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2005 DIGILAW 1598 (RAJ)

Santosh Kumar v. State of Rajasthan

2005-05-30

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the code"), the petitioners have challenged he Judgment dated 110.2004 passed by the Additional Sessions Judge No.1, Bikaner (for short, "the appellate court" hereinafter) in Criminal Appeal No.24/2004, by which the appellate Court dismissed the appeal filed by the petitioners against the Judgment and order dated 09.2003 passed by the Additional Chief Judicial Magistrate No.2, Bikaner (for short, "the trial Court" hereinafter) in Criminal Case No.152/2003, whereby the trial Court convicted the petitioners for the offence punishable under Section 392/34, IPC and sentenced each of them to undergo rigorous imprisonment for five years and a fine of Rs.5,000/-and in default of payment of fine further to undergo six months simple imprisonment. Appellate Court affirmed the order of trial Court. 2. Briefly recapitulated, the facts of the case are that on 26.02.2003, complainant Kishan Lal lodged the FIR Exhibit P/12 with Police Station, Sadar, Bikaner, stating there in that when he was coming to his home on a TVS moped after withdrawing a sum of Rs.84,200/-from the State Bank of Bikaner & Jaipur keeping the currency notes in a bag, which was kept in a dicky of his moped, suddenly one person came from behind, took the bag containing currency notes and fled away on a motorcycle, which was being driven by other person. On this report, the police registered a case and after investigation, filed challan against the petitioners. The trial Court framed charge against the petitioners for the offence punishable under Section 392/34, IPC. After appreciating the evidence and hearing the arguments, the trial Court, vide Judgment and order dated 03.09.2003, convicted and sentenced the petitioner as noticed above. The appellate Court, vide impugned Judgment dated 110.2005,dismissed the appeal. Hence this revision petition. 3. I have heard learned Counsel for the petitioners. I have carefully perused the Judgment s and orders passed by the Courts below as also the record of the case. 4. It is contended by the learned Counsel for the petitioners that the Courts below have erred in law and on facts in convicting and sentencing the petitioners for the offence under Section 392/34, IPC as prosecution failed to prove the essential ingredients of offence of robbery as envisaged in Section 390, IPC. 4. It is contended by the learned Counsel for the petitioners that the Courts below have erred in law and on facts in convicting and sentencing the petitioners for the offence under Section 392/34, IPC as prosecution failed to prove the essential ingredients of offence of robbery as envisaged in Section 390, IPC. It was further contended that there is no allegation against the petitioners that they voluntarily caused or attempted to cause any person, death or hurt or wrongfully restrained, or exhorted fear of instant death or of instant hurt, or of instant wrongful restraint. 5. Per contra, learned Public Prosecutor supported the concurrent finding of facts arrived at by both the Courts below. 6.Complainant PW. 5 Kishan Lal, in his statement, has stated that after withdrawing the GPF loan amount of Rs.84,200/-from the State Bank of Bikaner & Jaipur, P.P. Branch, Bikaner, he was returning to his home on TVS moped keeping the said amount in a bag alongwith pass-book and other documents in dicky of moped. On the way, two persons came on a scooter and stopped the scooter upon which he slowed down his moped, by the time petitioners came on a motorcycle and one of them took out that bag from he dicky of his moped and ran away. He raised alarm and tried to chase the petitioners but they ran away. He has stated that on the next day of lodging the FIR, he was called at the Police Out-Post, P.B.M. Hospital, Bikaner and Correctly identified the motorcycle used by the petitioners at the time of committing the aforesaid offence. He has also correctly identified the petitioners, the bag, pass-book and other documents. He has also given the description of the currency notes. He has identified two packets of currency notes of the denomination of Rs.100/-as he had put his signatures on the first and last notes of those packets of currency notes. However, in cross-examination, he stated that it was not a dicky but a bag made of cloth. 7. PW. 1 Arvind Kumar and PW. 8 Virendra Singh are the eye-witnesses of the incident. They have correctly identified the petitioners in the Court as the persons who had committed the offence. These witnesses are the shop-keepers near the place of the incident and they have fully supported the statement of complainant PW. 5 Kishan Lal. 7. PW. 1 Arvind Kumar and PW. 8 Virendra Singh are the eye-witnesses of the incident. They have correctly identified the petitioners in the Court as the persons who had committed the offence. These witnesses are the shop-keepers near the place of the incident and they have fully supported the statement of complainant PW. 5 Kishan Lal. PW.1 Arvind Kumar stated that two persons came on a motorcycle, one of them go down from the motorcycle and took away a bag from the near of moped. 