Rajeev Kumar and Another vs State

Mool Chand Garg, J.—This judgment shall dispose of the aforesaid two criminal appeals, one filed by the appellants Rajeev Kumar and Harish @ Hari and the other filed by the appellant Amit Kumar u/s 374 of the Cr.P.C. seeking reversal of a judgment of the Addl. Sessions Judge in sessions case No. 46/96 whereby the appellants were convicted for the offence u/s 392 as well as u/s 397 IPC and were sentenced to undergo R.I. for 3 years for an offence u/s 392 IPC and payment of fine of Rs. 2,000/- and in default of payment to undergo R.I. for 6 months and further to undergo R.I. for 7 years to pay a fine of Rs. 7,000/- each u/s 397 of IPC and in default of payment of fine to further undergo R.I. for 1 year.

The appellants also filed an application u/s 389 of Cr.P.C. The sentence awarded to appellants were suspended vide orders dated 04.08.2000.

The appellants have already undergone sentence awarded to them for a period of more than 2 years and 6 months.

Briefly stating the case of the prosecution was that an FIR was registered against the appellant on a complaint made by one Surender Gupta alleging commission of a robbery at his residential premises when he came home for his lunch. It was also alleged that while committing robbery a wire and a knife lifted from the kitchen of the house was also used and a sum of Rs. 2.5 lakhs were taken by five persons including the appellants from the almirah of the complainant.

Later on the appellant Rajiv Kumar was arrested along with Ramesh Kumar his co-accused in case FIR No. 191 & 192 of 1994 and on their interrogation appellant Amit Kumar and Harish Kumar were also arrested in this case from Hapur. After completing the investigation challan was filed and the appellants were sent for trial u/s 394/395 IPC read with Section 34 of IPC. Charges were framed against them for the offences punishable u/s 395/397 read with Section 34 of IPC to which the appellants pleaded not guilty. Number of witnesses were examined by the prosecution based upon evidence so recorded and after recording statement of the appellants u/s 313 Cr.P.C. the appellants and their co-accused were held guilty and convicted for the offences punishable u/s 392 & 397 read with Section 34 of IPC vide judgment dated 24.03.1998 and have been sentenced to undergo various punishments as stated above.

As per the judgment delivered by Addl. Sessions Judge impugned before this Court, the role assigned to the appellants is that they attacked the complainant after he reached his house and tried to strangulate him and after putting him under the threat of instant death they extorted a sum of Rs. 2.5 lakh from him. It is alleged that while convict Amit Kumar was standing outside and was helping others to commit, the other appellants were involved in the actual robbing in a broad day light and, thus, the Addl. Sessions Judge finding no mitigating circumstance punished them as stated above.

Arguments were heard on 26.02.2009. The learned Counsel for the appellants submitted that the appellants does not press the conviction part of the order passed by the Addl. Sessions judge but only press for either granting benefit of Probation of Offenders Act as all the appellants were of less than 21 years of Age at the time when the offence was committed or in the alternative to reduce the punishment awarded to them to the period already undergone because they have already spent more than 2 years and presently in judicial custody. Since their release they are now well settled in their life. They have not been involved in any criminal matter since their involvement in this case.

In view of the aforesaid there is no necessity to analyze the judgment delivered by the Addl. Sessions Judge on the point of conviction but the only question which is to be gone into is as to whether the sentence awarded to the appellant needs to be reduced to the period already undergone or the appellants are entitled to the benefit of Probation of Offenders Act or u/s 360 of Cr.P.C.

Section 360 Cr.P.C. reads as under:

Order to release on probation of good conduct or after admonition.

(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not Punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it, appears to the court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing, him at once to any Punishment, direct that he be released on his entering into a bond, with or without sureties to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace find be of good behaviour:

Provided that where first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this Section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by Sub-section (2).

(2) Where proceeding are submitted to the Magistrate of the 1st class as provided in Sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and if thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentences him to any punishment, release him after due admonition.

(4) An order under this Section may be made by any Appellate Court or by the High Court or Court of Session when exercising its power of revision.

(5) When an order has been made under this Section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under this Sub-section inflict a greater punishment than might have been inflicted by the court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The court, before directing the release of an offender under Sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the court, which convicted the offender, or a court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the court issuing the warrant, and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such court may after hearing the case, pass sentence.

(10) Nothing in this Section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

It may be observed here that on the submission made by the Counsel for the appellant, the public prosecutor was called upon to file a report about the antecedents of the appellant and also to verify their present addresses. As per the statement made by the learned APP appearing for the State, it has been stated that the addresses given by the appellants have been verified. Nothing has been pointed out that the appellants were involved in any other case. As per the nominal roll which has been received earlier, the appellants are not involved in any other case and their conduct in the jail was satisfactory.

In terms of the order dated 04.08.2000 it has been noticed that the appellant Rajiv Kumar and Harish had been in custody for a period of about 2 years and 6 months. Similarly, about appellant Amit also it has been observed that he was also in judicial custody for a period of more than 2 years and 6 months.

A perusal of the judgment goes to show that the appellant were arrested in this case on the basis of a disclosure statement made by Rajiv Kumar and Ramesh Kumar who were arrested in FIR No. 191 & 192 of 1994 nothing was recovered at their instance. Admittedly, Amit was standing out & the knife was lifted from kitchen, which probably was used to cause injuries to Rajeev Kumar. Conviction, however, is based upon the statement given by the complainant. It is, however, true that the appellants have refused to participate in the TIP (Test Identification Parade). It is on record that the complainant also received injuries on his left hand but no blood was found lying outside the house whereas Rajeev Kumar was also injured as stabbed injuries were given even by the complainant to Rajeev Kumar at his stomach with the same knife which is stated to have been used by the appellant Rajeev Kumar which was lifted from the kitchen of the said house.

