Full Judgment Text
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CASE NO.:
Appeal (crl.) 221 of 2008
PETITIONER:
Venu @ Venugopal and Ors.
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 30/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 6056 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order of a learned
Single Judge of the Karnataka High Court holding the
appellants guilty of offence punishable under Section 392 of
the Indian Penal Code, 1860 (in short the ’IPC’) and sentencing
each of 10 years imprisonment.
3. Prosecution version in a nutshell is as follows:
On 24.6.2001 at 9.00 p.m. on Mulbagal-Punganoor road
PWs 2 and 3 were going on a Bajaj Scooter. When they were
near ’Kirumani Mitta’ of ’Buddadoru village", accused persons
2 to 5 intercepted PWs 2 and 3, and robbed the gold chain,
golden ear drops, thali and cash of Rs.400/- by threatening
with knife. The accused tied the legs and hands of PW-2 and
PW-3 and threatened them not to escape and get out from the
place for about ten minutes after their departure. The victims
went to Punganoor Police Station and later on lodged First
Information Report with Nangali Police (Kolar Dist.) on
25.6.2001. The Traffic Police while checking found A-2, A-3
and A-4 were going on the scooter (M.O.6) they had robbed
from PW-2, the deadly weapons like knives, pistol, iron rod,
etc. were hidden in the scooter. On interrogation, the accused
persons admitted the commission of offence in question. A-5
and A-8 were arrested on the information given by A-2 to A-4.
At the instance of A-2, the gold jewellery (M.Os.2 and 3) are
recovered from PW-6-Pawn broker. The Bajaj Scooter (M.O.6)
was seized from A-2, A-3 and A-4. PW-13 with whom the ear-
studs and the chain were pledged by A-2, testified to the said
fact. PWs 2 and 3 identified A-2 to A-5 as the persons who
robbed them. Prosecution claimed that the identification of
accused persons by PWs 2 and 3 coupled with the recovery of
jewellery at the instance of A-2 and seizure of scooter from A-
2, A-3 and A-4 clinchingly established the guilt of A-2 to A-5.
The investigating agency submitted charge sheet for
alleged commission of offence punishable under Section 395 of
IPC. The case was split up against A-1, A-6 and A-7 as they
were absconding.
Learned Additional Sessions Judge, Kolar referred to the
evidence of PWs 1 and 2, the recovery of the scooter, the
recovery of stolen articles and identification thereon to
conclude that accused persons are guilty and accordingly A-2
to A-5 were convicted for offence punishable under Section
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395 IPC. Accused 7 and 8 were acquitted as the evidence was
not sufficient to find them guilty. Considering the gravity of
the offence, custodial sentence of 10 years imprisonment and
a fine of Rs.5,000/- each was imposed. In appeal, the High
Court found that the offence committed was covered under
Section 392 IPC, but considering the gravity of the offence
upheld the sentence.
4. In support of the appeal, learned counsel for the
appellants submitted that the evidence of PWs 2 and 3 does
not show that any knife was used for robbery. On the
contrary, evidence of victim clearly shows that she raised hue
and cry when accused persons tried to snatch the stolen
articles from her. It was also submitted that the appellants
have suffered custody of more than nearly 8 years and the
sentence deserves to be reduced to the period already
undergone.
5. Learned counsel for the respondent-State on the other
hand submitted that there is no minimum sentence prescribed
and the maximum sentence is 10 years. It is submitted that
the robbery was committed on the highway at about 9.00 p.m.
That being so, the sentence can be upto 14 years. Considering
the gravity of the offence and the large scale highway
robberies, no leniency should be shown.
6. Section 392 IPC provides for punishment for robbery.
The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away
property obtained by theft.
7. It is to be noted that the Section 392 provides
punishment for robbery. It is punishment for the offence
defined in Section 390. Punishment is higher if it is committed
on a highway and between sunset and sunrise. Section 390
which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either
theft or extortion.
When theft is robbery.-Theft is "robbery"
if, in order to the committing of the theft, or in
committing the theft, or in carrying away or
attempting to carry away property obtained by
theft, the offender, for the end, voluntarily
causes or attempts to cause to any person
death or hurt wrongful restraint, or fear of
instant death or of instant hurt, or of instant
wrongful restraint.
