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