Gujarat High Court
State Of Gujarat vs Sayrabanu Mohmmadishak Ibrahimshaikh on 11 August, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 18 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
SAYRABANU MOHMMADISHAK IBRAHIMSHAIKH & ANR.
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Appearance:
MR LB DABHI, APP for the Appellant(s) No. 1
MR CHIRAG H PAREKH(5249) for the Opponent(s)/Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 11/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeal is preferred by the State for enhancement of sentence under the provisions of Section 377 of the Code of Criminal Procedure 1973 against the judgment and order of conviction dated 3.10.2003 passed in Page 1 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined Sessions Case No.319 of 1998 by the learned Sessions Judge, Court No.1, Ahmedabad City convicting the respondents accused.
2. The present respondents along with accused Nos.3 and 4 were charged and tried by learned Sessions Court No.1, Ahmedabad for the offences punishable under section 122 read with Section 120-B of Indian Penal Code, Sections 25(1)(1B)(a), 28, 35 and 36 of the Arms Act and also under sections 4, 5 and 6 of the Explosive Substances Act. After completion of trial, learned trial Judge vide judgment and order dated 3.10.2003 convicted the present respondents - original accused Nos.1 and 2 for the offences punishable under sections 25(1)(1-A) of the Arms Act and sentenced them to undergo five years rigorous imprisonment and to pay fine of Rs.2000/-, in default, to undergo three months rigorous imprisonment. Learned trial Judge also convicted the present respondents for the offence punishable under section 5 of the Explosive Substances Act and sentenced them to undergo five years rigorous Page 2 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined imprisonment and to pay fine of Rs.3000/-, in default, to undergo three months rigorous imprisonment. Learned trial Judge was also pleased to acquit accused Nos.3 and 4 for the aforesaid offences. Learned trial Judge also ordered that sentences imposed upon the present respondents to run concurrently.
3. Being aggrieved and dissatisfied with the quantum of sentence, the State is before this Court for enhancement of sentence imposed upon the original accused Nos.1 and 2.
4. The facts shorn of unnecessary details as they reveal from the documents are as follows :
4.1 That on 23.3.1998 between 7.30 am and 8.00 am, the complainant Mr.Tarun Barot, Police Inspector, Crime Branch, on receiving information, raided the premises of one Sayrabanu Mohammad Ishaq Ibrahimbhai Shaikh. During the raid, there was exchange of fire between Page 3 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined the raiding party and the persons occupying the said premises. In the said incident, six persons expired and large quantity of RDX, handgrenade, rifles and cellular phones along with AK56 rifles and live kartridges were recovered.
During the course of investigation, the information which was received by the Police Inspector was to the effect that in order to take revenge for the death of Abdul Latif and with an intention to disturb the law and order situation in Ahmedabad City, present respondent No.1 - Sayrabanu has given shelter to some persons in her residence being House No.780. On these facts, complaint came to be filed and after completion of investigation, the accused were chargesheeted.
4.2 The accused pleaded not guilty and claimed to be tried. Therefore, the prosecution laid both documentary as well as oral evidences and on completion of trial, learned trial Judge has passed the impugned judgment and order convicting the present respondents accused. Page 4 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025
NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined
5. Learned APP Mr.L.B.Dabhi has relied upon the grounds raised in the appeal and has argued that learned trial Judge ought to have imposed maximum sentence as provided under the Act and the circumstances of the case since the accused were in the process of waging war against the nation. It is submitted that learned trial Judge has not given any special reasons for imposing minimum sentence provided under the Arms Act. It is submitted that learned trial Court has imposed lesser sentence despite being having found huge quantity of arms and were recovered from the house of accused No.1. It is submitted that when the prosecution has proved its case beyond reasonable doubt under the Arms Act and Explosive Substances Act and that the entire incident took place at the house of accused No.1 where she was residing along with accused No.2 - her husband and that the prosecution has proved its case beyond reasonable doubt that the house belonged to accused No.1 for which electric bills of the said house from where the weapon and RDX were seized clearly establishes that accused No.1 and her husband - accused No.2 both Page 5 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined had knowledge that such deadly weapons and explosive substances ought not to have stored or kept in their house without there being any license or permit and that statutory duty informing the police was also breached. It is submitted that the accused have not preferred any appeal against their conviction and therefore, in view of the huge quantity of arms and explosive substances found from the house of accused Nos.1 and 2, learned trial Court ought to have imposed maximum punishment and by not doing so, learned trial Court has committed grave error and has argued to allow the appeal and enhance the sentence.
6. Learned advocate Mr.Chirag Parekh for respondent Nos.1 and 2 has argued that the alleged incident is of the year 1998, the conviction is of the year 2003, the appeal is of 2004 and as such, the respondents accused have already undergone the sentence and the learned trial Court has committed no error in imposing punishment upon the accused and has argued to reject the appeal. It is further argued that learned trial Court has not Page 6 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined committed any error apparent on the face of the record and has given details reasons for inflicting punishment of 5 years both under the Arms Act and the Explosive Substances Act and has further ordered to run both the sentences concurrently since explosive substance and arms were found from the residence of the accused persons. However, the act of waging war against the State and criminal conspiracy is not proved and in the circumstances has passed appropriate sentence which requires no interference at the hands of this Court.
