Criminal Appeal No.473 of 1984,Criminal Appeal No.474 of 1984

30th January, 1997

Petitioner Counsel: Mr. S. R. BORULKAR
Respondent Counsel: Smt. REVATI MOHITE DERE
Other Counsel: Mr. Y. J. MASTER

Cases Cited:
AIR 1980 SC 788 [Para 26]
AIR 1983 SC 654 [Para 40]

JUDGMENT

VISHNU SAHAI, J. :- Since both these appeals arise out of the same set of facts and a common impugned judgment we propose disposing them of together.

2. Criminal Appeal No.473 of 1984, has been preferred by the Appellant, the State of Maharashtra, against the acquittal of Respondent Vinayak Tukaram Utekar for an offence punishable under Section 397 I.P.C. and of Respondent No.2 Kashiram Shankar More, for the offence punishable under Section 397 r/w 34 I.P.C. The said judgment of acquittal was passed on 6th March, 1984, by the Additional Sessions Judge, Thane, in Sessions Case No.4 of 1984.

By the said Judgment the Additional Sessions Judge convicted Vinayak Tukaram Utekar for the offences under Sections 379 and 324 I.P.C., instead of 397 I.P.C. and gave him the benefit of Section 360 of the Code of Criminal Procedure.

Criminal Appeal No.474 of 1984 has been preferred by the State of Maharashtra against the order releasing Respondent Vinayak Tukaram Utekar u/s 360 Cr.P.C.

3. It would be pertinent to point that Criminal Appeal No.473 of 1984, so far as it relates to Respondent No.2, Kashiram Shankar More was dismissed by this Court at the time of admission vide orders dated 18-6-1995.

4. We begin this appeal with a note of anguish. Inspite of the fact that the matter has been on the Board for a sufficiently long time Mr. Y. J. Master, learned counsel for the Respondent, in both the appeals, is not available. Since these appeals pertain to the year 1984 and 13 years have elapsed we yesterday appointed Mrs. Revati Mohite Dere as counsel for the Respondent. We were grateful to her for having accepting this duty.

5. The factual matrix from which these appeals germinate is as under:

The informant-victim Hemant Ramchandra Holkar (P.W.1) is a resident of Thane District. At about 9 p.m. on 26th January, 1981, he and his friend Anant Iyer (P.W.2) had gone for walking. At about midnight they reached the Thane Railway Station where from a handcart, outside the station, they ate bread and Batata-Vada. Thereafter they went to the tea stall situated on platform no.1 of Thane Railway Station and took tea. At that time three persons came. One of them namely Respondent Vinayak caught hold of his shirt and snatched three gold buttons therefrom. The informant caught the hand of the Respondent Vinayak. He tried to run away. However, the informant succeeded in apprehending him. Respondent Vinayak took out a knife from the back pocket of his trousers and with it inflicted a blow on the shoulder of the informant. A grappling between him and the informant took place. Ultimately both fell down on the ground. In the meantime Anant Iyer snatched the knife from the person of Vinayak. In the trial court he identified the said knife (Article 2). He also picked up the gold buttons from the ground. Thereafter both the informant and Vinayak started shouting "Police - Police".

With knife and buttons Anant Iyer rushed to the outpost of the R.P.F. situated at the station. He contacted Senior Rakshak Awad Bihari Singh (P.W. 3). Alongwith Anant Iyer, Awad Bihari Singh, came on the place of the incident. He found two persons lying on the ground. Respondent Vinayak was trying to extricate himself from the clutches of the informant-victim.

Awad Bihari Singh apprehended the Respondent Vinayak. The other two associates of Vinayak ran away. Respondent Vinayak was taken to the R.P.F. out-post on platform No.2.

6. Meanwhile the informant Hemant Ramchandra Holkar was sent to Civil Hospital, Thane. At about 12-45 p.m. he was examined by Dr. Govind Mahadeo Kolge (P.W.4), who found that he had sustained an injury of the dimensions of 3" x 2" 3", which was attributable to a sharp cutting object. The said injury was possible by the knife shown to him.

7. The F.I.R. of the incident was lodged by Hemant Ramchandra Holkar (P.W.1) and on its basis P.S.I. Sidheshwar Ramchandra Digole (P.W. 6) registered an offence at about 3 A.M.

8. The investigation was conducted by P.W.7 Police Jamadar Pramod Tatyaba Amolik and P.W.5 P.S.I. Vasant Bhagwanrao Sathe.

The evidence of Pramod Amolik is that at about 12-30 a.m. on 27-1-1981 he was at the out-post of the R.P.F. at Thane Police Station. At that time the informant-victim, Anant Iyer (P.W.2) and two to three constables came with the respondent Vinayak. Anant Iyer told them that the Respondent Vinayak had given a knife blow on the shoulder of the informant-victim and had thrown three gold buttons on the ground. He stated that he had snatched the knife from the hands of respondent Vinayak and had picked up the gold buttons. Consequently, in the presence of panchas, under a panchnama the gold buttons and knife were recovered by Police Jamadar Pramod Amolik.