When extortion is robbery.-Extortion is
"robbery" if the offender at the time of
committing the extortion, is in the presence of
the person put in fear, and commits the
extortion by putting that person in fear of
instant death, of instant hurt, or of instant
wrongful restraint to that person or to some
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other person, and, by so putting in fear,
induces the person so put in fear then, and
there to deliver up the thing extorted.
Explanation.-The offender is said to be
present if he is sufficiently near put the other
person in fear of instant death, of instant hurt,
or of instant wrongful restraint."
8. The provision defines robbery which is theft or extortion
when caused with violence of death, hurt or wrongful
restraint. When there is no theft committed, then as a natural
corollary there cannot be robbery. Robbery is only an
aggravated form of offence of theft or extortion. Aggravation is
in the use of violence of death, hurt or restraint. Violence must
be in course of theft and not subsequently. It is not necessary
that violence actually should be committed but even attempt
to commit it is enough.
9. The authors of the Code observed as follows:
"In one single class of cases, theft and
extortion are in practice confounded together
so inextricably, that no judge, however,
sagacious, could discriminate between them.
This class of cases, therefore, has, in all
systems of jurisprudence ... been treated as a
perfectly distinct class ... we have, therefore,
made robbery a separate crime.
There can be no case of robbery which
does not fall within the definition either of theft
or of extortion; but in a practice it will
perpetually be a matter of doubt whether a
particular act of robbery was a theft or an
extortion. A large proportion of robberies will
be half theft, half extortion. A seizes Z,
threatens to murder him, unless he delivers all
his property, and begins to pull off Z’s
ornaments. Z in terror begs that A will take all
he has, and spare his life, assists in taking off
his ornaments, and delivers them to A. Here,
such ornaments as A took without Z’s consent
are taken by theft. Those which Z delivered up
from fear of death are acquired by extortion. It
is by no means improbable that Z’s right arm
bracelet may have been obtained by theft, and
left-arm bracelet by extortion; that the rupees
in Z’s girdle may have been obtained by theft,
and those in his turban by extortion. Probably
in nine-tenths of the robberies which are
committed, something like this actually takes
place, and it is probable that a few minutes
later neither the robber nor the person robbed
would be able to recollect in what proportions
theft and extortion were mixed in the crime;
nor is it at all necessary for the ends of justice
that this should be ascertained. For though, in
general, the consent of a sufferer is a
circumstance which very materially modifies
the character of the offence, and which ought,
therefore, to be made known to the Courts, yet
the consent which a person gives to the taking
of this property by a ruffian who holds a pistol
to his breast is a circumstance altogether
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immaterial".
10. The words "for that end" in Section 390 clearly mean that
the hurt caused must be with the object of facilitating the
committing of the theft or must be caused while the offender is
committing theft or is carrying away or is attempting to carry
away property obtained by the theft.
11. As the provision itself provides when the highway robbery
is committed, deterrent punishment is called for.
12. In the instant case, the evidence of the victim, her
husband, the factum of recovery of the vehicle used has
clearly established the commission of offence by the
appellants. The offence was committed on a public road.
There is no dispute that it was not a highway. It is also not in
dispute that the offence was committed during sunset and
sunrise that is, at about 9.00 p.m.
13. In State of Karnataka v. Puttaraja (2004 (1) SCC 475), it
was inter-alia observed as follows:
"Imposition of sentence without considering its
effect on the social order in many cases may be
in reality a futile exercise. The social impact of
the crime e.g. where it relates to offences
against women like the case at hand, dacoity,
kidnapping, misappropriation of public money,
treason and other offences involving moral
turpitude or moral delinquency which have
great impact and serious repercussions on
social order and public interest, cannot be lost
sight of and per se require exemplary
treatment. Any liberal attitude by imposing
meager sentences or taking too sympathetic a
view merely on account of lapse of time or
considerations personal to the accused only in
respect of such offences will be resultwise
counterproductive in the long run and against
societal interest which needs to be cared for
and strengthened by the required string of
deterrence inbuilt in the sentencing system."
14. Above being the position, there is no merit in this appeal
which is accordingly dismissed.