REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.697-98 OF 2012
SHAJAHAN …Appellant
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
WITH
CRIMINAL APPEAL NO.481 OF 2015
BASHEER AND ANOTHER …Appellants
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the common judgment passed by
the High Court of Madras in Criminal Appeal Nos. 69, 1096 and 1097
of 2006 allowing the appeal preferred by the State thereby enhancing
the sentence of imprisonment from ten years to imprisonment for life
for the conviction under Section 396 IPC.
2. Briefly stated case of the prosecution is that on the intervening
night of 13/14.11.2002 at about 01.30 a.m., the appellants accused
Basheer (A1), Shajahan (A2) and Babu @ Nawab Sahib (A4) along
1
with two other accused Raja Mohammad (A3) and Balu @
Balasubramanian (A5) with common intention to commit robbery in a
Pawn Broking shop under the name of Peri owned by PW-1
Muthaiyah. In the course of committing robbery, Shajahan (A2) is
alleged to have tightly held the legs of deceased Muthukrishnan who
was sleeping inside the shop and Babu @ Nawab Sahib (A4) is
alleged to have sat on his chest and constricted his neck and tied the
jute rope around the neck of Muthukrishnan and strangled him to
death. Other accused robbed jewellery about 4.788 kg. of gold and
5.595 kg. of silver total worth about Rs.12,00,000/-. On 13.11.2002 at
about 05.30 a.m., Chellam-PW-4 employed as the sweeper at the
Pawn shop came to the house of PW-1 and informed him that
Muthukrishnan was found dead in his shop. PW-1 lodged the
complaint in Mandharakuppam Police Station, based on which, police
had registered a case in Crime No.257 of 2002 under Sections 457,
380 and 302 IPC. PW-37-SHO had taken up the investigation. On
06.02.2003 at about 11.00 p.m. Raja Mohammad (A3) was arrested
near Panrutti bus stand and his confession statement was recorded
in the presence of Vasan-PW-15, based on which, a sum of
Rs.46,000/- was recovered from Raja Mohammad (A3). Confession
2
statement of accused Raja Mohammad led to recovery of thirty pair of
silver anklets, golden necklace and chain from Noorudheen who was
identified by accused Raja Mohammad under Ex.P21. Confession
statement of accused Raja Mohammad led to further recovery of
silver anklets, golden rings, necklace and totally twelve items of
jewels from KVM Jewellery at Kallakurichi under Ex.P23. Confession
statement of accused Raja Mohammad also led to recovery of
seventeen pair of silver anklets, twenty pair of silver pattadai anklets
and a golden chain from his house at Pudupet in Vridhachalam.
3. Accused Raja Mohammad took the police and PW-15 to
Alichakudi village and on being identified by him, Babu @ Nawab
Sahib (A4) was arrested. Based on the confession statement of
accused Babu @ Nawab Sahib, seventeen items of jewels were
recovered from the house of his mother's sister under Ex.P28. Based
on the confession statement of Babu @ Nawab Sahib (A4), the police
went to Mumbai where numbers of items of jewels were recovered
from the house of his uncle and also from a jewellery shop named
Panchaseel Jewellery.
4. On 06.02.2003 at wee hours at about 01.30 a.m. appellants
Basheer (A1) and Shajahan (A2) were proceeding on a TVS-50
3
motor cycle and on being intercepted by the police, the appellants
started running and the police caught hold of them. Based on the
confession statements of accused Basheer and Shajahan, jewels
kept in the cover on the petrol tank of the said TVS-50 vehicle, were
recovered by the police. On the basis of the information from the
informers, PW-37 arrested Balu @ Balasubramanian (A5) in front of
his house at Meyapalayur village on 08.02.2003 at about 04.00 a.m.
His confession statement led to recovery of golden jewels from a
jewellery shop at Chidambaram. Confession statement of accused
Balu @ Balasubramanian further led to recovery of gold jewels from
his house (Ex.P33). On completion of investigation, chargesheet was
filed against the accused under Sections 457, 395, 396 and 302 read
with 34 IPC.
5. In the trial court, prosecution has examined thirty seven
witnesses, including PW-1-owner of the Pawn shop, PW-2 and PW-3
working under PW-1 and other witnesses. Upon consideration of
evidence, the trial court convicted all the five accused inter alia under
Section 396 IPC read with Section 34 IPC and sentenced them to
undergo rigorous imprisonment for ten years. The trial court held that
4
in view of the conviction of the accused under Section 396 IPC,
conviction of the accused under Section 302 IPC was not necessary.
