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2010 DIGILAW 224 (CAL)

Dipak Mondal (In Jail) v. STATE OF WEST BENGAL

2010-03-02

ASHIM KUMAR BANERJEE, KISHORE KUMAR PRASAD

body2010
JUDGMENT Ashim Kumar Banerjee, J. 1. THESE two appeals arise out of a common judgment and order dated July 19, 2005 passed by the learned Additional Sessions Judge, Fast Track Court (I), Alipur, South 24-Parganas in Sessions Trial No.14(1)(02) arising out of Sessions Case No.1(11), 2001 convicting the three appellants herein namely Ganesh Singh, Bhim Singh, Dipak Mandal and another co-accused Dipak Das for the offences punishable under Section 395/ 397/307 read with Section 34 of Indian Penal Code. The co-accused Dipak Das was also convicted under Section 25(1B)(a)/27(1) of the Arms Act. 2. IN the night at about 11:35 p.m. on June 8, 2001, a daring robbery was committed at Friends Auto Service Station on 47/1, B.T. Road, Calcutta-50. The robbers who are said to be four in number entered into the office room of the said Service Station and took away cash amounting to Rs.1, 05,000.00. from the cash box of the said service station after causing bleeding injury upon Jayanta and Alok, the cashier and one of the employees of the said service station respectively. One of the robbers also pointed out pistol to Jahar. Out of fear, Jahar handed over his wrist watch and golden finger ring to them. After investigation, the three appellants herein and coaccused Dilip Das were put on trial. 3. THE learned Trial Judge after considering the nature of offences convicted the appellants and co-accused under the aforesaid Sections and sentenced them under :- Three appellants and co-accused Dipak Das : Under Section 395/34 of Indian Penal Code :- To undergo rigorous imprisonment for life and to pay fine of Rs.2000/- each, in default to suffer rigorous imprisonment for four months. Under Section 397/34 of Indian Penal Code :- To undergo rigorous imprisonment for seven years Under Section 307/34 of Indian Penal Code :- To undergo rigorous imprisonment for life and to pay fine of Rs.2000.00 each, in default suffer rigorous imprisonment for two months each. 4. APART from imposing the aforesaid sentences, the co-accused Dipak Das was also sentenced to suffer rigorous imprisonment for three years and to pay of Rs.2000.00, in default to suffer rigorous imprisonment for two months for the offence punishable under Section 25(1B)(a) of the Arms Act. 4. APART from imposing the aforesaid sentences, the co-accused Dipak Das was also sentenced to suffer rigorous imprisonment for three years and to pay of Rs.2000.00, in default to suffer rigorous imprisonment for two months for the offence punishable under Section 25(1B)(a) of the Arms Act. Further rigorous imprisonment of seven years and also to pay fine of Rs.2000.00, in default to suffer rigorous imprisonment for four months was also imposed for his conviction under Section 27 (1) of the Arms Act. However, all the substantive sentences were ordered to run concurrently by the trial Judge. No argument was advanced by the learned counsel appearing for the appellants on the merits of the case. The learned counsel at the hearing of this appeal before this Court confined their argument only towards the nature of offences allegedly made against the appellants. 5. LEARNED counsel for the appellants submitted that from the materials produced by the prosecution, the appellants can at best be convicted under Section 394 of Indian Penal Code and on the face of the admitted materials on record, the appellants cannot be convicted under Sections 395/397/307 of Indian Penal Code with the aid of Section 34. The learned counsel further submitted that from the date of their arrest the appellants are in custody and by this time they have suffered more than eight and half years and as such the appellants should be released after converting the conviction under Section 395/397/307 read with Section 34 of the Indian Penal Code to Section 394 of Indian Penal Code. 6. LEARNED counsel for the State respondent was fair enough to concede the submission advanced by the learned counsel for the appellants. We have perused the evidence both oral and documentary tendered and proved by the prosecution. We do not find that the appreciation of evidence made by the learned trial Judge suffers from any illegality. The learned trial Judge has given cogent reasons for accepting the evidence led by the prosecution against the appellants and the co-accused Dipak Das. 7. ON perusal of the evidence on record we find force and justification in the contention of the learned counsel for the appellants. We find from Section 391 of Indian Penal Code, when five or more persons co-jointly commit robbery, it is termed as dacoity attracting the provision of Section 395 of Indian Penal Code. 7. ON perusal of the evidence on record we find force and justification in the contention of the learned counsel for the appellants. We find from Section 391 of Indian Penal Code, when five or more persons co-jointly commit robbery, it is termed as dacoity attracting the provision of Section 395 of Indian Penal Code. Admittedly, in this case four persons namely the three appellants herein and the coaccused Dipak i.e. in all four persons were involved. The evidence on record further depicts that two of the employees of the Friends Auto Service Station had sustained bleeding injury on their person. 