S.S. Parkar, J.
1. This appeal is filed by the appellants-accused against the judgment and order dated 13/11/1998 delivered by the Addl. Sessions Judge, Greater Bombay convicting the appellants for offences under Sections 395, 397 and 452 of IPC in Sessions Case No. 594 of 1996.
2. Brief facts leading to the present appeal are as under:
The robbery had taken place in the house of the complainant in the afternoon of 11th January 1996 at about 4 p.m. in Borivli (West), Mumbai. When the door was opened at the sound of the door bell, two persons entered into the house armed with chopper and knife and gave threat to the members of the household not to make noise. They were immediately followed by four more persons who were also armed with choppers and knives. Initially they asked the complainant-PW 1 to remove her bangles, gold chain and the ear rings which were on her person. After the said ornaments were handed over to them by PW 1, they removed the ear rings of the complainant's daughter Bharati from her ears. Thereafter they entered into the bedroom where PW 2, husband of the complainant, was resting due to heart problem. Thereafter they enquired about the locker. The complainant opened the cupboard and gave them two boxes of tins containing golden ornaments. Thereafter they removed other articles from the cupboard. They tied the hands of the inmates of the house who were husband, wife, son and daughter. Their mounts also were tied and thereafter they left the house warning them not to make noise. After the robbers left the house, front door was closed and PW 1 shouted from the window asking the people to catch the thieves. However the thieves escaped. Thereafter the complainant Sudha Mehta went to Borivli Police Station along with her daughter and reported about the robbery. She had given the list of properties also which were stolen from her house including the gold jewellery as well as camera, walkman, VCR, remote controls etc. Her First Information Report is produced on record at Exhibit 15. PW 2 Kesrimal, the husband of the complainant was sent to Bhagwati Hospital, Borivli for examination as he had received injuries on his hand caused to him by the accused persons when he resisted thrusting cloth in his mouth by the accused persons.
3. Accused Nos. 1 to 5 were arrested on 22nd January 1996 while accused No. 6 was arrested on 26th January 1996. In all there were nine accused persons who were prosecuted for the offence or robbery etc. After arrests of the accused some stolen properties were discovered at the instance of some of the accused persons. It was identified by PW 1, the complainant as the property stolen from her house. TI parade was held in Bombay Central Prison on 5/2/1996. In the TI parade the complainant had identified all the six accused while PW 2 the husband of the complainant had identified accused Nos. 3 and 4. The son of the complainant Rohit had identified accused Nos. 2, 3, 4, 7 and 8 and the daughter of the complainant-Bharati had identified accused Nos. 2, 3, 4 and 6. During the course of investigation the complainant had also given a supplementary statement and furnished detailed list of the stolen articles few days after the incident. After completing the investigation the police filed charge-sheet and the case was committed to the Sessions Court.
4. In the Sessions Court charges were framed for offences under Section 395 read with Section 120-B of IPC and in the alternative for offence under Section 395 read with Section 34 of IPC against accused Nos. 1 to 8. The charge was framed for offence under Section 397 and 452 of IPC against accused Nos. 1 to 4 and 6 to 8. Lastly charge was framed under Section 411 of IPC against accused No. 9. All the accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. On behalf of the prosecution 14 witnesses were examined which include the complainant, her husband who were the eye witnesses to the incident. The other witnesses are the officer who held the TI parade and the panchas to the spot panchanama and recovery panchanamas. Two doctors have been examined, one of whom had examined PW 2 and the other accused No. 4 and lastly there are two Police Officers, PWs 13 and 14 who investigated the matter.
