Telangana High Court
Sri Abdul Sammad Sammad vs The State Of A.P. on 29 July, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.392&1343 OF 2009
COMMON JUDGMENT:
1.
Since the appellants in both the appeals are Accused in
the same case arising out of judgment in S.C.No.627 of 2007,
dated 23.03.2009 passed by the Additional Metropolitan
Sessions Judge-cum-Additional District & Sessions (FTC) at
L.B.Nagar, they are being heard together and disposed off by
way of this Common Judgment.
2. The appellant/A2 filed Criminal Appeal No.1343 of 2009
and the appellant/A4 filed Criminal Appeal No.392 of 2009.
Both the appellants are convicted for the offence under Section
395 of IPC and sentenced to undergo rigorous imprisonment
for a period of three years and to pay fine of Rs.1,000/-, in
default of payment of fine, to suffer simple imprisonment for 3
months.
3. The case of the prosecution is that A3 and A5 ( juveniles)
along with A1, A2 and A4 committed an offence of dacoity.
P.W.1 owns Graphic shop by name Aymen Graphics shop at
Balanagar. On 15.08.2007, he boarded the sharing auto at
Narsapur X roads. At that point of time, four persons were
seated in the auto. After passing some distance near HAI main
gate, one person sitting besides him caught hold of his neck
and another snatched his purse and also wrist watch.
Immediately, he rushed to the Balanagar Police Station and
filed Ex.P1 complaint against five persons for snatching
Rs.3,500/- cash which were in his purse and also nokia cell
phone. 15 or 20 days thereafter, the police called P.W.1 to
identify the accused in the Chenchalguda jail, wherein he
identified A1, A2 and A4 as the persons who had snatched
money purse and phone from him.
4. PW.2 is the owner of the auto and according to him, he
has given his auto to A1 on rent. P.W.4 is panch witness to
the confession of A1 and at the instance of A1, the other
accused were also apprehended by police. P.W.7 is the
Metropolitan Magistrate who conducted test identification
parade where P.W.1 identified A1, A2 and A4.
5. From the evidence on record, there cannot be any
element of doubt that the appellants, are the persons who
snatched the amount from P.W.1. The appellants were
convicted under Section 395 of IPC.:
"395. Punishment for dacoity.--Whoever commits dacoity shall
be punished with 1[imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine."
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--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. When extortion is robbery.--
Extortion is "robbery" if the offender, at the time of committing
the extortion, is in the presence of the person put in fear, and
commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that
person or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver up
the thing extorted. Explanation.--The offender is said to be
present if he is sufficiently near to put the other person in fear
of instant death, of instant hurt, or of instant wrongful
restraint.
391. Dacoity.--When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a
robbery, and persons present and aiding such commission or
attempt, amount to five or more, every person so committing,
attempting or aiding, is said to commit "dacoity".
6. As seen from the definition of dacoity, the offence is made
out when five or more persons conjointly commit an offence of
robbery. Robbery is defined under Section 390 of IPC. As seen
from the definition of robbery, theft is robbery when a person
voluntarily causes or attempts to cause any person death or
hurt, wrongful restraint or fear of instant death or instant
hurt, or of instant wrongful restraint. As seen from the
evidence of P.W.1, except stating that the petitioners have
snatched the person's cell phone, there is no evidence of any
kind of causing or putting fear of instant death or instant hurt
or wrongful restraint. When none of these ingredients which
are required to make out an offence of robbery are missing,
conviction under Section 395 of IPC cannot be maintained.
7. In the said circumstances, the appellants committed the
offence of theft as defined under Section 378 of IPC and liable
for punishment under Section 379 of IPC. Accordingly, the
conviction and sentence imposed vide judgment in S.C.No.627
of 2007 dated 23.03.2009 is set aside and the accused are
convicted and sentenced under Section 379 of IPC. In view of
substantial lapse of time of 16 years and that the appellants
are not convicted for any criminal offence, appellants are
sentenced to the period already undergone by them.
8. Accordingly, the Criminal Appeals are allowed in part. As
a sequel thereto, miscellaneous petitions, if any, pending, shall
stands closed.
__________________
K.SURENDER, J
Date: 29.07.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.392 & 1343 OF 2009
Date:29.07.2022.
kvs
