Criminal Appeal No.1225 of 2004

5th December, 2009

Petitioner Counsel: Mrs. NASREEN S. K. AYUBI
Respondent Counsel: Smt. R. V. NEWTON

JUDGMENT

JUDGMENT:- The appellant/accused No.1 has challenged the Judgment and order dated 30.8.2003 passed by the learned 4th Additional Sessions Judge, Nashik, whereby he, along with two other accused persons, was convicted for the offence punishable under Section 395, I.P.C. and was sentenced to undergo R.I. for seven years and to pay fine of Rs.2,000/- and in default of payment of fine, further R.I. for two months and also for the offence punishable under Section 397, I.P.C. he was sentenced to undergo R.I. for seven years and to pay fine of Rs.1,000/- and in default of payment of fine, further R.I. For one month.

2. To state in brief, the prosecution case is that the present accused along with four other persons had hired Tata Sumo Jeep at Chakan, Dist. Pune to go to Shirdi for a pilgrimage. P.W.1 Ramdas Karpe was the driver of the Jeep. The Jeep left Chakan on 3.1.2002 at about 10 a.m. and reached Shirdi at about 2 p.m. Besides the driver P.W.1 Ramdas Karpe, five other passengers, one lady by name Kaushalya and two children were also travelling by that Jeep. After reaching at Shirdi, the Jeep was parked in the parking space within the campus of Saibaba Trust. The driver was given Rs.50/- to take his lunch. The accused persons and that lady went to the temple and they returned at about 8 p.m. After that the lady was accommodated in the rest house of Saibaba Trust. The other five men asked the driver Ramdas Karpe to take them to Nashik. After seeking permission from the employer, the driver took them to Nashik. On the way, they halted at Saivijay Hotel at Shirdi Sinnar Road for taking dinner. After taking dinner, they proceeded ahead. After they had covered a distance of about 20 kms. from the said hotel, two of the passengers asked the driver to stop the Jeep and they got down. However, the engine of the Jeep was on. One of those persons asked the driver to switch-off the engine. The driver asked them as to why it should be switched off, on this one of the passengers, who was in the Jeep, threw a nylon rope around his neck and tried to strangulate him. Other persons sitting in the Jeep kicked him out of the Jeep. Therefore, the driver fell down on the road and started running towards Sinnar for his protection. One Qualis vehicle came from Sinnar side. The driver Ramdas gave a signal to that vehicle for help and the said vehicle stopped. At that time, the accused persons escaped from the spot with the said Jeep. Driver Ramdas informed the Vavi Police Station from one S.T.D. Booth at Village Pangri about this incident. After about 40 minutes, the police came in a jeep. The police party consisted of API Desai and four constables. They saw the concerned Jeep and stopped it by stopping the police jeep in front of that Jeep. When the police party was proceeding towards that jeep, suddenly one of the persons in the Jeep started firing on the police. In retaliation, the police also fired and two of those persons were injured and finally died because of the bullet injuries. The remaining three persons, including the present appellant, were arrested at the spot and about the assault on driver Ramdas and theft of the Jeep, an offence under Section 395 read with Section 397, I.P.C. came to be registered, but for firing against the police, a separate case under Section 307, I.P.C. was registered. According to the prosecution, during personal search, deadly weapons, like Kukri, were seized under a panchanama. After investigation, charge sheet came to be filed and the case was committed to the Court of Sessions for trial. Charge was framed against all the thee accused for the offences punishable under Section 395 and 397, I.P.C. The accused pleaded not guilty. According to them, they were falsely implicated in this case. According to them, two of the persons of their group had consumed alcohol at the hotel and therefore at some distance from that hotel, they had started vomiting. Therefore, the Jeep was stopped. The police party came there and on suspicion without any justification, started firing in which those two persons were killed. Only to justify the firing, the police made the driver of the jeep to lodge a false report and thus, the police registered two false cases against them, one under Sections 395 and 397 and another under Section 307, I.P.C.

