Bail Slip The Appellant/ Accused No.2 Viz., Seenu @ Seenuvasan, was released on bail as per order of this Honourable Court dated 30.6.2003 made in Crl.M.P.No.4878 of 2003 in Crl.A.808 of 2003 on the file of this Court. IN THE HIGH COURT OF JUDICATRE AT MADRAS DATED: 25.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.808 of 2003 Seenu @ Seenuvasan .. Appellant/ Accused No.2 Vs. State by: The Inspector of Police, C-5 Kothavalchavadi Police Station, Chennai. .. Respondent/ Complainant Criminal Appeal against the judgment dated 6.5.2003 in S.C.No.421 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court-I), Chennai. For appellant : Mr.T.K.Sampath for M/s.T.K.Sampath Associates For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence passed by the learned Additional District and Sessions Judge (Fast Track Court No.I), Chennai, on 6.5.2003 in S.C.No.421 of 2002, convicting A.1 and the appellant/A.2 for the offence under Section 397 IPC and sentencing each of them to undergo rigorous imprisonment for seven years. 2. The case of the prosecution is as follows: (a) On 10.6.2002, P.W.1 Palanisamy, a laodman was residing at Varadamuthiappan Street, Chennai. He purchased 1-1/2 sovereigns of gold chain M.O.1 from a jewellery shop at N.S.C.Bose Road and returned to his lorry shed where he was residing. When he was nearing Adhiappan Street junction at 12.30 p.m., A.1 and the appellant/A.2 wrongfully restrained P.W.1 and at knife point, they https://hcservices.ecourts.gov.in/hcservices/ committed robbery of M.O.1. (b) Since P.W.1 raised alarm as 'thief, thief', one person from the public, P.W.2 Soundararajan and others chased the accused and caught them red-handed. (c) Then, P.W.1 and P.W.2 went to Police Station and gave Ex.P-1 complaint to P.W.3 Inspector of Police at 1 p.m. and handed over A.1 and the appellant/A.2 to P.W.3 Inspector of Police, who received the complaint Ex.P-1 and registered a case in Cr.No.164 of 2002 for the offence under Section 397 IPC and prepared Ex.P-2 FIR. P.W.3 Inspector of Police also received M.Os.1 and 2 in Form 95. (d) P.W.3 Inspector of Police went to the place of occurrence and drew rough sketch Ex.P-3. He arrested the accused at 1.15 p.m. as soon as P.Ws.1 and 2 handed over the accused persons to him. (e) P.W.3 Inspector of Police examined the witnesses and concluded his investigation and filed the charge sheet against the accused persons for the offence under Section 397 IPC read with Section 34 IPC. 3. The trial Court, after following the procedures, framed charge against the accused for the offence under Section 397 IPC, to which the accused pleaded not guilty. During the course of trial, P.Ws.1 to 3 were examined, Exs.P-1 to P-3 were marked and M.Os.1 and 2 were produced. The trial Court questioned the accused under Section 313 Cr.P.C. and the accused denied the same. The trial Court, upon considering the oral and documentary evidence, convicted and sentenced the accused as indicated above. Challenging the said conviction and sentence, the present appeal is preferred by the appellant/A.2. 4. Learned counsel appearing for the appellant/A.2 would contend that the appellant/A.2 is not guilty of the offence under Section 397 IPC, as he did not possess M.O.1 knife while committing the offence and prayed for acquittal of the appellant/A.2. 5. Learned Government Advocate (Criminal Side) appearing for the respondent-Police would submit that the evidence of P.Ws.1 and 2 categorically proved that both the accused had the motive to commit robbery and that A.1 threatened P.W.1at knife point and the appellant/A.2 has taken away M.O.1 gold chain from the pocket of P.W.1 and so, both the accused are guilty of the offence under Section 397 IPC. He prayed for dismissal of the Criminal Appeal. 