Vinod @ Prabhat vs The State

V.K. Jain, J.—Shri V.K. Raina, Advocate is appointed Amicus Curiae in this case, as agreed by the appellant.

This is an appeal against the judgment and order on sentence dated 16th July, 2004 whereby the appellant was convicted u/s 397/394/34 of IPC and was sentenced to Rigorous Imprisonment for 10 years and pay fine of Rs. 20,000/- u/s 394/34 IPC and was further awarded the same punishment u/s 397/34 of IPC. In default to payment of fine, the appellant was to undergo Rigorous Imprisonment for 10 months u/s 394 as well as u/s 397 of IPC.

The case of the prosecution is that on 10th October, 2000 when the complainant, M.V. Rao was strolling in Jahan Panah Jungle, the appellant and his co-accused came there and asked him to hand over the money, watch and gold ring, which he was carrying on his person. Two of them were armed with knives and the third was having a pistol. The complainant was hit on his hand with the butt of the pistol and his gold ring, wrist watch and cash were removed. The complainant came in the witness box as PW-3 and supported the case of the prosecution. During the course of investigation, the appellant and his co-accused refused to participate in test-identification-parade.

Section 394 of Indian Penal Code prescribes for punishment for causing hurt in committing robbery and a person who causes hurt in committing or in attempting to commit robbery is liable to be punished with imprisonment of life or with Rigorous Imprisonment for a term which may extend up to 10 years and shall also be liable for fine. Thus, if the court chooses not to award life imprisonment, there is no minimum term for imprisonment u/s 394 if Indian Penal Code.

Section 397 of Indian Penal Code provides that if at the time of committing robbery or dacoity offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt, imprisonment of such offender shall not be less than 7 years. No substantive offence is constituted by Section 397 if IPC and it only stipulates minimum term of imprisonment in case the offender uses a deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt at the time of committing robbery or dacoity. If a person has used any deadly weapon for causing hurt while committing robbery or while attempting to commit robbery, he has to be punished either with imprisonment for life or with Rigorous imprisonment which shall not be less than seven years but can extend upto 10 years. A person charged for causing hurt in committing robbery or using deadly weapon cannot be punished twice once u/s 394 IPC and secondly u/s 397 IPC. Therefore, in my view, the appellant could have been convicted only u/s 394 of Indian Penal Code read with Section 34 & 397 thereof, as, he used a deadly weapon in committing robbery and causing hurt during the committing of robbery.

The learned Counsel for the appellant states that the appellant has already spent more than 9 years in jail in this case and taking into consideration the evidence produced by the prosecution, he does not assail the conviction on merits. He further states that the appellant challenges only the quantum of sentence imposed upon him.

A perusal of the nominal roll of the appellant shows that as on 12.9.09, he had spent 8 years, 6 months and 21 days in jail and un-expired portion of sentence as on 12.9.09 is one year 5 months and 96 days.

Keeping in view all the facts and circumstances of the case, the order of the Trial Court is modified to the extent that the appellant is convicted u/s 394 r/w Section 397 and 34 thereof and is sentenced to undergo Rigorous Imprisonment for 8 years and 9 months and is further sentenced to pay a fine of Rs. 5,000/- or to undergo Simple Imprisonment for 2 months in default.

One copy of this order be sent to Trial Court and another to the Jail Superintendent concerned.