Nathu vs State of M. P.

A.K. Awasthy, J.

The appellant accused has filed the jail appeal u/s 374 of the Code of Criminal Procedure against the judgment and order dated 23-8-2001 in Sessions Trial No. 111/2001 passed by learned Additional Sessions Judge, Dhanpura, District Mandsaur, of his conviction and sentence u/s 394 read with section 397 of the Indian Penal Code for the rigorous imprisonment of 7 years and fine of Rs. 1,000/-; and in default of payment of fine, simple imprisonment for 6 months,

The prosecution case is that on 7-2-2001 in the night at about 8.30 p.m. near Village Malapura when complainant Ramesh (PW-6) was going to his village, accused Nathu along with two other culprits caught him and the other two culprits gave him stick blows and the bag containing thirty thousand rupees was snatched by accused Nathu and his companions. The FIR was lodged by the complainant and he was medically examined for his injuries. That the Investigating Officer recorded the statement of accused Nathu u/s 27 of the Evidence Act and on it''s basis a ragzine bag of black colour was seized which was kept hidden in the bushes. The accused gave the confessional statement u/s 164 of the Code of Criminal Procedure before the Judicial Magistrate, First Class in which he has stated that he along with two companions looted the complainant. After the investigation, the charge-sheet was filed against the appellant accused. The co-accused were not arrested and charge-sheet was not filed against them.

The accused has abjured the guilt and he has denied the statements of prosecution witnesses and pleaded false implication due to enmity.

The appellant has assailed the conviction on the ground that the learned Trial Court has not properly appreciated the evidence and it is pleaded that the conviction u/s 397 of the Indian Penal Code is against the law laid down by the Apex Court and as such the sentence passed against him be reduced.

Complainant Ramesh (PW-6) has stated that when he was going to his village, the accused and his two companions caught him and he was thrown out in the bushes and the companions of the accused have beaten him by stick and the bag containing the amount of Rs. 30,000 were snatched from him by the accused. This fact is not in dispute that complainant Ramesh (PW-6) was known to the accused before the date of incident. In the long and searching cross-examination of Ramesh (PW-6), there is nothing to doubt the veracity of his statement. The accused has given the statement u/s 164 of the Code of Criminal Procedure before Judicial Magistrate, First Class, Garoth on 22-2-2001 wherein he has admitted that he along with 2 other has looted Ramesh and after beating him the amount of Rs. 30,000-00 was snatched from him. The accused has also made the statement u/s 27 of the Evidence Act and on the basis of this statement, the bag which was snatched from the complainant was recovered. The recovery of the looted bag from the possession of the accused was just after 7 days after the incident i.e. 14-2-2001. In the light of the aforesaid circumstances, the learned Trial Court has not committed any error in holding that appellant accused has committed the robbery and the complainant was deprived of Rs. 30,000-00 after he was beaten by the co-accused.

The learned counsel for the appellant accused has relied on the case of Shri Phool Kumar Vs. Delhi Administration, wherein it is held that the use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum sentence on another offender who had not used any deadly weapon. The appellant accused was neither armed nor used any weapon. Consequently the conviction of the appellant u/s 397 of the Indian Penal Code for the purpose of the imposition of minimum sentence is bad in law. The appellant can be convicted only u/s 394 of the Indian Penal Code.

Consequently the appeal is partly allowed. The conviction and sentence u/s 397 of the Indian Penal Code is hereby set-aside. The appellant is convicted only u/s 394 of the Indian Penal Code for the rigorous imprisonment of 4 (four) years and fine of Rs. 1,000/- (One thousand rupees) and in default of payment of fine, further rigorous imprisonment for the period of three months.

With the aforesaid reduction of sentence from 7 (seven) years to only 4 (four) years, the appeal is partly allowed.