MP 1 APEAL349_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 349 OF 2010 WITH CRIMINAL APPLICATION NO. 1234 OF 2011 WITH CRIMINAL APPLICATION NO. 64 OF 2011 Mr. Sitaram Upendra Mandal Age:30 years, Occupation: Service Resident of Shakti Nagar Zopadpatti, Near Adarsh Nagar, Jogeshwari (W), Mumbai. Presently at Nashik Road Central Prison, Bearing Convict Prisoner No.C/7881 ... Appellant Versus State of Maharashtra Through the Amboli Police Station, Mumbai ... Respondent Mr. Sitaram Upendra Mandal, Appellant in person. Smt. G. P. Mulekar, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 11TH OCTOBER 2011 ORAL JUDGMENT : The appeal is preferred by the accused against the order of conviction for the offences punishable under Sections 393, 452 and 341 of the Indian Penal Code and the sentence of rigorous imprisonment for five years with fine of Rs. 200/-, rigorous imprisonment for three years with fine of Rs. 200/- and rigorous imprisonment for one month with fine of Rs. 100/- respectively, awarded by the learned 6th Ad-hoc Additional Sessions Judge, Greater Bombay, Sewree in Sessions Case No. 212 of 2009. MP 2 APEAL349_10 2. The prosecution case, in brief, is that the complainant Kshitij Agarwal was residing in flat No.901/902 on 9th floor of Golden Rays-Y Building, Shastri Nagar, Andheri (West) with his parents, younger brother and the servant namely Raju. The appellant was working as a watchman in the adjoining building namely Sunrise. He was acquainted with Raju, the servant of Kshitij Agarwal. On 07.11.2008, at about 4.30 p.m., the said Kshitij Agarwal and his servant Raju were present in the flat while other family members had gone to different places. At about 4.30 p.m., the accused along with one more person went to the house of Kshitij and enquired about Raju. After some talk with Raju, the accused went away. However, within five minutes, the accused and his companion came back and tied hands and legs of Raju with sticker tape and assaulted on his head with the butt of a gun. Having tied his hands and legs, he was confined to the kitchen. Thereafter, the accused pointed the gun on the head of Kshitij and asked him to remain silent and his hands and legs were also tied by the companion of the accused and he was asked about the keys of wooden almirah (safe). However Kshitij did not give keys to them and the culprits started breaking the lock of almirah. Meanwhile, Kshitij succeeded in escaping and he told the incident to one Pramod, who was a watchman of the building. Thereafter, the accused was caught by the said watchman but his companion ran away. Immediately, police was called and the accused was haded over to the police. After the investigation, the case was filed only against the present accused-appellant and his companion could never be traced. 3. The accused was charged and tried for the offences punishable under Sections 341, 452, 392 r/w. 397 of the Indian Penal Code and under Section 3 r/w. Section 25 of the Arms Act. The accused pleaded not guilty. On behalf of the prosecution, in all, six witnesses were examined. The trial Court found that the prosecution could not prove that the accused was in possession of gun or that he had used the gun while making attempt to commit the robbery. As robbery was not actually committed and it was only an attempt, he was convicted for the offence punishable under Section 393 of the Indian Penal Code. Therefore, the MP 3 APEAL349_10 accused was convicted only for the offences under Sections 393, 452 and 341 of the Indian Penal Code and was sentenced as stated above. 4. It may be noted that the accused-appellant is in custody since the date of the incident, that is, 07.11.2008. He was not given bail during the trial and by the judgment dated 27.08.2009, he was convicted and sentenced, and since then, he is undergoing the sentence. It may also be noted that the applicant had previously made an application for bail on the ground that he had been in jail for more than half of the period of the sentence and his appeal could not be heard. Therefore, by order dated 26.11.2010, this Court had granted bail to him but as he could not furnish the bail bonds, he continued to be in jail. In these circumstances, the appeal was taken up for Final Hearing. The accused is produced before the Court. He states that he would not press the appeal against conviction on merits but he prays for lenient view as he is already in jail for last about three years. According to him, this was the first offence which he committed and he comes from a poor family. The learned APP has also taken instructions from the Superintendent, Nashik Road Central Jail. From the record it appears that, from 07.11.2008 till this date, he is in jail. Thus, he has actually undergone the imprisonment for two years, eleven months and five days. He is likely to get substantial remission as per the rules, and if he is required to undergo the complete sentence, even then, he would be entitled to be released after seven months. 5. From the judgment of the trial Court, it is clear that though according to the prosecution, the accused had assaulted Raju with a butt of the gun and had pointed the gun on the head of the Kshitij, no such gun or revolver was found in his possession though he was caught on the spot. Therefore, he was not held guilty under Section 397 of the Indian Penal Code. He was simply convicted under Section 393 that is for an offence to commit robbery. The offence under Section 393 is punishable with rigorous imprisonment for a term which may extend to seven years with fine. Therefore, the maximum sentence which could be awarded is imprisonment for seven years. Taking into consideration the facts and MP 4 APEAL349_10 circumstances, in my opinion, the sentence as already undergone is sufficient to meet the ends of justice. 6. Therefore, the appeal is partly allowed. While the conviction of the accused for the offences under Sections 341, 452 and 393 of the Indian Penal Code is maintained, the sentence is reduced to imprisonment already undergone from the date of his arrest, that is, 07.11.2008, and he be set at liberty forthwith, if not required in any other case. 7. As the appeal, itself, is finally disposed of, the application Nos. 64 of 2011 and 1234 of 2011 do not survive and stand disposed of accordingly. (J. H. BHATIA, J)