Judgment:
ORDER
S. Padmanabhan, J.
1. In C.C. 441 of 1981 the Judicial First Class Magistrate, Kanjirappally tried three accused for offences punishable under Sections 394 and 109 read with Section 34 of the Indian Penal Code. Third accused was acquitted. Accused 1 and 2 were convicted for the offence under Section 394 IPC and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- with a default sentence of rigorous imprisonment for two months.
2. Crl.A. 80/83 filed by the second accused was allowed by the Sessions Judge, Kottayam and he was acquitted. Crl.A. 81/83 filed by the first accused was partly allowed altering the conviction under S, 394 to one under Section 379 IPC and reducing the sentence to rigorous imprisonment for two years.
3. Crl.A. 377/84 was filed by the State challenging the acquittal of the second accused and alteration of the head of conviction as well as reduction of sentence as against the 2nd accused. Crl. R.P. 57/84 was filed by the first accused against his conviction and sentence by the Sessions Judge. Both were heard together.
4. PW. 2 is the victim. He is running a tea shop. Accused 1 and 2 belong to the adjacent village. They have no acquaintance or association with P.W. 2. Neither the prosecution nor the defence has got a case that there was any ill will between them or any motive for the accused to attack PW. 2 other than in order to commit theft of the money with him.
5. The prosecution case is that on 1-8-1981 at about 8p.m. when PW. 2 was returning home with Rs. 5,018/- in hand accused 1 and 2 followed him with the common intention of robbing him of the amount and in furtherance of that common intention and in order to commit theft the first accused beat him on his head with a rod and when he fell down unconscious the accused committed theft of the amount.
6. Though the prosecution examined 17 witnesses, proved 18 documents and got identified 14 material objects, we are mainly concerned with only the evidence of PWs. 1 to 4 in deciding the guilt or innocence of accused 1 and 2. Second accused was charge-sheeted only with the aid of Section 34 IPC. The only evidence against him is that PWs. 2 and 3 saw him in the company of the first accused going ahead of PW. 2 just before the incident. PW. 2 further said that when he flashed his torch and identified the persons both the accused retreated to a side of the road. Regarding the subsequent incident namely the attack we have got only the evidence of PW. 2 the victim. He only said that on proceeding further when he heard foot-steps and looked back he was beaten by the first accused on his head and he fell down unconscious. He did not mention the presence of 2nd accused at that time along with the first accused. Thus the direct evidence regarding participation of 2nd accused is only his presence along with the first accused prior to the incident. That evidence by itself without proof of presence at the time of commission of the offence or participation in it cannot prove common intention on the part of the 2nd ace used in order to make him vicariously liable for the offence committed by the first accused.
7. The other items of evidence consist of the depositions of PWs. 5 to 12, 15 to 17 and the documents proved by. them evidencing some recoveries under Section 27 of the Evidence Act consequent on information given by the accused and also some purchases made by them presumably with the money obtained by robbery. These items of evidence were accepted by the Magistrate as against accused 1 and 2 and by the Sessions Judge as against the first accused alone.
8. Both the Magistrate and the Sessions Judge lost sight of the fact that these items of evidence were not at all put to the accused when questioned under Section 313 of the Code of Criminal Procedure. The Magistrate seems to have understood the questioning under Section 313 only as an empty formality and therefore he thought that a show of questioning is sufficient. Though the questioning under Section 313(1)(a) is discretionary, the questioning under Section 313(1)(b) is mandatory. The object is to afford an opportunity to the accused to personally explain any circumstance appearing in the evidence against him. When the particular evidence or circumstance is not put to the, accused the effect is that he is denied an opportunity to offer his own explanation in that matter. That denial in turn deprives the Magistrate of the benefit of his explanation and evaluating the evidence and circumstances in the light of the explanation personally given by the accused. Sometimes accused may be able to give acceptable explanation which is personally known to him alone. The explanation may some times effectively erase the incriminating aspect of the evidence or circumstance or may have a bearing on the question of sentence. Any how all circumstances appearing in the evidence against the accused, whether they are major or minor, having any bearing in connecting him with the crime will have definitely to be put to him and his explanation recorded and the same considered. They must be put in the form of simple understandable questions. Those circumstances appearing in the evidence against the accused and not put to him affording an opportunity to explain cannot at all be considered as evidence to decide his criminality.
