Case Note & Summary
The Supreme Court of India heard a jail appeal preferred by Ajit Singh under Section 19 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 against his conviction by the Designated Court, Rohtak at Sonepat. The prosecution case was that on 12.4.1990, Suresh (PW7) and his brother Subhash (PW8) were travelling on a scooter when Ajit Singh and co-accused Raj Pal, armed with a pistol, stopped them and robbed them of a purse containing Rs.1775 and two wrist watches. During the incident, Ajit Singh allegedly fired a pistol causing injuries to Suresh's left hand and also inflicted a tooth bite. An FIR was lodged the next day; both accused were arrested on 16.5.1990 and the wrist watches were recovered at their instance on 18.5.1990. Initially, a charge-sheet was filed under Sections 394, 392, 397 IPC and Section 5 of TADA, but at trial the accused were charged only under Sections 392, 397 and 394 IPC. The Designated Court convicted both accused under Section 392 read with Section 397 IPC and under Section 394 IPC, sentencing them to 10 years rigorous imprisonment and fine under Section 394, and 7 years rigorous imprisonment under Section 392 read with 397 IPC. Ajit Singh appealed from jail. His amicus curiae argued that conviction under Section 397 IPC was not sustainable because the pistol was used only after the complainant threw a milk drum at him, not during the robbery. Reliance was placed on Phool Kumar v. Delhi Administration. It was also argued that the evidence of identification was unreliable because the accused were shown to the witnesses in police lock-up. Alternatively, it was submitted that the appellant had already undergone more than five years of detention and should be released. The Supreme Court found force in these contentions. It held that on the facts, the appellant should not be convicted under Sections 397 and 394 IPC. The Court observed that the pistol was fired after the accused was hit with a milk drum, possibly in self-defence, and not during the commission of the robbery. Similarly, the conviction under Section 394 IPC was set aside because the injuries were inflicted during the struggle after the robbery, not for committing robbery. However, the Court sustained the conviction under Section 392 IPC based on the depositions of PWs 7 and 8. Since the appellant had already undergone more than five years of imprisonment, the Court reduced the sentence for Section 392 IPC to five years and directed his release if not wanted in any other case. The Court also extended the same benefit to co-accused Raj Pal, who had not filed an appeal, relying on Piara Singh v. State of M.P., which allows benefit to be given to an accused who fails to appeal due to poverty. The appeal was thus partly allowed.
Headnote
A) Criminal Law - Robbery - Section 392 of Indian Penal Code, 1860 - Conviction can be based on testimony of victims - The appellant was convicted under Section 392 IPC based on depositions of PWs 7 and 8, who were victims of robbery. Despite contentions that identification in court was tainted because accused were shown to witnesses in police lock-up, the Court found conviction sustainable on their testimonies. Held that conviction under Section 392 IPC was affirmed but sentence reduced to five years considering period already undergone. (Paras 1-3) B) Criminal Law - Robbery - Use of Deadly Weapon - Section 397 of Indian Penal Code, 1860 - Conviction under Section 397 IPC is not justified if a weapon is used only after victim struck accused, not during commission of robbery. The prosecution case indicated pistol was fired after accused was hit with a milk drum during a struggle after robbery. The Court held ingredient of using deadly weapon while committing robbery was not satisfied, so conviction under Section 397 IPC was set aside. (Paras 1-3) C) Criminal Law - Hurt Caused in Robbery - Section 394 of Indian Penal Code, 1860 - Conviction under Section 394 IPC requires hurt to be caused to commit robbery or while attempting to commit robbery; injuries inflicted after robbery was completed during struggle do not attract Section 394. The Court found injuries from gunshot and tooth bite occurred after complainant threw milk drum, not during robbery itself. Held conviction under Section 394 IPC was unjustified and set aside. (Paras 1-3) D) Criminal Procedure - Appellate Benefit to Non-Appealing Co-Accused - No specific statute cited; based on Supreme Court precedent - The Court extended benefit of acquittal under Sections 394 and 397 IPC and reduced sentence under Section 392 IPC to co-accused Rajpal who did not appeal, relying on Piara Singh v. State of M.P. that an accused failing to appeal due to poverty is entitled to same benefit as other accused in similar circumstances. Held co-accused Rajpal was also entitled to modification of sentence and release if not wanted in other cases. (Paras 1-3)
Issue of Consideration
Whether conviction under Section 397 IPC is sustainable when pistol was used only after accused was struck with a milk drum and not during robbery; whether conviction under Section 394 IPC is sustainable when injuries were inflicted after robbery was completed; whether conviction under Section 392 IPC can be affirmed based on victim testimony despite alleged identification infirmities; whether co-accused who did not appeal can be granted same benefit of modification of sentence
Final Decision
Appeal allowed in part; convictions and sentences under Sections 394 and 397 IPC set aside; conviction under Section 392 IPC affirmed; sentence for Section 392 IPC reduced to period of five years already undergone; appellant to be released forthwith if not wanted in other cases; same benefit extended to co-accused Rajpal, with sentence reduced to five years.
Law Points
- Conviction under Section 397 IPC requires use of deadly weapon during commission of robbery
- not in aftermath
- firing pistol after being hit with milk drum may be self-defence and does not sustain conviction under Section 397
- conviction under Section 394 IPC requires hurt caused to commit robbery
- not injuries inflicted during subsequent struggle
- conviction under Section 392 IPC can be based on credible testimony of victims despite infirmities in identification
- benefit of modification of sentence should be extended to non-appealing co-accused
- especially when failure to appeal is due to poverty