6. Being aggrieved by the conviction, accused Shajahan and Raja
Mohammad filed appeals before the High Court which came to be
dismissed. In the appeal filed by the State, for conviction under
Section 396 IPC, the High Court enhanced the sentence of
imprisonment from ten years to imprisonment for life. The High Court
did not go into the question of conviction of the accused under
Section 302 IPC.
7. We have heard the learned counsel for both the parties and
perused the materials on record.
8. There is clear and cogent evidence against accused Raja
Mohammad and Babu @ Nawab Sahib as to their involvement in the
commission of dacoity by the evidence of PW-15 and PW-17 and by
recovery of various items of jewels. The jewels so recovered from the
accused were identified by the owner of the Pawn shop (PW-1) and
PWs 7 to 14 who pledged the jewels with PW-1. Evidence of PW-1 is
further corroborated by the registers maintained in his Pawn shop to
show that those items of jewels were pledged in his Pawn shop. The
5
conviction of the appellants Raja Mohammad and Babu @ Nawab
Sahib under Section 396 IPC is unassailable.
9. Accused Basheer and Shajahan were arrested in the presence
of PW-21-Anbalagan and PW-22-Vijayarangan who partially turned
hostile. In his evidence, PW-21 stated that two persons were coming
on the TVS-50 and on being intercepted by the police, they started
running and those persons were chased and were caught by the
police and the police recovered jewels from the cover kept on the
petrol tank of the said vehicle. Though PWs 21 and 22 have spoken
about the two persons and recovery of jewels from the said two
wheeler, they have not identified accused Basheer and Shajahan. As
observed by the trial court, case of the prosecution is not discredited,
merely because PWs 21 and 22 have turned hostile so far as
identification of accused. As pointed out by the trial court, evidence
of PWs 21 and 22 is to be read along with the evidence of
Investigating Officer (PW-37) who has clearly spoken about Basheer
and Shajahan were proceeding on the two wheeler TVS-50 and also
spoken about the arrest and recovery of jewels. The jewels recovered
from Basheer and Shajahan were also identified by PW-1-owner of
the Pawn shop. The fact that PWs 21 and 22 turned hostile does not
6
affect the prosecution case as to the involvement of Basheer and
Shajahan in the commission of the offence of dacoity. Section 396
IPC prescribes punishment for dacoity with murder. In the course of
commission of dacoity, if a dacoit commits murder, all his companions
who are conjointly committing dacoity, are liable to be convicted
under Section 396 IPC, although they may have no participation in
the murder beyond the fact of participation in the dacoity. The
obligation of the court in the matter of imposing the sentence - "death
or imprisonment for life" is in the same sequence both for Sections
302 IPC and 396 IPC. Though the offence under Section 396 IPC is
to be viewed with seriousness, for the conviction under Section 396
IPC, larger discretion is vested with the court insofar as there is
possibility of imposing a penalty lesser than death or imprisonment
for life for the conviction under Section 396 IPC.
10. Placing reliance upon Dinesh alias Buddha v. State of
Rajasthan (2006) 3 SCC 771, the High Court took the view that
commission of murder in the course of dacoity is to be viewed with
seriousness. We are also of the view that the offence under Section
396 IPC is to be viewed with seriousness, especially, when the
dacoits are armed. But in the case in hand, the accused were not
7
armed. Accused Babu @ Nawab Sahib is alleged to have sat on
deceased Muthukrishnan and pressed his nose and mouth and is
alleged to have tightened his neck with the rope. The occurrence
was of the year 2002. Considering the long lapse of time and the
facts and circumstances of the case, the sentence of imprisonment
for life is modified as ten years as directed by the trial court.
11. While maintaining the conviction under Section 396 IPC, the
sentence of imprisonment imposed upon the appellants-Basheer,
Shajahan and Babu @ Nawab Sahib is modified as ten years of
imprisonment and the appeals are partly allowed. Since the
appellants are stated to be in custody for more than ten years, the
appellants are ordered to be released forthwith, if not required in any
other case.
………………………..J.
(RANJAN GOGOI)
..……………………..J.
