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"1996 (3) BCR 163"
VISHNU SAHAI J. ( 1 ) SINCE these two connected Criminal Appeals arise out of same set of facts we propose disposing them of by a common Judgment. ( 2 ) VIDE judgment and order dated 25-8-1993 the IIIrd Additional Sessions Judge Nasik convicted the three appellants of the two connected appeals under sections 460 I. P. C. 396 read with 397 I. P. C. and 302 I. P. C. and sentenced them to undergo 7 years R. I. and to pay a fine of Rs. 1000/- in default R. I. for a period of one month under the first count; 7 years R. I. and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo 2 months R. I. under the second count; and R. I. for life and to pay a fine of Rs. 3000/- in default of its payment to further undergo 3 months R. I. under the third count. The substantive sentences of the appellants were ordered to run concurrently. ( 3 ) THE informant one Rakeshchandra Goyal P. W. 1 was the neighbour of deceased Barjorji Paymaster. His evidence is that appellant Edward John Ingal was working as a cook at the house of the deceased and appellant Lawrence John Ingal had previously worked at the house of the deceased. According to the informant on 29-11-1991 at about 6 a. m. appellant Edward John Ingal came and informed him that his master Barjorji Paymaster was lying in the bathroom and was not responding. Edward also told him that telephone had been disconnected. On receiving this information the informant telephonically informed police station Deolali Camp. The aforesaid information was received by P. I. Balasahab Ganpati Gaikwad P. W. 8. On 29-11-1991 between 6. 45 a. m. to 7 a. m. On the aforesaid information he along with some police personnel immediately rushed to the place of incident. He found that a number of articles were lying scattered and some roof tiles of the bungalow from the backside had been removed. He also found that dead body of the deceased was lying in the bathroom. Thereafter P. S. I. Gaikwad recorded complaint of the informant Rakeshchandra Goyal and on its basis registered an offence at C. R. No. 136 of 1991 at Deolali Camp Police Station. He prepared inquest panchanama Exh. 11 spot panchanama Exh. 12 and also recorded statements of 9 witnesses including that of the brother of the deceased Kaikaush Paymaster. The same day (29-11-1991) he interrogated appellant Edward John Ingal. On 30-11-1991 he arrested him. Same day he also arrested Nareshkumar Prabhudayal Kailash Naidu and Wilson appellant. On 2-12-1991 P. W. I. Gaikwad recorded memorandum panchanama of appellant Wilson as per Exh. 24 and recovered one stick at his instance in the presence of panchas. He also seized Rs. 450/- from Wilson Peter Matale P. W. 4 in whose custody appellant Edward John Ingal had kept the aforesaid amount. Thereafter P. S. I. Gaikwad sent the seized articles to Chemical Analyst at Aurangabad. On 9-12-1991 P. S. I. Gaikwad produced the appellant Edward John Ingal before the JMFC Nasik Road for recording his confession. He received reports of the Chemical Analyst Exhs. 17 and 18 and put them on the record. After completing the investigation he filed the charge-sheet in the Court of JMFC Nasik Road on 25-3-1992.( 4 ) GOING backwards the autopsy of the dead body of the deceased was conducted on 29-11-1991 between 3 p. m. to 4 p. m. by Dr. Manohar Mehta P. W. 6. On the dead body the doctor found the following ante-mortem injuries :---1. CONTUSION on frontal region oblique 3 x 2 red colour. 2. Swelling on left temporal partial region. 3. Linear abrasion on left side of neck below the angle of mandible 1 X with clotted blood oblique. On internal examination the doctor found fracture of frontal and parietal bones. In the opinion of Dr. Mehta the deceased died on account of intracranial haemorrhage due to fracture of skull bone and the injury No. 2 sustained by the deceased was sufficient in the ordinary course of nature to cause death. ( 5 ) IN the usual course the case was committed to the Court of Sessions where charges on four counts namely : 460 I. P. C. 380 I. P. C. 396 I. P. C. read with section 397 I. P. C. and 302 I. P. C. were framed against the appellants. To the aforesaid charges they pleaded not guilty and claimed to be tried. In the Sessions Court apart from tendering documentary evidence the prosecution examined as many as 7 witnesses. We may straight away mention that there is no eye witness of the incident and the case hinges on circumstantial evidence. Against the appellant Edward there is also evidence of confession made by him before the Judicial Magistrate under section 164 Cr. P. C. In defence no witness was examined by the appellants. