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1961 DIGILAW 38 (GUJ)

HIMATSING SHIVSING v. STATE

1961-03-20

R.B.MEHTA, V.B.RAJU

body1961
V. B. RAJU, J. ( 1 ) IT is next contended that even assuming that an offence of theft had been committed it does not amount to robbery because the injuries to Narsing and Karansing were inflicted after the completion of theft and not for the purpose of facilitating the commission of the theft. Reliance is placed on Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476 ( 2 ) THEFT amounts to `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. Before theft can amount to `robbery the offender must have voluntarily caused or attempted 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. The second necessary ingredient is that this must be 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 third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end that is in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc. had been caused. If hurt etc. is caused at the time of the commission of the theft but for an object other than the one referred to in sec. 390 I. P. Code theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec. 390 I. P. Code must always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476 Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476 in the following words:the words `for that end in sec. The three ingredients mentioned in sec. 390 I. P. Code must always be satisfied before theft can amount to robbery and this has been explained in Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476 Bishambhar Nath v. Emperor A. I. R. 1941 Oudh 476 in the following words:the words `for that end in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances. ( 3 ) IN Karuppa Gounden v. Emperor A. I. R. 1918 Madras 321 which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 C. W. N. 372 and King Emperor v. Mathura Thakur 6 C. W. N. 72 it has been observed at page 824 as follows :now it is our duty to give effect to the words `for that end. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The public Prosecutor has been forced to argue that `for that end must be read as meaning `in those circumstances. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly words `in those circumstances would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi 5 C. W. . N. 372. Their Lordships put the question in this way: ( 4 ) IT seems to us that the whole question turns upon the words `for that end. Was any hurt or fear of instant hurt that was caused in the present case caused for the end of the commission of the theft? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft although theft was committed at the same time. We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft although theft was committed at the same time. ( 5 ) THE language used in another case reported as King Emperor v. Mathura Thakur 6 C. W. N. 72 is as follows: ( 6 ) THE question here arises whether Mathura Thakur when he attacked Soman Dhania did so for the end referred to namely for the purpose of carrying away the paddy which had been harvested. ( 7 ) THOSE judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I therefore follow the decisions in those two cases. ( 8 ) ORDINARILY if violence or hurt etc. is caused at the time of theft it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose. in this case the property stolen was worth only Rs. 0-50 np. The appellant had been discovered while committing theft and Narsing said to him: Why do you pick Tuver from my field ? Gujarati version reads as follows:which literally translated means die in another field It may be that finding that he had been detected in the commission of the offence that his plan had been frustrated and that he was abused the appellant lost his temper and in a fit of indignation he might have given a blow with his Dharia. Two views can be taken as to the object for which violence had been used by the appellant and it would be safer to take the view which is more favourable to the accused. We therefore feel that in this case the prosecution has not proved beyond reasonable doubt that violence had been used by the accused `for the end referred to in sec. 390 I. P. Code. We therefore hold that the ingredients of sec. We therefore feel that in this case the prosecution has not proved beyond reasonable doubt that violence had been used by the accused `for the end referred to in sec. 390 I. P. Code. We therefore hold that the ingredients of sec. 390 I. P. Code have not been satisfied and that the theft does not amount to robbery. Sentence reduced. .