9. The evidence of PWs. 1 to 4 and 14 alone could therefore be considered in deciding the guilt. Just before the incident PW. 3 saw both the accused going in front and immediately thereafter he also saw PW. 2 going towards his house. He is not an occurrence witness and he heard about the incident only the next day. His evidence only established the presence of accused 1 and 2.
10. PW. 2 had occasion to see both the accused several times before the incident even though there is no acquaintance or friendship between them. Anyhow he knew them well though their names were not known to him. Just before the incident he saw them going ahead of him. By flashing the torch he knew their identity also. Then they withdrew to the side of the road and again came behind him. He said that first accused beat him with a rod on his head and he fell down unconscious with injuries. He also said that he was beaten by the first accused only for the purpose of robbing him of the amount he was carrying. The evidence of the Doctor, examined as PW. 14, who attended PW. 2 and issued Ext. P7 wound certificate corroborated the evidence of PW. 2 that he was beaten with a rod. PW. 14 said that the injuries are possible in the manner spoken to by PW. 2. Both the trial court and the Sessions Judge accepted his evidence in toto and I do not have any reason to disagree with them. Neither the prosecution nor defence had any case that accused had any enmity or motive to attack P.W. 2. If so what follows from the evidence of PW. 2 is that he was attacked and assaulted by the first accused only to committing of the theft and for that end. That was also found by both the courts and I am also of the same opinion.
11. PW. 1 is the brother-in-law of PW. 2 and he is the first informant who went to the scene immediately after the occurrence on hearing the cry of a lady by name Mariamma residing closely. PW. 4 is a jeep driver who came driving his jeep to the scene just after the incident. Both of them saw PW. 2 lying with injuries and said that the money carried 1 by PW. 2 was found missing. Though non-examination of Mariamma was made much of by the defence I do not find any merit in it because PWs. 1 and 4 were examined. There is not even a suggestion that anybody else had occasion to come to the scene and take away the money after the incident and before PWs. 1 and 4 came. If so, the normal conclusion from the circumstances is that the first accused who voluntarily caused hurt to PW. 2 in order to committing the theft and for that end has committed the theft. This finding entered by the courts below is also sound and correct.
12. learned Counsel for the first accused, who is the revision petitioner, told me that the charge is only for an offence punishable under Section 394 IPC which deals only with voluntarily causing hurt in committing robbery and not under Section 392 for robbery and therefore conviction by the Sessions Judge under Section 379 cannot be justified. I do not think that there is any foundation for this argument.
13. It is true that charge is the basic record which gives notice to the accused on what accusation he is going to be tried so that he can understand the details of the accusations and shape his defence properly. Normal rule is that a person could be convicted only for the offence for which he is charge-sheeted because he is having notice only of that accusation. He cannot be convicted for a different offence for which he is not charged even if such offence is proved. But there may be cases in which a person charged of a major offence may have to be convicted on the basis of the evidence for a minor offence included in the major offence charged. For this purpose provision is made in Section 222 Cr. P.C. That is possible in two contingencies. The first is when the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved but the remaining particulars constituting the major offence are not proved. That is in cases where the minor offence is a component part of the major offence. For example when a person is charged for having committed grievous hurt punishable under Section 326 IPC if the offence proved is only one punishable under Section 324 IPC punishment under Section 324 is legal though there was no charge for that offence. The second category is where facts are proved which reduce the offence charged to a minor offence. For example when an accused is charged for murder punishable under Section 302 IPC if any of the exceptions to Section 300 IPC is proved to exist, punishment could be had under Section 304 even though there is no charge under that section. In such cases the offence for which punishment is imposed need not be a component of the main offence. But the major offence must be more or less a cognate offence because it is the proof of certain additional facts which reduces it to a minor offence.
14. But when the offence with which the accused is sought to be convicted is totally independent of the offence with which he is charged and the two offences do not form part of the same transaction the section cannot be invoked. Conviction for a different offence is possible only when notice of the major offence will constitute notice of the minor offence also. If a person is charged only for causing hurt he cannot be punished for theft because the ingredients constituting theft are not there in a charge of causing hurt and it cannot be taken as notice of the offence of theft. Causing hurt is not a major offence consisting of several particulars, a combination of some only of which will constitute the complete offence of theft. Both are independent offences having nothing common between them and one cannot be said to be major and the other minor.