6. Considering the evidence of P.Ws.1 and 2 who are the eye- witnesses, it is seen that their evidence is cogent, natural and trustworthy and there is no reason for discarding their evidence. Moreover, it is pertinent to note that P.Ws.1 and 2 know the accused at the time of the occurrence and caught them red-handed. The case is that A.1 and the appellant/A.2 were caught red-handed https://hcservices.ecourts.gov.in/hcservices/ as soon as the occurrence took place and M.Os.1 and 2 have been seized by P.Ws.1 and 2 and M.Os.1 and 2 were handed over to P.W.3 investigating officer. It is true that for the commission of offence, as per the evidence of P.Ws. 1 and 2, A.1 has threatened P.W.1 at knife point and the appellant/A.2 took away M.O.1 gold chain from the pocket of P.W.1. 7. At this juncture, it is appropriate to consider the ingredients of Section 397 IPC, which reads as follows: "Section 397 IPC: Robbery, or dacoity, with attempt to cause death or grievous hurt: If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts 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." 8. Extortion is "robbery", if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. 9. The term "offender" in Section 397 IPC is confined to the offender who used any deadly weapon. The use of deadly weapon by one offender at the time of committing robbery, cannot attract Section 397 IPC for imposition of minimum punishment on another offender, who had not used any deadly weapon. Section 397 IPC is attracted only against the particular accused who used the deadly weapon or does any other thing as mentioned in the Section, but the other accused persons are not vicariously liable under the Section for the acts of the co-accused. Use of weapon by an offender for creating a terror in the mind of the victim, is sufficient and it need not be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. 10. Considering the evidence of P.Ws.1 and 2, it is seen that A.1 alone has used the knife and the appellant/A.2 has taken away the jewel M.O.1 gold chain, from P.W.1. In such circumstances, the appellant/A.2 has not possessed any deadly weapon. The trial Court committed an error in convicting A.2 also for the offence under Section 397 IPC, but the appellant/A.2 is to be found guilty only under Section 395 IPC. https://hcservices.ecourts.gov.in/hcservices/ 11. So, the conviction of the appellant/A.2 for the offence under Section 397 IPC by the trial Court, is liable to be set aside, instead, the appellant/A.2 is hereby found guilty of the offence under Section 395 IPC. 12. Learned counsel appearing for the appellant/A.2 would submit that for the offence under Section 397 IPC, the minimum punishment is imprisonment for seven years and since the trial Court has convicted the appellant/A.2 and sentenced him to rigorous imprisonment for seven years, he prayed for leniency in the sentence of imprisonment. 13. Considering the above argument of the learned counsel for the appellant/A.2, since the appellant/A.2 is not guilty of the offence under Section 397 IPC, but he is hereby found guilty of the offence under Section 395 IPC, the sentence of imprisonment awarded by the trial Court on the appellant/A.2 is reduced from seven years to five years' rigorous imprisonment. 14. In the result, (a) The Criminal Appeal is dismissed. (b) The conviction imposed by the trial Court on the appellant/A.2 for the offence under Section 397 IPC is set aside. (c) Instead, the appellant/A.2 is convicted for the offence under Section 395 IPC. (d) The sentence of imprisonment awarded by the trial Court on the appellant/A.2 is reduced from seven years' to five years' rigorous imprisonment. (e) Since the appellant/A.2 is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence. (f) The period of imprisonment already undergone by the appellant/A.2, shall be set-off under Section 428 Cr.P.C. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. cs https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District and Sessions Judge (Fast Track Court.No.I), Chennai. 2. Do thro the Principal Sessions Judge, Chennai 3. The VIII Metropolitan Magistrate George Town, Chenni-1 4. do thro the Chief Metropolitan Magistrate Egmore, Chennai 5. The Superintendent Central Prison, Vellore 6. State by: The Inspector of Police, C-5 Kothavalchavadi Police Station, Chennai. 7. The Public Prosecutor, High Court, Madras. Crl.A.No.808 of 2003 KSK (CO) kk 8/3 https://hcservices.ecourts.gov.in/hcservices/