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated above. ( 6 ) WE have heard Mr. S. M. Dange for the appellant and Mr. K. H. Chopda Additional Public Prosecutor for the State of Maharashtra in Criminal Appeal No. 548 of 1993 and Mr. Prashant Naik for the appellant and Mr. K. H. Chopda for the State of Maharashtra in Criminal Appeal No. 574 of 1993. We have also perused the evidence of the witnesses examined by prosecution to substantiate. Its case and the various Exhibits tendered and proved by the prosecution. After giving our anxious consideration to the matter we are of the opinion that Criminal Appeal No. 548 of 1993 preferred by Wilson Abraham Chouriappa deserves to be allowed and Criminal Appeal No. 574 of 1993 preferred by appellants Lawrence John Ingal and Edward John Ingal deserves to be decided in the below mentioned manner. The appeal preferred by the appellant Lawernce John Ingal deserves to be wholly allowed and that preferred by appellant Edward John Ingal partly allowed. The appellant Lawrence deserves to be acquitted on all the counts and appellant Edward deserves to be acquitted under sections 302 I. P. C. and 396 read with section 397 I. P. C. In our judgment his conviction under section 460 I. P. C. deserves to be confirmed although his jail sentence warrants to be reduced to the period already undergone by him. The sentence of fine awarded to him under section 460 I. P. C also deserves to be confirmed.( 7 ) AS we have stated earlier the case against appellant Lawrence and Wilson hinges purely on circumstantial evidence. The learned trial Judge has discussed the circumstantial evidence adduced against them in the impugned judgment. Before we deal with their individual cases we would first like to spell out the time-honoured norms followed by courts in cases resting on circumstantial evidence. They are :---A)circumstances should be firmly established; b)circumstances established must unerringly point to the inference of guilt of the accused; c)the circumstances established must be wholly incompatible with the inference of the innocence of the accused; and d)the circumstances should be incapable of being explained on any other hypothesis excepting that of the guilt of the accused. ( 8 ) TAKING up the case of the appellant Lawrence John Ingal we find that there is a solitary circumstance against him namely that he used to demand money from the deceased and black mail him. To prove this circumstance the prosecution examined the brother of the deceased Kaikhush Paymaster P. W. 5. A perusal of his statement shows that two to three months prior to the incident when he was sick the deceased visited him and told him that the appellant Lawrence was addicted to drinking; was demanding money from him and was threatening him with dire consequences in case he did not pay the same. The learned trial Judge has himself conceded in paragraph 40 of the impugned judgment that apart from this circumstance there is no other evidence against this appellant. In our view even if this circumstance is accepted to be true it cannot be a sufficient and safe basis for sustaining the conviction of appellant Lawrence John Ingal and hence he deserves to be acquitted. ( 9 ) WE now take up the case of Wilson Chouriappa. We find that against him there are two circumstances namely :---that he was an associate of other accused persons and along with them used to visit the house of the deceased; and at his pointing out on 2-12-1991 the stick with which he had assaulted the deceased was recovered. It is significant to point out that the recovered stick was sent to the Chemical Analyst and on the same he found no blood. In our judgment merely on the aforesaid two circumstances it cannot be said that there was sufficient circumstantial evidence which unerringly pointed towards his guilt. These circumstances may at the best raise suspicion against this appellant but as pointed out by the Apex Court in paragraph 9 of its judgment reported in A. I. R. 1957 S. C. page 637 (Sarwan Singh Rattan Singh appellant v. The State of Punjab. . respondent) that suspicion howsoever strong can never take the place of proof. This being the situation the appellant Wilson Abraham Chouriappa has also to be acquitted by us.