1 APPEAL-402-09-560-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 402 OF 2009 WITH CRIMINAL APPLICATION NO. 309 OF 201 ALONGWITH CRIMINAL APPEAL NO. 560 OF 2010 1. Gopalsing Bhavarsing Rajput, ) Age: about 31 years, At & Post: Niimri, ) Taluka: Kumbalgad, District: Rajsamanth, ) (Rajasthan) ) 2. Ranjitsingh Premsiing Dasana ) Age: about 39 years, R/o. Ambika Dairy, ) Subhash Road, Vile Parle (East), ) Mumbai 400 057. ) (Both at present lodged in Nashik Jail, ) Nashik). ).. Appellants (Orig. accused Nos. 6 & 7) Vs. The State of Maharashtra )..Respondent WITH CRIMINAL APPEAL NO. 560 OF 2010 Virendra Punmaram Parmar ) Age 30 yrs, resident of 1st Kumbharwada, ) Tabelwala Building, Near Jalram Transport, ) 1st Room No.12, Mumbai 400 004. ) (Accused is at Nashik Road, Central Prison). ).. Appellant (Orig. accused No.1) Vs. State of Maharashtra ).. Respondents Mr.Aniket Vagal, Advocate, for the applicant (in Appeal Nos.402/2009 & 560/2010). None for the appellants in connected matters. 2 APPEAL-402-09-560-10.sxw Mrs. P.P. Shinde, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 12th October, 2011. JUDGMENT: 1. There are four other Appeals, being Criminal Appeal Nos. 7/2009, 139/2009,177/2009 and 235/2009, which also arise out of the same judgment and order of conviction and sentence out of which the present two appeals arise. However, in those four matters, the accused persons are on bail, while the appellants in the present two appeals, who are original accused Nos. 1,6 and 7, are continuously in jail since the date of arrest on 21.10.2005. As the learned Counsel for the appellants in these two matters does not want to press the appeals on merits as regards the conviction and wants to argue only on the point of sentence, these two appeals are taken up for final hearing and disposal. 2. The appellants/accused Nos. 1, 6 and 7 along with other accused persons were convicted by the 5th Adhoc Addl. Sessions Judge, Sewree, in Sessions Case No.56/2006 for the offences punishable under Section 395 of IPC and to undergo rigorous imprisonment for 10 years and to pay fine of Rs.2,000/- each and in default to undergo further S.I. for one year, for the offence under Section 397 of IPC convicted and sentenced to R.I. for 7 years and to pay fine of 3 APPEAL-402-09-560-10.sxw Rs.2,000/- each and in default to undergo further S.I. for one year and for the offence under Section 120B to undergo R.I.for 3 years and to pay fine of Rs. 1,000/- and in default to pay fine to undergo S.I. for 6 months. In addition to the above, accused No.6 – Gopalsing Bhavarsing Rajput was also convicted under Section 3 read with Section 25 of the Arms Act and was sentenced to R.I.for 3 years and to pay fine of Rs.2,000/- and in default to undergo S.I. for 4 months and was also convicted for the offence under Section 37(1)(a) read with Sec. 135 of the Bombay Police Act and was sentenced to undergo R.I. for six months and to pay fine of Rs.1,000/- and in default to pay fine, to suffer S.I. for one month. 3. To state in brief, the prosecution case is that PW-1 – Dineshkumar Prajapati, who had lodged the FIR, was in service of Rajeshkumar Ambalal Patel & Company which provided courier service. He was required to collect parcels from different parties from various places. On 10.8.2005, at about 7.30 a.m., he alighted from Dolphin Luxury Bus near J.J. Flyover Bridge. At that time, he was holding a black coloured rexin bag containing amount of Rs.1,35,100/- and parcel of electronic articles which he had received from Ahmed Nagar. After getting down from the Bus, when he was about to proceed by road for taking taxi,one unknown person came from his backside and tried to snatch his bag. When PW-1 Dineshkumar resisted the said attempt, the said person assaulted on his 4 APPEAL-402-09-560-10.sxw neck with hand. PW-1 Dineshkumar shouted. At that time, four more persons came from his backside. One of them was armed with revolver. Another person was having iron pipe. The person holding revolver assaulted on his head and elbow of his left side with the butt of the revolver. The person holding the pipe assaulted him on the left shoulder and left portion of the stomach. Other two persons assaulted him with hands. The first person snatched rexin bag from the complainant and thereafter all those five persons escaped with the said bag on two motor-cycles. Those persons threatened by showing the revolver and raising pipe in their hands, while escaping from the place and thereby created terror in the mind of the people who were present nearby and, therefore, none came forward to help the complainant Dineshkumar. On the basis of the FIR, the offence came to be registered. In all 11 persons were arrested and prosecuted for the aforesaid charges. As Accused No.10 Desaram Prajapati was absconded, his case was separated and accused Nos. 1 to 9 and 11 were put to trial. While accused No.9 was acquitted, remaining accused persons were convicted and sentenced. 