Bombay High Court
Age 21 Years vs Through Malbar Hill Police ... on 1 November, 2012
Bench: V.M. Kanade, P. D. Kode
1
(Apeal 737 of 2009 /w.1154 of 2009)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 737 OF 2009
WITH
CRIMINAL APPLICATION NO. 1155 OF 2012
Shri Sayeed Rashid Shaikh @ )
Saidu Bangali )
Age 21 years, Resident of R.No.1, )
Akbar Suleman Compound, )
S.M.D. Road, Antop Hill, )
Mumbai - 400 037. Currently )
lodged at Nashik Central Jail )...Appellant
(Org. Accused No.1)
Versus
State of Maharashtra )
(Through Malbar Hill Police Station) )...Respondent
(Org.Complainant)
****
Mr.Aniket Vagal for the Appellant
Mr.P.S. Hingorani -APP for the State
****
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2
(Apeal 737 of 2009 /w.1154 of 2009)
WITH
CRIMINAL APPEAL NO. 1154 OF 2009
Amit Ismail Patel @ Ammu Batan )
Age 23 years, residing at Room )
No.510, Building No.2, )
MHADA Colony, Shaikh Mirbai )
Dargah, Antop Hill, )
Mumbai - 400 037
ig )
Currently lodged at Nashik Road )
Central Prison )..Appellant
(Original Accused No.2)
Versus
1. The State of Maharashtra )
(Notice to be served on the )
Public Prosecutor, High Court )
(Appellate Side), Bombay )(Org. Complainant)
2. Sayeed Rashid Shaikh @ )
Saidu Bangali, )
Age 21 years, residing at Room )
No.1, Akbar Suleman Compound, )
S.M.D. Road, Antop Hill, )
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(Apeal 737 of 2009 /w.1154 of 2009)
Mumbai - 400 037 ).. Respondents
******
Mrs. Sonia Miskin for the Appellant/Applicant
Mr.P.S. Hingorani -APP for the State
******
CORAM: V.M. KANADE,J.
DATE: 1st November, 2012
[JUDGMENT : PER V.M. KANADE, J.]
1.
The Appellant in Criminal Appeal No.737 of 2009 is the
Original Accused No.1 and the Appellant in Criminal Appeal
No. 1154 of 2009 is the Original Accused No.2. They have
filed two separate appeals challenging the judgment and order
passed by the Additional Sessions Judge at Sewree, who by
his judgment and order dated 15.6.2009 was pleased to
convict the Accused Nos.1 and 2 for the offences punishable
under section 392 read with 397 of the Indian Penal Code and
sentenced them to suffer R.I. for 7 years and to pay fine of
Rs.400/- each and, in default, to suffer R.I. for three months.
They were also convicted for the offence punishable under
section 353 r/w. 34 and sentenced them to suffer R.I. for two
years and to pay fine of Rs.350/- each and, in default, to
suffer R.I. for two months. Both the accused were convicted
for the offence punishable under section 307 read with 34 of
the Indian Penal code and were sentenced to suffer R.I. for
three years and to pay fine of Rs.300/- each and, in default, to
(Apeal 737 of 2009 /w.1154 of 2009)
suffer R.I. for two months. It was directed that all the
sentences should run concurrently. The Accused Nos.1 and 2,
however, acquitted of the offence punishable under section
394 and also acquitted of the offence punishable under
section 135 of the Bombay Police Act.
2. The prosecution case in brief is that according to the
prosecution the Complainant was taking a walk after dinner
at about 9.45 p.m. At that time, the accused No.1 put a knife
on his neck and robbed him. PW 4 along with one other eye
witness chased the accused. However, crowd gathered there
and they caught both the accused on the spot and an FIR
was registered on 18.8.2008. Charge was framed for the
offences punishable under section 392, 394, 397, 353,207
read with 34 of the Indian Penal Code. Both the accused
pleaded not guilty to the charge. The Trial Court, however,
was pleased to convict both the accused.
3. The prosecution examined nine witnesses:
PW-1 Mohit Dinesh Gajera is the Complainant.
PW-2 Ram Sampat Salekar is an eye witness.
PW-3 Dinesh Biharilal Yadav was a tax driver in whose tax,
the accused No.1 travelled from Girgaon Chowpati to the
place where the incident took place.
