Criminal Revision Application No.718 of 2009,Criminal Appeal No.408 of 2009,Sessions Case No.149 of 2008

11th June, 2010

Petitioner Counsel: Mr. KHAN ABDUL WAHAB
Respondent Counsel: Mr. S. N. GAWADE

JUDGMENT

JUDGMENT :- The present revision applicant, who was accused No.2 and accused No.1 Nitin @ Pappa Lagade, were prosecuted and tried for the offence punishable under sections 392, 394,397, 427, 504, 506 read with 34, IPC and also for the offence punishable under section 37(1)-A and section 135 of the Bombay Police Act.

2. The Trial Court convicted both the accused persons for the offences punishable under sections 392 r/w. S.397, 394 and S.506 r/w. section 34 and also under section 135 Bombay Police Act.

3. For the offence punishable under section 392 r/w. 397 the accused No.2 Ganesh was sentenced to undergo RI for 7 years and to pay fine of Rs.500/-. For the offence punishable u/s.394 r/w. 34, he was sentenced to undergo RI for 3 years and to pay fine of Rs.500/-. For the offence punishable under section 506, he was sentenced to suffer RI for six months and to pay fine of Rs.500/-.

4. Accused No.1 Nitin did not prefer any appeal. Accused No.2 Ganesh alone preferred Criminal Appeal No.408 of 2009 before the Sessions Judge. The learned Additional Sessions Judge set aside conviction under section 135 Bombay Police Act, however, maintained conviction and sentences for the offence punishable under sections 392, 394, 506 IPC. The accused No.2 has preferred present revision application against his conviction and sentence.

5. The learned counsel for the accused No.2 contended that there was no reliable evidence to show that the accused No.2 was armed with any deadly weapon and therefore, he could not have been sentenced for the offence u/s.392 r/w. S.397, IPC which mandates minimum sentence of 7 years imprisonment.

6. The learned APP, however, contended that as per the evidence of PW-4, Dukhram Prajapati, accused No.2 was armed with sword like weapon and he had also assaulted injured Dukhram with that weapon while committing the offence of robbery.

7. On perusal of report, it appears that as per evidence of complainant Jaydeep Bhat, on 22.9.2007, at about 12.00 pm, he was present in his shop. His wife P.W.2 Rakhi Bhat and other 3 to 4 employees were also present. One Prakash Prajapati runs a provision shop adjacent to the shop of Jaideep and then at a short distance there is rationing shop run by P.W.4 Dukhram Prajapati. According to Jaideep, accused No.1 Nitin @ Pappa and accused No.2 Ganesh came to his shop. Accused No.1 Nitin was armed with Koyta or sickle. He abused and threatened and there was exchange of hot words and then accused No.1 Nitin gave blow with sickle on his head. His wife rescued him, but she was also assaulted by accused No.1 Nitin. Prakash Prajapati also came to their rescue. He was also assaulted with sickle. Accused Nitin asked his companion accused No.2 Ganesh to catch hold of Jaideep and then accused No.1 Nitin snatched gold chain from the neck of his wife Rakhee. After this incident, both the accused went towards the rationing shop of Dukhram and snatched gold chain and amount of Rs.1,000/- from him.

8. On perusal of the prosecution evidence, it appears that PW-1 Jaydeep and PW-2 Rakhi have specifically deposed that the accused No.2 Nitin was armed with Koyta or sickle and he had assaulted them as well as PW Prakash Prajapati, who had intervened and was injured. PW-3, Prakash Prajapati did not fully support the prosecution. According to him, after hearing disturbance, he came out of shop and he did not see anything. He deposed that somebody hit him from backside, but he had not seen who had beaten him. This witness was declared hostile.

9. Then it is the evidence of PW-4 Dukhram that both the accused came to his shop from the side of Tata Power where shop of PW-1 Jaydeep is situated. According to him accused No.2 Ganesh was holding a weapon like sword. After they came to his shop, accused No.1 Nitin threatened him. Accused No.2 Ganesh attempted to assault him with the weapon and accused No.1 Pappa snatched his gold chain from his neck and removed Rs.1,000/- from his pocket. Thereafter he went to Bhagwati Hospital and was examined.

10. Evidence of PW-12, Dr. Radhakrishna Rao shows that he had examined Prakash Prajapati and Dukhram. Dr. Radhakrishna Rao, deposed that Prakash Prajapati had sustained injuries by sharp edged weapon but there was no injuries on the person of PW-4 Dukhram.

