SHAJAHAN versus STATE REP. BY INSPECTOR OF POLICE on 16 February 2018

SHAJAHAN

v.

STATE REP. BY INSPECTOR OF POLICE

(Criminal Appeal Nos. 697-98 of 2012)

FEBRUARY 16, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Penal Code, 1860 – s.396 r/w s.34 – Dacoity with murder –Five accused – Dacoity in shop of PW1 – Deceased was sleepinginside the shop – A2 held the legs of deceased, while A4 sat on hischest and strangled him to death – Trial court convicted all the fiveaccused inter alia u/s.396 r/w. s.34 and sentenced them toimprisonment for ten years – High Court while affirming theconviction, enhanced the sentence of imprisonment from ten yearsto imprisonment for life – Held: In course of commission of dacoity,if a dacoit commits murder, all his companions who are conjointlycommitting dacoity, are liable to be convicted u/s.396, although theymay have no participation in the murder beyond the fact ofparticipation in the dacoity – Offence u/s.396 is to be viewed withseriousness, especially, when dacoits are armed, however, in thepresent case, the accused were not armed – Considering the longlapse of time, as the occurrence was of year 2002 and the facts andcircumstances of the case, conviction u/s. 396 is maintained butsentence of imprisonment for life imposed upon A1, A2 and A4 ismodified as ten years, as directed by trial court.

Sentencing – Imposition of sentence u/s.302 vis-a-vis u/s.396,IPC– Discretion vested with Court – Scope – Held: Obligation ofCourt in the matter of imposing sentence- “death or imprisonment forlife” is in the same sequence both for ss.302 and 396 – Thoughoffence u/s.396 is to be viewed with seriousness, for convictionunder it, larger discretion is vested with the Court as there ispossibility of imposing a penalty lesser than death or imprisonmentfor life– Penal Code, 1860 – s.302, s.396 r/w s.34.

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662SUPREME COURT REPORTS

[2018] 2 S.C.R.

APartly allowing the appeals, the CourtHELD : 1.1 Section 396 IPC prescribes punishment fordacoity with murder. In the course of commission of dacoity, if adacoit commits murder, all his companions who are conjointlycommitting dacoity, are liable to be convicted under Section 396,Balthough they may have no participation in the murder beyondthe fact of participation in the dacoity. The obligation of the courtin the matter of imposing the sentence - “death or imprisonmentfor life” is in the same sequence both for Sections 302 IPC and396 IPC. Though the offence under Section 396 is to be viewedCwith seriousness, for the conviction under Section 396, largerdiscretion is vested with the court insofar as there is possibilityof imposing a penalty lesser than death or imprisonment for life.[Para 9][666-C-D]

1.2 The offence under Section 396 is to be viewed withDseriousness, especially, when the dacoits are armed. But in thecase in hand, the accused were not armed. Accused A4 is allegedto have sat on deceased and pressed his nose and mouth and isalleged to have tightened his neck with the rope. The occurrencewas of the year 2002. Considering the long lapse of time and the Efacts and circumstances of the case, the sentence of imprisonmentfor life is modified as ten years as directed by the trial court.While maintaining the conviction under Section 396, the sentenceof imprisonment imposed upon the appellants-A1, A2 and A4 ismodified as ten years of imprisonment. Since the appellants arestated to be in custody for more than ten years, they are orderedFto be released forthwith, if not required in any other case. [Paras10, 11][666-E-G]

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Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC771 : [2006] 2 SCR 793 – referred to.

Case Law Reference

[2006] 2 SCR 793

referred to

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 697-698 of 2012.

From the Judgment and Order dated 03.09.2010 of the High Courtof Madras in Criminal Appeal No. 69 and 1094 of 2006 respectively WITH

Criminal Appeal No. 481 of 2015.

Amit Kumar, R. Balasubramanian, B. Karunakaran,S. Gowthaman, K. G. Krishnaraj, S. Shanthakumari, Advs. for theAppellant.

M. Yogesh Kanna, Mrs. Sujatha Bagadhi, Advs. for theRespondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. These appeals arise out of the commonjudgment passed by the High Court of Madras in Criminal Appeal Nos.69, 1096 and 1097 of 2006 allowing the appeal preferred by the Statethereby enhancing the sentence of imprisonment from ten years toimprisonment for life for the conviction under Section 396 IPC.