PW-4 Vishwanath Bhagwan Sawant is also an eye witness.
PW-5 Rashakrishan Sogune Tandon is a panch witness in
respect of the recovery of knife at the instance of the accused
(Apeal 737 of 2009 /w.1154 of 2009)
No.1.
PW-6 Dattatray Jagannath Kirdat is a PSI who registered the
FIR on 18.8.2008.
PW-7 Vijay Rajaram Mhamunkar is a panch in respect of
spot panchanama which was drawn on 19.8.2008
PW-9 Naresh Lavdhan Gupta is the Panch Witness in respect
of arrest of the accused and recovery of the stolen article from
accused.
PW-9 Ghanshyam Vijay Palange is the investigating officer
who carried out the investigation.
4. The learned counsel appearing on behalf of the Accused
No.1 submitted that there was a discrepancy in the
deposition of the eye witnesses and, therefore, their testimony
could not be relied upon. It was submitted that there was a
discrepancy in the statement of the victim. It was submitted
that the offence punishable under section 307 was not
attracted since it was not established that any person was
injured in the said incident. It was submitted that mere
allegation of assault or attempt to cause any injury was not
sufficient to convict the person for the offence punishable
under section 307 of the Indian Penal Code. It was submitted
that alleged recovery was made from the accused after five
days of his arrest and the recovery has been made from the
same place where the accused was arrested and, therefore,
no reliance could be placed about the said robbery. It was
(Apeal 737 of 2009 /w.1154 of 2009)
submitted that there was omission in recording the statement
of PW-2 by the police. It was submitted that relevant act of
keeping the knife on the neck of the Complainant was not
mentioned in the police statement and, as such, there was
material contradiction in the statement of PW-2. It was
submitted that there was discrepancy in the statement of the
PW-4 and PW-3 in respect of arrest of the accused. It was
further submitted that even assuming without admitting that
the offence of robbery was established, offence under section
307 of the IPC was not made out since the Appellant had not
used the said knife and, therefore, submitted that at the
highest, the Appellant could be convicted for the offence
punishable under sections 392 and 397 of the IPC.
5. The learned counsel for the Accused No.2 submitted
that even if the offence was established as against the
Accused No.2, he was neither in possession of the knife nor
was there any evidence to show that he shared the intention
of the accused No.1 in using the said knife for the commission
of the offence. She submitted that, therefore, at the highest,
the accused No.2 could be convicted for the offence
punishable under section 392 of the IPC. She adopted the
other arguments advanced on behalf of the accused No.1.
6. The learned APP for the State, on the other hand,
submitted that there was sufficient material on record to
(Apeal 737 of 2009 /w.1154 of 2009)
show the involvement of both the accused. He submitted that
both the accused were caught red handed and the evidence of
the Complainant has been corroborated by the other eye
witnesses. He relied on the judgment of the Apex Court in the
case of Phool Kumar vs. Delhi Administration [AIR 1975 SC
905].
7. We have given our anxious consideration to the
submissions of the learned counsel appearing on behalf of the
Appellants and the learned APP for the State. With the
assistance of the learned counsel for the Appellants, we have
gone through the judgment and order of the Trial Court and
also the notes of evidence. We accept the submissions made
by the learned APP for the State regarding commission of
offence by the accused Nos.1 and 2. So far as the Accused
No.2 is concerned, however, in our view, prosecution has not
established that he shared the intention of the accused No.1
regarding use of the knife in commission of offence and,
therefore, the prosecution has not established the offence
under section 397 r/w. 34 as against the accused No.2.
