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
undefined
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
==========================================================
Approved for Reporting Yes No
==========================================================
STATE OF GUJARAT
Versus
SAYRABANU MOHMMADISHAK IBRAHIMSHAIKH & ANR.
==========================================================
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
==========================================================
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
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
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
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.
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
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
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).
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
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
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
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
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
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
