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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.