Shajahan vs State Rep. By The Inspector Of Police

SHAJAHAN …Appellant Versus

STATE REP. BY INSPECTOR OF POLICE ...Respondent WITH

CRIMINAL APPEAL NO.481 OF 2015

BASHEER AND ANOTHER …Appellants

Versus

STATE REP. BY INSPECTOR OF POLICE ...Respondent

JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the common judgment passed by

the High Court of Madras in Criminal Appeal Nos. 69, 1096 and 1097

of 2006 allowing the appeal preferred by the State thereby enhancing

the sentence of imprisonment from ten years to imprisonment for life

for the conviction under Section 396 IPC.

2. Briefly stated case of the prosecution is that on the intervening

night of 13/14.11.2002 at about 01.30 a.m., the appellants accused

Basheer (A1), Shajahan (A2) and Babu @ Nawab Sahib (A4) along 1 with two other accused Raja Mohammad (A3) and Balu @

Balasubramanian (A5) with common intention to commit robbery in a

Pawn Broking shop under the name of Peri owned by PW-1

Muthaiyah. In the course of committing robbery, Shajahan (A2) is

alleged to have tightly held the legs of deceased Muthukrishnan who

was sleeping inside the shop and Babu @ Nawab Sahib (A4) is

alleged to have sat on his chest and constricted his neck and tied the

jute rope around the neck of Muthukrishnan and strangled him to

death. Other accused robbed jewellery about 4.788 kg. of gold and

5.595 kg. of silver total worth about Rs.12,00,000/-. On 13.11.2002 at

about 05.30 a.m., Chellam-PW-4 employed as the sweeper at the

Pawn shop came to the house of PW-1 and informed him that

Muthukrishnan was found dead in his shop. PW-1 lodged the

complaint in Mandharakuppam Police Station, based on which, police

had registered a case in Crime No.257 of 2002 under Sections 457,

380 and 302 IPC. PW-37-SHO had taken up the investigation. On

06.02.2003 at about 11.00 p.m. Raja Mohammad (A3) was arrested

near Panrutti bus stand and his confession statement was recorded

in the presence of Vasan-PW-15, based on which, a sum of

Rs.46,000/- was recovered from Raja Mohammad (A3). Confession

2 statement of accused Raja Mohammad led to recovery of thirty pair of

silver anklets, golden necklace and chain from Noorudheen who was

identified by accused Raja Mohammad under Ex.P21. Confession

statement of accused Raja Mohammad led to further recovery of

silver anklets, golden rings, necklace and totally twelve items of

jewels from KVM Jewellery at Kallakurichi under Ex.P23. Confession

statement of accused Raja Mohammad also led to recovery of

seventeen pair of silver anklets, twenty pair of silver pattadai anklets

and a golden chain from his house at Pudupet in Vridhachalam.

3. Accused Raja Mohammad took the police and PW-15 to

Alichakudi village and on being identified by him, Babu @ Nawab

Sahib (A4) was arrested. Based on the confession statement of

accused Babu @ Nawab Sahib, seventeen items of jewels were

recovered from the house of his mother's sister under Ex.P28. Based

on the confession statement of Babu @ Nawab Sahib (A4), the police

went to Mumbai where numbers of items of jewels were recovered

from the house of his uncle and also from a jewellery shop named

Panchaseel Jewellery.

4. On 06.02.2003 at wee hours at about 01.30 a.m. appellants

Basheer (A1) and Shajahan (A2) were proceeding on a TVS-50

3 motor cycle and on being intercepted by the police, the appellants

started running and the police caught hold of them. Based on the

confession statements of accused Basheer and Shajahan, jewels

kept in the cover on the petrol tank of the said TVS-50 vehicle, were

recovered by the police. On the basis of the information from the

informers, PW-37 arrested Balu @ Balasubramanian (A5) in front of

his house at Meyapalayur village on 08.02.2003 at about 04.00 a.m.

His confession statement led to recovery of golden jewels from a

jewellery shop at Chidambaram. Confession statement of accused

Balu @ Balasubramanian further led to recovery of gold jewels from

his house (Ex.P33). On completion of investigation, chargesheet was

filed against the accused under Sections 457, 395, 396 and 302 read

with 34 IPC.