5. After going through the entire evidence on recorded the trial Court had acquitted accused Nos. 1, 5, 8 and 9 by the judgment and order dated 13/11/98 and convicted accused Nos. 2, 3, 4, 6 and 7 for offences under Sections 395, 397 and 452 of IPC. The said accused Nos. 2 to 4, 6 and 7 were convicted for offence under Section 395 of IPC and sentenced to suffer R.I. for ten years and to pay a fine of Rs. 1000/- each in default to suffer further R.I. for six months. They were next convicted for offence under Section 397 of IPC and each of them was sentenced to undergo R.I. for seven years. They were also convicted for offence under Section 452 of IPC but no separate sentence was imposed on that count. They substantive sentences were directed to run concurrently. Out of the aforesaid five accused persons convicted by the trial Court, these appellants, who were original accused Nos. 2, 4 and 6, have preferred this appeal against the order of their convictions and sentences recorded by the trial Court.
6. It may be mentioned here that though this appeal by these three appellants was filed by Mr. R.V. Kini, he did not appear in the matter. By order dated 7/1/2003 passed by this Court, the accused were given intimation and asked whether they wanted the Government to appoint an Advocate for them or they wanted to make alternate arrangement by appointing another lawyer on their behalf. Thereafter appearance has been filed by Mr. A.R. Rasal and Mr. P.D. Khot on behalf of appellant Nos. 1 and 3 i.e. original accused Nos. 2 and 6 only. But no appearance is filed by any other Advocate on behalf of appellant No. 2 i.e. original accused No. 4 nor he had intimated this Court for appointment of any other Advocate on his behalf. The appearance of Mr. Kini who had filed this appeal continued to be shown on the board but he did not bother to appear in the matter even on behalf of appellant No. 2 i.e. original accused No. 4 on whose behalf no other Advocate has filed appearance though the matter was part heard from yesterday. I have, therefore, gone through the relevant evidence pertaining to these three appellants with the assistance of Mr. Marwadi and the APP appearing for the State and heard them in this appeal.
7. Mr. Marwadi who argued on behalf of appellant Nos. 1 and 3 contended firstly that so far as appellant No. 1 is concerned the panch for the recovery at the instance of this accused was not examined and, therefore, there was no corroborating circumstance to his identification at the TI parade by the witnesses. He relies on the judgment for this Court in the case of Mohanlal v. Emperor reported in AIR 1941 Bombay 149 and contended that the panchanama for the recovery of articles at the instance of appellant No. 1 i.e. original accused No. 2 cannot be relied in support of the recovery from the said accused on the strength of evidence of the Investigating Officer. So far as appellant No. 3 - original accused No. 6 is concerned, he contended that on the basis of recovery at the instance of the said accused he can at best be convicted under Section 411 of IPC and not for the robbery as the identification at the second TI parade held on the same day by using same dummies as in the first identification parade held just before holding the second identification parade cannot be relied on. he places reliance on the judgment of the Division Bench of this Court in the case of State of Maharashtra v. Sachin Shivshankar Menon reported in 1999 ALL MR (Cri) 241 to which I was a party. Lastly he submitted that the accused persons are in custody from the time of their arrest in January 1996 and have already undergone imprisonment for a period of more than 7 and 1/2 years and, therefore, the sentence may be reduced to the period already undergone.
8. The main evidence led by the prosecution is of PW 1 and PW 2 who were present in the house at the time of the incident or robbery and were, therefore, eye witnesses to the incident. PW 1 Smt. Sudha Mehta has deposed in her evidence that in the afternoon of 11/1/1996 at about 3-45 p.m. the bell of the house rang and, therefore, the door was opened by her son. On opening the door two persons entered into the house saying that they had come from Virar office with some letter. He son Rohit went ahead to see the letter. He was pushed back and those two persons showed chopper and knife which they were holding in their hands and threatened not to make noise. They were followed by four others who were also armed. On the point of chopper and knife complainant was asked to remove her bangles, gold chain and ear rings and hand them over to them. She accordingly removed those articles from her person and handed over the same to them. Thereafter they went to the bed room of her husband Kesrimal Mehta PW 2. When they saw her daughter they removed her ear rings and thereafter they enquired about the locker. PW 1 went near the cupboard and opened it and took out two boxes of tins and headed them over to them. Thereafter they removed other articles from the cupboard and the house and went out after holding out threat not to make any noise. After they left, the door was closed and the witness called for help through her window loudly asking people to catch the thieves who were running away. Inspite of the efforts made by the people from the vicinity none of the accused could be apprehended. She thereafter went to Borivli Police Station and lodged her complainant which was produced on record as Exhibit 15. She has also given the list of articles which were stolen from the house. Her evidence is amply supported by her husband Kesrimal Mehta PW 2. He happened to be in the house as he was not keeping well due to heart problem. He has deposited that he had bitten the hand of one of the accused person who was trying to gag his mouth with cloth. The said accused was identified by him at the Ti parade to be accused No. 4. He had also deposed that when he bit the left hand palm of accused NO. 4, accused No. 3 injured him on his hand with a knife. The prosecution has also led the evidence of Dr. Mehta PW 7 who had examined the injuries on the hand of PW 2 on the date of the incident at Bhagwati Hospital in Borivli. According to PW 7 he had examined PW 2 and treated him on 11/1/96. He found following three injuries on his hand: (1) Lenier abrasion on left arm anteriorly measuring 5 cm x 1 cm superficial deep.