(R. BANUMATHI)
New Delhi;
February 16, 2018
8
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.697-98 OF 2012
SHAJAHAN …Appellant
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
WITH
CRIMINAL APPEAL NO.481 OF 2015
BASHEER AND ANOTHER …Appellants
Versus
STATE REP. BY INSPECTOR OF POLICE ...Respondent
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the common judgment passed by
the High Court of Madras in Criminal Appeal Nos. 69, 1096 and 1097
of 2006 allowing the appeal preferred by the State thereby enhancing
the sentence of imprisonment from ten years to imprisonment for life
for the conviction under Section 396 IPC.
2. Briefly stated case of the prosecution is that on the intervening
night of 13/14.11.2002 at about 01.30 a.m., the appellants accused
Basheer (A1), Shajahan (A2) and Babu @ Nawab Sahib (A4) along
1
with two other accused Raja Mohammad (A3) and Balu @
Balasubramanian (A5) with common intention to commit robbery in a
Pawn Broking shop under the name of Peri owned by PW-1
Muthaiyah. In the course of committing robbery, Shajahan (A2) is
alleged to have tightly held the legs of deceased Muthukrishnan who
was sleeping inside the shop and Babu @ Nawab Sahib (A4) is
alleged to have sat on his chest and constricted his neck and tied the
jute rope around the neck of Muthukrishnan and strangled him to
death. Other accused robbed jewellery about 4.788 kg. of gold and
5.595 kg. of silver total worth about Rs.12,00,000/-. On 13.11.2002 at
about 05.30 a.m., Chellam-PW-4 employed as the sweeper at the
Pawn shop came to the house of PW-1 and informed him that
Muthukrishnan was found dead in his shop. PW-1 lodged the
complaint in Mandharakuppam Police Station, based on which, police
had registered a case in Crime No.257 of 2002 under Sections 457,
380 and 302 IPC. PW-37-SHO had taken up the investigation. On
06.02.2003 at about 11.00 p.m. Raja Mohammad (A3) was arrested
near Panrutti bus stand and his confession statement was recorded
in the presence of Vasan-PW-15, based on which, a sum of
Rs.46,000/- was recovered from Raja Mohammad (A3). Confession
2
statement of accused Raja Mohammad led to recovery of thirty pair of
silver anklets, golden necklace and chain from Noorudheen who was
identified by accused Raja Mohammad under Ex.P21. Confession
statement of accused Raja Mohammad led to further recovery of
silver anklets, golden rings, necklace and totally twelve items of
jewels from KVM Jewellery at Kallakurichi under Ex.P23. Confession
statement of accused Raja Mohammad also led to recovery of
seventeen pair of silver anklets, twenty pair of silver pattadai anklets
and a golden chain from his house at Pudupet in Vridhachalam.
3. Accused Raja Mohammad took the police and PW-15 to
Alichakudi village and on being identified by him, Babu @ Nawab
Sahib (A4) was arrested. Based on the confession statement of
accused Babu @ Nawab Sahib, seventeen items of jewels were
recovered from the house of his mother's sister under Ex.P28. Based
on the confession statement of Babu @ Nawab Sahib (A4), the police
went to Mumbai where numbers of items of jewels were recovered
from the house of his uncle and also from a jewellery shop named
Panchaseel Jewellery.
4. On 06.02.2003 at wee hours at about 01.30 a.m. appellants
Basheer (A1) and Shajahan (A2) were proceeding on a TVS-50
3
motor cycle and on being intercepted by the police, the appellants
started running and the police caught hold of them. Based on the
confession statements of accused Basheer and Shajahan, jewels
kept in the cover on the petrol tank of the said TVS-50 vehicle, were
recovered by the police. On the basis of the information from the
informers, PW-37 arrested Balu @ Balasubramanian (A5) in front of
his house at Meyapalayur village on 08.02.2003 at about 04.00 a.m.
His confession statement led to recovery of golden jewels from a
jewellery shop at Chidambaram. Confession statement of accused
Balu @ Balasubramanian further led to recovery of gold jewels from
his house (Ex.P33). On completion of investigation, chargesheet was
filed against the accused under Sections 457, 395, 396 and 302 read
with 34 IPC.
5. In the trial court, prosecution has examined thirty seven
witnesses, including PW-1-owner of the Pawn shop, PW-2 and PW-3
working under PW-1 and other witnesses. Upon consideration of
evidence, the trial court convicted all the five accused inter alia under
Section 396 IPC read with Section 34 IPC and sentenced them to
undergo rigorous imprisonment for ten years. The trial court held that
4
in view of the conviction of the accused under Section 396 IPC,
conviction of the accused under Section 302 IPC was not necessary.