2. Briefly stated case of the prosecution is that on the interveningnight of 13/14.11.2002 at about 01.30 a.m., the appellants accusedBasheer (A1), Shajahan (A2) and Babu @ Nawab Sahib (A4) alongwith two other accused Raja Mohammad (A3) and Balu @Balasubramanian (A5) with common intention to commit robbery in aPawn Broking shop under the name of Peri owned by PW-1 Muthaiyah.In the course of committing robbery, Shajahan (A2) is alleged to havetightly held the legs of deceased Muthukrishnan who was sleeping insidethe shop and Babu @ Nawab Sahib (A4) is alleged to have sat on hischest and constricted his neck and tied the jute rope around the neck ofMuthukrishnan and strangled him to death. Other accused robbedjewellery about 4.788 kg. of gold and 5.595 kg. of silver total worthabout Rs.12,00,000/-. On 13.11.2002 at about 05.30 a.m., Chellam-PW-4 employed as the sweeper at the Pawn shop came to the house of PW-1 and informed him that Muthukrishnan was found dead in his shop.PW-1 lodged the complaint in Mandharakuppam Police Station, basedon which, police had registered a case in Crime No.257 of 2002 underSections 457, 380 and 302 IPC. PW-37-SHO had taken up the A

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Ainvestigation. On 06.02.2003 at about 11.00 p.m. Raja Mohammad (A3)was arrested near Panrutti bus stand and his confession statement wasrecorded in the presence of Vasan-PW-15, based on which, a sum ofRs.46,000/- was recovered from Raja Mohammad (A3). Confessionstatement of accused Raja Mohammad led to recovery of thirty pair ofsilver anklets, golden necklace and chain from Noorudheen who wasBidentified by accused Raja Mohammad under Ex.P21. Confessionstatement of accused Raja Mohammad led to further recovery of silveranklets, golden rings, necklace and totally twelve items of jewels fromKVM Jewellery at Kallakurichi under Ex.P23. Confession statement ofaccused Raja Mohammad also led to recovery of seventeen pair ofCsilver anklets, twenty pair of silver pattadai anklets and a golden chainfrom his house at Pudupet in Vridhachalam.

3. Accused Raja Mohammad took the police and PW-15 toAlichakudi village and on being identified by him, Babu @ Nawab Sahib(A4) was arrested. Based on the confession statement of accused BabuD@ Nawab Sahib, seventeen items of jewels were recovered from thehouse of his mother’s sister under Ex.P28. Based on the confessionstatement of Babu @ Nawab Sahib (A4), the police went to Mumbaiwhere numbers of items of jewels were recovered from the house of hisuncle and also from a jewellery shop named Panchaseel Jewellery.

E4. On 06.02.2003 at wee hours at about 01.30 a.m. appellantsBasheer (A1) and Shajahan (A2) were proceeding on a TVS-50 motorcycle and on being intercepted by the police, the appellants started runningand the police caught hold of them. Based on the confession statementsof accused Basheer and Shajahan, jewels kept in the cover on the petroltank of the said TVS-50 vehicle, were recovered by the police. On theFbasis of the information from the informers, PW-37 arrested Balu @Balasubramanian (A5) in front of his house at Meyapalayur village on08.02.2003 at about 04.00 a.m. His confession statement led to recoveryof golden jewels from a jewellery shop at Chidambaram. Confessionstatement of accused Balu @ Balasubramanian further led to recoveryGof gold jewels from his house (Ex.P33). On completion of investigation,chargesheet was filed against the accused under Sections 457, 395, 396and 302 read with 34 IPC.

5. In the trial court, prosecution has examined thirty sevenwitnesses, including PW-1-owner of the Pawn shop, PW-2 and PW-3

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working under PW-1 and other witnesses. Upon consideration ofevidence, the trial court convicted all the five accused inter alia underSection 396 IPC read with Section 34 IPC and sentenced them to undergorigorous imprisonment for ten years. The trial court held that in view ofthe conviction of the accused under Section 396 IPC, conviction of theaccused under Section 302 IPC was not necessary.