15. But in this case that question does not arise. Here the charge is for an offence punishable under Section 394 which includes not only causing of hurt but causing of hurt in committing or in attempting to commit robbery which is an aggravated form of theft. Even though Section 394 alone is there in the police charge and the court charge all die ingredients constituting robbery as defined in Section 390 and made punishable under Section 392 of the Indian Penal Code are also there in the charge and the accused had sufficient notice that he was being tried for robbery as well (Sic). In the case of robbery different degrees of punishment are provided in Sections 392, 394 and 397. The charge is not for causing hurt alone and robbery is also there. Robbery and causing hurt in committing robbery include several particulars, a combination of some only of which will constitute a complete offence of theft. Simply because Section 392 is not there in the charge there cannot be a technical plea that conviction for theft is illegal. There is no question of prejudice also because the accused had notice of the accusation of theft also. Only in an offence of robbery the offence punishable under Section 394 IPC will be attracted because the causing of voluntary hurt must be in committing robbery or in an attempt to commit robbery.
16. The learned Sessions Judge was of the view that in this case no offence of robbery is involved. The reason given by him is:
PW. 2 was attacked from behind and immediately on assault he fell down unconscious. So in carrying away the money in the plastic bag there was no occasion for Al to use any force against PW. 2. As such the definition of robbery is not attracted to the instant case.
17. According to the Sessions Judge theft will be robbery only if in committing or attempting to commit theft or in carrying or attempting to carry away the stolen property there was resistance from the victim and the resistance was overcome by causing or attempt to cause death, hurt or wrongful restraint etc. In other words the Sessions Judge thinks that in a case of theft even if to the committing of the theft or in committing theft or in carrying or attempting to carry away the stolen property, the thief, for that purpose, even before resistance is offered by the victim, knocks him down and makes him unconscious and incapable of resisting, and commits the offence it will not be robbery. Resistance by the victim and using force to overcome that resistance are, in the opinion of the Sessions Judge, necessary conditions precedent for an offence of robbery.
18. Robbery is defined in Section 390 of the Indian Penal Code thus:
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.
19. The Section does not say that resistance of the victim is necessary or that the acts or any of them mentioned therein should be in order to overcome the resistance. So far as necessary for the purpose of the facts of the present case alone robbery defined in the Section could be stated thus:
Theft is 'robbery' if, in order to the committing of the theft, the offender, for that end voluntarily causes hurt.
If the interpretation of the Sessions Judge is accepted even in such a case the offence will not be robbery for the simple reason that in carrying or attempting to carry a way the stolen property the offender had no occasion to use force because of the incapacity of the victim to resist on account of the hurt inflicted on him in order to the committing of the theft. If that view is accepted, there must be repetition of resistance and commission of the offences at every stage of the crime. That is not what the section contemplates.
20. Courts cannot read into the Section something which is not there and which the legislature did not intend. If a man voluntarily causes hurt to another not in order to commit theft but thereafter he commits theft of something found it may not be robbery because voluntarily causing hurt was not 'in order to the committing of the theft, or in committing the theft' or 'for that end'. But in a case where one voluntarily causes hurt to another solely in order to commit theft and for that end to do away with the possible resistance and commits theft I think it will be robbery. Before getting opportunity for resistance if the victim is overpowered or assaulted and made incapable of resistance only for the purpose of committing theft and thereafter theft was committed or stolen property was carried away without resistance it can only be robbery. Causing hurt for preventing possible or anticipated resistance in order to commit theft and for that end and then committing theft is nothing short of robbery.
21. The learned Sessions Judge was following the dictum in Joseph v. State of Kerala 1982 Ker LT 20 : 1982 Cri LJ 714. That was a case in which the victim on seeing a lady on the way got down from a lorry and followed her. Driver of the lorry rode off. In the pursuit the victim lost his watch and some other belongings. The lady and three others were charge-sheeted for an offence punishable under Section 394 IPC. The only evidence-regarding robbery and hurt was the deposition of the victim who did not say in the first information statement or in his evidence before court that he followed a lady or he resisted when he was dispossessed of the movables and cash. He was found guilty of suppression of material facts also and it was held that all what he says cannot be accepted as gospel truth. There was also no acceptable evidence of commission or attempt to commit any of the offences enumerated in Section 390 IPC as against him in committing theft or in order to the committing of theft or in carrying away or attempting to carry away the stolen property or that he resisted or he was assaulted. It was in such circumstances that the decision said that in a case where the victim does not offer any resistance against dispossession of the movables, even if hurt is caused voluntarily, no offence under Section 394 can be said to have been committed. In that case there was no evidence of having caused voluntary hurt or that it was for the purpose of overcoming possible resistance in committing theft. What was held therein is only:
Only in an offence of robbery Section 394 IPC will be attracted because causing of voluntary hurt must be in committing a robbery or in an attempt to commit robbery. So, in a case where the victim does not offer any resistance against the dispossession of the movables even if hurt is caused voluntarily, no offence under Section 394 IPC can be said to have been committed.