6. Being aggrieved by the conviction, accused Shajahan and Raja
Mohammad filed appeals before the High Court which came to be
dismissed. In the appeal filed by the State, for conviction under
Section 396 IPC, the High Court enhanced the sentence of
imprisonment from ten years to imprisonment for life. The High Court
did not go into the question of conviction of the accused under
Section 302 IPC.
7. We have heard the learned counsel for both the parties and
perused the materials on record.
8. There is clear and cogent evidence against accused Raja
Mohammad and Babu @ Nawab Sahib as to their involvement in the
commission of dacoity by the evidence of PW-15 and PW-17 and by
recovery of various items of jewels. The jewels so recovered from the
accused were identified by the owner of the Pawn shop (PW-1) and
PWs 7 to 14 who pledged the jewels with PW-1. Evidence of PW-1 is
further corroborated by the registers maintained in his Pawn shop to
show that those items of jewels were pledged in his Pawn shop. The
5
conviction of the appellants Raja Mohammad and Babu @ Nawab
Sahib under Section 396 IPC is unassailable.
9. Accused Basheer and Shajahan were arrested in the presence
of PW-21-Anbalagan and PW-22-Vijayarangan who partially turned
hostile. In his evidence, PW-21 stated that two persons were coming
on the TVS-50 and on being intercepted by the police, they started
running and those persons were chased and were caught by the
police and the police recovered jewels from the cover kept on the
petrol tank of the said vehicle. Though PWs 21 and 22 have spoken
about the two persons and recovery of jewels from the said two
wheeler, they have not identified accused Basheer and Shajahan. As
observed by the trial court, case of the prosecution is not discredited,
merely because PWs 21 and 22 have turned hostile so far as
identification of accused. As pointed out by the trial court, evidence
of PWs 21 and 22 is to be read along with the evidence of
Investigating Officer (PW-37) who has clearly spoken about Basheer
and Shajahan were proceeding on the two wheeler TVS-50 and also
spoken about the arrest and recovery of jewels. The jewels recovered
from Basheer and Shajahan were also identified by PW-1-owner of
the Pawn shop. The fact that PWs 21 and 22 turned hostile does not
6
affect the prosecution case as to the involvement of Basheer and
Shajahan in the commission of the offence of dacoity. Section 396
IPC prescribes punishment for dacoity with murder. In the course of
commission of dacoity, if a dacoit commits murder, all his companions
who are conjointly committing dacoity, are liable to be convicted
under Section 396 IPC, although they may have no participation in
the murder beyond the fact of participation in the dacoity. The
obligation of the court in the matter of imposing the sentence - "death
or imprisonment for life" is in the same sequence both for Sections
302 IPC and 396 IPC. Though the offence under Section 396 IPC is
to be viewed with seriousness, for the conviction under Section 396
IPC, larger discretion is vested with the court insofar as there is
possibility of imposing a penalty lesser than death or imprisonment
for life for the conviction under Section 396 IPC.
10. Placing reliance upon Dinesh alias Buddha v. State of
Rajasthan (2006) 3 SCC 771, the High Court took the view that
commission of murder in the course of dacoity is to be viewed with
seriousness. We are also of the view that the offence under Section
396 IPC is to be viewed with seriousness, especially, when the
dacoits are armed. But in the case in hand, the accused were not
7
armed. Accused Babu @ Nawab Sahib is alleged to have sat on
deceased Muthukrishnan and pressed his nose and mouth and is
alleged to have tightened his neck with the rope. The occurrence
was of the year 2002. Considering the long lapse of time and the
facts and circumstances of the case, the sentence of imprisonment
for life is modified as ten years as directed by the trial court.
11. While maintaining the conviction under Section 396 IPC, the
sentence of imprisonment imposed upon the appellants-Basheer,
Shajahan and Babu @ Nawab Sahib is modified as ten years of
imprisonment and the appeals are partly allowed. Since the
appellants are stated to be in custody for more than ten years, the
appellants are ordered to be released forthwith, if not required in any
other case.
………………………..J.
(RANJAN GOGOI)
..……………………..J.
(R. BANUMATHI)
New Delhi;
February 16, 2018
8
