Bombay High Court
Mohd Hussain Kayyum Shaikh vs The State Of Maharashtra on 3 September, 2015
Bench: A.M. Thipsay
9-APPEAL-399-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.399 OF 2013
MOHD.HUSSAIN KAYYUM SHAIKH )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Salimuddin A. Shaikh, Advocate for the Appellant.
Mr.D.P.Adsule, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 3rd SEPTEMBER 2015.
ORAL JUDGMENT :
1 This appeal is directed against the judgment and order
dated 11th February 2013, delivered by the Ad-hoc Additional
Sessions Judge, Thane, in Sessions Case No.340 of 2009
convicting the appellant who was the accused no.1 in the said case
of offences punishable under Sections 307 and 397 of the Indian
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Penal Code (IPC). The learned Ad-hoc Additional Sessions Judge
sentenced the appellant to suffer Rigorous Imprisonment for 10
years and to pay a fine of Rs.1,000/- with respect to the offence
punishable under Section 307 of the IPC, and to suffer Rigorous
Imprisonment for 10 years with respect to the offence punishable
under Section 397 of the IPC. The learned Judge directed that the
substantive sentences would run concurrently.
2 There was one more accused - accused no.2 - in the
said case, but the learned Ad-hoc Additional Sessions Judge found
him not guilty and acquitted him. The appellant and the other
accused were charged also of offences punishable under Section
25 of the Arms Act read with Section 34 thereof, and Section 135
of the Bombay Police Act, but with respect to these offences, the
learned Ad-hoc Additional Sessions Judge found even the
appellant not guilty and acquitted him.
3 The prosecution case, as put forth before the trial
court was that, on 4th May 2009, at about 12.00 Noon,
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Draupadabai (PW6) was proceeding from road to attend the Haldi
ceremony in the neighbourhood. At that time, the appellant came
there, caught hold of her right hand and snatched the golden
chain, which she was wearing. Draupadabai raised cries when her
son Jayendra (PW3) came there. He was told by Draupadabai
about her chain having been snatched and the offender having run
away. Jayendra started chasing the offender. In the meantime,
Shivaji (PW1), nephew of Draupadabai, came there, learnt about
the theft and chased the offender on his motorbike. Jayendra
(PW3) and Shivaji (PW1) both chased the offender by two
different lanes. Shivaji found the offender and noticed him
entering into the lane at Bhusaval compound. When Shivaji
attempted to catch hold of the offender, the offender opened fire
upon him by taking out a country made handgun. Shivaji bent
down and avoided getting shot. The offender then again ran and
again opened fire on Shivaji. The shot was, however, missed. The
offender then entered into a mosque. By this time, Jayendra
reached there. Shivaji asked Jayendra to keep a watch on the
offender as he had concealed himself in the mosque and he
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himself went to call the police. After sometime, Shivaji returned
along with the police, but the offender jumped into a water tank /
well. He was then apprehended by the police. During his search,
a broken chain having golden beads which was the chain of
Draupadabai was found in his possession. A country made
handgun with one shell in its barrel was also recovered from him
under a panchnama. Shivaji lodged a report of the incident, after
which a case in respect of offences punishable under Sections 307
and 397 read with Section 34 of the IPC was registered, and
investigation commenced. In the course of investigation, it was
revealed that the country made handgun and ammunition were
provided to the appellant by the accused no.2 and therefore the
accused no.2 was also arrested.
4 The prosecution examined nine witnesses during the
trial. Shivaji (PW1), Jayendra (PW3), Draupadabai (PW6) have
already been referred to earlier. The second witness Nilesh Patil is
a panch in respect of the personal search of the appellant after his
apprehension. The fourth witness Rais Khan is also a panch in
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respect of the spot panchnama. The fifth witness Dr.Jayshree
Mhaske, a Medical Officer attached to IGM hospital, Bhiwandi, is
the one, who had examined Draupadabai and had found that
there was a blunt trauma with swelling over her right shoulder
and right arm. The seventh witness Bharat Nimbalkar is the
Senior Inspector of Police, who had actually apprehended the
offender. The eighth witness Rajendra Hulawale A.P.I., and the
ninth witness Dilip Yadav, Inspector of Police, are the Police
Officers who have taken part in the investigation of the case.