22. That decision has not considered or contemplated a similar situation as the one in the present case wherein the voluntary hurt was calculatedly in order to committing theft and for that end by making the victim incapable of resistance.
23. The learned Sessions Judge went wrong in applying the law to the facts and evidence of the case in hand. Here the evidence is that as a result of the hurt the victim was lying unconscious. Hurt was caused in order to committing the theft and for that end and therefore what is established is the offence under Section 394 itself. The Magistrate was correct and the Sessions Judge went wrong in this respect.
24. First accused being an offender under 21 years of age, there was a request to release him on probation under Section 4(1) of the Probation of Offenders Act in view of the mandatory injunction contained in Section 6 thereof. But the provisions of Sections 4 and 6 are inapplicable to offences punishable with death or imprisonment for life. An offence under Section 394 IPC, of which the first accused is found guilty, is punishable with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and also with fine. In Velayudhan v. State of Kerala 1986 Ker LT (SN) 5 Case No. 10, I had occasion to hold that the prohibition under Sections 4 and 6 of the Probation of Offenders Act is not applicable when the offence punishable with imprisonment for life is also alternatively punishable with imprisonment for a term. It appears that the said decision of mine has unfortunately gone against the spirit of certain Supreme Court decisions which did not come to my notice at that time. Therefore that decision of mine cannot be said to have laid down the law correctly.
25. The two broad categories of imprisonments provided under Section 53 IPC are imprisonment for life and imprisonment for a term. Imprisonment for a term could be either simple or rigorous. When an offence is made punishable with death or imprisonment for life alone as in the case of murder the court has no other alternative but to award any one of the sentences. Those are cases in which the legislature in its wisdom thought that whatever be the circumstances any one of the two penalties alone will suffice. But in the matter of some other offences when the disparity in the nature of the offence and attendant circumstances could be wider in individual cases the legislature wanted to give the courts a wider discretion in the matter of sentence. For example the gravity of an offence punishable under Section 326 of the Indian Penal Code could be very great as between individual cases. In such offences there may be cases which deserve imprisonment for life. So also there may be cases where the ends of justice will be sufficiently met by awarding a short term imprisonment. It is to meet due contingencies and modulate the sentencing discretion properly that alternative imprisonments for a term are also provided in such cases along with imprisonment for life. Imprisonment for a term is evidently lesser than imprisonment for life. When imprisonment is for a term fixing only the maximum the court can award any term subject to that maximum according to its own judicial discretion. That does not mean that the offence is not one punishable with imprisonment for life. Imprisonment for life and imprisonment for a term are two separate sentences provided for the offence to be awarded in individual cases on relevant considerations. The fact that such offences are made triable under the first schedule to the Code of Criminal Procedure by courts not competent to award imprisonment for life or imprisonment for the maximum term is no reason to conclude that they are not offences punishable with imprisonment for life or imprisonment for the maximum term. When the court trying the case finds that adequate sentence cannot be awarded on account of want of competency, appropriate provisions are there in the Code. Therefore in spite of the provision for alternate sentence an offence under Section 394 IPC continues to be one punishable with imprisonment for life and therefore comes within the prohibition under Sections 4 and 6 of the Probation of Offenders Act.
26. Crl. R.P. 57/84 is therefore dismissed and criminal appeal 377/84 is partly allowed. As against the first accused the conviction for the offence under Section 394 IPC and the sentence of rigorous imprisonment for three years and fine of Rs. 1,000/- with a default sentence of rigorous imprisonment for two months ordered by the Magistrate are restored vacating the conviction and sentence ordered by the Sessions Judge. The judgment of the Sessions Judge acquitting the second accused is confirmed and to that extent Crl.A. 377/84 is dismissed.