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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1109 OF 2009

Rajendra Sharma                  .... Appellant(s)

Versus

State of West Bengal            ....  Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) This appeal is filed against the final judgment and order  

dated 09.04.2008 passed by the 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)  of  2000  for  the  

offence  punishable  under  Sections  395/397  of  the  Indian  

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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:

(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  

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  

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  of  1st Additional  Sessions  Judge,  Alipore  and  was  

numbered as Sessions Trial No. 1(2) of 2000.   

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(d) The trial Court, by order dated 19/20.12.2005 convicted  

the  appellant  along  with  other  co-accused  under  Sections  

395/397  IPC  and  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 Court at  

Calcutta.

(f) The  High  Court,  by  impugned  judgment  dated  

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.  

(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  

counsel for the respondent-State.

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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 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,  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-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, namely, 10 years cannot be construed as excessive  

or unreasonable.   

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5) We have carefully considered the rival submissions and  

perused all the relevant materials.  

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 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 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 their shops and shouted  

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‘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 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  

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 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  

who  is  the  owner  of  a  yellow  taxi  No.  WB/237672.   He  

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admitted that the appellant Rajendra Sharma (A-1) was the  

driver of the 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  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  

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.  

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  

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that he did not enter the jewellery shop and was not armed  

with  any  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 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.  

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.

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………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                   (J. CHELAMESWAR)  

NEW DELHI; JULY 17, 2013.

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