Ram Niwas vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment dated 31.8.1995 passed by the Additional Sessions Judge, Jind whereby the appellant has been convicted under Section 395/397 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100/ and in default of payment of fine to further undergo Simple Imprisonment for a period of fifteen days for the offence under Section 395 of the Indian Penal Code. He has also been sentenced to undergo rigorous imprisonment for a period of seven years under Section 397 of the Indian Penal Code. Both the substantive sentences have been made to run concurrently.

The facts giving rise to the prosecution of the appellant are that on 13.2.1991 at about 4 p.m., he alongwith his four associates including coconvict Devinder Singh went in a Maruti car bearing No. DL 2CA 5952 to the Sangwan Petrol Pump situated in the area of Julana, purchased petrol worth Rs. 300/ and went towards Rohtak. At about 5.45 p.m. they again came to the same petrol pump and asked for the supply of petrol worth Rs. 150/. Rama Nand the proprietor of the petrol pump asked the salesman Raj Singh to supply petrol. Rama Nand himself was busy in checking the cash inside his room. One of those five persons then came inside the room on the pretext of making the payment of the price but instead he stood behind the chair. In the meantime his three accomplices also entered the room. The person standing behind the chair caught hold of Rama Nand and one of the three other persons came near the chair and took out the bag and handkerchief containing the cash. One of the two persons standing in front of him was having a knife and the other was having a country made pistol to threaten him. The person who had taken out the money from the drawer was also pointing out revolver at him. According to the prosecution the person who had caught hold of Ram Niwas was also having a pistol in the pocket of his pants. The hand bag had imprint of Sangwan Brothers Julana. There was a visiting card containing the address of Gauhati and a sum of Rs. 10,000/ in that bag. There was a sum of Rs. 15,600/ in the handkerchief. Their fifth accomplice caught hold of the attendant outside. The culprits also fired in the air and all the five culprits escaped in the said Maruti car alongwith the bag and the handkerchief containing the aforesaid cash amount and the articles.

The appellant was a rested on 26.3.1991 and his disclosure statement was recorded but nothing was recovered in pursuance thereof. Coaccused Devinder Singh was also arrested. In pursuance of the disclosure statement made by him, the hand bag, visiting card and handkerchief belonging to the complainant were recovered. The appellant and Devinder Singh refused to participate in the test identification parade. The remaining three accused Naresh, Rajbir and Kulbir could not be arrested. Therefore, a chargesheet under sections 395/397 I.P.C. was filed against the appellant and Devinder Singh.

A chargesheet under Sections 395/397 of the Indian Penal Code was framed against the appellant and Devinder Singh which they denied and claimed trial.

In support of its case, the prosecution has examined nine witnesses. On 31.8.1995 when the case was fixed for the remaining prosecution evidence, the appellant as well as Devinder Singh moved an application confessing their respective guilt and with a request that their statements be recorded. Accordingly their statements were recorded, wherein both of them admitted their participation in the offence in question on the date, time and place as alleged by the prosecution. While accepting these statements to have been made voluntarily, without any duress or threat, the Additional Sessions Judge convicted and sentenced them under Sections 395/397 of the Indian Penal Code, as stated above. Ram Niwas convict has challenged his conviction and sentence by filing the present appeal.

I have heard the learned counsel for the parties and have perused the record.

The appellant has filed an application under section 5 of the Indian Limitation Act for condoning the delay of 46 days in filing the present appeal. The reason given is that he being a poor man, behind the bars having no means, approached the Haryana State Legal Aid Committee and as such in this process a delay of 46 days has been caused which was beyond the control of the appellant. The reason is sufficient. The delay is condoned.

Shri Bharat Bhushan Sharma, Advocate appearing on behalf of the appellant this contended that the appellant having been convicted under section 395 of the Indian Penal Code could have been dealt with under section 397 of the Indian Penal Code had the prosecution been able to show that the appellant was armed with any deadly weapon and had used the same at the time of the commission of the dacoity in question. It has been further contended by the learned counsel that the appellant is not a previous convict and confessed his guilt during the trial and as such lenient view in the matter of sentence ought to be taken.

On the other hand Shri P.S. Sullar, Assistant Advocate General Haryana has argued that the conviction and sentence of the appellant are in accordance with law, that all the four culprits including the present appellant were armed with weapons which they had used during the commission of the dacoity and that appropriate minimum sentence has been imposed upon the appellant.

According to Section 391 I.P.C. dacoity is robbery committed by five or more persons. Sections 395 I.P.C. prescribes punishment for simple dacoity. Then Section 397 I.P.C. provides as under:

"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."