5. In the trial court, prosecution has examined thirty seven

witnesses, including PW-1-owner of the Pawn shop, PW-2 and PW-3

working under PW-1 and other witnesses. Upon consideration of

evidence, the trial court convicted all the five accused inter alia under

Section 396 IPC read with Section 34 IPC and sentenced them to

undergo rigorous imprisonment for ten years. The trial court held that

4 in view of the conviction of the accused under Section 396 IPC,

conviction of the accused under Section 302 IPC was not necessary.

6. Being aggrieved by the conviction, accused Shajahan and Raja

Mohammad filed appeals before the High Court which came to be

dismissed. In the appeal filed by the State, for conviction under

Section 396 IPC, the High Court enhanced the sentence of

imprisonment from ten years to imprisonment for life. The High Court

did not go into the question of conviction of the accused under

Section 302 IPC.

7. We have heard the learned counsel for both the parties and

perused the materials on record.

8. There is clear and cogent evidence against accused Raja

Mohammad and Babu @ Nawab Sahib as to their involvement in the

commission of dacoity by the evidence of PW-15 and PW-17 and by

recovery of various items of jewels. The jewels so recovered from the

accused were identified by the owner of the Pawn shop (PW-1) and

PWs 7 to 14 who pledged the jewels with PW-1. Evidence of PW-1 is

further corroborated by the registers maintained in his Pawn shop to

show that those items of jewels were pledged in his Pawn shop. The

5 conviction of the appellants Raja Mohammad and Babu @ Nawab

Sahib under Section 396 IPC is unassailable.

9. Accused Basheer and Shajahan were arrested in the presence

of PW-21-Anbalagan and PW-22-Vijayarangan who partially turned

hostile. In his evidence, PW-21 stated that two persons were coming

on the TVS-50 and on being intercepted by the police, they started

running and those persons were chased and were caught by the

police and the police recovered jewels from the cover kept on the

petrol tank of the said vehicle. Though PWs 21 and 22 have spoken

about the two persons and recovery of jewels from the said two

wheeler, they have not identified accused Basheer and Shajahan. As

observed by the trial court, case of the prosecution is not discredited,

merely because PWs 21 and 22 have turned hostile so far as

identification of accused. As pointed out by the trial court, evidence

of PWs 21 and 22 is to be read along with the evidence of

Investigating Officer (PW-37) who has clearly spoken about Basheer

and Shajahan were proceeding on the two wheeler TVS-50 and also

spoken about the arrest and recovery of jewels. The jewels recovered

from Basheer and Shajahan were also identified by PW-1-owner of

the Pawn shop. The fact that PWs 21 and 22 turned hostile does not

6 affect the prosecution case as to the involvement of Basheer and

Shajahan in the commission of the offence of dacoity. Section 396

IPC prescribes punishment for dacoity with murder. In the course of

commission of dacoity, if a dacoit commits murder, all his companions

who are conjointly committing dacoity, are liable to be convicted

under Section 396 IPC, although they may have no participation in

the murder beyond the fact of participation in the dacoity. The

obligation of the court in the matter of imposing the sentence - "death

or imprisonment for life" is in the same sequence both for Sections

302 IPC and 396 IPC. Though the offence under Section 396 IPC is

to be viewed with seriousness, for the conviction under Section 396

IPC, larger discretion is vested with the court insofar as there is

possibility of imposing a penalty lesser than death or imprisonment

for life for the conviction under Section 396 IPC.

10. Placing reliance upon Dinesh alias Buddha v. State of

Rajasthan (2006) 3 SCC 771, the High Court took the view that

commission of murder in the course of dacoity is to be viewed with

seriousness. We are also of the view that the offence under Section

396 IPC is to be viewed with seriousness, especially, when the

dacoits are armed. But in the case in hand, the accused were not

7 armed. Accused Babu @ Nawab Sahib is alleged to have sat on

deceased Muthukrishnan and pressed his nose and mouth and is

alleged to have tightened his neck with the rope. The occurrence

was of the year 2002. Considering the long lapse of time and the

facts and circumstances of the case, the sentence of imprisonment

for life is modified as ten years as directed by the trial court.

11. While maintaining the conviction under Section 396 IPC, the

sentence of imprisonment imposed upon the appellants-Basheer,

Shajahan and Babu @ Nawab Sahib is modified as ten years of

imprisonment and the appeals are partly allowed. Since the

appellants are stated to be in custody for more than ten years, the

appellants are ordered to be released forthwith, if not required in any

other case.

………………………..J. (RANJAN GOGOI)

..……………………..J. (R. BANUMATHI) New Delhi;

February 16, 2018

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