8. From the perusal of Exhibit P/21 and Exhibit P/22, it has been proved that a sum of Rs. 84,200/ - was sanctioned as GPF loan to the complainant PW. 5 by the Employment Exchange, Bikaner, where the complainant is serving. The recovery of Rs. 20,000/-from petitioner No.2 Omveer Singh and Rs.64,200/-from petitioners No.1 Santosh Kumar, have been proved by the prosecution witnesses PW. 2 Dinesh and PW. 3 Sardar Singh. 9. I have carefully gone through the impugned Judgment s of the Courts below. Both the Courts below, after appreciating the evidence, has arrived at the conclusion that the petitioners are the persons who took away the aforesaid currency notes and other documents. There is concurrent findings of the Courts below to this effect on the factual matrix of the prosecution case. 10. Now the pertinent question for consideration is: what offence has been committed by the petitioners. The robbery has been defined in Section 390, IPC, which provides that 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. Robbery as aggravated form or either theft of extortion. Robbery as aggravated form or either theft of extortion. Theft is robbery when in committing of theft or in order to the committing of theft or in carrying away or in attempting to carry away the property, force is used or for that 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 and, therefore, to construe the offence of robbery, the prosecution has to satisfy the requirement of Section 390, IPC. The essential ingredients of "robbery" are that the offender for that end of committing theft and, or carrying away or attempting to carry away property, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, of instant wrongful restraint. To construe the offender is committing theft or attempting to carry away the property obtained by theft for that end causes hurt or wrongful restraint, then the offence would fall within the definition of Section 390, IPC. and would be punishable under Section 392, IPC. Thus, from the definition of Section 390, IPC. It is clear that in order to make theft to robbery, there should be use of force or attempt to use force for the purpose of committing theft or in carrying away or attempt to carry away the property obtained by theft, the hurt or wrongful restraint must to facilitate the commission of theft. It is not in every case where the theft has been committed as well as wrongful restraint to make the offence of robbery, hurt or wrongful restraint must be caused in committing the theft or in carrying away the property obtained by theft. 11. In the instant case, on close scrutiny of the statements of the prosecution witnesses more particularly the case as set up by complainant PW. 5 Kishan Lal, it nowhere appears that the petitioners in order to commit the theft caused the hurt or wrongful restraint to PW. 5 complainants. In the first information report, it has clearly been stated by PW. 5 Kishan Lal, it nowhere appears that the petitioners in order to commit the theft caused the hurt or wrongful restraint to PW. 5 complainants. In the first information report, it has clearly been stated by PW. 5 that he was going on TVS Moped keeping the bag containing currency notes in the dicky of moped and suddenly a person came from behind and opened the dicky, took the bag containing currency notes and fled away on Yamaha Motorcycle, which was said to have been driven by co-accused. It is not the case of prosecution that for that end of committing theft, any hurt or wrongful restraint was caused to the complainant by the petitioners. In this view of the matter, on close scrutiny of the entire prosecution case, I am of the considered view that the prosecution has failed to prove the offence of robbery against the petitioners. However, the offence of theft as punishable under Section 379, IPC has been proved beyond any manner of doubt. Thus, the trial Court as well as the appellate Court fell in error in convicting the petitioners for the offence under Section 392/34, IPC. However, from the evidence on record, the offence punishable under Section 379/34, IPC has been proved beyond reasonable doubt against both the petitioners. 12. Consequently, the revision petition is partly allowed. Judgment and order impugned to the extent convicting and sentencing the petitioners for the offence under Section 392/34, IPC is hereby set aside and the petitioners are acquitted to the offence under Section 392/34, however, instead the petitioners are convicted for the offence under Section 379/34, IPC and sentenced to the period of imprisonment already undergone by them. The petitioners have been in custody since 27.02.2003 and by now they have suffered imprisonment about 2 years and 3 months. They be set at liberty, if not required in any other case.