From a bare reading of this section it is evident that it does not create any substantive offence. It is complementary to Sections 392 and 395 of the Indian Penal Code which prescribe the sentence for committing the offences of robbery and dacoity. It merely regulates the punishment already provided for dacoity by fixing minimum term of imprisonment when its commission has been contended with certain aggravating circumstances i.e. use of a deadly weapon etc. Therefore, a person convicted of the offence of the dacoity can be punished either under section 395 I.P.C. or 397 I.P.C. Separate sentences under these two sections cannot be imposed upon the convict for the simple reason that Section 397 I.P.C. merely prescribes enhanced sentence for the offence of dacoity under certain circumstances.

In the present case, the trial court was bound to give a finding as to whether the appellant was armed with a deadly weapon at the time of the commission of the said dacoity. After giving a positive finding in that respect sentence could have been imposed upon the appellant under section 397 of the Indian Penal Code. But it is erroneous in law to impose sentence upon same convict in respect of the same dacoity under section 395 I.P.C. as well as section 397 I.P.C. separately.

To make out a case for imposing minimum sentence prescribed under Section 397 I.P.C. the prosecution is bound to prove that at time of committing dacoity, the offender had used any deadly weapon or caused grievous hurt to any person. The term ''offender'' is confined to the offender who uses any deadly weapon. The use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. This view finds affirmation in a judgment of the apex court rendered in Shri Phool Kumar v. Delhi Administration, 1975 Supreme Court Cases (Crl) 336.

Turning to the case in hand, it may be stated that according to the allegations contained in the First Information Report, three out of the five culprits were armed with deadly weapons. The fourth culprit was standing behind the chair and had caught hold of Rama Nand complainant. The fifth culprit had held Raj Singh salesman outside the room. The testimony of Chander Shekhar (PW7) is vague and indefinite in respect of the question regarding the user of any deadly weapon by any of the five or four culprits. However, Madan Singh (PW8) another attendant of the petrol pump who was present at the time of the occurrence, has deposed that out of the five persons, three entered the showroom and one was standing near the gate. Devinder accused put the pistol towards Rama Nand and snatched Rs. 25,500/ and then all of them ran away in their Maruti car. He has also deposed that accused Devinder had fired twice or thrice. In his statement dated 31.8.1995 which is basis of the conviction and sentence in question, there is no clear admission on the part of the appellant that he himself was in possession of the deadly weapon i.e. pistol or knife. The actual statement made reads as under:

"At that time we had pistol and knife."

This statement is vague and indefinite in nature. It cannot be interpreted to mean that the appellant himself was having a pistol or a knife at the time of the commission of dacoity. Further in view of the testimony of Madan Singh (PW8) it is evident that the prosecution has not been able to prove categorically that the appellant Ram Niwas was in possession of any deadly weapon and had used the same at the time of the commission of dacoity in question. Therefore, section 397 I.P.C. is not attracted qua him and the sentence imposed upon him thereunder is liable to be quashed.

The conviction of the appellant under section 395 of the Indian Penal Code has not been assailed by the learned counsel for the appellant at the Bar. He has urged that the appellant is not a previous convict and has already undergone a sentence of about four years and nine months including the period in detention as an undertrial, a lenient view in the matter of sentence may be taken. It has also been urged by the learned counsel that the amount of fine has already been deposited by the appellant in the trial court.

It is correct that dacoity is a most serious crime which it is difficult to detect in the sense of bringing home the offence to the culprit and therefore a convict for such an offence is not to be dealt with lightly in the matter of punishment. However, the sentence should be proportionate to the gravity of the offence. Admittedly, the appellant is not a previous convict. It is not the case of the prosecution that the appellant or any of his accomplices had made any attempt to cause any injury to the complainant or any of his employees present at the scene of occurrence or thereafter. Admittedly the appellant is a young man. In such circumstances, a long term sentence of imprisonment is not desirable. Reference in this connection may be made to a decision of the apex court rendered in Kusho Mahton and another v. The State of Bihar, 1980 Crl. L.J. 313. The appellant has already undergone a sentence of four years and nine months in this case. Taking into consideration the circumstances of the case, I am of the view that the ends of justice will be served if the sentence imposed upon the appellant for the offence under Section 395 I.P.C. is reduced to the period of imprisonment already undergone.

As a result of the above discussion, this appeal is allowed in part. The conviction and sentence of the appellant recorded under Section 397 IPC is set aside. The conviction of the appellant for the offence under Section 395 I.P.C. is affirmed. The sentence imposed upon the appellant under Section 395 I.P.C., is hereby reduced to the period of sentence already undergone. Sentence of fine with its default clause shall stand. However, it is mentioned in the impugned judgment that the appellant has already deposited the amount of fine. The appellant shall be released forthwith if not wanted in any other case.