9. The evidence of P.S.I. Vasant Sathe is that he conducted the panchnama of the scene of the offence; recorded statements of Anant Iyer and Awad Bihari Singh; arrested Respondent No.2 Kashinath at 11-30 a.m. on 27.1.1981; and submitted the charge sheet on 28.4.1981.

10. The case was committed to the Court of sessions in the usual manner. In the trial Court the Respondent Vinayak was charged under Section 397 I.P.C. To the said charge he pleaded not guilty and claimed to be tried.

11. During trial in all the prosecution examined seven witnesses. Two of them, Hemant Holkar and Anant Iyer P.Ws.1 and 2 respectively were examined as eye-witnesses. In defence no witness was examined.

The learned trial Judge after recording :- the evidence adduced by the prosecution; the statement of Respondents under Section 313 Cr.P.C. hearing the learned counsel for the parties passed the impugned judgment.

As mentioned earlier the appeal against Respondent No.2 Kashinath Shankar More has been dismissed by this Court at the admission stage.

12. We have heard Mr. S. R. Borulkar, for the Appellant and Mrs. Revati Mohite Dere for the Respondent Vinayak, in both the appeals. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; and the impugned judgment. After reflecting over the matter we are implicitly satisfied that both these appeals deserve to be allowed.

13. Mr. S. R. Borulkar, vehemently urged that the learned trial judge erred in acquitting Respondent Vinayak for the offence punishable u/s 397 I.P.C. and in only convicting him for the offence punishable u/s 379 and 324 I.P.C. On the other hand Mrs. Revati Mohite Dere equally effectively urged, with her suave advocacy, that no offence under Section 397 I.P.C. was made out against Respondent Vinayak and if at all, he could have only been convicted, as he has been, for the offences punishable under Sections 379 and 324 I.P.C. She urged that both these appeals deserve to be dismissed.

14. The first question is whether the prosecution has succeeded in proving the involvement of the Respondent Vinayak in the instant crime beyond the pale of reasonable doubt. In our view it has. In para 5 we have detailed the prosecution story exhaustively. In short it is that on 26th January, 1981, at about 9 p.m. the informant along with his friend Anant Iyer (P.W.2) had gone to take a stroll. At about midnight the two of them reached Thane Railway Station. They decided to have tea at Platform No.1 of the said Station. After taking the same while they were returning, three persons came. One of them namely Respondent Vinayak put his hand in the shirt of the informant and snatched three gold buttons. The informant caught the hand of Respondent Vinayak. He tried to run away. There upon Respondent Vinayak took out a knife from the back pocket of his trousers and inflicted a blow on the shoulder of the informant. The informant overpowered him. A grappling between them took place. Both fell on the ground. In the meantime Anant Iyer snatched knife from Respondent Vinayak and picked up the three gold buttons which had fallen on the ground. He then informed the RPF on platform no.2 of Thane Railway Station. Thereafter Senior Rakshak Awad Behari Singh P.W.3 came. He apprehended Vinayak and alongwith the informant and Anant Iyer came to the RPF outpost, situated at Platform no.2 of Thane Railway Station.

15. There are two eye witnesses, Hemant Holkar and Anant Iyer, who have given ocular account in this case. Both of them are independent witnesses and did not have any animus or grudge against Respondent Vinayak.

The manner of the incident as described by them is corroborated by the medical evidence which shows the presence of an injury of the dimensions of 3" x 2" x 3" on the person of the informant Hemant Holkar, attributable to a sharp object.

The recovery panchnama of the three gold buttons and the knife which was promptly prepared also corroborates the prosecution case.

16. The biggest guarantee of the truthfulness of the prosecution case is that respondent Vinayak was apprehended, on the spot and during the cross examination of the prosecution witnesses his spot arrest could not be assailed. Further he has not been able to spell out any plausible reason for his false implication.

17. In our view the trial judge rightly accepted the involvement of respondent Vinayak in the incident.

18. The question is whether Respondent Vinayak is guilty of an offence punishable u/s 397 I.P.C. or the impugned order convicting him under Sections 379 and 324 I.P.C. and releasing him u/s 360 Cr.P.C. is correct.

In our view for the reasons stated hereinafter Respondent Vinayak has been wrongly acquitted by the trial court for an offence u/s 397 I.P.C. He deserves to be convicted for that offence. We also feel that Order of the trial court releasing respondent Vinayak under Section 360 Cr.P.C. is unsustainable and deserves to be quashed.

19. Section 390 of the I.P.C. reads thus:-

"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 the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."

