SHAJAHANversusSTATE REP. BY INSPECTOR OF POLICE

                         [2018] 2 S.C.R. 661                            661


                           SHAJAHAN                                     A

                                 v.

            STATE REP. BY INSPECTOR OF POLICE

               (Criminal Appeal Nos. 697-98 of 2012)                    B

                       FEBRUARY 16, 2018

        [RANJAN GOGOI AND R. BANUMATHI, JJ.]

      Penal Code, 1860 – s.396 r/w s.34 – Dacoity with murder –         C
Five accused – Dacoity in shop of PW1 – Deceased was sleeping
inside the shop – A2 held the legs of deceased, while A4 sat on his
chest and strangled him to death – Trial court convicted all the five
accused inter alia u/s.396 r/w. s.34 and sentenced them to
imprisonment for ten years – High Court while affirming the             D
conviction, enhanced the sentence of imprisonment from ten years
to imprisonment for life – Held: In course of commission of dacoity,
if a dacoit commits murder, all his companions who are conjointly
committing dacoity, are liable to be convicted u/s.396, although they
may have no participation in the murder beyond the fact of
participation in the dacoity – Offence u/s.396 is to be viewed with     E
seriousness, especially, when dacoits are armed, however, in the
present case, the accused were not armed – Considering the long
lapse of time, as the occurrence was of year 2002 and the facts and
circumstances of the case, conviction u/s. 396 is maintained but
sentence of imprisonment for life imposed upon A1, A2 and A4 is
                                                                        F
modified as ten years, as directed by trial court.

       Sentencing – Imposition of sentence u/s.302 vis-a-vis u/s.396,
IPC– Discretion vested with Court – Scope – Held: Obligation of
Court in the matter of imposing sentence- “death or imprisonment for
life” is in the same sequence both for ss.302 and 396 – Though          G
offence u/s.396 is to be viewed with seriousness, for conviction
under it, larger discretion is vested with the Court as there is
possibility of imposing a penalty lesser than death or imprisonment
for life– Penal Code, 1860 – s.302, s.396 r/w s.34.
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                                 661
662            SUPREME COURT REPORTS                      [2018] 2 S.C.R.


A           Partly allowing the appeals, the Court

             HELD : 1.1 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,
B     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 is to be viewed
C     with seriousness, for the conviction under Section 396, larger
      discretion is vested with the court insofar as there is possibility
      of imposing a penalty lesser than death or imprisonment for life.
      [Para 9][666-C-D]

             1.2 The offence under Section 396 is to be viewed with
D     seriousness, especially, when the dacoits are armed. But in the
      case in hand, the accused were not armed. Accused A4 is alleged
      to have sat on deceased 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
E     facts and circumstances of the case, the sentence of imprisonment
      for life is modified as ten years as directed by the trial court.
      While maintaining the conviction under Section 396, the sentence
      of imprisonment imposed upon the appellants-A1, A2 and A4 is
      modified as ten years of imprisonment. Since the appellants are
      stated to be in custody for more than ten years, they are ordered
F     to be released forthwith, if not required in any other case. [Paras
      10, 11][666-E-G]

            Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC
            771 : [2006] 2 SCR 793 – referred to.
G                            Case Law Reference

            [2006] 2 SCR 793         referred to             Para 10



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    SHAJAHAN v. STATE REP. BY INSPECTOR OF POLICE                             663


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                       A
Nos. 697-698 of 2012.
     From the Judgment and Order dated 03.09.2010 of the High Court
of Madras in Criminal Appeal No. 69 and 1094 of 2006 respectively
                                  WITH
                                                                              B
      Criminal Appeal No. 481 of 2015.
      Amit Kumar, R. Balasubramanian, B. Karunakaran,
S. Gowthaman, K. G. Krishnaraj, S. Shanthakumari, Advs. for the
Appellant.
     M. Yogesh Kanna, Mrs. Sujatha Bagadhi, Advs. for the                     C
Respondent.
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. These appeals arise out of the common
judgment passed by the High Court of Madras in Criminal Appeal Nos.
                                                                              D
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                 E
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       F
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-           G
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
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664             SUPREME COURT REPORTS                           [2018] 2 S.C.R.


A     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
      statement of accused Raja Mohammad led to recovery of thirty pair of
      silver anklets, golden necklace and chain from Noorudheen who was
B
      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
C     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
D     @ 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.
E            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 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
F     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
G     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
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    SHAJAHAN v. STATE REP. BY INSPECTOR OF POLICE                            665
                  [R. BANUMATHI, J.]

working under PW-1 and other witnesses. Upon consideration of                A
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 in view of
the conviction of the accused under Section 396 IPC, conviction of the
accused under Section 302 IPC was not necessary.
                                                                             B
      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.                 C

      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               D
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           E
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       F
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   G
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
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666             SUPREME COURT REPORTS                            [2018] 2 S.C.R.


A     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 affect the prosecution case as to the involvement of Basheer
      and Shajahan in the commission of the offence of dacoity. Section 396
B
      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
C     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
D
      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
E     IPC is to be viewed with seriousness, especially, when the dacoits are
      armed. But in the case in hand, the accused were not 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
F     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
G     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.


H     Divya Pandey                                             Appeals partly allowed.