5 I have carefully gone through the entire evidence
adduced during the trial. I have carefully gone through the
impugned judgment.
6 The case of the prosecution is that the appellant had
snatched the golden chain, and that, while he was attempting to
run away, he was chased and apprehended. In connection with
this, the learned counsel for the appellant, contended that the case
has been made out, as if, the appellant was caught red handed,
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but actually, the evidence indicates that the offender had made
good his escape and the appellant came to be apprehended after
some time gap and at quite some distance. He submitted that this
could very well be a case of mistaken identity. He submitted that
the identity of the appellant as the offender, as was sought to be
established through Draupadabai, is not reliable, in as much as,
Draupadabai had been shown the appellant at the police station
and also in the court before she gave her evidence.
7 Undoubtedly, there is substance in this contention of
the learned counsel. It does appear that the offender was not
continuously under the sight of Draupadabai, Jayendra or Shivaji
or any other witness. However, it also appears that he was, for
most of the time after the offence was committed, and till he was
apprehended, under the sight of some or other witness.
8 From the evidence of Draupadabai, which is
unchallenged, it is clear that, that the incident indeed took place,
cannot be doubted at all. The fact that she did sustain an injury
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corroborates her version about the happening of the incident. The
evidence of Jayendra and Shivaji shows that though the offender
was not continuously in the sight of these witnesses, he was not
away from their sight also, for a long period. Thus, two witnesses
were watching his actions and had seen him running. Shivaji had
seen the offender entering into a mosque, and thereafter, jumping
into a well. It is not necessary to subject the evidence of these
witnesses to any further minor scrutiny, as the evidence of these
witnesses, which shows that when the appellant was
apprehended, the broken golden chain and a country made
handgun was recovered from him, is not seriously challenged in
the course of cross-examination. As a matter of fact, this evidence
is corroborated by the evidence of Bharat Nimbalkar (PW7), who,
after he received information from Shivaji, had come to the place
where the offender had concealed himself and had, with the help
of police party, cordoned off the area. He categorically stated
about the offender having jumped from the wall of the compound
into the water tank, and the offender being taken out from the
water tank. That the person, who is apprehended, is the
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appellant, is not in dispute at all. This witness categorically states
that he took the personal search of the appellant and found not
only the country made revolver with one empty cartridge therein,
but also the broken golden chain with him.
9 This evidence is corroborated by the evidence of
Rajendra Hulawale (PW8) and Dilip Yadav (PW9), who were also
present at the time of the apprehension of the appellant from the
water tank.
10 That, the chain found with the appellant was broken,
and that, it was identified by Draupadabai as her chain is
satisfactorily established by the evidence that was adduced during
the trial.
11 Considering the evidence adduced during the trial,
that it was the appellant, who had snatched the golden chain,
which Draupadabai was wearing, and had attempted to run away,
cannot be doubted at all.
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12 The learned counsel for the appellant contended that
the conviction of the appellant with respect to the offence
punishable under Section 307 of the IPC was not justified. The
learned APP submitted that since the appellant was armed and
since he had fired from the firearm with him, the conclusion that
he had attempted to commit murder of Shivaji, is proper and
legal. I am unable to accept that the evidence adduced during the
trial establishes the appellant to be guilty of an offence of
attempting to commit murder, which is punishable under Section
307 of the IPC. It is very obvious from the prosecution case itself
and from the narration of witnesses itself, that the appellant had
fired two rounds from his handgun only to frighten the persons
who were chasing him and in a bid to escape. He cannot be
attributed with the requisite mens rea, as would be necessary to
make him guilty of the offence punishable under Section 307 of
the IPC. The conviction of the appellant with respect to the
offence punishable under Section 307 of the IPC is not correct or
legal and needs to be interfered with.