20. Section 391 I.P.C. defines dacoity thus:

"When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity"."

Section 397 I.P.C. reads thus:

"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 imprisonment with which such offender shall be punished shall not be less than seven years."

21. An analysis of the Section 397 I.P.C. would show that if the act of an offender at the time of committing robbery or dacoity falls within its ambit, the said offender would not be awarded a sentence of less than seven years R.I.

22. The crucial question is whether Respondent Vinayak is guilty of the offence of robbery within the meaning of Section 390 I.P.C. If the offence of robbery is proved then he would be also liable under Section 397 I.P.C. because knife is a deadly weapon and he caused hurt with it to the informant.

23. An analysis of Section 390 I.P.C. would show that theft would be robbery if:- (a) In order to the committing of the theft; or (b) in committing the theft or (c) in carrying away or attempting to carry away property obtained by the theft, the offender for that end meaning thereby one of the ends within (a) to (c), voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.

24. On the facts of this case these is no dispute that the act of Respondent Vinayak would not fall either within (a) or (b). It is not the prosecution case that in order to committing theft or in committing the theft he gave a knife blow to the victim Hemant Holkar.

The moot point is whether for the end contained in (c) the Respondent Vinayak inflicted hurt by means of a knife to the informant-victim. Our answer to this point is in the affirmative.

It would be useful here to refer to the evidence of th informant, Hemant Holkar (P.W.1).

In paragraph 1 he has stated that after Respondent Vinayak had snatched his gold buttons he caught his hand. The Respondent tried to run away. He caught him. Respondent Vinayak took out a knife from the back-pocket of his pant and inflicted a knife blow on his person.

25. In our judgment inasmuch as during his act of taking away the property obtained by the theft Respondent Vinayak caused hurt to the informant, his act would fall within the ambit of Section 390 I.P.C.

26. Our view is fortified by the decision of the Apex Court reported in A.I.R. 1980 S.C. 788 (KUSHO MAHTON & ANR. Vs. THE STATE OF BIHAR) cited by Mr. S. R. Borulkar learned counsel for the appellant in both the appeals. We intend reproducing the relevant portion from the same. It reads thus:

"After hearing counsel for the parties, we are of the opinion that the appellants have been rightly convicted under Section 395, Indian Penal Code, because while carrying away the stolen property they exploded cracker to frighten the inmates of the house who wanted to pursue them.

(Emphasis supplied)

27. We are in respectful agreement with the said judgment of the Apex Court.

28. Mrs. Revati Dere with her characteristic ingenuity urged that the crucial words used in Section 390 I.P.C. are "for that end". She urged that if the end is 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 and the offender causes any injury etc. the offence would certainly be robbery. But she urged that in this case a perusal of the evidence of the informant clearly indicates that the intention of the respondent in assaulting the informant Hemant Holkar with a knife was only to extricate himself from his clutches and not to ensure his taking away of the property which he had snatched from the informant.

29. We are afraid that Mrs. Revati Mohite Dere is cutting it indeed too fine. Common sense admits of no dispute that a person who would commit a robbery would also attempt to run away with stolen articles with the utmost promptitude and if the victim or witnesses would try to obstruct this design of his he would assault them with the weapon with which he is armed. Therefore, the contention of Mrs. Dere, on the facts of this case, that the respondent Vinayak gave a knife blow to the informant only to extricate himself from his clutches and not to accomplish his design of carrying away the gold buttons which he had obtained during the course of theft cannot be accepted.

30. We wish to emphasise that in most of the cases where an offender obtains a property during theft and when the victim or witnesses try to catch him the offender tries to run away and if armed with a weapon assaults them, both the facets namely:-

(a) in attempting to carry away property obtained by theft the offender causing hurt to the person who is trying to foil his attempt; and

(b) the normal instinct of self-preservation on account of which the offender tries to run away and foil the bid of the person who endeavours to thwart it by assaulting the said person, may co-exist.

To ignore facet (a), in our judgment, would cause gross miscarriage of justice.

31. There can be no quarrel that knife is a deadly weapon within the ambit of expression "deadly weapon" as used in Section 397 I.P.C.

32. For the said reasons we find no merit in the submission of Mrs. Revati Mohite Dere and find merit in the submission of Mr. Borulkar that respondent is guilty of an offence punishable under Section 397 I.P.C.

33. Not only do we feel that the Respondent Vinayak is guilty of an offence u/s 397 I.P.C. but he is guilty of an offence punishable u/s 394 r/w 397 I.P.C.

34. It is significant to point out that Section 397 I.P.C. only provides that if the offender while committing robbery or dacoity is armed or uses a deadly weapon etc. he shall not be awarded a sentence of less than seven years R.I. It deals with robbery/dacoity of a more serious nature than that referred to in Section 394 and 395 I.P.C. respectively.