It is a matter of record that the Addl. Sessions Judge while awarding sentence for an offence committed by the appellants u/s 392 of IPC has awarded 3 years R.I. even though no such sentence could have been imposed u/s 392 IPC but on account of use of a knife by one of them has also awarded sentence u/s 397 of IPC to the tune of R.I. for 7 years to all of them.

In the present case the user of knife which has been assigned to appellant Rajiv Kumar was not a knife which he brought from his house but is a knife which was lifted from the kitchen and which knife was also used by the complainant to stab the appellant.

In these circumstances, it is apparent that the appellants who are not involved in any other crime in terms of the nominal roll received from the Jail Superintendent nor have any bad antecedents but have been arrested on a disclosure statement made by one of the co-accused & taking into consideration that the FIR pertains to the year 1993 and the appellants were sentenced to undergo in 1998 and they have already undergone sentences of more than 2 and a half years each and were aged less than 21 years when they committed the offences it would be in the interest of justice to reduce the sentence awarded to them to the period already undergone as no purpose would be served to send them to Jail again.

This is more so because except one of the appellants, namely, Rajeev Kumar who was also hurt by the complainant no other person is stated to have used any deadly weapon which may held him personally liable u/s 397 IPC which is an independent liability and is not a constructive liability in the light of a Division Bench judgment delivered by Bombay High Court 1992 (2) Crimes 47, it is not a fit case where the minimum punishment prescribed u/s 397 of IPC is attracted towards one and all.

In another judgment delivered by the Apex Court in Ajit Singh Vs. State of Haryana, wherein a case a robbery was committed by using a pistol but the pistol was not used to hurt the victims and the fire was opened presumably in self-defence, the conviction of the appellant u/s 397 IPC was converted in a sentence u/s 392 IPC and the sentence imposed were reduced. The relevant discussion which appears in Para 4 to 5 are reproduced hereunder:

Mr. Sushil Kumar, learned Senior Counsel appearing as amicus curiae for the appellant in this case, has submitted that an accused cannot be convicted u/s 397 IPC if he had not used a weapon. In support of such contention, a decision of this Court in Phool Kumar v. Delhi Admn, was cited. Mr. Sushil Kumar has also submitted that conviction u/s 397 IPC of co-accused who was unwarned (sic unarmed), only indicates that there has been non-application of mind to the facts of the case in convicting the accused Mr. Sushil Kumar has also submitted that against the appellant, Ajit, no conviction u/s 397 was warranted even if the prosecution case is accepted on its face value. He has indicated that it appears from the evidence of the witnesses for the prosecution that for committing alleged robbery, the said pistol was not used but when a milk can was thrown by Suresh on the accused Ajit, he had opened fire from his countrymade pistol presumably by way of self-defence which hit the thumb and finger of the left hand of Suresh, PW 7. Accordingly, the conviction of Ajit u/s 397 is also unjustified. Mr. Sushil Kumar has submitted that the evidences adduced in this case do not inspire confidence. It also does not appear how and when the said countrymade pistol was recovered from the possession of the appellant Ajit. There is no reliable and unimpeachable evidence which may connect the appellant with the no reliable and unimpeachable evidence which may connect the appellant with the commission of the offence alleged against him. So far as the identification of the accused is concerned, it is an admitted position that in the presence of PW 7, the accused were taken out from police lock-up and they were interrogated. Hence no reliance can be based on identification of the accused in court. Mr. Sushil Kumar has submitted that the accused should be acquitted by giving benefit of doubt. Mr. Sushil Kumar has further submitted that in any event, since from the date of their arrest, the appellant is in custody and by this time he has suffered detention for more than five years. The appellant should be released even if his conviction u/s 392 is sustained by this Court.

It appears to us that there is force and justification in the contention of Mr. Sushil Kumar. In the facts and circumstances of the case, we do not think that the appellant should be convicted under Sections 397 and 394 IPC. But in our view, on the basis of depositions of PWs 7 and 8 the appellant''s conviction u/s 392 IPC should be sustained. The convictions under Sections 394 and 397 IPC do not appear to be justified. Such convictions are set aside. We therefore allow the appeal in part by setting aside the convictions and sentences under Sections 394 and 397 IPC but conviction u/s 392 is affirmed. The appellant is stated to have undergone sentence for more than five years. In the facts of the case, justice will be met if the sentence for offence u/s 392 IPC is reduced to the period of five years. The appellant would be released forthwith if he is not wanted in connection with any other criminal case provided by this time he has undergone detention for five years.

Applying the ratio of the aforesaid judgment to the facts of this case it is apparent that weapon which is alleged to have been used by one of the appellant, namely, Rajeev Kumar is a knife which he picked up from the kitchen and which knife was also used against him by the complainant, it cannot be said that the appellants were liable to be punished by imposing higher sentences as provided u/s 397 Cr.P.C.

Even though one could have considered releasing the appellant on probation but in the peculiar facts of this case, kind of offence committed by them and taking into consideration the public safety and also some kind of deterrence which is required to be placed against on such kind of accused persons, the second course of action is not warranted in the facts of this case.

In view of the aforesaid and there being nothing against the appellants in so far as their antecedents are concerned which may go to show that they are hardened criminals nor there is any other material to show that they are involved in any other case and keeping in view that they have already undergone R.I. for 2 and a half years, I find it a fit case to reduce the sentence awarded to the appellants to the period already undergone. While maintaining their conviction in view of statement made by the learned Counsel for the appellant, both the appeals are disposed of accordingly. In view of the aforesaid, bail bond of the appellant will stand discharged. A copy of the order be sent to the Jail Superintendent for information.