Judgment:
H.H. Kantharia, J.
1. In Sessions Case No. 444 of 1985, by his judgment and order dated October 5, 1988, the learned Additional Sessions Judge, Greater Bombay, Bombay, convicted the accused-appellant (hereinafter referred to as 'the accused') for an offence of robbery punishable under section 392 read with section 397 of the Indian Penal Code, and sentenced him to suffer rigorous imprisonment for 8 years and to pay a fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for six months.
2. Being aggrieved, the accused preferred this appeal.
3. One Sawarmal Mittal is doing business in stainless steel in partnership in the name and style of Agarwal Industries and has his office at Room No.1, 2nd floor, Sharda Niwas, Ardeshir Dadi Street, Bombay-4. The said office is annexed to a residential room and the entire premises are divided into three parts - an office, a kitchen and a bathroom. Some of the employees, including Suresh Shah (P.W.1) and Shrinath Yadav (P.W.2) were residing therein. They went to bed at about 10.00 p.m. on October 12, 1984. In the morning of October 13, 1984, another occupant of the room by name Bhawarlal went to the toilet which was situated outside the premises. The door of the office was kept open. The accused and his associate entered the office premises where Suresh Shah, Shrinath Yadav and others were sleeping and closed the door from inside. They were armed with revolvers and knives. They demanded keys of the cupboard. Another occupant by name Rajendra told Shrinath to hand over the keys and the cash to the accused and his associate which was done. In the meanwhile, the accused cut off the telephone wire. Thereafter, the accused and his associate left the premises with the cash of Rs.18,898/- and, at the same time, snatched away the wrist watch of Suresh Shah. Suresh accompanied by Rajendra then went to V.P.Road Police Station and lodged a complaint (Exh.14) on the basis of which an offence under section 397 read with section 114 of the Indian Penal Code was registered by Sub-Inspector of Police Tukaram Magdum (P.W.3) who proceeded to the scene of offence and drew a panchanama (Exh.17). Further investigation was taken over by Inspector Kamble and papers were submitted to the Assistant Commissioner of Police but no progress in the investigation could be made and as such the case was classified as 'A Summary' i.e. true but undetected.
4. Thereafter, on April 10, 1985, almost at the same early hours, at about 5.45 a.m., the accused accompanied by another person once again adopted the same modus operandi and went to the premises in question. On this occasion also they were armed with knives and revolvers. They woke up the inmates of the room and demanded the keys. A person called Maharaj took out Rs. 4,825/- from the cupboard and handed over the same to the accused who also cut off the telephone wire. When the accused and his friend left the burgled premises, one of the occupants of the room shouted from the balcony raising alarms indicating that the robbers were running away. Suresh and his friend chased the robbers. At that time, Suresh Patil (P.W.5) who was a Police Constable, along with another Police Constable, was doing foot patrol and seeing the culprits running away attempted to stop them. The robbers, in order to frighten the Constables, used their revolver unsuccessfully. The Constables were joined by the members of the public and the robbers were caught. There was a scuffle in which the robbers and the Police Constables were injured. At that time, a boy went running to V.P.Road Police Station and informed Police Sub-Inspector Murlidhar Pawar (P.W.4) that two persons were assaulting policemen near Ram Mandir along Khadilkar Road at Girgaum. Sub-Inspector Pawar along with Sub-Inspector More and two Constables rushed to the spot and dispersed the crowed. He noticed two Constables lying in injured condition and one Constable was holding two revolvers and two knives. There were four cartridges. It was reported that the present accused and one other person had committed robbery from a house. The injured persons were removed to hospital but at the same time the accused was put under arrest. While investigating the said offence, this offence came to light and accordingly further investigation was carried out in this offence and the accused was shown arrested in this offence also.
5. On completion of the investigation, the accused and his associate were charge-sheeted in the Court of the learned Additional Chief Metropolitan Magistrate, 4th Court, Girgaum, who committed the accused to the Court of Session.
6. At the trial, the defence of the accused was one of the denial. He pleased that he had not visited the premises in question. Since an identification parade was held on April 12, 1985 in which he was identified, he further pleaded that before the identification parade was held he was shown to the witnesses by the police. On merits his defence was that at the relevant time two Police Constables were beating a person and he tried to separate them when the Police Constables abused him and he pushed them aside. In the meanwhile, a police jeep went there and arrested him.The defence of his associate was that he was in no way concerned with the offence. No evidence in defence was led.