11. It has come in the evidence of Dukhram that about three years prior to this incident, quarrel had taken place between his wife, and accused No.2 Ganesh and in respect of that he had lodged report against accused No.2 which was registered as non-cognizable offence. It indicates that the relations between PW-4 Dukhram and Ganesh were strained even before this incident. It is settled position of law that evidence of a witness who has enmity with the accused, cannot be discarded or rejected merely on that ground but it has to be carefully scrutinized before reliance is placed on it.

12. On careful perusal of the prosecution evidence, it appears that both the accused first went to the shop of Jaideep and only accused No.1 Nitin @ Pappa was armed with Koyta or sickle and with that weapon he had caused injuries to different witnesses there. None of the witnesses deposed that the accused No.2 Ganesh was holding any weapon at that time. It appears that nobody had seen any weapon in the hands of Ganesh and immediately thereafter from the shop of Jaideep both the accused person went to the shop of Dukhram where Dukhram was robbed by accused No.1 Nitin @ Pappa. Of course accused No.2 Ganesh was with him and he was party to that robbery. It is very difficult to understand how and from where accused No.2 Ganesh secured sword like weapon while passing from the shop of Jaideep to the shop of Dukhram, which is at a short distance. Except Dukhram nobody deposed that accused No.2 Ganesh was holding any weapon. Dukhram deposed that he was assaulted by the sharp weapon by accused No.2 Ganesh. His evidence does not find corroboration from medical evidence because Dr. Radhakrishan clearly deposed that no injury was found on the person of Dukhram. The evidence of Dukhram to the extent that accused No.2 Ganesh was armed with a weapon and he had used that weapon and assaulted him does not appear to be trustworthy. The possibility cannot be ruled out that he had deposed about the weapon in the hands of accused No.2 because of previous enmity.

13. The learned Additional Sessions Judge, observed in para 36 of the judgment in appeal thus :-

"So far use of weapon by appellant is concerned PW-4 Dukhram has stated that appellant had come to his shop with the sword Art.4 and the said fact is not satisfactorily disproved by appellant."

It is settled principle of Criminal Law that the burden of proof of the charge is on the prosecution. If the Prosecution came with a case that the accused No.2 was armed with deadly weapon, it was for the prosecution to prove beyond reasonable doubt that he was holding such weapon. Under the law there is no responsibility on the accused to disprove the allegations of the prosecution.

14. In view of the facts and circumstances, the evidence of P.W.4 Dukhram in respect of weapon in the hands of accused No.2 Ganesh does not appear to be reliable. If that part of evidence is believed, the accused No.2 could be convicted for the offence punishable not u/s.392, 394 r/w. section 34 of IPC. To invoke provision of section 397 of IPC, the prosecution has to prove that the particular accused had used the deadly weapon or had caused grievous hurt to any person or had attempted to cause death or grievous hurt to any person. Section 397 is not substantive offence in itself. It only lays down sentence in principle and if a person while committing robbery or dacoity used any deadly weapon etc., minimum sentence which can be awarded shall not be less than 7 years. If section 397 could not be invoked, there would be no mandate of law to award minimum sentence of 7 years imprisonment on conviction, for the offences punishable u/s.392 or 394.

15. In view of the facts and circumstances and legal position noted above, accused No.2 Ganesh would be liable to be convicted for the offence under section 392 read with 34, IPC without invoking the provisions of section 397 of IPC. The Trial Court convicted the accused No.2 for the offence punishable under section 394 read with section 34 and sentenced him to undergo RI for 3 years and to pay fine of Rs.500/- and while for the offence punishable under section 392 r/w. 397, he has been sentenced to suffer RI for 7 years and to pay find of Rs.500/-. In my considered opinion, if section 397 is not invoked, sentence for the offence under section 392 could not be more than sentence under section 394.

16. For the aforesaid reasons, the revision is partly allowed and the order of conviction and sentence under section 392 r/w. 397, IPC is hereby set aside. Instead of that accused No.2 Ganesh is convicted for the offence punishable under section 392 r/w. 34, IPC and sentence to suffer RI for three years and to pay fine of Rs.500/- and in default to undergo simple Imprisonment of one month.

17. The conviction and sentence for the offence punishable under section 394 read with 34 and under section 506, IPC are maintained.

18. The accused was in custody from 24.9.2007 till he was convicted on l9.6.2009 by the Trial Court. The said period shall be set off against substantive sentence of imprisonment under section 428 of Criminal Procedure Code.

19. The substantive sentences of imprisonment on all the counts shall run concurrently.

Revision partly allowed.