( 10 ) THIS leaves us with the case of appellant Edward John Ingal. We may straight away observe that we have no option but to acquit him for offences under sections 396 r/w. 397 I. P. C. and 302 I. P. C. We now propose giving our reasons for doing so. ( 11 ) APPELLANT Edward John Ingal has to be straight away acquitted under section 396 r/w 397 I. P. C. for the reasons mentioned here in after :---But before we proceed to give those reasons we would like to analyse the provisions contained in section 396 397 and 391 of the Indian Penal Code. The offence under section 396 I. P. C. deals with murder during the course of commission of dacoity by any five or more of the persons committing dacoity. It provides that all of them would be liable for equal punishment; irrespective of the fact that murder was only committed by one or some of them. Section 396 I. P. C reads as follows :---section 396 :if any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. unlike section 396 I. P. C. section 397 I. P. C. does not create a distinct offence. It only provides for the minimum punishment to be awarded to a person who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. Section 397 I. P. C. reads as follows :---section 397 :if at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Section 391 I. P. C. gives the definition of dacoity only. Section 391 defines dacoity thus : section 391 :when five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding is said to commit dacoity. A perusal of the aforesaid section would show that participation by atleast five persons should be there for constituting the offence of dacoity. ( 12 ) WE have seen above that section 396 I. P. C. deals with dacoity accompanied with murder. A perusal of section 396 I. P. C. shows that the offence would fall only within its ambit if both dacoity and murder are committed. As mentioned above for the offence of dacoity the minimum number of persons required is five. In the instant case although initially there were five persons; the three appellants co-accused Naresh Kumar Prabhudayal and Kailash Naidu but after acquittal of appellants Lawrence and Wilson their number has come down to three. Hence it cannot be said that the offence of dacoity is made out. Our view is reinforced by the decision of the Apex Court reported in A. I. R. 1983 Supreme Court page 352 (Ram Lakhan. . appellant v. State of U. P. respondent) In the aforesaid decision their Lordships observed thus :---before an offence under section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the courts below it is manifest that only one person is now left. In these circumstances therefore the appellant cannot be convicted for an offence under section 395. Since dacoity is an essential ingredient of the offence of 396 I. P. C. and its commission is not established in the instant case no offence under section 396 I. P. C. can be said to be made out.( 13 ) NEITHER can the appellant be held guilty of the offence under section 397 I. P. C. A perusal of section 397 I. P. C. would show that the aforesaid section would only have application if the evidence is that during the course of commission of robbery or dacoity the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. (emphasis supplied)unlike section 396 I. P. C. in which the principal of vicarious liability is explicit and which stipulates that if during the commission of dacoity one or more of the persons committing dacoity commits murder then all would be liable for identical punishment. Section 397 I. P. C. contains the principle of individual liability. The words used in it are the offender (emphasis supplied ). In other words before section 397 I. P. C. can have any application prosecution has to establish as to who was that offender or accused person who during the course of commission of robbery or dacoity was armed with a deadly weapon or caused grievous hurt to any person or attempted to cause the death or grievous hurt to any person. A comparison of the language used in sections 396 and 397 I. P. C. justifies this inference. Had the Legislature intended that the expression the offender used in section 397 should include all such persons participating in the offence of robbery or dacoity then it could have used language similar to that contained in section 396 I. P. C. and section 397 in place of its present text would instead have read as follows :---If at the time of committing robbery or dacoity any person uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person every one of those persons participating in the commission of such robbery or dacoity shall be punished with imprisonment which shall not be less than seven years. The difference in the language used in sections 396 I. P. C. and 397 I. P. C. in our opinion leaves no room for doubt that the expression the offender used in section 397 pertains to the actual offender or accused person who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person and it does not include all such persons who participate in the commission of such robbery or dacoity. We may also point out that for the application of section 397 I. P. C. first it has to be established that either robbery or dacoity was committed. In paragraph 12 we have given our reasons for holding that no offence of dacoity had been committed. Even assuming that the offence of robbery has been committed the offence stipulated by section 397 I. P. C. would only be complete if the prosecution adduces evidence to the effect that at the time of committing the robbery the appellant used any deadly weapon or caused grievous hurt to any person or attempted to cause the death or grievous hurt to any person. No such evidence is forthcoming in the instant case. This also becomes apparent from a perusal of the confessional statement of the appellant recorded by the Judicial Magistrate First Class Nasik on 16-12-1991. We have extracted the gist of that confessional statement in paragraph 18 of this judgment. Accordingly we cannot hold the appellant guilty under section 397 I. P. C.