35. Mrs. Revati Dere learned counsel for Respondent Vinayak urged that since no charge was framed for an offence under Section 394 I.P.C. we would not be justified in convicting the said Respondent under the said count. We regret that we cannot accede to her contention. It is significant to point out that all the elements of an offence u/s 394 I.P.C. are included in the offence u/s 397 I.P.C. Both of them contemplate of robberies with hurt. In our view, the offence u/s 394 I.P.C. is a minor offence in relation to that under Section 397 I.P.C.

36. It is well-settled that where the court frames a charge on a major count the law does not provide that it should also frame a charge under the minor count.

37. Further there has been no failure of justice or prejudice to the Respondent on account of the circumstance that no charge u/s 394 I.P.C. has been framed and that being so the absence of a charge under Section 394 I.P.C. would not vitiate his conviction under Section 394 r/w 397 I.P.C. In this connection it would be pertinent to refer to the provisions contained in Sections 215 and 464(1) Cr.P.C. They read thus:-

"215. Effect of errors - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice."

(emphasis supplied)

"464(1) Effect of omission to frame, or absence of, or error in, charge - (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby."

(emphasis supplied)

38. A perusal of the said sections would show that only where there has been a failure of justice on account of framing of a charge would an omission to frame a charge vitiate the conviction of the accused.

This is not the position here. It is significant to point out that a perusal of the cross-examination of both the eye witness shows that they were cross-examined with respect to the offence of robbery as contemplated by Section 394 I.P.C.

A perusal of the statement of Respondent Vinayak recorded u/s 313 of Cr.P.C. also shows that ingredients of robbery as contemplated by Section 394 I.P.C. were put to him therein.

Hence neither has there been a failure of justice nor prejudice has been caused to respondent Vinayak on account of the circumstance that no charge under Section 394 I.P.C. has been framed by us.

39. In our judgment, since a charge under Section 397 I.P.C. was framed against the respondent Vinayak he can be convicted under Section 394 r/w 397 I.P.C. inspite of the fact that he has not been charged under Section 394 I.P.C.

40. This brings us to the question of sentence. Mr. Borulkar urged that looking to the circumstance that on a railway platform at the dead of night in the heart of Thane Town, the Respondent Vinayak committed robbery of gold buttons and while trying to run away with them assaulted the informant with a knife calls for a very deterrent sentence.

On the converse Mrs.Revati Mohite Dere urged that the incident took place way back in the year 1981 and 16 years have elapsed. She also urged that there is nothing on record to indicate that the respondent had any criminal antecedents. She further urged that the finding of the trial court, as contained in para 28 of the impugned judgment, is that the Respondent was aged about 20 to 23 years. She urged that in view of the above circumstances and bearing in mind the decision rendered by their Lordships of the Supreme Court in A.I.R. 1983 S.C. 654 MASARULLAH Vs. STATE OF TAMIL NADU, it is a fit case wherein the Respondent be released under the Probation of Offenders Act. We regret that we cannot accede to her contention.

In para 3 of the said judgment it has been specifically mentioned that Section 6 of the said Act rules out the benefit of the provisions of the Act being given to a person who is guilty of having committed an offence punishable with life imprisonment or death. Since the offence u/s 394 I.P.C. is punishable with imprisonment for life the said decision would have no application.

41. Mrs. Revati Dere next submitted that the minimum sentence prescribed by Section 397 I.P.C. be awarded to the respondent. We are inclined to accede to her submission in view of the following circumstances:-

(a) that the incident took place over 16 years ago;

(b) that the respondent Vinayak was aged about twenty two years when the impugned judgment was recorded;

and

(c) there is nothing to indicate that he is either a previous convict or has adverse criminal antecedents.

The minimum sentence provided by Section 397 I.P.C. is seven years R.I. We intend awarding Respondent Vinayak Tukaram Utekar that sentence.

42. In the result both the appeals are allowed. In Criminal Appeal No.473 of 1984 we set aside the acquittal of Respondent Vinayak Tukaram Utekar for the offences punishable u/s 379 r/w 324 I.P.C. For the said offence we award him a sentence of 7 years R.I.

Respondent Vinayak Tukaram Utekar is on bail. He shall be taken into custody forthwith to serve out his sentence.

Criminal Appeal No.474 of 1984 is also allowed and the impugned judgment releasing Respondent Vinayak Tukaram Utekar u/s 360 Cr.P.C. is set aside.

Before parting with the judgment we would like to put on record our appreciation for the very substantial assistance rendered to us by learned counsel for the parties; particularly Mrs. Revati Mohite Dere. In one day's time she prepared the brief par excellence.

In case an application for a certified copy of this judgment is made, the same shall be issued on an expedited basis.

Order accordingly.