Siddiqui Badlu Khan vs The State of Maharashtra

Vishnu Sahai, J.—Vide Judgment and order dated 18-6-1997 the Additional Sessions Judge, Greater Mumbai, in Sessions Case No. 1553 of 1994, convicted and sentenced the appellant in the manner stated hereinafter :-

(i) u/s 452 IPC to undergo 3 years R.I. and to pay a fine of Rs. 1000/- in default to suffer R.I. for 1 month;

(ii) u/s 392 IPC to undergo 5 years R.I. and to pay a fine of Rs. 1500/- in default to suffer R.I. for l''/2 months ; and

(iii) u/s 392 r/w 397 IPC to suffer 7 years R.I.

The substantive sentences of the appellant were ordered to run concurrently.

It may be mentioned that along with the appellant, co-accused Shaffik Ahmed Jamil Ahmed was also tried but in view of the infirmities found in the evidence against him, he was acquitted vide the impugned Judgment.

In short, the prosecution case is that on 25.8.1994, at about 3 p.m. three unknown miscreants armed with choppers entered the jewellery shop of the informant Prakaschand Badama P.W. 6 and his partner Nirmalkumar Jain P.W. 3 situated at 138, Bumbkhama Bldg, 1st floor, Kalbadevi Road, Mumbai- 400 002. It is said that two of the miscreants stood at the counter and door of the shop respectively. One of them cut the telephone connection. One came inside the shop pointing a chopper towards the informant asking him not to raise cries. The said person removed the gold ornaments from the shop and putting them in a rexine bag along with his companions ran away.

It is said that when the appellant and his associates were trying to run away, the informant and others raised shouts ''Chor chor'' and near Aliumar Street, succeeded in apprehending the appellant along with a rexine bag and the chopper. It is said that prior to being apprehended, the appellant tried to inflict a blow with the chopper on the informant.

After the appellant was apprehended, he was taken along with the rexine bag containing jewellery and the chopper to Pydhonie Police Station,

The case was investigated and committed in the usual manner and thereafter, the appellant and co-accused Shaffik Ahmed Jamil Khan were charged on a number of counts, including, 392 r/w 397 IPC. The appellant pleaded not guilty to the said charges and claimed to be tried.

During the trial, in all the prosecution examined as many as 8 witnesses. Evidence of 4 of them namely Prakaschand Badama P.W. 6, Chandrakant Jain P.W.2, Nirmalkumar Dagalia P.W.3 and Atmaram Khedekar P.W. 1 related to ocular account and the arrest of the appellant immediately after the incident after being chased at some distance.

The learned trial Judge believed the evidence of the said witnesses and convicted and sentenced the appellant in the manner stated above.

Hence, this appeal.

We have heard Mr. K. M. Sangani for the appellant and Ms Aruna Kamath, Additional Public Prosecutor for the respondent. We have also perused the depositions of the prosecution witnesses; the material Exhibits tendered and proved by the prosecution; the statement of the appellant recorded u/s 313 Cr. P.C.; and the impugned Judgment. After reflecting over the matter, we are satisfied that this appeal is devoid of substance and deserves to be dismissed.

In this case, the ocular account and that pertaining to arrest of the appellant on the spot immediately after the incident comprises of four witnesses namely Prakaschand Badama, Chandrakant Jain, Nirmalkumar Dagalia, and Atmaram Khedekar P.Ws. 6, 2, 3 and 1 respectively. In para 2 of this Judgment, we have set out the prosecution case on the basis of the recitals contained in their statements hence, to eschew repetition, we do not want to graphically advert to it.

A perusal of the statement of the said witnesses would show that the appellant was one of the three persons who entered inside the shop of Prakaschand Badama, armed with chopper and who was apprehended after looting the gold jewellery and putting the same in a rexine bag when he tried to run away.

In our view, the ocular testimony in respect of the participation of the appellant in the incident and his arrest on the spot could not be shaken in cross-examination.

Much weightage in such an incident deserves to be given to spot arrest because that clinchingly corroborates the prosecution case.

In his statement recorded u/s 313 Cr.P.C. the appellant has not been able to offer any plausible explanation explaining his arrest on the spot.

Mr. Sangani learned Counsel for the appellant urged that since there is no evidence that the appellant used a chopper with which he was armed, he could not have been convicted for an offence u/s 392 r/w 397 IPC. We regret that we cannot accede to his contention. The Supreme Court in the decision in Shri Phool Kumar Vs. Delhi Administration, in para 5 has held that if the accused carries a knife in his hand in the view of the victims, it would be deemed to be sufficient to frighten or terrorise them and he could be convicted for an offence u/s 397 IPC. As we have mentioned earlier, the informant and some other witnesses have-stated that all the three miscreants who entered inside the shop were armed with choppers.

In view of the said decision and the said state of evidence, we find the said submission of Mr. Sangani to be devoid of substance.

Coming to the question of sentence, we find that the minimum sentence which can be imposed u/s 397 is 7 years R.I. and since the appellant has been awarded the minimum sentence he can make no grievance that the sentence was excessive.

For the said reasons, we feel that there is no merit in this appeal and we dismiss the same. We confirm the convictions and sentences of the appellant on all the counts. From the order sheet, it appears that the appellant is in jail. He shall be detained therein till he serves out his sentences.