Brajesh @ Gabbar & Another vs State Of Madhya Pradesh Through P.S. Barotha, District Dewas

As all the Cr. Appeals viz. (CRA Nos.582/2004, 594/2004 and 735/2004) are arising out of common judgment of conviction dated 27.3.2004 passed by 2nd Additional Sessions Judge (ASJ), Dewas in Sessions Trial No.207/2003, they are being decided by this common judgment.

The appellants have filed the present appeals being aggrieved by the aforesaid judgment by which, they have been convicted u/s. 394 read with Section 397 of I.P.C. and sentenced to undergo 7-7 years' RI with fine of Rs.1-1,000/- and 3-3 months additional RI in default of payment of fine amount, except appellant No.1 - Santosh S/o. Ramdev in Cr. Appeal No.735/2004 who has been convicted u/s. 411 of IPC and sentenced to undergo one year RI with fine of Rs.1,000/- and in default of payment of fine, to further undergo 3 months' RI.

As per prosecution story, on 19.12.2002, complainant - Jagdish Rajput at near about 6 p.m. was going on his motorcycle bearing Registration No. MP-09-6341 from Tinonia to Rupatta. Near the culvert, four persons were standing, detained him and demanded 'plug-pana'. One out of them took out the key of his motorcycle and another took out Rs.500/- and driving license from his pocket. When the complainant resisted, then they shown him a knife and gave a blow by fist on his back and they looted his motorcycle. He came to Sannod and narrated the entire story to Laxminarayan and Mahendra and thereafter, they went to Police Station Double Chowki to lodge the FIR which was transferred to Police Station Barotha where the crime was registered against all the appellants.

After completing usual investigation challan was filed. All the accused were arrested and on an information given by Brajesh, the motorcycle was recovered from the possession of Santosh Meena and seizure memo was prepared. In the Central Jail, accused Anil, Santosh Dubey, Rajendra and Brajesh Sharma were identified by the complainant. They were formally arrested from Police Station Khajrana. All the appellants-accused abjured the guilt and prayed for trial.

In support of the case, the prosecution examined Praveensingh Chouhan (P.W.1); complainant - Jagdish (P.W.2); Mahendra (P.W.3); Mohan Patidar (P.W.4); Constable Abdul Rajak Khan (P.W.5); Head Constable Sunderlal (P.W.6); Asst. Sub Inspector A.C. Mishra (P.W. 7); Executive Magistrate Sunil Patil (P.W.8); Laxminarayan (P.W.9); and Nandkishore (P.W.10).

After appreciating the evidence came on record, learned ASJ vide impugned judgment dated 27.3.2004 has convicted the accused viz. Anil, Santosh S/o. Jagdish Dubey; Brajesh @ Gabbar, Rajendra @ Rajesh u/s. 394 and 397 of IPC and convicted the accused Santosh S/o. Ramdev u/s. 411 of IPC and sentenced all of them, as stated above. Learned ASJ acquitted Santosh S/o. Kailash Puri from offence u/s. 411 giving him benefit of doubt. Hence, the present appeals before this Court.

I have heard Shri S.K. Meena and Shri Kushagra Jain, learned counsel appearing for the appellants and Shri Rahul Vijayvargiya, learned Govt. Advocate appearing for the respondent/State and perused the record.

As per statement of complainant - Jagdish (P.W.2), when he was going on his motorcycle, he was detained by four persons to whom he identified in the identification parade in Central Jail. The accused persons detained him, took out the key of motorcycle, driving license and Rs.500/- from his pocket and when he resisted, they threatened by showing knife and gave a blow on his back and thereafter, they looted his motorcycle. No injury was caused to the complainant - Jagdish (P.W.2) by knife.

There is no recovery of knife from any of the accused and except Jagdish, there is no other eye-witness of the incident. The complainant - Jagdish (P.W.2) narrated the entire story to Laxminarayan and Mahendra and thereafter they lodged the report.

Learned ASJ has convicted the accused/appellants u/s. 394 read with Section 397 of IPC. Sections 394 and 397 read as under :

"394. Voluntarily causing hurt in committing robbery.- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Robbery, or dacoity, with attempt to cause death or grievous hurt - 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."

As per Section 394, if any person in committing or in attempting to commit robbery, voluntarily causes hurt, such person shall be punished with imprisonment for life or with rigorous imprisonment which may extend to ten years and also to pay fine. As per Section 397, 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. There may not be any quarrel that knife is a deadly weapon within the meaning of Section 397 of IPC and at the time of committing robbery or dacoity, the offender used any deadly weapon or caused any grievous hurt to any person, then he is liable to be punished u/s. 397 of the IPC. But, in the present case, no such knife has been recovered from the possession of any of the accused and it is also not in dispute that the complainant received any grievous injury. Therefore, the provisions of Section 397 have not been attracted.

So far as Section 394 of IPC is concerned, there is no allegation that while committing robbery, the appellants have voluntarily caused hurt to complainant - Jagdish (P.W.2). Since one of them given simple blow of knife on his back, therefore, it is only a case u/s. 392 of the IPC, in which, the maximum punishment is 10 years with fine. Hence, the appellants are convicted u/s. 392 of IPC instead of Section 394 and 397 of the IPC.

So far as conviction of appellant Santosh S/o. Ramdev is concerned, he has dishonestly received or stolen the property, therefore, he has rightly been convicted u/s. 411 of the IPC and the impugned judgment to that extent is hereby maintained.

Shri S.K. Meena, learned counsel appearing for the appellants, submitted that all the appellants remained in jail during trial and during pendency of appeal and completed their 7 years' sentence.

In view of the foregoing discussion, this appeal is allowed in part. The appellants viz. Anil, Santosh S/o. Jagdish Dubey, Brajesh @ Gabbar and Rajendra @ Rajesh stand convicted u/s. 392 of IPC instead of Section 394 and 397 of IPC. All the appellants are sentenced to the period already undergone by them. So far as appellant - Santosh S/o. Ramdev is concerned, he has been convicted u/s. 411 of IPC and sentenced to undergo one year RI. His period of sentence is also reduced to the period already undergone by him in jail. Appellant - Santosh S/o. Ramdev is on bail, his bail bonds stand discharged. Thus, all the appellants be released from custody forthwith subject to payment of fine amount, if not deposited and if not required in any other cause.

With the aforesaid, these appeals stand allowed in part, to the extent indicated above.