposed innocence of appellant.

5. After hearing learned counsel for the parties, learned trial Court convicted and sentenced the appellant as aforementioned.

6. Heard learned counsel for both the parties.

7. Learned counsel for the appellant vehemently argued that he is not contesting this appeal against conviction under Section 394 read with Section 398 of IPC. He confines his argument only on the point of quantum of sentence. He submits that the appellant was arrested on 22-3-2010. Till

date he is in custody thereby he had served 5 years, 1 month and 9 days jail sentence. He is not having any previous criminal history. The incident is about more than 5 years old. As per arrest memo, the appellant was a young boy of 19 years of age. He may be given an opportunity by sentencing him for the period already undergone by him.

8. On the other hand learned counsel the State opposed the arguments advanced by learned counsel for the appellant and submitted that looking to the act of the appellant, the trial Court has rightly convicted and sentenced the appellant. The judgment of trial Court is well founded. There is no scope of any interference. The appeal may be dismissed.

9. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the parties before the trial Court. 10.As the appellant is not contesting this appeal on the point of conviction, even otherwise from the perusal of statement of P.W. 1 complainant and other witnesses, in the considered view of this Court, the trial Court has not committed any illegality or infirmity while convicting the appellant for offence under Section 394 read with Section 398 of the IPC. Hence the judgment of conviction requires no interference. Also the fine sentence awarded by the trial Court which is only a token amount of Rs. 100/- is also affirmed.

11. So far as substantial jail sentence is concerned, the appellant was sentenced to undergo RI for 7 years. As per provisions of Section 398 of IPC, minimum sentence prescribed is 7 years, but looking to the age of 19 years of the appellant at the time of commission of offence, and the incident is about 5 years old, it would be appreciate to give him an opportunity so that he may be not be involved in any other offence in future. In the view of this Court, looking to the facts and circumstances of the case, the appellant is entitled for a lessor sentence than what is provided under Section 398, IPC i.e. for the period already undergone by him.

12.Consequently, the appeal filed by the appellant is hereby allowed in part. Conviction of appellant under Section 394 read with Section 398 of IPC is hereby affirmed. Fine sentence awarded by the trial Court is also maintained. However instead of RI for 7 years, the appellant is sentenced for the period already undergone by him i.e. 5 years, 1 month and 9 days. 13.The appellant is in jail. He be released forthwith if not required in any other offence.

14.Appeal partly allowed.

Sd Chandra Bhushan Bajpai Judge Pathak