RAJENDRA SHARMA Vs STATE OF WEST BENGAL
Bench: P. SATHASIVAM,J. CHELAMESWAR
Case number: Crl.A. No.-001109-001109 / 2009
Diary number: 24917 / 2008
Advocates: GHANSHYAM JOSHI Vs
AVIJIT BHATTACHARJEE
Page 1
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
1
Page 2
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.
2
Page 3
(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.
3
Page 4
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.
4
Page 5
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
5
Page 6
‘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
6
Page 7
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
7
Page 8
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.
8
Page 9
………….…………………………J. (P. SATHASIVAM)
………….…………………………J. (J. CHELAMESWAR)
NEW DELHI; JULY 17, 2013.
9