JUDGMENT
V.R. Kingaonkar, J.
1. This Revision Application is directed against judgment rendered by learned Additional Sessions Judge, Ahmednagar, in Criminal Appeal No. 74/2004. By the impugned judgment, learned Additional Sessions Judge confirmed the order of conviction and sentence rendered by IVth Adhoc Assistant Sessions Judge, Ahmednagar, in Sessions Case No. 70/2004. Thereby the applicants have been convicted for offence punishable Under Section 397 read with Section 395 of the I.P.C. and sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 500/-, in default to suffer rigorous imprisonment for 6 (six) months. The applicants Nos. 1, 2 and 4 have been further convicted for offences punishable Under Section 4 read with Section 25 of the Indian Arms Act and sentenced to suffer rigorous imprisonment for six (6) months and to pay fine of Rs. 200/-each, in default to suffer rigorous imprisonment for one month each.
2. Originally 5 (five) accused were charge-sheeted for the offences of dacoity and for possession of arms like sword and sword-stick. Out of them original accused No. 2 Kalyan died during pendency of the trial. The Sessions case abated against him. The remaining 4 (four) accused, who are Revision Applicants herein, were tried and convicted as stated above.
3. Background facts, stated briefly, of the prosecution case are as follows:
A container trailer bearing registration No. MH-14-4919 was being driven by P.W. Dayanand Bhanudas Gaikwad (complainant) in the evening of 4.3.2004 on Pune-Ahmednagar road. The container trailer vehicle reached near boundary limits of village Kamargaon which is at distance of about 20 Kms. from Ahmednagar. Around 11 p.m., one Maruti van came from behind and overtook the container trailer. While passing from near the container trailer, one of inmate of the said Maruti van vehicle called out for the complainant saying “Kya Daya Vastad” (Daya Master). The complainant was alone in the drivers cabin. He thought that someone knowing him had given the call. So, he gradually stopped the container -trailer. The Maruti van vehicle went ahead and was parked in front of the container trailer. The complainant saw that there were 5 (five) persons travelling in the Maruti van, two of them came near his cabin from either side, whereas two were standing in the front and one was at the drivers seat. A person boarded in his cabin from the drivers side and another one boarded from other side. They were armed with a sword and sword-stick respectively, and were in the age group of about 20/25 years. The person who entered the cabin from left hand side, gave blow of the sword-stick of bottom of the handle, whereas another person who had entered the cabin from side of the driver i.e. right side shoved hand in the shirts pocket and took away amount of Rs. 3,400/-, drivers license and a diary with receipt of toll for road tax paid by the complainant. They immediately alighted from the cabin of the complainant and boarded in the Maruti van which was speeded away. The complainant drove the vehicle upto village Kamargaon and contacted Police on phone from a nearby STD booth. The Police officer assured him to send for him at the STD booth as well as to intercept the Maruti van vehicle of which registration number was noted by the complainant and was informed to the Police. The Police came to the STD booth within a short while. The complainant went to Police Station at Ahmednagar. The complainant gave his complaint in writing. In the meanwhile, the Police arranged for intercepting the Maruti van vehicle at Kinetic chowk, Ahmednagar. The Maruti van alongwith 5 (five) inmates thereof was also brought to the Police Station. The complainant identified the five (5) inmates as the robbers. The Police recovered the toll tax payment receipt from the culprits alongwith Rs. 3,400/- which were found with applicant No. 2 Shamrao. A seizure panchanama was drawn. The search of Maruti van revealed that a sword, a sword-stick and a Kukri were being carried therein. After certain investigation, the applicants were charge-sheeted alongwith deceased accused No. 2 Kalyan and were tried for the offences punishable Under Section 395 of the I.P.C. and Under Section 4 read with Section 25 of the Indian Arms Act.
4. The applicants denied truth into the accusation. According to them, they were travelling in the Maruti van which was intercepted at Kinetic Chowk, Ahmednagar by the Police, while returning from Alandi after attending a fair. They asserted that they have been falsely framed in the Criminal case. They denied to have assaulted the complainant and robbed him of Rs. 3,400/-.
5. At the trial, the prosecution examined in all 13 witnesses. The prosecution also relied upon certain documentary evidence. Both the Courts concurrently held that the charge framed against all the applicants is duly proved and held them guilty.
6. Before I proceed to consider arguments of learned advocate Mr. Salunke, appearing for the applicants and learned A.P.P., it may be mentioned that the scope of Revision Application is limited. Unless there is substantial reason to hold that the appreciation of evidence done by the trial Court and the appellate Court is perverse or founded on misinterpretation of evidence, it would not be proper to interfere with the findings of facts. The Revisional Court would not, normally, interfere with the fact finding process unless it can be said that the interference is called for in order to prevent miscarriage of justice.
7. The fact situation asserted by the prosecution is rather peculiar. The version of P.W. Dayanand (complainant) reveals that he started the journey on 2.3.2004 – with empty container – trailer from Mumbai to reach Aurangabad in order to load Bajaj Company vehicles. He was alone in the cabin throughout the journey. The container -trailer reached near Kamargaon village by about 10-45 p.m. He narrated as to how Maruti van vehicle came from behind, somebody from it called him and, therefore, he stopped the container – trailer on the road. He further narrated that two persons got down from the Maruti van and came near his cabin from either side. His version purports to show that one of the intruder gave blow of handle of the sword-stick on his head, whereas another took away amount of Rs. 3,400/-, driving license, identity card, toll tax receipt and diary from his shirts pocket. His version reveals that he noted down registration number of the Maruti van, which speeded away from front of his trailer after the robbers boarded therein.
