SHAJAHAN versus STATE REP. BY INSPECTOR OF POLICE

Citation: [2018] 2 S.C.R. 661 · Decided: 16-02-2018 · Supreme Court of India · Bench: RANJAN GOGOI, R. BANUMATHI · Disposal: Case Partly allowed

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Judgment (excerpt)

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SHAJAHAN
v.
STATE REP. BY INSPECTOR OF POLICE
(Criminal Appeal Nos. 697-98 of 2012)
FEBRUARY 16, 2018
[RANJAN GOGOI AND R. BANUMATHI, JJ.]
Penal Code, 1860 – s.396 r/w s.34 – Dacoity with murder –
Five accused – Dacoity in shop of PW1 – Deceased was sleeping
inside the shop – A2 held the legs of deceased, while A4 sat on his
chest and strangled him to death – Trial court convicted all the five
accused inter alia u/s.396 r/w. s.34 and sentenced them to
imprisonment for ten years – High Court while affirming the
conviction, enhanced the sentence of imprisonment from ten years
to imprisonment for life – Held: In course of commission of dacoity,
if a dacoit commits murder, all his companions who are conjointly
committing dacoity, are liable to be convicted u/s.396, although they
may have no participation in the murder beyond the fact of
participation in the dacoity – Offence u/s.396 is to be viewed with
seriousness, especially, when dacoits are armed, however, in the
present case, the accused were not armed – Considering the long
lapse of time, as the occurrence was of year 2002 and the facts and
circumstances of the case, conviction u/s. 396 is maintained but
sentence of imprisonment for life imposed upon A1, A2 and A4 is
modified as ten years, as directed by trial court.
Sentencing – Imposition of sentence u/s.302 vis-a-vis u/s.396,
IPC– Discretion vested with Court – Scope – Held: Obligation of
Court in the matter of imposing sentence- “death or imprisonment for
life” is in the same sequence both for ss.302 and 396 – Though
offence u/s.396 is to be viewed with seriousness, for conviction
under it, larger discretion is vested with the Court as there is
possibility of imposing a penalty lesser than death or imprisonment
for life– Penal Code, 1860 – s.302, s.396 r/w s.34.
  [2018] 2 S.C.R. 661
661
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SUPREME COURT REPORTS
[2018] 2 S.C.R.
Partly allowing the appeals, the Court
HELD : 1.1 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,
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 is to be viewed
with seriousness, for the conviction under Section 396, larger
discretion is vested with the court insofar as there is possibility
of imposing a penalty lesser than death or imprisonment for life.
[Para 9][666-C-D]
1.2 The offence under Section 396 is to be viewed with
seriousness, especially, when the dacoits are armed. But in the
case in hand, the accused were not armed. Accused A4 is alleged
to have sat on deceased 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.
While maintaining the conviction under Section 396, the sentence
of imprisonment imposed upon the appellants-A1, A2 and A4 is
modified as ten years of imprisonment. Since the appellants are
stated to be in custody for more than ten years, they are ordered
to be released forthwith, if not required in any other case. [Paras
10, 11][666-E-G]
Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC
771 : [2006] 2 SCR 793 –  referred to.
Case Law Reference
[2006] 2 SCR 793
referred to
Para 10
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 697-698 of 2012.
From the Judgment and Order dated 03.09.2010 of the High Court
of Madras in Criminal Appeal No. 69 and 1094 of 2006 respectively
WITH
Criminal Appeal No. 481 of 2015.
Amit Kumar, R. Balasubramanian, B. Karunakaran,
S. Gowthaman, K. G. Krishnaraj, S. Shanthakumari, Advs. for the
Appellant.
M. Yogesh Kanna, Mrs. Sujatha Bagadhi, Advs. for the
Respondent.
The Judgment of the Court was delivered by
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 

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