Venugopal and Ors. Vs. State of Karnataka  Insc 117 (30
Arijit Pasayat & P. Sathasivam
out of SLP (Crl.) No. 6056 of 2007) Dr. ARIJIT PASAYAT, J.
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.
Prosecution version in a nutshell is as follows:
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.
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.
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.
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 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.
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.
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.
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.
Section 392 IPC provides for punishment for robbery.
essential ingredients are as follows:
Accused committed theft;
Accused voluntarily caused or attempted to cause.
hurt or wrongful restraint.
Fear of instant death, hurt or wrongful restraint.
did either act for the end.
While committing theft.
In carrying away or in the attempt to carry away property obtained by theft.
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:
Robbery.- In all robbery there is either theft or extortion.
theft is robbery.-Theft is "robbery"
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.
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 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."
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.
authors of the Code observed as follows:
one single class of cases, theft and extortion are in practice confounded
together so inextricably, that no judge, however, sagacious, could discriminate
class of cases, therefore, has, in all systems of jurisprudence ... been
treated as a perfectly distinct class ... we have, therefore, made robbery a
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;
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 immaterial".
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.
the provision itself provides when the highway robbery is committed, deterrent
punishment is called for.
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.
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.
State of Karnataka v. Puttaraja (2004 (1) SCC 475), it was inter-alia observed
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."
Above being the position, there is no merit in this appeal which is accordingly