\^ ^ HIOH COORT OF CHHATnSGARH, BIIASPUR APPELLANT: (In Custody) RESPONDENT: Crtmlnal Aooeal No.597 of 2005 Shanti @ Rambati, W/o Punem Sukhanna @ Laxman @ Balrama, age 22 years, R/o Village Basaguda, P.S. Basaguda, Distt. Dantewada Versus State of Chhattisgarh, TTirough Thana Geedain, Distt Dantewada {Appealunder Section 374 (2) offhe Code of Criinin&l Procedure, 1973) Present: Mr. Vimlesh Bajpai, coiansel for llie appeUant. Mr. Rajendra Tripafhi, Panel Lawyerfor the State/respondent. Slnide Beach; Hon*ble Mr. T.P. Sltarma, J ORAI-JUDGMBNT (3-7-2009) 1. By fhis appeal fhe appellant faas challenged legaUty & propriety of the judgment of conviction & order of sentence dated 20-5-2005 passed by the Additional Sessions Judge, South Bastar - Dantewada in Sessions Trial No.59/2CX)3, whereby leamed Additional Sessions Judge after holding the appellaiit guilty Jfor commission of ofiTence under Seetion 397 ofthe I.P.C., sentenced her to undengo R.I. for seven years. 2. Judgment is chaUenged on the ground fhat leamed Additional Sessions Judge has not eonsidered the material coUected on behalfoffhe prosecution, convicted & sentenced the appellant in the aforesaid manner and fhereby comniitted iUegaUty. 3. I have heard leamed counsel for fhe parties, perused the impugnedjudgmentandrecord offhe Court below. 4. Case ofthe proseGUtion, in brief, is that on 13-9-2002 at about 10 p.m. two persons armed wifh ftre arms came to the house of complainant Laxman Sii^h (Panchayat Secretaxy) and knocked the door, when the complainant opened fhe door fhey took him near fhe bank of Indravati river where two more persons one lady 8& one man were present, fhcy threatened the complaanant and directed him to collect money and pay ftiem. As a consequence of the direction coupled with fhreat, some money was callected and paid to them. Thecomplainant lodged fhe report. Identificatfon parade was conducted and present appellant Shanti was identified by the eomplainant and witnesses. 5. After completion ofinvestigation, charge sheetwas filed brfore fhe Chief Judicdal Me^istrate, Dantewada who in tum committed the case to the Court of Sessions, fi'om where leamed Additional Sessions Judge received fhe case on transfer for trial. 6. In order to prove the guUt of the appeUant, the prosecution has exaniined as niany as sbc witnesses. Statement of fhe appeUant was recorded under Section 313 of fhe Cr.P.C. in wMch she denied fhe circiiinstances appearmg against her and pleaded innocence & false implication. 7. After affording opportunity of hearing to fhe parties, fhe Court below has convicted& sentenced fhe appeUant m the aforesaid manner. 8. Leamed counsel for fhe appellant argued that even if fbe entire case of titie prosecution is admitted and aceepted ses true, convictionofthe present appeflant under Section 397 offhe I.P.C. is not sustainable on fhe ground fhat at fhe time of commission offhe said ofience, fhe appellant has not used any deadly weapon or even she was not in possession of any weapon. A person cannot be convicted iinder Seetion 397 offheI.P.C. wifh the aid of Section 34 or Section 149 of fhe I.P.C. Onfy fhe person u^ing deadly weapon at flie time of commission of robbeiy will be liable for commissionof ofifence under Section 397 offhe I.P.C. 9. On the ofher hand, leamed counsel for fhe State/respondent supports tfae impugned judgment. 10.1n order to prove guilt & complicity of the accused m fhe crtme in question, fhe prosecution has adduced fhe evidence of Laxman (PW-1), Soniaram (PW-2), Manohar (PW-3), Tulsiram (PW-4) & G.R. Kulhada (PW-5) who have categoricalty deposed that at fhe time of commission of ofience two persons armed wifh fire anns came to fhe house of complainant Laxman Singti, fhey took him t9 near fhe bank of Indravati river where fhe present appeUant (lady Naxalite) & one man were prcsent, all the aceused directed to colleet money and pay fhem, under Naxalite fear fhey collected money and paid to fhem. These facts have not been substantially contravened in fheir cross-examination and corroborated by fhe evidence of each other which is sufficient for drawing teference that fhe appeUant along wifti ofher accused had committed fhe robbery. PersoRS/complainant have rightly identified tihe present accused/appellant. ll.As regards fhe question of c^nviction of the appellant under Seetion 397 offheI.P.C., written P.I.R. reveals fhat 011 fhe fatefiil day two persons (men) came to fhe house offhe complainantwitli fire arms and fhey took the complainant near the bank of Indravati river where one wom.an NaxaUte & one anofher person were present. Finally the woman Naxalite was identified as fhe appellant. In fhe F.I.R. it has not been mentioned that the present appellant was armed with any deadly weapon or was in possession of any deadty weapon. 12.0ffence piinishable under Section 397 is an abbreviated form of robbery when it is committed by using deadly weapon. A person cannot be convicted with the aid ofcommon intention or conunon object under Section 34 or Section 149 of th®I.P.C. The prosecution is required to prove fhat at the time of commission of such robbery accused persans were in posse^cai of deafMy weapon wfaich fhey have used or were having in fhe visibility of the persons. In absence of such facts or weapon, convietion; of tfae aecused under Section 397 offhe I.P.e. is not sustatoable. l3.In fhe ptTesent case, tiie prosecution has not adduced aay evidenee to show fhat fhe present woman Naxalite,fhe aUeged appellant, was in possession of any deadly weapon or has used the deadly weapon in commission of the offence of robbery. Therefore, her convicdon under Section 397 of fhe I.P.C. is not sustainable. l4.Consequentty, fhe appeal is partly allowed. Conviction of fhe appellant under Section 397 of the I.P.C. is altered into Section V 392 of the I.P.C. and instead of Section 397 of fhe I.P.C. fhe ^-<2> appellant is convicted under Section 392 of the I.P.C. The appellant is in custody since 19-9-2002 and has completed about more fhan 6 years 9 16 months of imprisonment. Taldng into consideration fhe part played by fhe appellant, sentence already served by her from 19-9-2002 till today i.e. about more flian 6 years 9 *6 months is sufficient. Accordin^y, her sentence of 7 years R.I. is hereby reduced to the sentence already undergone by her i.e. fix>m 19-9-2002 till today. The appellant shall be set at liberty forthwith tf not required ui any other case. Sd/- T.P. Sharma Judge