RAJENDRA SHARMAversusSTATE OF WEST BENGAL

                        [2013) 7 S.C.R. 570


A                      RAJENDRA SHARMA
                                  v.
                    STATE OF WEST BENGAL
                (Criminal Appeal No. 1109 of 2009)
                           JULY 17, 2013
B
         [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

        PENAL CODE, 1860:

c         ss. 3951397 - Dacoity in gold jewellery workshop -
    Conviction of appellant-taxi driver along with another and
    sentence of 10 years RI - Held: The evidence on record has
    clearly established the involvement of appeUant in
    commission of the offence - Courts below rightly convicted the
    appellant - However, as regards sentence, on going through
0
    all the aspects, particularly, the evidence of taxi-owner, who
    nowhere in his deposition stated about any illegal activity on
    the part of the appellant, ends of justice would be met by
    altering his sentence to the period already undergone, i.e. 7
E ~years.
       The appellant alongwith two others was prosecuted
  for committing offences punishable u/ss 395/397 IPC. The
  prosecution case was that on the date of incident the ·
  three accused along with 2-3 others, armed with
F revolvers, khojali, bombs etc. looted gold ornaments
  from a gold jewellery workshop and fled away in two
  taxis. The trial court convicted the three accused u/ss
  395/397 and sentenced them to 10 years RI each. The
  High Court acquitted one of the accused and maintained
G the conviction and sentence of the appellant and the
  other accused.
       In the instant appeal, it was contended for the
    appellant that he being a taxi driver, was sitting inside his
H                                570
 RAJENDRA SHARMA v. STATE OF WEST BENGAL 571


taxi and in the absence of any individual overt act, the         A
sentence of 10 years RI was not warranted.

     Disposing of the appeal, the Court

      HELD: 1.1 A conjoint reading of the evidence of PWs
                                                                 8
  3, 4 and 5 and the owner of the taxi (PW-12) clearly
  establish the involvement of the appellant in the
  commission of the offence. There is no reason to
. disbelieve their versions, and both the courts below
  rightly accepted their statements. [para 9] [575-C-D]
                                                                 c
      1.2 As regards the sentence, on going through all the
 aspects, particularly, the entire evidence of the owner of
 the taxi (PW-12), it is relevant to point out that he nowhere
 in his statemen t has described about any illegal activity
 on the part of the appellant who was his taxi driver, and       D
 also the fact that till date, the appellant has already
·undergone seven years and six months in jail, while
 confirming his conviction, ends of justice would be met
 by altering his sentence to the period already undergone.
 Ordered accordingly. [para 10] [575-D-G]                        E
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 1109 of 2009.

     From the Judgment and Order dated 09.04.2008 of the
 High Court at Calcutta in C.R.A. No. 81 of 2006.                F

     Pradip Ghosh, Kunal Chatterji, Ghanshyam Joshi for the
 Appellant.

       Chanchal Kr. Ganguli, Avijit B~attacharjee, Soumi Kundu   G
 for the Respondent.

     The Judgment of the Court was delivered by

      P. SATHASIVAM, J. 1. This appeal is filed against the
 final )udgment and order dated 09.04.2008 passed by the         H
    572      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A 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)
B 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 Act, 1908.

          2. Brief facts:
c
       (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
D 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
E 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
F   of 1st Additional Sessions Judge, Ali pore 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/
G 397 IPC a"nd 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
H Court at Calcutta.
 RAJENDRA SHARMA v. STATE OF WEST BENGAL 573
             [P. SATHASIVAM, J.]
     (f) The High Court, by impugned judgment dated                  A
 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.
                                                                     B
      (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           C
 counsel for the respondent-State.      ·

       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 o
  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, E
  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-
                                                                      F
  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, n·amely, 10 years cannot be construed as . G
  excessive or unreasonable.

     5. We have carefully considered the rival submissions and
 perused all the relevant materials.

                                                                     H
    574      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A         Discussion:

        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
8
  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
C 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
D 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
E 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
F 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
G 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
H who is the owner of a yellow taxi No. WB/237672. He admitted
RAJENDRA SHARMA v. STATE OF WEST BENGAL 575
            [P. SATHASIVAM, J.)
that the appellant Rajendra Sharma (A-1) was the driver of the       A·
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    B
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         C
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 their
statements.                                                          D
       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       E
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        F
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.                                                   G
      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.

R.P.                                       Appeal disposed of.       H