6. Being aggrieved by the conviction, accused Shajahan and RajaMohammad filed appeals before the High Court which came to bedismissed. In the appeal filed by the State, for conviction under Section396 IPC, the High Court enhanced the sentence of imprisonment fromten years to imprisonment for life. The High Court did not go into thequestion of conviction of the accused under Section 302 IPC.

7. We have heard the learned counsel for both the parties andperused the materials on record.

8. There is clear and cogent evidence against accused RajaMohammad and Babu @ Nawab Sahib as to their involvement in thecommission of dacoity by the evidence of PW-15 and PW-17 and byrecovery of various items of jewels. The jewels so recovered from theaccused were identified by the owner of the Pawn shop (PW-1) andPWs 7 to 14 who pledged the jewels with PW-1. Evidence of PW-1 isfurther corroborated by the registers maintained in his Pawn shop toshow that those items of jewels were pledged in his Pawn shop. Theconviction of the appellants Raja Mohammad and Babu @ Nawab Sahibunder Section 396 IPC is unassailable.

9. Accused Basheer and Shajahan were arrested in the presenceof PW-21-Anbalagan and PW-22-Vijayarangan who partially turnedhostile. In his evidence, PW-21 stated that two persons were coming onthe TVS-50 and on being intercepted by the police, they started runningand those persons were chased and were caught by the police and thepolice recovered jewels from the cover kept on the petrol tank of thesaid vehicle. Though PWs 21 and 22 have spoken about the two personsand recovery of jewels from the said two wheeler, they have not identifiedaccused Basheer and Shajahan. As observed by the trial court, case ofthe prosecution is not discredited, merely because PWs 21 and 22 haveturned hostile so far as identification of accused. As pointed out by thetrial court, evidence of PWs 21 and 22 is to be read along with theevidence of Investigating Officer (PW-37) who has clearly spoken about A

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ABasheer and Shajahan were proceeding on the two wheeler TVS-50and also spoken about the arrest and recovery of jewels. The jewelsrecovered from Basheer and Shajahan were also identified by PW-1-owner of the Pawn shop. The fact that PWs 21 and 22 turned hostiledoes not affect the prosecution case as to the involvement of Basheerand Shajahan in the commission of the offence of dacoity. Section 396BIPC prescribes punishment for dacoity with murder. In the course ofcommission of dacoity, if a dacoit commits murder, all his companionswho are conjointly committing dacoity, are liable to be convicted underSection 396 IPC, although they may have no participation in the murderbeyond the fact of participation in the dacoity. The obligation of theCcourt in the matter of imposing the sentence - “death or imprisonmentfor life” is in the same sequence both for Sections 302 IPC and 396IPC. Though the offence under Section 396 IPC is to be viewed withseriousness, for the conviction under Section 396 IPC, larger discretionis vested with the court insofar as there is possibility of imposing a penalty lesser than death or imprisonment for life for the conviction under SectionD396 IPC.

10. Placing reliance upon Dinesh alias Buddha v. State ofRajasthan (2006) 3 SCC 771, the High Court took the view thatcommission of murder in the course of dacoity is to be viewed withseriousness. We are also of the view that the offence under Section 396EIPC is to be viewed with seriousness, especially, when the dacoits arearmed. But in the case in hand, the accused were not armed. AccusedBabu @ Nawab Sahib is alleged to have sat on deceased Muthukrishnanand pressed his nose and mouth and is alleged to have tightened his neckwith the rope. The occurrence was of the year 2002. Considering theFlong lapse of time and the facts and circumstances of the case, thesentence of imprisonment for life is modified as ten years as directed bythe trial court.

11. While maintaining the conviction under Section 396 IPC, thesentence of imprisonment imposed upon the appellants-Basheer, ShajahanGand Babu @ Nawab Sahib is modified as ten years of imprisonment andthe appeals are partly allowed. Since the appellants are stated to be incustody for more than ten years, the appellants are ordered to be releasedforthwith, if not required in any other case.

HDivya Pandey

Appeals partly allowed.