State vs. Nicolas @ Tambi S.Babu and Anr. Vs Nicolas @ Tambi S.Babu and Anr.

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[1]

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE

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 CRIMINAL APPEAL NO.388 OF 1989

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 The State of Maharashtra .... Appellant

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 - Versus -

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 1. Nicolas @ Tambi S. Babu,

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 age 23 years, r/o Ambarnath,
 Dattakutir, Kalyan,

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 District: Thane.

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 2. Raju Murges Subramaniam,

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 age 25 years, r/o Ambarnath
 Dattakutir Zopadpatti, Kalyan,

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 District: Thane. .... Respondents

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 Shri B.H. Mehta, Addl. Public

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 Prosecutor, for the Appellant-State.

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 Shri Niteen Jamdar (Appointed) for the

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 Respondents.

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CORAM: R.M.S. KHANDEPARKAR &

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 P.V. KAKADE, JJ.

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DATED: APRIL 01, 2005

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ORAL JUDGMENT (Per P.V.Kakade, J.):

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[2]

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 1. This appeal for enhancement is filed by the State
 against the judgment and order passed by the Judicial
 Magistrate, F.C. (Railway) Court, Kalyan whereby both
 the respondents/accused were convicted for commission of
 the offence punishable under Section 394 r/w Section 34
 of the Indian Penal Code and were sentenced to suffer
 R.I. for four months and to pay fine of Rs.300/- each,
 in default to undergo S.I. for ten days.

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 2. The prosecution case is that on 24-2-1988 at about
 9:00 p.m. the complainant was travelling in the first
 class compartment of the local train from Ambernath to
 Mulund. At that time both the accused persons entered
 into the first class compartment from the Ambernath
 station. After sometime the accused came with knife and
 threatened the complainant and asked him to handover his
 property to them. The accused No.1 gave knife blows on
 the face and hand of the complainant, whereas the
 accused No.2, who was armed with a wooden rod, forcibly
 snatched Rs.300/- from the complainant and also his
 wrist watch. Thereafter the accused persons ran away
 when the train stopped at the next station. The
 incident was reported by the complainant at the Kalyan
 railway police station who recorded the complaint and
 the investigation commenced in which course both the
 accused persons were arrested and at their instance the
 property was recovered from one money lender. On

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[3]

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 completion of the investigation, charge-sheet was sent
 to the Court of law.

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 3. The learned Magistrate framed the charge for the
 offence against the accused. They pleaded not guilty of
 the offence and claimed to be tried. Their defence was
 of total denial. After hearing both the sides and
 recording their evidence, the trial Court came to the
 conclusion that the offence was proved and consequently
 the order of conviction and sentence as aforesaid was
 passed in the aforesaid manner. As the State was of the
 view that the punishment imposed against the accused
 persons was not in consonance with the gravity of the
 offence, the present appeal came to be filed.

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 4. We have heard the learned A.P.P. as well as the
 learned Advocate for the respondents and with their help
 we have also perused the entire evidence on record.

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 5. There is no doubt whatsoever that the offence is
 committed, as alleged, by both the accused. No doubt
 that the offence punishable under Section 394 is
 punishable with imprisonment for life or with rigorous
 imprisonment for a term which may extend to ten years
 and fine. However, at the same time we have to look
 into the facts and circumstances involved in each case
 in order to determine whether the sentence awarded is

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[4]

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 commensurate with the gravity of the offence committed
 by the accused while determining the question whether it
 should be enhanced or not. The evidence on record has
 no doubt proved that the accused persons have used knife
 in the commission of the offence and have inflicted
 injuries on the complainant and have taken away the
 property i.e. cash amount of Rs.300/- and a wrist watch
 from the complainant. However, it is also to be noted
 that the learned trial Judge has taken into account all
 these aspects while awarding the sentence. In the
 concluding paragraph of the judgment, the learned
 Magistrate has given reasons for taking a lenient view
 when he has recorded that the respondents were too young
 and the family members were dependent on them and they
 were already in jail since long and therefore the
 learned Magistrate thought it fit to take a lenient view
 and awarded the sentence and fine in the manner as
 aforesaid against both the respondent.

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 Therefore, taking into account all these
 aspects, we are of the view that the order passed by the
 learned Magistrate cannot be found fault with and hence
 we hold that the sentence awarded by the learned
 Magistrate appears to be commensurate with the gravity
 of the offence revealed from the record and thus no
 interference is required by this Court in this appeal.

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[5]

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 6. Before concluding the judgment, it is to be noted
 that Shri Niteen Jamdar, the learned Advocate for the
 respondents, has been appointed in this matter and he
 has assisted the Court in proper manner and we
 appreciate his efforts in that regard.

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 7. In the result, the appeal stands dismissed.

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(R.M.S. Khandeparkar, J.)

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(P.V. Kakade, J.)

State v. Nicolas @ Tambi S.Babu and Anr. v Nicolas @ Tambi S.Babu and Anr.

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State v. Nicolas @ Tambi S.Babu and Anr. v Nicolas @ Tambi S.Babu and Anr.

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