3. On behalf of the prosecution, in all 8 witnesses were examined. After hearing the evidence and the arguments by the parties, the trial court convicted and sentenced all the three accused as stated above.

4. Heard the learned Counsel for the accused as well as the learned APP for the State. Perused the Record and proceedings of the trial Court.

5. At the outset, it may be stated that the accused persons, including the present appellant, were arrested on 4.1.2002. They were not granted any bail even during the trial and the judgment of conviction and sentence was passed on 30.8.2003. Thus, from the date of the arrest, the appellant was continuously in jail. Even though the trial was completed within one year and eight months, unfortunately, this appeal filed by the accused from the jail is pending in this Court for more than five years. As a result, the accused/appellant has already undergone complete sentence and has been released on 8.8.2007 after undergoing the sentence. Thus, the very purpose of filing the appeal has been frustrated due to delay in hearing and disposing of this appeal and thus this appeal has for all purposes become infrcutuous.

6. The learned Counsel for the accused-appellant pointed out that the whole case is based on the evidence of P.W.1 Ramdas, who was driver of the Jeep and the police party. The driver or other passengers of Qualis, who had allegedly rescued P.W.1 were not examined nor the owner or manager or any waiter from Saivijay hotel, where they had taken meals, was examined. She pointed out that as per the prosecution, the deceased accused Appa Deshmukh was having a country made revolver and according to the police, he had fired from that revolver. Even though according to the prosecution, three constables had suffered injuries in that incident, the medical officer did not find any injury on their person. The trial Court noted that police had filed a record indicating that deceased Appa Deshmukh was involved in 40 different cases of theft, robbery, dacoity, etc. and possibly when the police party approached him, he felt that he could be apprehended and under that apprehension, he fired against the police and therefore police was justified in firing in which two of the said persons including Appa Deshmukh died. Taking into consideration the evidence on record, it appears that though the conduct of the present accused-appellant from the time of hiring the Jeep at about 10 a.m. till this incident at about 10.40 p.m. was normal, but from the evidence, it appears that after having covered a distance of 20 Kms. from that hotel, two of the passengers asked him to stop the Jeep. Even though he had stopped the Jeep, he had not switched off the engine. Therefore, one of the passengers had asked him to switch off the engine to which he questioned. On that one of them tried to strangulate him with a rope and another kicked. Due to this assault and fear, he ran away and thereafter those persons escaped along with the said Jeep and thus they had committed theft of the Jeep after having assaulted the driver Ramdas. The evidence of P.W.1 Ramdas was consistent and no contradiction or material omission is found in his evidence though he was cross-examined at length. His Jeep was found along with the accused persons at about 3 kms. from the place where they had taken it away from Ramdas Karpe. Therefore, it can be held that the offence of dacoity was committed.

7. The learned trial Court convicted and sentenced the accused persons, including the present appellant under Sections 395 and 397 separately. In fact, the substantive offence was under Section 395, I.P.C. only. Section 397 does not provide for any substantive offence and punishment for the same. In fact, it only provides that in case of robbery or dacoity, if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Thus, Section 397 in the nature of a proviso to Sections 392, 393, 394 and 395 which provide for punishment for different offences of robbery and dacoity as well as attempt to commit robbery. Thus, if the offence of robbery or dacoity is proved and it is also proved that the offender had used the deadly weapon or had caused grievous hurt or had attempted to cause death or grievous hurt, such offender shall be awarded imprisonment of not less than seven years as provided by Section 397. It does not mean that the accused can be convicted and sentenced separately under Section 397, I.P.C. Therefore, the conviction of the accused under Section 397, I.P.C. cannot stand.

8. For the aforesaid reasons, the Appeal is partly allowed. While the conviction and sentence of the accused for the offence punishable under Section 395, I.P.C. is maintained, the conviction and sentence for the offence punishable under Section 397, I.P.C. is hereby set aside. As the accused is already released after undergoing the sentence, no further orders are required for his release now.

Appeal partly allowed.