Supreme Court - Daily Orders
Sri Shyama Charan Tripura vs State Of Tripura on 8 August, 2018
Bench: Ranjan Gogoi, Navin Sinha, K.M. Joseph
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 132 OF 2016
SHYAMA CHARAN TRIPURA ...APPELLANT(S)
VERSUS
THE STATE OF TRIPURA ...RESPONDENT(S)
ORDER
1. The accused appellant who has been convicted under Section 395 of the Indian Penal Code, 1860 (“IPC” for short) and sentenced to undergo rigorous imprisonment for seven years along with fine and default sentence by the learned trial Court is in appeal against the order of the High Court which has affirmed the conviction and sentence initially recorded by the learned trial Court.
Signature Not Verified Digitally signed by VINOD LAKHINA Date: 2018.08.10 16:41:19 IST Reason: 2
2. Eight (08) persons along with the accused appellant were charged for commission of offence punishable under Section 395 IPC. Seven accused persons were acquitted by the learned trial Court by its orders dated 28th February, 2011, 15th September, 2011 and 2nd April, 2013 after their statements under Section 313 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short) were recorded. The accused appellant alone has been convicted under Section 395 IPC, which, according to the learned counsel for the appellant, could not have been done as the offence punishable under Section 395 IPC i.e. dacoity requires the involvement of five or more persons.
3. Support has been sought to be derived from the judgments/decisions of this Court in the case of Krishna Gopal 3 Singh and others vs. State of U.P.1 and in the case of Ram Shankar Singh and others vs. State of Uttar Pradesh2.
4. Before we advert to the pronouncements of this Court relied upon by the learned counsel for the appellant we would like to put on record that the evidence against the accused appellant, as it emanates from the depositions of Sambhu Debnath (P.W.4), Kajal Debnath (P.W.5), Khokan Debnath (P.W.6) and Kananbala Debnath (P.W.11) is that while committing the crime the accused appellant was caught red-handed and some empty cartridges, some iron made cartridges like article, some toy caps, some small iron bearing balls of bicycle, etc. were recovered from him. The above evidence is unassailable.
1. AIR 2000 SC 3616
2. AIR 1956 SC 441 4
5. In Krishna Gopal Singh (supra) this Court, in the facts of the case before it, had taken the view that the conviction under Section 395 IPC was not made out as the offence of robbery, if at all, did not involve five or more persons. This Court next went on to consider if on the evidence available the offence of robbery defined under Section 390 IPC was made out. However, as the allegations against the accused in that case were one of incitement and looting of the armoury the essential ingredients of the offence of robbery i.e. putting a threat/harm to life or property was found to be missing. Accordingly, it was held that even the offence of robbery was not made out. We do not see how the aforesaid decision can assist the accused appellant in the present case. 5
6. Coming to the decision of this Court in Ram Shankar Singh (supra) we find that the above issue had again came up for consideration before this Court, namely, what would be the position of the three remaining accused who have been found guilty under Section 395 IPC in a case where other three co-accused had been acquitted. Though in the aforesaid judgment there is some indication that the commission of offence under Section 395 could still be independently examined by the Court on the basis of the evidence on record we do not wish to dilate on the aforesaid aspect of the matter in the present case as such consideration would be wholly unnecessary. Rather, we are of the view that the alternative view taken in Ram Shankar Singh (supra), namely, whether the accused could be convicted of the lesser offence of robbery under Section 392 IPC on 6 the basis of the evidence on record should engage our attention.
7. In the present case, we have already alluded to the evidence against the accused appellant as it has transpired from the depositions of Sambhu Debnath (P.W.4), Kajal Debnath (P.W.5), Khokan Debnath (P.W.6) and Kananbala Debnath (P.W.11). The evidence against the accused is above criticism and has to be acknowledged as unassailable, as already observed. No prejudice will be caused if in the light of the aforesaid evidence we are to hold the accused appellant guilty of the lesser offence of robbery and alter the conviction from Section 395 IPC to one under Section 392 IPC. We order accordingly. The offence of robbery attracts penalty which may extend to 10 years. The accused appellant upon his conviction under Section 7 395 IPC has been sentenced to undergo RI for seven years. In Ram Shankar Singh (supra) this Court has expressed the view that for the lesser offence under Section 392 IPC a sentence of less than three years may be adequate.
8. In the present case, the accused appellant has suffered custody for a period exceeding three years. This is not disputed by the learned counsel for the State.
9. In the above circumstances, we are of the view that the sentence undergone by the accused appellant would meet the ends of justice. Accordingly, we allow this appeal in part by altering the conviction of the accused appellant from one Section 395 IPC to one under Section 392 IPC with modification of the sentence as aforesaid i.e. to the period undergone.
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10. The accused appellant who is stated to be in custody be released from such custody forthwith unless his custody is required in connection with any other case.
11. The appeal is disposed of in the above terms.
....................,J.
(RANJAN GOGOI) ...................,J.
(NAVIN SINHA) ...................,J.
(K.M. JOSEPH)
NEW DELHI
AUGUST 08, 2018
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ITEM NO.106 COURT NO.2 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 132/2016 SHYAMA CHARAN TRIPURA APPELLANT(S) VERSUS STATE OF TRIPURA RESPONDENT(S) Date : 08-08-2018 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE NAVIN SINHA HON'BLE MR. JUSTICE K.M. JOSEPH For Appellant(s) Mr. Avijit Bhattacharjee, AOR Mr. Ajoy Kr. Ghosh, Adv.
Mr. Abhay Kant Mishra, Adv.
For Respondent(s) Mr. Shuvodeep Roy, AOR Mr. Rituraj Biswas, Adv.
For Mr. Gopal Singh, AOR UPON hearing the counsel the Court made the following O R D E R We allow this appeal in part by altering the conviction of the accused appellant from one Section 395 IPC to one under Section 392 IPC with modification of the sentence as aforesaid i.e. to the period undergone.
The accused appellant who is stated to be in custody be released from such custody forthwith unless his custody is required in connection with any other case.
[VINOD LAKHINA] [ASHA SONI]
AR-cum-PS BRANCH OFFICER
[SIGNED ORDER IS PLACED ON THE FILE]