( 14 ) FOR the aforesaid reason appellant Edward John Ingal would have to be acquitted under section 396 read with section 397 I. P. C. ( 15 ) WE have to also acquit appellant Edward John Ingal under section 302 I. P. C. because as would become evident from a perusal of the confessional statement made by him before the Judicial Magistrate First Class Nashik he was in no way responsible either principally or vicariously for the murder of the deceased. The same as is apparent from a reading of the aforesaid confessional statement was the individual act of acquitted accused Wilson. The confessional statement of the appellant does not show that it was committed in furtherance of his common intention. Had this been so this Court had ample powers to convert the conviction of the appellant from section 302 I. P. C. to one under section 302 read with 34 I. P. C. even in the absence of a formal charge under section 302 read with 34 I. P. C. ( 16 ) THE question which remains to be adjudicated is as to whether the appellant has been rightly convicted by the trial Judge for the offence under section 460 I. P. C. After perusing the evidence adduced by the prosecution we are constrained to observe that the answer to this question has to be in the affirmative. We now propose giving our reasons for reaching this answer. In the instant case we find that not only is there strong circumstantial evidence against the appellant but there is also his confessional statement recorded by P. W. 7 Mahendra Khakkar Judicial Magistrate First Class Nasik on 16-12-1991. ( 17 ) THE circumstantial evidence against the appellant is that he was employed as a cook at the house of the deceased and was residing in his premises. On the fateful night he had slept at the house of the deceased. It needs to be emphasised that these facts have been admitted by the appellant in his statement recorded under section 313 Cr. P. C. We may also mention that there is evidence that the appellant picked up Rs. 450/- from the dining table of the deceased at the time of the incident and kept the same with his maternal uncle P. W. 4 Wilson Matale. The police recovered this money from Wilson Matale. We have gone through the evidence of Wilson Matale and we find it to be cogent reliable and unimpeachable. Since this witness was the maternal uncle of the appellant there was no question of his falsely deposing to the effect that the appellant had kept Rs. 450/- in his custody. The appellant has satisfactorily failed to explain as to how he came in possession of the aforesaid amount of Rs. 450/ -.( 18 ) IN addition to the aforesaid circumstantial evidence we also find that there is confessional statement of the appellant recorded by P. W. 7 Mahendra Khakhar Judicial Magistrate First Class Nasik. We have examined the statement of this witness and perused the aforesaid confession. In our judgment P. W. 7 Mahendra Khakhar before recording the confession took all the precautions enjoined by law. He warned the appellant that he was under no obligation in law to make it and that the same could be used in evidence against him. He also satisfied himself that the statement was voluntarily made and was in no way the result of any pressure or third degree methods of the police. We may mention that initially the police had brought the appellant before him on 9-12-1991 but on that date he remanded him to judicial custody till 11-12-1991 to give him time to reflect as to whether he would like to make any confession? Thereafter right till 16-12-1991 the appellant remained in judicial custody. On said date he was brought before P. W. 7 Mahendra Khakkar. This means that the police had absolutely no opportunity to pressure this appellant into making the confessional statement. In the confessional statement the appellant has stated that on the fateful night he had slept at about 8. 30 p. m. at the house of the deceased. The deceased had slept at about 9 p. m. to 9. 