7. On appreciation of the evidence adduced before him, the learned trial Judge, by his impugned judgment and order, found the present accused guilty of an offence of robbery punishable under section 392 read with section 397 of the Indian Penal Code and sentenced him as stated hereinabove. However, the other accused by name Prakash Goswami was not found guilty and acquitted.
8. Now, the prosecution story, as stated above, has been unfolded by Suresh Shah (P.W.1). His evidence discloses as to how the offence of robbery, at the point of revolvers and knives, was committed in the early hours of October 13, 1984 in his office-cum-residential premises. He also spoke about the accused taking away a sum of Rs. 18,898/- and his wrist watch and that the telephone wire was cut off. He further stated that while leaving the burgled premises the accused had threatened the inmates of the room that they would be finished off if a complaint was lodged with the police. A perusal of the First Information Report (Exh.14) lodged by him completely corroborates his oral testimony. The other eye witness, an inmate of the room, Shrinath Yadav (P.W.2) also deposed to the same effect and completely corroborated the testimony of Suresh Shah. Both the witnesses were subjected to a lengthy cross-examination but we find no material brought out in the cross-examinations of both the witnesses to shake their credibility. There is nothing on the record to show that they had any reason to give false evidence or involve the accused falsely in this case. Therefore, there is no reason to disbelieve their testimony. We are more than satisfied that the prosecution established its case beyond shadow of reasonable doubt against the accused. It may be noted here that after the arrest of the accused on April 10, 1985 at about 6.30 a.m., by Police Sub-Inspector Murlidhar Pawar (P.W.4), an identification parade was held on April 12, 1985 by Special Executive Magistrate Bhalchandra Gaikwad (P.W.7) in which the accused was identified. Mr. Sangani, appearing on behalf of the defence, submitted that the identification parade was a farce and many of the guidelines enumerated in the Criminal Manual issued by the High Court were not followed by the Special Executive Magistrate and, therefore, the said evidence of the identification parade should not be relied upon. We are not inclined to agree with the submission of Mr. Sangani as a perusal of the evidence of the Special Executive Magistrate and the xerox copy of the Memorandum prepared by him (Exh.26-A) convince us that the identification parade was held with utmost care and caution and there is nothing to show that the same was a farce. However, assuming for the sake of argument that there is some substance in the argument of Mr. Sangani, we are of the opinion that in this case there was no need for the prosecution to hold identification parade and adduce evidence in that behalf at the trial because the prosecution witnesses Suresh and Shrinath had enough opportunity to see the accused on the day of the incident as well as on April 10, 1985 and the accused was caught redhanded after being chased by the prosecution witnesses, the members of the public and the police officials. He was in fact injured in the scuffle with the members of the public and police and was removed to hospital. Therefore, even if we exclude the evidence of the identification parade from our consideration, we are more than satisfied from the oral testimony of Suresh and Shrinath that they had seen the accused as one of the culprits committing robbery in the early hours of October 13, 1984.
9. Thus, we see no infirmity in the impugned judgement and order recorded by the learned trial Judge and find no merits in this appeal. The conviction recorded against the accused and the sentence imposed upon him are accordingly confirmed and the appeal is dismissed.
10. Now, dealing with Criminal Application No. 979 of 1992, Mr. Sangani said that the accused was convicted in Sessions Case No. 446 of 1985 on May 19, 1988. The accused had challenged his conviction recorded therein in Criminal Appeal No. 757 of 1988 and a perusal of the said record shows that the accused was convicted by the learned trial Judge under Sections (1) 452 r.w. 34 I.P.C., (2) 392 r.w. 34 I.P.C., (3) 392 r.w. 397 I.P.C., (4) 427 r.w. 34 I.P.C., (5) 342 r.w. 34 I.P.C., (6) 224 r.w. 34 I.P.C. , (7) 307 r.w. 34 I.P.C., (8) 332 r.w. 34 I.P.C., and (9) 27 of the Arms Act and under section 3 r.w. 25 of the Arms Act and was sentenced to suffer rigorous imprisonment for (1) 7 years, (2) 10 years, (3) 7 years, (4) 2 years, (5) 1 years, (6) 2 years, (7) 10 years, (8) 3 years and (9) 3 years on each count. All the sentences were ordered to run concurrently. Appeal No. 757 of 1988 was partly allowed by this Court as under:
' The conviction recorded against the appellant under sections 392 r.w. 34 and 397, 452 r.w. 34, 224 r.w. 34 and 307 r.w. 34 I.P.C. affirmed. The conviction and sentence under other sections of the Indian Penal Code set aside as being redundant. The sentence under section 307 r.w. 34, 392 r.w. 34 and 397 of the Indian Penal Code reduced to seven years. The sentence under sections 452 and 224 read with 34 of the Indian Penal Code reduced to two years.