(2) Swelling and tenderness on left side of forehead.
(3) Swelling and tenderness on left side third finger.
PW 2 had also identified accused No. 3 at the TI parade as the person who had injured him on his hand with knife. Moreover the prosecution has also led the evidence of another witness PW 4 Dr. Balaji who had treated accused No. 4 on 19th January 1996 for his bite injury on his left palm. He had deposed that he was the family doctor of family of accused No. 4 and the bite on the left palm of accused No. 4 was a human bite. Thus the evidence of complainant PW 1 Sudha Mehta is corroborated by her husband Kesrimal Mehta who in turn has been corroborated by the evidence of two doctors, one from Bhagwati Hospital, Borivli and another family doctor of accused No. 4. The evidence of the two eye witnesses has been corroborated by the immediate complaint lodged with the police by PW 1. The scene of offence panchanama (Exh.32) which was drawn on the same day also corroborates the factum or robbery having taken place on the said date in the house of the complainant.
9. The TI parade was held on 5/2/96 in Arthur Road Prison at Bombay Central. In this connection the prosecution has led the evidence of PW 3 Madhukar Bodke who had conducted the TI parade. According to him on the said date 35 dummies were brought by the police out of whom he had selected nine dummies. Two parades were held on after another. In the first parade accused Nos. 2, 3 and 4 were put up for identification and four witnesses, PW 1 the complainant; her husband PW 2 and their two children son-Rohit and daughter-Bharati were given the chance for identifying the accused. In the first parade the complainant identified accused Nos. 2, 3 and 4 put up for identification. PW 2 identified accused Nos. 3 and 4 as the persons who had injured on his hand and whose hand was bitten by him i.e accused Nos. 3 and 4 respectively. All the three accused were also identified by their children Rohit and Bharati as per the evidence of PW 3 and the panchanama of TI parade but they had not been examined by the prosecution. In the second parade held immediately thereafter PW 1 had identified all the three accused Nos. 6, 7 and 8 put up for identification. Accused No. 6 was not identified by PW 2 but their daughter Bharati had identified accused non.6 only she has not been examined as a witness in the Court.
10. So far as the identification of appellant Nos. 1 and 2 i.e. original accused Nos. 2 and 4 is concerned the same cannot be challenged. Apart from PW 1, PW 2 has also identified accused No. 4. The two witnesses have identified the accused persons at the TI parade by attributing roles to them.