8. THERE is no tangible evidence who amongst the culprits caused hurt by deadly weapon of the two injured in course of robbery. Section 397 of Indian Penal Code is intended to cover the cause of a person who makes use of deadly weapon for the purpose of robbery. The provision postulates only individual act of the accused to attract Section 397 of Indian Penal Code and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34 of the Indian Penal Code. For the reasons aforesaid, the orders of conviction and sentence under Sections 395/397 read with Section 34 of Indian Penal Code passed by the learned Trial Judge do not appeal to be justified and such convictions are set aside. From the admitted materials on record, we feel that proper Section under which the appellants should have been convicted is under Section 394 of Indian Penal Code. 9. THAT apart, since robbery coupled with causing hurt is proved to have been integral parts of one and same transaction covering of offence punishable under Section 394 of Indian Penal Code, it is improper to pass a separate sentence under Section 307 with the aid of Section 34 of Indian Penal Code as a accused is not to be punished twice for the same criminal act. Accordingly, the order of separate conviction and sentence under Section 307/34 of Indian Penal Code as awarded by the learned Trial Judge does not appear to be justified and such conviction is set aside. 10. Accordingly, the order of separate conviction and sentence under Section 307/34 of Indian Penal Code as awarded by the learned Trial Judge does not appear to be justified and such conviction is set aside. 10. WE therefore, allow these two appeals in part by converting the convictions from Section 395/397/307/34 of Indian Penal Code to Section 394 of Indian Penal Code and sentence the appellants to undergo rigorous imprisonment for ten years as also to pay fine of Rs. 10,000/- each, in default of payment of fine to suffer further rigorous imprisonment for two years each for the offence punishable under Section 394 of Indian Penal Code. So far as the co-accused Dipak Das is concerned, it does not appear that he has preferred any appeal against his conviction. Learned counsel for the State is also not in a position to apprise this Court as to whether any appeal has been preferred to us that this accused has failed to prefer any appeal not out of his own accord but due to poverty. That apart, his case also stands on same footing as appellants. 11. IN view of our finding in respect of three appellants herein, the co-accused Dipak Das is also entitled to same benefit of conviction and sentence under Section 394 of Indian Penal Code and order of acquittal in respect of the offences under Sections 395/ 397/ 307/ 34 of Indian Penal Code. 12. IT appears that the learned Trial Judge also convicted the accused Dipak Das both under Section 25(1B)(a) and under Section 27(1) of the Arms Act. The learned Trial Judge in our considered opinion was perfectly justified in convicting the accused Dipak Das under Sections 25(1B)(a)/27(1) of the Arms Act. In view of the sentence being awarded under Section 27(1) of the Arms Act, we think that no separate sentence need be awarded for the lessor offence punishable under Section 25(1B)(a) of the Arms Act. Ends of justice would be met if this accused is sentenced only for the major offence as awarded by the learned Trial Judge for the offence punishable under Section 27(1) of the Arms Act. 13. Ends of justice would be met if this accused is sentenced only for the major offence as awarded by the learned Trial Judge for the offence punishable under Section 27(1) of the Arms Act. 13. ACCORDINGLY, the sentence as awarded by the learned Trial Judge for the offence punishable under Section 27(1) of the Arms Act is confirmed but the separate sentence as awarded by the learned Trial Judge punishable under Section 25(1B)(a) of the Arms Act is set aside. 14. THE substantive sentence as awarded by the learned Trial Judge for the offence punishable under Section 27(1) of the Arms Act against this accused shall run concurrently with the substantive sentence awarded by us under Section 394 of Indian Penal Code. The sentence of fine with default clause as awarded by us under Section 394 of Indian Penal Code and sentence of fine with default clause as awarded by the learned Trial Judge under Section 27(1) of the Arms Act shall run consecutively. Entire amount of fine as imposed in respect of these appellants and the accused Dipak Das, if realised shall be paid to the victim Aloke Kotal by way of compensation. 15. THE appellants herein and the accused Dipak Das shall get benefit under Section 428 of Code of Criminal Procedure out of the period already undergone. 16. THE appellants and accused Dipak Das are now in jail. They are directed to served out the remainder part of their sentences as indicated above. The learned Trial Court is directed to issue necessary revised jail warrant as required by the Rules in respect of these appellants and accused Dipak Das. 17. SEND a copy of this judgment to the concerned Superintendent, Correction Home where these three appellants and accused Dipak Das are now under detention for information and taking necessary action. 18. LOWER Court Records along with a copy of this judgment to go down forthwith to the Court of the learned Trial Judge for information and necessary action.