7. Heard learned advocates for the respective parties. This Court has also perused the impugned judgment and order and record of the case.
8. At the outset, the provisions of Section 25(1)(1-A) of the Arms Act 1959 as it prevailed on the date of alleged incident read as follows. (only relevant part of section is reproduced for the sake of convenience). Page 7 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025
NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined "25. Punishment for certain offences - (1) Whoever -
xxx xxx xxx [(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine."
9. Learned trial Court has reproduced sections 4, 5 and 6 of the Explosive Substances Act 1908 in paragraph 48 at page 79 to page 81 of the impugned judgment and has believed the commission of offence under section 5 of the Explosive Substances Act 1908 which provides for 14 years imprisonment and fine or imprisonment upto 5 years and fine.
10. Learned trial Judge on page 86 of the impugned judgment has recorded the reasons for imposing the punishment to the effect that the accused are not convicted in any of the offences prior to the present case. Learned advocate has also pressed into service that the accused are having 9 years old child whose responsibility is on their Page 8 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined shoulder. That the prosecution has failed to prove that the arms and ammunition and explosive substances found from the residence of the accused were to be used against anyone nor it is the case of the prosecution to that effect. That all the persons who had brought arms and ammunition from Bombay were killed in the police raid. That no arms and ammunition have been found from the room of accused No.1. That it is possible that at the instance of Abdul Latif, the present accused might have given shelter to six persons for few hours and during this period of raid being conducted by the police party, arms and ammunition came to be found. It is also not the case of the prosecution that arms and ammunition were to be used by the present accused against anyone.
11. After considering the aforesaid reasons pressed into service by the accused for inflicting minimum punishment, learned trial Judge has recorded the reasons to that effect that even if it is believed that the moment that six persons who have arrived from Bombay were having Page 9 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined intention to commit serious offence, however, for that reason alone, the accused cannot be held liable and mere recovery of arms and ammunition from the residence of accused Nos.1 and 2, learned trial Court has passed the impugned order imposing sentence of five years rigorous imprisonment with fine of Rs.2000/- under the provisions of section 25(1)(1-a) of the Arms Act and five years rigorous imprisonment with fine of Rs.3000/- under the provisions of section 5 of the Explosive Substances Act, 1908.
12. On perusal of the judgment, it is clearly transpires that the prosecution has failed to prove its case beyond reasonable doubt qua other offences i.e. section 122 read with section 120-B of IPC and learned trial Court after considering the arguments of both the sides has passed the present sentence and thus is adequate and reasonable.
13. At this stage, it would be profitable to refer to the decision of the Honourable Apex Court in the case of Bed Raj Vs State of Uttar Pradesh, reported in (1955) 2 SCC 145 Page 10 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined wherein in paragraphs, the Honourable Apex Court has observed thus :
"13. A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment.
14. In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate........."
14. The Honourable Supreme Court in the case of Sunita Devi Vs State of Bihar, reported in 2024 SCC Online SC 984 has observed in paragraph 33 that sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction. This is a very important part of the Fundamental Rights conferred under Articles 14 and 21 of the Constitution of India, 1950. Any unwarranted disparity would be against the very concept of a fair trial and, therefore, against justice. In the aforesaid judgment, the Honourable Supreme Court has further noted that the Page 11 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined Courts do take into consideration the mitigating and aggravating circumstances and held that while it would be appropriate to follow 'beyond reasonable doubt' standard in adjudicating aggravating circumstances, the 'balance of probability' standard is required while construing mitigating circumstances. The Honourable Supreme Court has further held that the Courts may also be guided by the conduct of the convict during pre-trial stage, either under incarceration or otherwise. Even, the Honourable Supreme Court has noted that the issue is an extremely complex one. Further, as noted hereinabove, when the learned trial Court has not believed the case of the prosecution beyond reasonable doubt as regards section 122 and 120-B of IPC and the arms and ammunition alleged to have been brought by six persons have lost their life in an encounter and having found that some of the arms and explosive substances were found from the house of the present respondents, without there being any appeal qua the finding of acquittal for the aforesaid sections by the State, learned trial Court after considering aggravating and mitigating circumstances has Page 12 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025 NEUTRAL CITATION R/CR.A/18/2004 JUDGMENT DATED: 11/08/2025 undefined imposed punishment by exercising judicial discretion by taking very balanced view which would serve the cause of criminal justice including the degree of culpability of the accused. In this view of the matter, we do not find the sentence to be manifestly inadequate nor does it shock the conscience of this Court coupled with the fact that the facts of present case against the present accused are not so gross that no normal judicial mind would have awarded the lesser penalty and hence we refrain from interfering with the same.
15. Under the circumstances, the appeals fails and the same is dismissed accordingly. R & P, if any, be sent back forthwith.
(ILESH J. VORA,J) (P. M. RAVAL, J) H.M. PATHAN Page 13 of 13 Uploaded by H.M. PATHAN(HC00167) on Mon Aug 11 2025 Downloaded on : Tue Aug 12 22:10:01 IST 2025