Bombay High Court
Sanjay Alias Ravindra N. Gaikwad And ... vs State Of Maharashtra on 11 March, 1996
Equivalent citations: 1996(3)BOMCR579, 1996CRILJ2172
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vaidyanatha, J.
1. This is an appeal filed by the appellants directed against the judgment dated 19-1-1990 in Sessions Case No. 230/1989 on the File of the VII Assistant Sessions Judge, Thane.
Heard learned counsel for the appellants and the learned APP for the State-respondent.
2. Both the appellants were prosecuted by the police for an offence under Section 393, r/w 34 and 397 r/w 393, I.P.C.
The prosecution case in brief is that on 11-10-1988, complainant Gulzar Ahmed Rais PW 1 came from Bhivandi to Kalyan and got down at bus stand at about 5.45 p.m. He went near of public urinal to answer call of nature. When he came out of the public urinal, the prosecution case is that both the accused came there and threatened the complainant. It is alleged further that one of the accused caught hold of the complainant's shirt and pointing out a knife and demanding the complainant to part with an amount and property. The accused No. 1 was stated to be the person who was holding collar of complainant and brandishing a knife towards him. When the complainant was about to take out the money, some policeman who were on patrolling duty came near. After seeing them, both the accused started running. Both the accused were chased and apprehended near the urinal. The complainant and accused were brought to the police station. The complainant gave his complaint which was treated as FIR and a case was registered. Both the accused were formally arrested. A knife was recovered from the possession of the accused No. 1. After making the usual investigation, a charge sheet was filed alleging that both the accused had committed offences mentioned above. The defence of the accused (appellants) was one of denial.
3. After the trial, the learned Additional Sessions Judge held that the prosecution has proved its case and convicted the appellants for offence under Section 393 r/w 34, I.P.C. R.I. for 3 years and to pay a fine of Rs. 1,000/- i.d. R.I. for 6 months. Appellant No. 1 was further convicted under Section 397 r/w 393, I.P.C. R.I. for 7 years and to pay a fine of Rs. 1,000/- i.d. R.I. for 6 months. Substantive sentences of appellant No. 1 were directed to run concurrently.
4. Being aggrieved by the aforesaid conviction and sentence, both the appellants have come up in appeal. The learned counsel for the appellants has taken us through the judgment of the trial Court and the evidence and contended that the prosecution case is not proved and the appellants are entitled to be acquitted. The Additional Public Prosecutor appearing for the respondents has supported the impugned judgment.
5. We have scanned the evidence produced by the prosecution. This is a case where the accused were caught red-handed on the spot.
The main evidence is that of complainant PW 1 Gulzar Rais. His evidence clearly shows that while he came out of the urinal, both the accused came there and accused No. 1 was pointing out a knife towards him and demanding him to pay the money and accused No. 2 was catching his collar. When he was about to pay, the evidence is, that police men on patrolling duty came there and on seeing them, the accused tried to run away. Evidence of complainant, further shows that accused persons were chased and both were caught.
6. Then PW 1 along with the accused persons were taken to the police station where he lodged a formal complaint Exhibit 13.
PW 1 has been cross-examined but nothing brought out to shake his evidence. The trial Judge was totally justified in accepting the evidence of complainant.
7. In addition to this, we find that the evidence of complainant about the accused being chased and caught has been corroborated by two independent witnesses namely PW Vishwanath Gokhale and PW 3 Kaka Pawar. We also find that the two policemen who were on patrolling duty and who chased the accused and caught them have been examined and they are PW 4 Arjun Desai and PW 5 Prakash More. There is consistent evidence of all these witnesses that accused were chased and caught. The evidence further discloses that the knife was recovered from the possession of accused No. 1. There is no reason or motive for PWs 1 to 3 to give false evidence or to falsely implicate the accused persons. The trial Judge has carefully analysed the evidence and has rightly accepted their evidence.
8. In our view, the evidence clearly proves that the appellant No. 1 brandished a knife towards the complainant and demanded him to pay the money. As far as appellant No. 2 is concerned, the role attributed to him, which is proved by the evidence of PW 1 is that he caught hold of the collar of PW 1. This is a case of attempt to commit robbery. When the police party came there, the accused ran away. After considering the entire evidence, we are satisfied that the conviction of the appellants do not suffer from any infirmity. In our view, their conviction deserves to be confined.
9. As far as the sentence is concerned, as far as the appellant No. 1 is concerned, it is evident that it was he who brandished a knife and demanded the complainant to pay the money. This overt act done by appellant No. 1 comes within the mischief of Section 397, I.P.C. for which the minimum sentence is imprisonment for seven years. The Sessions Judge has given only the minimum sentence of seven years as far as appellant No. 1 is concerned, regarding offence under Section 397, I.P.C. Hence, it does not call for any interference.
10. As far as offence under Section 393, I.P.C. is concerned, we find that he was in jail from the date of his arrest till the judgment was pronounced by the trial Court on 19-1-1990 and the period works out to be about 15 months. We further observe that during the pendeney of this appeal, he was taken into custody on 25-11-1995 and since then he is in custody which works out to be 3 1/2 months. In our view, this appellant No. 2 is aged about 18 years of age. There are no criminal antecedents against him. There is nothing to show that he was a previous convict. In these circumstances, we feel that the sentence of the appellant No. 2 should be confined to the period of imprisonment already undergone which is subject to set off under Section 423, Cr.P.C.
11-12. As far as appellant No. 1 is concerned, he is the person who brandished a knife and as we have already observed his sentence of seven years imprisonment under Section 397, I.P.C. should he confirmed. We, therefore hold that the appellant No. 1's sentence under Sections 393 and 397, I.P.C. does not call for any interference.
13. In the result, this appeal is partly allowed as follows :-
(a) The appeal of the first appellant is dismissed and his conviction and sentence are confirmed. He shall, immediately, surrender to his bail and serve out his sentence. The learned trial Judge shall issue warrant to secure the first appellant Sanjay Gaikwad and commit him to jail to undergo sentence awarded against him.
(b) As far as appellant No. 2 Sanjay Das is concerned, his conviction is confirmed. But, his sentence of imprisonment is altered and reduced to imprisonment he has already undergone. But, his sentence of fine of Rs. 1000/- is confirmed but, in default to suffer S.I. for 3 months. However, he is granted three months time from today to pay the fine amount. Since he has undergone substantive sentence, he shall be released forth with if not required in any other case. But, if he does not pay the fine amount, within 3 months from today, learned trial Judge shall take necessary legal steps to recover the same.
14. Appeal partly allowed.