11. the main grievance made by Mr. Marwadi is as regards the second T.I. parade in which same dummies were continued. No doubt that is a lapse on the part of the Special Executive Officer who conducted the TI parade. In my view the use of same dummies in this case would not make difference in view of the fact that the accused who were put in the second parade were not one or two but three in number and PW 1 has identified accused No. 6 by assigning particular role to him. She has also identified accused No. 6 in the Court. In the Court her evidence was led on 9th June 1998 i.e. after lapse of a period of two and half years. Still she identified accused No. 6 as well as the other five accused who had entered her house on the day of the incident and committed robbery. The witness had ample time to see the accused in the house for sufficiently long time and, therefore, was able to identify them at the TI parade as well as later on in the Court room while giving evidence. In the aforesaid circumstances of this case the ratio of the decision of the Division bench in Sachin Menon's case, 1999 ALL MR (Crl) 241 cited by the defence Advocate will not be applicable. That was a case of rape. In that case accused NO. 4 who was put up in the second TI parade was not seen by the prosecutrix until he committed rape on her. But it was accused Nos. 1 and 2 who had taken her to the spot and committed rape on her first followed by accused No. 4. In that context it was difficult to believe that she could have noticed the features of accused NO. 4 and identified him at the TI parade but for the folly committed in conducting the TI parade by using same panchas and same dummies. On the other hand in this case the witness had ample time to see and observe accused No. 6 at the time of commission of robbery as the accused took some time before they could tie and gag the four inmates of the house and thereafter remove the articles from the persons of the complainant and her daughter and from the cupboard as well as from the house. Moreover in this case the witness had identified accused No. 6 by assigning role to him. As per the panchanama of TI parade (Exh. 19) PW 1 had identified accused No. 6 as the person who entered her house and asked for jewelry and money from her. The identification of this accused at the trial after a lapse of two and half years by the complainant is also material. She could identify accused No. 6 in the Court only because she had seen the said accused in her house and had sufficient time to notice his features at the time of the incident. If PW 1 were to identify accused No. 6 at the TI parade only because the same dummies were kept in the second parade, she would not have been able to identify him in the Court after lapse of two and half years because at the time of TI parade there was hardly any time to keep the features of all the persons, nine dummies and six accused, in mind and then to recollect them after almost two and half years when she gave evidence in the Court.
12. Thus I have no doubt in my mind about P.W. 1 identifying all these appellants and PW 2 identifying appellant No. 2 which is supported by the panchanama of TI parade and by P.W. 3, the officer holding TI parade. Their identification proves that the appellants were members of the gag which committed the robbery in the house of the complainant.
13. Apart from the identification of these appellants there is also recovery at the instance of appellant Nos. 1 and 3. So far as appellant No. 1 is concerned, there was recovery of two wrist watches and one camera at his instance which are identified by the complainant as belonging to her. But the panch to the said recovery was not examined. No doubt the Investigating Officer has produced on record the panchanama of the memorandum of statement and the recovery. In this connection Mr. Marwadi relied on the decision of the Division Bench of this Court in the case of Mohanlal v. Emperor reported in AIR 1941 Bombay 149. As per the said judgment the panchanama is merely record of what a panch sees and the same can be relied on and referred to only when the panch goes into the witness box and swears as to what he saw. According to the said judgment, panchanama can be used as a contemporary record to refresh pancha's memory but the police officer is not entitled to give evidence of what the panch told him as it becomes hearsay evidence. In my view even if the recovery at the instance of appellant No. 1 - accused No. 2 is not proved, yet the complainant identifying him t the first TI parade by assigning role to him as the person who had entered into the house with a knife in his hand and threatened the inmates and asked them not to shout, corroborated by the evidence of PW 3 who conducted the TI parade and the TI parade panchanama and the complainant also identifying the accused in the Court at the time of giving evidence is sufficient to hold him guilty for the offence of robbery and dacoity.
14. So far as appellant No. 2 - accused No. 4 is concerned, though there is no recovery at his instance but the evidence of the complainant identifying him at the TI parade by assigning role to him as the person who was first to enter her house and threaten her and demand the jewelry and cash from her on the point of knife is sufficient to hold him guilty for the offence of robbery. Her evidence is corroborated by her husband PW 2 who has identified him at the TI parade as the person whose hand was bitten by him when he was trying to gag his mouth. The evidence of PW 2 is further supported by the medical evidence led by the prosecution by examining PW 4 Dr. Balaji who was the family doctor of accused No. 4. He has deposed that he had treated accused No. 4 for a human bite on his left palm. PW 2 has also deposed in his evidence that he had bitten the hand of accused No. 4 at the time of the incident when he was trying to gag his mouth.
