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After investigation, challan was filed against the appellants Javed Shah, Sarabjeet Singh alias Sarabjeet alias Ajay, Utsav alias Lala and Nawab Akhtar for the offences under Sections 302 & 396 of I.P.C. and against the appellant Dharamveer Singh alias Dharamveer alias Kaka for the offences under Section 302 & 396 of I.P.C. and Section 3/25 of the Arms Act. The charges were also framed against the appellants for the same offences. During the trial, the prosecution produced as many as 29 witnesses and exhibited 104 documents in support of their case. The statement of the accused-appellants were recorded under Section 313 of Cr.P.C. No evidence was produced from the side of the accused-appellants in their defence. On conclusion of the trial, the trial court acquitted the accused- appellant Dharamveer Singh alias Dharamveer alias Kaka for the offence under Section 3/25 of the Arms Act but convicted all the accused-appellants for the offences under (5 of 19) [CRLA-733/2009] Section 396 and 302 of I.P.C. vide Judgment dated 18.08.2009 and sentenced them as stated above.

The next argument of the learned counsel for the appellants that the conviction could not have been done both under Section 396 and 302 of I.P.C. does not help or change the complexion of the case. It does not render the conviction as bad. For conviction under Section 396 of I.P.C., it requires the involvement of 05 persons while committing the dacoity and murder. The evidence on record shows the presence of 05 persons who came together and rented the car of the deceased. They all 05 went in the car of the deceased. The presence of 05 persons in the car is duly recorded at the toll point of the Mount Abu. The fact that they committed dacoity is evident. As per the witness P.W. 5 - Vipin, on that particular day, the car of Mafatlal was standing on the side while coming down from Mount Abu. He heard the noise of tyre burst while passing the said car. He thought that the tyre of his own car had burst and therefore, he stopped at some distance and made his passenger to see as to which (17 of 19) [CRLA-733/2009] tyre had burst. At that moment, he saw the same Tavera car belonging to the deceased cross him in high speed, which was followed by Mafatlal coming on foot towards the car of Vipin. Before he collapsed, Mafatlal informed that some people had snatched the car and run away. It was not the noise of tyre burst but the gun fire. The accused had run away with the car after killing Mafatlal. Thus, all the ingredients of Section 396 of I.P.C. are made out.

(18 of 19) [CRLA-733/2009] Now the question is whether the conviction could have been done under Section 302 of I.P.C. as well. The charges were framed both under Sections 396 & 302 of I.P.C. Both Sections 396 and 302 of I.P.C. carry the punishment of death sentence or imprisonment for life and liable to fine. The only difference is that Section 396 of I.P.C. also provides imprisonment uptil 10 years. In the present case, the punishment awarded is imprisonment for life under both the sections but they are ordered to run concurrently. Hence, we are of the opinion that although, the conviction under Section 396 of I.P.C. alone was sufficient, the conviction under Section 302 of I.P.C. does not really affect the outcome in the facts of the present case. The said error, in any case, can always be rectified by this Court. Accordingly, we deem it proper to set aside the conviction and sentence under Section 302 of I.P.C. and uphold the conviction and sentence under Section 396 of I.P.C. qua appellants Javed Shah, Sarabjeet Singh alias Sarabjeet alias Ajay, Nawab Akhtar and Dharamveer Singh alias Dharamveer alias Kaka.

In a case of circumstantial evidence, there is hundred percent importance of linking of the chain. We do not find that the chain of link broken in any manner. Hence, the prosecution has proved the case under Section 396 of I.P.C. against the accused-appellants beyond reasonable doubt.

Accordingly, all the three appeals against the conviction under Section 396 of I.P.C. qua appellants Javed (19 of 19) [CRLA-733/2009] Shah, Sarabjeet Singh alias Sarabjeet alias Ajay, Nawab Akhtar and Dharamveer Singh alias Dharamveer alias Kaka are dismissed. However, the conviction and sentence under Section 302 of I.P.C. is set aside and the impugned Order and Judgment 18.08.2009 passed by the trial court is modified to the said extent. The appellants shall now undergo the sentence of life imprisonment under Section 396 of I.P.C. as already awarded to them by the trial court. (VINIT KUMAR MATHUR),J (NIRMALJIT KAUR),J Inder/PA Powered by TCPDF (www.tcpdf.org)