8. The prosecution examined the Complainant- Mohit
Dinesh Gajera- PW-1. He has stated that he is doing business
of selling sarees along with his brother at Kalbadevi. He
stated that normally he closed his shop at 8.00 p.m. It is
further stated that on 18.8.2008, after closing his shop at
(Apeal 737 of 2009 /w.1154 of 2009)
8.00 p.m., he had taken dinner and had then gone for a walk
at Chowpaty along with his friend Ram Sampat Salekar. He
then asked his friend to give mobile since he wanted to talk
with his father who resides at Rajkot. He then stated that
while he was talking on the mobile, somebody keep a big
knife on his neck. He has stated that initially he thought that
one of his friends might have mischievously placed the knife
to scare him. He, therefore, pulled the knife and took it in his
hand. He then stated that at that time, accused No.1 Sayeed
pulled back the knife from his hand and asked him to give his
mobile to him. The witness identified the accused No.1, who
was sitting in the Court. He then stated that the accused
No.2 snatched the gold chain. He also identified the accused
No.2 who was sitting in the dock of accused. He then stated
that the accused No.1 moved the big knife in order to assault
the complainant and the complainant saved himself and,
therefore, both the accused threatened him and they ran
away. They boarded the taxi and at that time, the witness and
his friend started coming towards the police station and then
he saw the vehicle proceeding towards 'Rajbhavan' and then
he followed that vehicle. He saw the policemen and some
people from Rajbhavan Servant Quarters had caught hold the
accused. His complaint then was recorded and on the next
day, his supplementary statement was recorded. The mobile
was found on the person of the accused no.1 and gold chain
was also found with the accused No.2. On 23.8.2008, the
(Apeal 737 of 2009 /w.1154 of 2009)
witness identified the big knife like chopper and his further
supplementary statement was recorded. The defence could
not secure any admission in the cross examination. The
testimony of this witness has been fully corroborated by PW-2
Ram Sampat Salekar, who has also given the sequence of
events as narrated by the Complainant in the cross
examination of this witness. The prosecution, therefore, in
our view, has clearly established that the accused No.1 had
along with
brandished a big knife and had threatened the Complainant
PW-1 the said knife and by putting the
complainant in fear of death, he had robbed the mobile phone
and the gold chain from the complainant. The accused were
arrested on the spot and the stolen articles were also
recovered from them when they were searched. PW-3 Dinesh
Biharilal Yadav also has stated in his evidence that the
accused had traveled in his taxi and had asked him to take
the taxi to the Walkeshwar Road and had also threatened him
by showing a knife. He has further stated that near
Rajbhavan, both the accused got down from the taxi and the
police apprehended the accused. He also identified the
accused who were sitting in the Court. He had further stated
that one gold chain and mobile phone were found on their
person during the search which was taken.
9. The submission made by the learned counsel appearing
on behalf of the Accused No.1 that since the Complainant
(Apeal 737 of 2009 /w.1154 of 2009)
was not injured in the said incident, it cannot be said that the
Accused No.1 had used the knife and, therefore, the
provisions of section 397 of the Indian Penal Code are not
attracted. His submission that the accused No.1 ought to have
been convicted under section 392 simplicitor, is also without
any substance. In order to consider the said submissions, the
provisions of section 392 and 397 will have to be taken into
consideration. Section 392 of the Penal Code runs as under :
"Whoever commits robbery shall be punished
with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable
to fine; and, if the robbery be committed on the
highway between sunset and sunrise, the
imprisonment may be extended to fourteen
years."
On the other hand, so far as section 397 is concerned,
the sentence which can be awarded under the said provision
cannot be less than 7 years if at the time of committing
robbery, the offender uses any deadly weapon or causes or
causes grievous hurt to any person or attempts to cause death
or grievous hurt to any person. The said question as to what
is the meaning of the word "uses" in section 397 of the Indian
Penal Code fall for consideration arose before the Apex Court
in the case of Phool Kumar, Appellant v. Delhi
Administration, Respondent [1975 CRI. L.J. 778]. In this
(Apeal 737 of 2009 /w.1154 of 2009)
context, the Apex Court in paragraphs 6 and 7 has observed
as under:
"6. Section 398 uses the expression "armed
with any deadly weapon" and the minimum
punishment provided therein is also 7 years if at
the time of attempting to commit robbery the
offender is armed with any deadly weapon. This
has created an anomaly. It is unreasonable to
think that if the offender who merely attempted
to commit robbery but did not succeed in
committing it attracts the minimum
punishment of 7 years under S.398 if he is
merely armed with any deadly weapon, while an
offender so armed will not incur the liability of
the minimum punishment under Section 397 if
he succeeded in committing the robbery. But
then, what was the purport behind the use of the
different words by the Legislature in the two
sections, viz "uses" in Section 397 and "is
armed" in Section 398. In our judgment the
anomaly is resolved if the two terms are given
the identical meaning. There seems to be a
reasonable explanation for the use of the two
different expressions in the sections. When the
offence of robbery is committed by an offender
being armed with a deadly weapon which was
(Apeal 737 of 2009 /w.1154 of 2009)
within the vision of the victim so as to be capable
of creating a terror in his mind, the offender
must be deemed to have used that deadly
weapon in the commission of the robbery. On the
other hand, if an offender was armed with a
deadly weapon at the time of attempting to
commit a robbery, then the weapon was not put
to any fruitful use because it would have been of
use only
when the
committing the robbery.