The conviction under sections 27 and 25 of the Arms Act affirmed, but sentence reduced to two years and a fine of Rs.2,000/-. In case the fine is not paid the appellant shall undergo additional R.I. for a year. The substantive sentences to run concurrently.'
Mr. Sangani then pointed out that still in one more case, being Sessions Case No. 447 of 1985, the accused was convicted under section 392 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and his appeal was dismissed by this Court on February 20, 1989. The submission of the learned Advocate is that the substantive sentences imposed on the accused in Sessions Case No.446 of 1985 (Appeal No.757 of 1988) and Sessions Case No. 447 of 1985 (Appeal No. 121 of 1989) be ordered to run concurrently with the sentence imposed upon him in the present case. Mr. Bagwe, learned Additional Public Prosecutor, vehemently objected to this relief being granted to the accused and contended that the accused is a habitual offender, indulging in the same type of robberies, and does not deserve any sympathy.
11. In support of his submission for the substantive sentences in the three cases to run concurrently, Mr. Sangani relied upon the provisions of section 427(1) of the Criminal Procedure Code which read as under :
'When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.'
In other words, where several sentences are passed against the same person, such sentences should run consecutively i.e. the one after the expiration of the other, unless the Court directs that they should run concurrently. Section 31 of the Criminal Procedure Code also enacts the rule that the sentences are to run consecutively unless the Court directs that they should run concurrently when a person is convicted on trial of several offences and several sentences are given. The discretion given to the Court under section 427(1) and 31 of the Criminal Procedure Code has to be exercised on sound judicial basis and judiciously. Section 482 of the Criminal Procedure Code vests in the High Court inherent powers to make such orders as may be necessary to secure ends of justice and to prevent injustice. The High Court has inherent powers to act ex debito justitiae to do real and substantial justice for administration of which alone the Court exists. Such inherent powers vested in the High Court are quite wide but at the same time it should be well remembered that in a case like the present one conflicting interests of an individual's liberty and the safety and security of the citizens at large should be harmoneously settled. We would here care more for the security, safety and well-being of the members of the society as against the liberty of an individual (the accused) who is a seasoned criminal. He seems to be regularly indulging in nefarious activities of committing robberies at the point of knife and revolver in the early hours of morning when people are blissfully fast asleep. With his criminal tendency, it is not merely the property of the citizens that is unsafe but also the lives of innocent people. His modus operandi of committing such crimes has to be wholesale condemned. He need not be shown mercy or misplaced sympathy. He is a menace to the society and is a great security risk. It is hazardous to let him and the members of his tribe loose on the people. It is common knowledge of Bombayites that robberies and dacoities in the city are on the increase at an alarming rate. If such criminals are not checked with a heavy hand, they are likely to repeat their performances with impunity and then ask the courts to order their sentences to run concurrently, that is to say, commit any number of offences and the punishment should be the same. We have decided here to be harsh because we feel that if the society's interests are to be served, the courts have got to be strict in cases like this. In such cases, in our opinion, sentences should not be casually ordered to run concurrently where to do so would make the sentences ineffective and the crimes inconsequential. If habitual and hardened criminals are awarded concurrent sentences, crimes may escape punishment and dangerous criminals may be let loose on the society. We have, therefore, decided to reject the full prayer as made on behalf of the accused which, if granted, would enable him to come out of jail within a few months. However, not to grant his prayer at all would mean that he would remain in jail for 22 years which, in our considered view, will be quite harsh. We have, therefore, decided to adopt a mid-way and thought of ordering sentences in two cases to run concurrently instead of three cases. We thus partly allow this application and order that the sentence of 7 years rigorous imprisonment inflicted on the accused in Sessions Case No.446 of 1985 (Appeal No. 757 of 1988) shall run concurrently with the sentence of 8 years rigorous imprisonment inflicted on him in this case, viz. Sessions Case No. 444 of 1985 (Appeal No. 775 of 1989). The punishment as to the payment of fine would remain unchanged. In other words, the sentence imposed on the accused in this case shall run after expiration of 7 years rigorous imprisonment inflicted on him in Sessions Case No. 447 of 1985 (Appeal No. 121 of 1989). We clarify that the accused shall, therefore, suffer total imprisonment of 15 years and shall pay the fines as inflicted on him in this case and in Sessions Case No. 446 of 1985 (Appeal No. 757 of 1988) by this Court, in default shall suffer further rigorous imprisonments as inflicted on him.
12. This application is thus partly allowed.