Judgment:
1. This appeal was preferred by original accused Nos. 1 and 2 challenging the judgment and order passed by the learned Additional Sessions Judge, Greater Bombay at Sewree in Sessions Case No. 648 of 2007 whereby both the accused were convicted for the offences punishable under Section 392 r/w. Section 397 r/w. Section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1,000/- each. During the pendency of appeal, the accused No.2 Dhaneshwar @ Dharmesh Manilal Soni has died and the appeal to that extent is abated, and therefore, this appeal is now pending only in respect of the accused No.1 Salim @ Raju Karamali Ansari.
2. At the outset, the learned Counsel for the appellant / accused No.1 made a statement that he would not challenge the conviction of the accused for the offence of robbery under Section 392 r/w. Section 34 of the Indian Penal Code, but according to him, the conviction of the accused No.1 under Section 392 r/w. Section 397 is not correct, and therefore, it was not necessary for the trial Court to pass the minimum sentence of imprisonment for seven years. According to him, the accused No.1 is continuously in jail since 26.03.2007 and the sentence actually undergone is more than sufficient. To appreciate the contention of the learned Counsel for the appellant, it will be useful to state the prosecution story and the evidence in brief.
3. As per the F.I.R. lodged by P.W.1 Minakshi Vishwanath Lanjekar, on 26.03.2007 at about 7.00 a.m., she left her house and was proceeding by Shankar Ghanekar Marg. When she was near Portugese Church, one black colour Pulsar motorcycle came from the Church side and stopped near her. Two persons were riding on the motorcycle. The pillion rider on the motorcycle showed the chopper and threatened her on the point of chopper and snatched the gold chain weighing about ten grams from her neck. She shouted for help. When the people on the road came to her help, the driver of the motorcycle also took out a knife and threatened the people by saying that he would cut them if they would come near him. Therefore, people ran away due to fear. Taking advantage of this, both of the culprits escaped by the motorcycle. Complainant had noted the motorcycle number. She immediately returned to her house to inform the incident to her husband and then she went to the police station and lodged the F.I.R. One Head Constable Maruti Sanap, who was on duty at Leningrad Chawk Kashinath Ghanekar Marg, noticed the said motorcycle number. He along with another Constable Indulkar chased the motorcycle and stopped it. Accused Nos. 1 and 2 were on the motorcycle. At that time, there was a knife with accused No.1 and the chopper, gold chain and three rings were found in possession of accused No.2. Certain other articles were also found. Both the accused persons were taken into custody under panchanama and the articles found with them were seized. During the investigation, name of accused No.3 Jayesh Panchal was also revealed as an accomplice of accused Nos. 1 and 2. Therefore, the charge-sheet was filed against all the three accused persons and they were charged for the offences under Sections 392, 397 as well as Sections 461, 468, 471 r/w. Section 34 of the Indian Penal Code for changing and using the false motorcycle number. They were also charged under Section 135 of the Bombay Police Act. After the trial, accused No.3 was acquitted of all the charges. Accused Nos. 1 and 2 were convicted and sentenced only for the offences under Section 392 r/w. Section 397 and 34 of the Indian Penal Code and were acquitted of other charges.
4. The learned Counsel for the accused appellant firstly pointed out that as per the charge Exh.04, framed by the trial Court, accused No.1 was the pillion rider and he had snatched the chain. There is no charge against him that he had used any weapon. As per the charge, accused No.2 was driving the motorcycle and he had shown the chopper to the people to threaten them. The learned Counsel also pointed out that in her evidence P.W.1 Minakshi had deposed that accused No.1 was the pillion rider while accused No.2 was driving the motorcycle. According to her, accused No.1 was also holding a knife and he had snatched the gold chain. She does not state anywhere that accused No.2, who was driving the motorcycle, was also holding any weapon. P.W.4 Pravin Singal, who was the only eyewitness besides P.W.1, deposed that pillion rider had threatened P.W.1 Minakshi Lanjekar with the knife and snatched the gold chain. However, in the examination-in-chief itself he pointed accused No.1 as the driver and accused No.2 as the pillion rider. It is also an admitted fact that while both the accused persons were nabbed within a short time after the incident, they were shown to the witnesses at the police station on the next day, and therefore, though identification parade was held, it had practically no meaning. While both the witnesses identified the accused Nos. 1 and 2 as the persons, who had come together on motorcycle and had committed the offence of robbery, there is a conflict in the evidence about role of accused Nos. 1 and
2. According to P.W.1 Minakshi, accused No.1 was pillion rider and was holding the weapon and he had threatened her and snatched the chain. On the other hand, according to P.W.4 Pravin, accused No.1 was driving the vehicle and accused No.2 had used the weapon and snatched the chain. Thus, there is a conflict in the evidence of these two witnesses in respect of the role played by the accused Nos. 1 and 2. This becomes important because in the charge also, there is no mention that accused No.1 was holding or had used any weapon. If the offence of robbery is committed by two or more persons in furtherance of common intention, they can be held guilty under Section 392 r/w. Section 34 of the Indian Penal Code. Under Section 397, if at the time of committing the robbery or dacoity, "the offender" uses any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. The words "the offender" and "such offender" in Section 397 are important. Thus, the minimum sentence of seven years for the offence of robbery may be awarded to the offender who had actually used the deadly weapon. Therefore, if the offence of robbery is committed by two or more persons and only one of them is armed with the deadly weapon, the restriction on discretion of awarding minimum sentence of imprisonment would be applicable only in respect of the offender who had actually held and used the weapon and not to the other accused person. To apply the provisions of Section 397, it is necessary for the prosecution to prove that the accused was in fact holding and had used the weapon.
5. In the present case, the prosecution evidence is conflicting, and therefore, the prosecution has failed to prove, beyond reasonable doubt, as to whether the weapon was with accused No.1 or with accused No.2. In view of this, the benefit of doubt will go to the accused. Therefore, the present appellant could be convicted under Section 392 r/w. Section 34 of the Indian Penal Code but not under Section 392 r/w. Section 397. The offence under Section 392 is punishable with the imprisonment which may extend to ten years and also with fine, and within that limit, the Court has discretion to award the sentence. The accused was arrested on 26.03.2007 itself, and since then, he is continuously in jail. He has, thus, been actually in jail for four years, six months and fifteen days. As per the report of the Superintendent, Nashik Road Central Jail, he has also been awarded a remission of ten months and five days till 05.10.2011. If that period is also added to the total sentence of imprisonment as undergone, the accused has undergone the sentence of five years, four months and twenty days. In view of the nature of offence, in my opinion, the sentence as already undergone is just and sufficient to meet the ends of justice.
6. For the aforesaid reasons, the appeal is partly allowed. The conviction of the accused from the offence under Section 392 r/w. Sections 397 and 34 of the Indian Penal Code is changed to conviction under Section 392 r/w. Section 34 of the Indian Penal Code and he is sentenced to undergo imprisonment as already undergone and he be set at liberty forthwith, if not required in any other case.