offender succeeded in
7. If the deadly weapon is actually used by the
offender in the commission of the robbery such
as in causing grievous hurt, death or the like
then it is clearly used. In the cases of Chandra
Nath v. Emperor, AIR 1932 Oudh 103; Nagar
Singh v. Emperor, AIR 1933 Lah 35 and Inder
Singh v. Emperor, AIR 1934 Lah 522 some over
act such as brandishing the weapon against
another person in order to over-awe him or
displaying the deadly weapon to frighten his
victim have been held to attract the provisions of
Section 397 of the Penal Code. J.C. Shah and
Vyas, JJ. of the Bombay High Court have said in
the case of Govind Dipaji More v. State, AIR
1956 Bom 353 that if the knife "was used for
the purpose of producing such an impression
(Apeal 737 of 2009 /w.1154 of 2009)
upon the mind of a person that he would be
compelled to part with his property, that would
amount to 'using' the weapon within the
meaning of Section 397." In that case also the
evidence against the appellant was that he
carried a knife in his hand when he went to the
shop of the victim. In our opinion this is the
correct view of the law and the restricted
meaning given to the word 'uses' in the case of
Chand Singh, ILR (1970) 2 Punj and Har 108 =
(AIR 1970 Punj & Har 532) (FB) is not correct."
The Apex Court also in the case of Ashfaq v. State
(Govt. of NCT of Delhi) [2004 Supreme Court Cases (Cri)
687] has taken a similar view in paragraph 8 of the said
judgment, which is observed as under:
"Thus, what is essential to satisfy the word
"uses" for the purposes of Section 397 IPC is the
robbery being committed by an offender who was
armed with a deadly weapon which was within
the vision of the victim so as to be capable of
creating a terror in the mind of the victim and not
that it should be further shown to have been
actually used for cutting, stabbing, shooting, as
the case may be."
10. From the aforesaid observations, it can be seen that the
(Apeal 737 of 2009 /w.1154 of 2009)
Apex Court has come to the conclusion that even
brandishing the weapon against another person in order to
over-awe him or displaying the deadly weapon to frighten his
victim would attract the provisions of section 397 of the
Indian Penal Code. In the present case, the Accused No.1
had put the knife on the shoulder of the Complainant and
thereafter, had brandished the said weapon to frighten the
Complainant so that he would hand over the valuables on his
person. The Accused No.1, therefore, clearly had committed
an offence punishable under section 397 and not under
section 392 of the Indian Penal Code. So far as the Accused
No.2 is concerned, he had accompanied with the Accused
No.1 and was neither carrying any weapon nor had used it
against anyone and as such, therefore, provisions of section
397 would not be attracted in his case. His conviction,
therefore, under section 397 of the Indian Penal Code will
have to be altered to section 392 of the Indian Penal Code.
The judgment and order of the Trial Court altered to that
extent is altered. The conviction of the Accused No.1 Sayeed
Rashid Shaikh @ Saidu Bangali is confirmed.
11. The conviction of the Accused No.2 Amir Ismail Patel is
altered to section 392 of the Indian Penal Code and he is
sentenced to suffer R.I. for three years. The Accused No.2 is
acquitted of the offence punishable under section 397 of the
Indian Penal Code. The Appellant Nos.1 and 2 are acquitted
(Apeal 737 of 2009 /w.1154 of 2009)
of the offences punishable under section 307 r/w. 34 of the
Indian Penal Code. Both the Appellants are entitled to claim
the set off for the period which they have already undergone
as laid down under section 428 of the Criminal Procedure
Code.
12. Both the Criminal Appeals are partly allowed and
disposed of in the aforesaid terms. In view of disposal of both
the appeals, criminal application filed therein by the
Appellants, do not survive for consideration
accordingly, disposed of.
and are,
(V.M. KANADE J.)
V.A. Tikam