4. The learned Counsel for the accused Nos. 1, 6 and 7, who are the appellants in these appeals,contended that there could not be separate sentence for the offence under Section 397 of IPC nor they could be separate sentence under 5 APPEAL-402-09-560-10.sxw Section 120B, when the accused persons are convicted and sentenced for the substantive offence under Section 395. In fact, Section 397 itself does not provide punishment for any specified offence. It only provides a principle or a rule about awarding sentence in the case of robbery or dacoity. Section 392 provides punishment for robbery and it extends to R.I.for ten years with fine and if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. Section 394 provides that if a person voluntarily causes hurt while committing robbery, he shall be punished with imprisonment for life or R.I. which may extend to ten years with fine. Section 395 provides that whoever commits dacoity shall be punished with life imprisonment or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. It is material to note that in none of these provisions, minimum sentence of imprisonment is prescribed and, therefore, unless the imprisonment for life is awarded, the Court has discretion to fix the quantum of punishment within the maximum limit. However, Section 397 provides that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempt 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. In the present case, there is no allegation that any grievous hurt was caused or any attempt was made to cause 6 APPEAL-402-09-560-10.sxw death or grievous hurt. The allegation is only about assault and use of weapons at the time of commission of the offence of dacoity by five persons. In view of section 397, if it is held that the accused used deadly weapons like firearm, pipes, rods or any other sharp and cutting weapon which could cause death, the discretion of awarding sentence for the offence of robbery or dacoity would be curtailed by the provisions of Section 397. The Court in such case may fix the quantum of sentence of imprisonment but while using the discretion the Court cannot award the sentence of imprisonment less than seven years in view of the mandate of Section 397. Section 397 does not create an independent and substantive offence , but only provides a restriction on the discretion to be used at the time of awarding the sentence of imprisonment. Thus Section 397 of IPC is a kind of proviso to Sections 392, 394 and 395, which prescribes minimum sentence of imprisonment, which may be awarded while convicting an accused under any of these Sections. The trial Court appears to have lost sight of this legal provision. In fact, in view of this legal position, the Court could have fixed he quantum of sentence for the offence under Section 395 read with Sec. 397 anywhere between seven years, being the minimum, and ten years, being the maximum. However, in this case, the learned Addl. Sessions Judge awarded the sentence of R.I.for ten years with fine for the offence under Section 395 and also awarded the sentence of R.I. for seven years and fine under Section 397. The trial 7 APPEAL-402-09-560-10.sxw Court also failed to note that under Section 397, there is no specific provision for awarding fine. The fine can be awarded only under substantive provision of punishment under Sections 392, 394 or 395. 5. When the accused persons were convicted for the offence under Section 395 itself, there was no justification for separate sentence for the offence under Section 120-B of IPC. Taking into consideration the facts and circumstances, the sentence of imprisonment for seven years with fine would be sufficient under Section 395 read with Section 397. 6. In view of the above, the Appeal is partly allowed. While the conviction of the accused Nos. 1 – Virendra Punmaram Parmar, accused No.6 – Gopalsing Bhavarsing Rajput and accused No.7 – Ranjitsing Premsing Dasana under Sections 395 read with Section 397 and under Section 120B of IPC is maintained, they are sentenced to undergo R.I.for seven years and to pay fine of Rs.2,000/- each and in default to pay fine to undergo simple imprisonment for three months for the offence under Section 395 read with Section 397 of IPC. No separate sentence is awarded for the offence under Section 120B. The conviction and sentence of accused No. 6 – Gopalsing Bhavarsing Rajput for the offences under the Indian Arms Act and under the Bombay Police Act are maintained. 8 APPEAL-402-09-560-10.sxw However, the substantive sentence of imprisonment on all counts shall run concurrently. Both the Appeals stand disposed of accordingly. 7. As the Criminal Appeal No.402 of 2009 is finally disposed of, Criminal Application No.309 of 2011 for bail does not survive and stands disposed of accordingly. 8. As the other accused/appellants in the other four appeals are on bail, those appeals be separately listed for final hearing before the appropriate Bench. (J.H.BHATIA,J.) 9 APPEAL-402-09-560-10.sxw