15. Lastly so far accused No. 6 is concerned, apart from his identification in the Court as well as at the TI parade by the complainant, there is recovery of stolen articles at his instance. That recovery is supported and deposed to by panch PW 10. Having accepted the evidence of identification of accused No. 6 for the reasons given earlier, the argument of Mr. Marwadi that appellant No. 3 i.e. accused No. 6 can utmost be found guilty only of offence under Section 411 of IPC cannot be counternanced.
16. Mr. Marwadi then argued that when the recovery was not made from accused No. 6 from his possession but from the possession of third person though at the instance of accused No. 6, it would not amount to discovery under Section 27 of the Evidence Act. The said argument is devoid of any substance. section 27 does not speak about the recovery either from the accused himself or by the accused from a place as per his statement. What is required under Section 27 is that the discovery must be made in consequence of the information received from the accused irrespective of whether that discovery or recovery is made from or by the accused or from any person or place show by the accused in his statement. I, therefore, have no hesitation in confirming the conviction of all the appellants for offence under Sections 395, 397 and 452 of IPC.
17. Lastly, in my view, two separate orders of convictions and sentences for the two offences under Sections 395 and 397 of IPC are not warranted by the said provisions. Punishment for dacoity is mainly provided by Section 395 of IPC according to which the maximum punishment which can be imposed is life imprisonment or in the alternative RI for a term which may extend to ten years and fine. Section 397 on the contrary only lays down the minimum sentence to be imposed for the offence of robbery or dacoity in certain circumstances.
18. From the scheme of the provisions of Sections 390 to 402 relating to the offences of robbery and dacoity under Chapter XVII of the Penal Code it is quite apparent that Section 397 of the code is in the nature of proviso to the main punishing Sections like Sections 392, 394, 395 and 396 of the Code which prescribe punishments for the said offences. 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 substantive sentence, which can be awarded either under Sections 392, 394, 395 and 396 cannot be lesser than seven years imprisonment by virtue of Section 397 of the Code. If, however, the provisions of Section 397 are not attracted in case of offence of robbery or dacoity, which are punishable under Sections 392, 394, 395 and 396 of the Code, the court has discretion to impose substantive sentence which can be lesser or more than seven years upto the maximum period prescribed by the aforesaid provisions. This is amply clear from the wording of Section 397 which does not prescribe maximum sentence.
19. It is not disputed that in this case the provisions of Section 397 of IPC are attracted. But separate convictions and imposition of separate sentences under Section 397 as well as under Section 395 would not be warranted as awarded by the trial Court. In my opinion, the accused in this case can be convicted for offence under Section 395 read with Section 397 of IPC and awarded one sentence only which cannot be lesser than seven years. It is different thing that since both the sentences were directed to run concurrently and there being no separate sentence of fine imposed under Section 397 of the Code it would make no difference in this case but as a matter of law there can be no two separate orders of convictions nor sentences under both Sections 395 as well as 397 of IPC can be awarded.
20. Lastly I have to consider the plea made on behalf of the accused that the accused are already in custody for a period of more than seven and half years and with remissions they may be otherwise entitled to be released after a short period and, therefore, their sentence should be reduced to already undergone. I think in the circumstances of the case, it would be expedient to reduce the sentences of the appellants to eight years by increasing the fine amount from Rs. 1000/- imposed by the trial Court to Rs. 3000/-.
21. In the result this appeal is partly allowed. The order of conviction of the appellants recorded by the Addl. Sessions Judge, Greater Bombay in Sessions Case No. 594 of 1996 under Section 452 of IPC is confirmed. So far as offences under Sections 395 and 397 are concerned, all the appellants are convicted for offence under Section 395 read with Section 397 of IPC and sentenced to eight years R.I. and to pay a fine of Rs. 3000/- each in default to suffer R.I. for six months. No separate sentence is imposed for offence under Section 452 of IPC as done by the trial Court.