15 p. m. At night someone gave a call to him appellant resulting in his opening the door. On opening the door co-accused Nareshkumar Prabhudayal Kailashi Naidu and Lawrence entered the house. Lawrence demanded Rs. 700/- to Rs. 800/- from the deceased. The deceased told Lawrence and others that he would lodge a complaint against them the next morning. At that Lawrence and Kailash became annoyed and felled down the deceased on the ground. In the meantime accused Wilson also came there. Naresh and Wilson thereafter took the deceased into the bathroom. Wilson came in the bedroom picked up the stick which was lying there and with the same gave a blow to the deceased. Thereafter Nareshkumar and Wilson took out the utensils from the almirah of the deceased. Lawrence opened the safe and took out money from it. Out of that money Lawrence kept Rs. 450/- on dining table. Thereafter he ran away instructing the appellant that he should not tell this to anybody. Then the appellant came inside the bungalow and lifted Rs. 450/- from the dining table and kept in his pocket. It was this amount which he had handed over to his maternal uncle P. W. 4 Wilson Matale. ( 19 ) WE have carefully examined the aforesaid judicial confession of the appellant and the same in our opinion has a ring of truth. In our judgment the confessional statement of appellant Edward John Ingal coupled with the circumstantial evidence referred to above is sufficient to bring home the guilt of the appellant beyond reasonable doubt under section 460 I. P. C.( 20 ) THE next question which arises is as to what should be quantum of sentence which should be awarded to the appellant Edward John Ingal under section 460 I. P. C. Normally in a case of the present type we would have been very loath to show any leniency to the appellant. However there are two extenuating circumstances in favour of the appellant. Firstly we are informed by the learned Counsel for the appellant that he has been continuously in jail since 30-11-1991 i. e. since nearly the last three and three quarter years. Secondly we find that at the time of the incident he was aged about sixteen and a half years. In his statement recorded on 13-5-1993 at the time of framing of charge he was given out his age as 18 years. There is no observation of the learned trial Judge to the effect that the estimate of age given by him is wrong. This means that on the date of the incident namely the night of 28-11-1991 the appellant was aged about 16 years. Our feeling is that on account of his impressionable age he became a victim of bad company. Hence in our judgment considering the totality of circumstances it would be expedient in the interest of justice to reduce his jail sentence to the period already undergone by him which is nearly three and three quarter years. ( 21 ) AS a result of the aforesaid discussion we record the following judgment :---riminal Appeal No. 548 of 1993 preferred by Wilson Abraham Chouriappa deserves to be allowed and the conviction of this appellant on all three counts namely section 460 I. P. C. 396 read with 397 I. P. C. and section 302 I. P. C. deserves to be set aside. He is acquitted of the aforesaid offences. In case he has paid the fine the same shall be refunded to him. He is in jail. He shall be released forthwith unless wanted in some other case. Criminal Appeal No. 574 of 1993 as regards appellant Lawrence John Ingal deserves to be allowed. His conviction on all three counts namely sections 460 I. P. C. 396 r/w 397 I. P. C. and 302 I. P. C. is set aside. He is acquitted of the aforesaid offences. In case he has paid the fine the same shall be refunded to him. He is in jail. He shall be released forthwith unless wanted in some other case. Criminal Appeal No. 574 of 1993 as regards Edward John Ingal is partly allowed and partly dismissed. His conviction and sentence under section 302 I. P. C. and section 396 r/w 397 I. P. C. is set aside. He is acquitted of the aforesaid offences. In case he has paid the fine the same stand refunded to him. His appeal in respect of conviction under section 460 I. P. C. is partly allowed and partly dismissed. Although we confirm his conviction under section 460 I. P. C. but we reduce his jail sentence to the period already undergone by him. However the sentence of fine imposed on him by the learned trial Judge under section 460 I. P. C. and that in its default is maintained. In case he had not paid the fine he shall pay the same within a period of 6 months from today failing which he shall be remanded to jail custody to suffer the sentence in lieu of the payment of fine. He is in jail. He shall be released forthwith unless wanted in some other case.( 22 ) OFFICE is forthwith directed to communicate the operative part of our judgment to the trial Court and the Superintendent of the Jail in which the appellants are confined. Order accordingly.