8. The testimony of P.W. Dayanand reveals that he immediately contacted Police from a nearby STD booth and, thereafter, was taken to the Police Station. He corroborated the recitals of F.I.R. (Exh.34). There is ample evidence to show that the Police arranged to intercept the Maruti van vehicle in Kinetic chowk at Ahmednagar. The applicants alongwith deceased accused No. 2 were thereafter brought to the Police Station, where P.W. Dayanand identified them as the robbers. He also identified the toll tax receipt (Exh.22). The amount of Rs. 3,400/- was recovered from applicant No. 2 under a panchanama. The sword-stick and sword alongwith a Kukri were recovered from the Maruti van vehicle.
9. I have perused the oral and documentary evidence adduced by the prosecution. There is no escape from the conclusion that the amount of Rs. 3,400/- was recovered from applicant No. 2 under seizure panchanama (Exh.39) drawn in presence of P.W. Satish Bhingardive. He is an independent witness. He only admits that the toll tax receipt was not seized from the accused. That would not however, seriously affect the merits of the matter. The version of STD booth owner -P.W. Mahesh corroborates testimony of the complainant. What transpires from the evidence is that P.W. Dayanand was lonely in the drivers cabin and was perhaps bored due to continuous driving since about couple of days and, therefore, thought that someone known to him had called from the Maruti van. He, therefore, stopped the container – trailer with intention to have brief chit-chating with the person known to him. To his dismay, however, the robbers entered the cabin and robbed him of the cash amount and other articles. He had no business to speak lie. He was not knowing the applicants. Therefore, there was no reason for him to falsely implicate them in a serious Criminal case for offence of robbery. He gave out registration number of the while Maruti van vehicle to the Police from the STD booth on telephone is a proved fact. One cannot be oblivious of the fact that P.W.Dayanand is a driver by profession and, therefore, by habit he could have noted down the registration number of the Maruti van vehicle or could have remembered the same without difficulty. His conduct appears to be natural.
10. Mr. Salunke, would rely on certain observations in “Subhash Rambhau Wagaskar and Anr. v. State of Maharashtra” 2006 ALL MR (Cri)1605. A single Bench of this Court held that though normally Revisional Court does not interfere with the concurrent findings of facts recorded by the Courts below, yet, in appropriate cases interference can be justified where it is necessary to prevent miscarriage of justice. The fact situation in the given case is altogether different. The learned Single Judge noticed that several illegalities were committed by the trial Court and the lower appellate Court in that case. It was found that though some of the accused were acquitted by disbelieving the evidence yet, the Revision Applicants were convicted on the basis of same evidence. It was for such reason, particularly when different yardsticks were applied by the trial Court and the appellate Court, the interference was thought necessary by this Court while exercising the revisional jurisdiction available Under Section 401 of the Cr.P.C. There is hardly any parallel between the given case and the present one.
11. Mr. S.J.Salunke, further seeks to rely on “Wilson Abraham Chouriappa v. State of Maharashtra” . He would point out that in order to convict an offender for offence Under Section 397 of the I.P.C., it has to be established who was the offender armed with deadly weapon and caused grievous hurt to any person. He also seeks to rely on certain observations in “State of Maharashtra v. Mahipal Singh Satyanarayan Singh” (1996 Cri.L.J.2485, in support of his argument that the sentence awarded to the applicants is harsh.
12. So far conviction of the applicants is concerned, I am of the opinion that both the Courts below have recorded concurrent findings on basis of good deal of material available to prove guilt of the applicants. There is nothing perverse in the fact finding process and appreciation of evidence undertaken by both the Courts below. The only patent error committed by both the Courts below is that all the applicants have been sentenced for offence Under Section 397 read with Section 395 of the I.P.C. The sentence for offence Under Section 397 of the I.P.C. cannot be awarded to those of the members of the group of dacoits who did not use any deadly weapon. A plain reading of Section 397 of the I.P.C. would make it clear that such guilt can be attributed only to that offender who uses any deadly weapon or causes grievous hurt to any person during course of the commission of the robbery. The provision postulates that only the individual act of accused will be relevant to attract Section 397 of the I.P.C. In other words, the provision inevitably negates the use of the principles of constructive or vicarious liability engrafted under Section 34 of the I.P.C. In the present case P.W. Dayanand did not pin point who amongst the applicants assaulted him by means of a sword-stick. Consequently, the conviction of the applicants for offence Under Section 397 of the I.P.C. is not legal and proper. The dangerous weapons i.e. the sword, kukri and sword-stick were found in the Maruti van vehicle. The possession thereof could not be attributed to any individual applicant. Under these circumstances, the conviction of the applicants for offence Under Section 4 read with Section 35 of the Indian Arms Act is also improper and illegal. The only order of conviction and sentence which will have to be upheld is, therefore, one Under Section 395 of the I.P.C.
13. As regards sentence, the offence no doubt was serious. However, no serious injury was caused to P.W. Dayanand. No highway robbery of much valuable articles was committed. The prosecution could not produce any material to show that the applicants were habitual offenders. The applicants are young. In “Shivappa and Ors. v. State of Mysore , the Apex Court was pleased to reduce the substantive sentence to period of 3 (three) years in a case where it was found that such sentence would meet the ends of justice. Considering the nature of crime, which the applicants have committed and the fact that they are not habitual offenders, I am inclined to take a lenient view. Hence, the impugned order of conviction is maintained to the extent it relates to conviction for offence Under Section 395 of the I.P.C. but the substantive sentence is reduced to the period already undergone by the applicants as under trials and after the conviction till this date. The fine amount is enhanced from Rs. 500/- to Rs. 2,000/- each, keeping the sentence in default as the same one. The applicants are acquitted for the offence Under Section 397 of the I.P.C. and also one Under Section 4 read with Section 25 of the Indian Arms Act. The sentence awarded to them for the said offences is set aside. The order regarding disposal of muddemal property is maintained.