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13 The learned Judge has acquitted the appellant in
respect of the offence punishable under the Arms Act and the
Bombay Police Act. He has observed that there was no sanction
for the prosecution of the offence punishable under the Arms Act,
and that, there was no evidence that there was any prohibitory
order passed by the competent authority, which was duly
promulgated prohibiting the possession of any arms or weapon.
These findings of the learned Judge appear to be proper, and no
attempt has been made to challenge these findings of the learned
Judge by the learned APP.
14 The learned counsel for the appellant contended that
the appellant would be guilty only of receiving stolen property or
at the most of theft, but not of robbery. However, after carefully
considering the evidence on record, it is not possible to hold that
the appellant had merely received the stolen property. It is
satisfactorily established that the appellant is the one, who had
snatched the golden chain. Now the question is, whether the act of
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the appellant would amount merely to the offence of theft or it
would amount to robbery. Section 390 of the IPC which defines
robbery inter alia stipulates that - theft is robbery if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft,
the offender, for that end, voluntarily causes or attempts to cause to
any person death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful restraint. In this
case, though it is doubtful whether the appellant had voluntarily
caused hurt to Draupadabai, he certainly had attempted to cause
fear of death to the witnesses, in carrying away the golden chain
snatched by him. The appellant was being chased by witnesses
after he had snatched the chain and the appellant had used a
firearm by firing from it. The object of this firing was to put the
persons chasing him in fear of instant death or hurt and the object
behind putting them under fear was to enable him to carry away
the property snatched by him successfully. Thus, the offence
committed by the appellant would be of robbery which is
punishable under Section 392 of the IPC.
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15 It needs to be observed at this stage that the conviction
of the appellant simplicitor in respect of the offence punishable
under Section 397 of the IPC is not correct. The learned Judge
had merely framed the charge of offence punishable under Section
397 of the IPC simplicitor, overlooking that Section 397 of the IPC
does not create a substantive evidence at all. It is complementary
to Section 392 and Section 395 of the IPC. It merely provides for
a minimum sentence to the offender who committed robbery or
dacoity if in the commission of the said offence, any deadly
weapon is used or grievous hurt is caused to any person etc., by
the offender. Thus, the proper charge in the instant case ought to
have been the charge of an offence punishable under Section 392
of the IPC read with Section 397 of the IPC.
16 The learned Judge has imposed a sentence of Rigorous
Imprisonment for 10 years upon the offender. This sentence is the
maximum that was provided for by law. Even with respect to
Section 307 of the IPC, the maximum sentence that could be
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imposed upon the appellant was 10 years, as no hurt had been
caused to any one by the firing. The question is, whether this was
a fit case where the maximum punishment prescribed by law for
the alleged offences ought to have been imposed upon the
appellant. A perusal of the judgment delivered by the learned
Ad-hoc Additional Sessions Judge does not show that any reasons,
for imposing the maximum sentence prescribed by law, were put
forth before the learned Judge, by the prosecution. The judgment
also does not disclose any reasons as to why such maximum
punishment was called for, particularly when there was nothing to
show that the appellant had any past criminal record.
17 It was also overlooked by the learned Judge that no
actual gain was made by the appellant by committing the offence
in question, which aspect was relevant in determining the
quantum of sentence to be imposed upon him.
18 In my opinion, ends of justice would be met by
imposing a sentence of Rigorous Imprisonment for 7 years upon
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the appellant with respect to the offence punishable under Section
392 of the IPC read with Section 397 of the IPC.
19 In the result, the appeal is partly allowed.
20 The conviction of the appellant with respect to the
offence punishable under Section 307 of the IPC is set
aside.
The appellant is acquitted of the said charge.
Fine, if paid by him with respect to the sentence
imposed for the said offence, be refunded to him.
The error in convicting the appellant simplicitor in
respect of an offence punishable under Section 397 of
the IPC is corrected by stipulating that the appellant
is convicted of an offence punishable under Section
392 of the IPC read with Section 397 of the IPC.
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The sentence imposed upon the appellant with respect
to the said offence shall be reduced to Rigorous
Imprisonment for a period of 7 years.
The appeal is disposed of in the aforesaid terms.
ig (ABHAY M. THIPSAY, J.)
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