THOMMEN Vs. STATE OF KERALA

JUDGEMENT

(1.) These appeals are by the six accused persons in S. C. 99 of 1959 on the file of the Court of Sessions, Kottayam, Criminal Appeal No. 55 is by the 5th accused, No. 56 by the 6th accused, and No. 91 by accused 1 to 4. All six have been convicted under S.450 and 395, IPC, accused 1, 4 and 5 of the aggravated form of the latter offence for which S.398 prescribes a minimum sentence of seven years' imprisonment. [I might here observe that the offence of dacoity having been committed and not merely attempted, the section that really applies is S.397 and not S.398, the section applied by the learned Sessions Judge. The finding is that accused 1, 4 and 5 put their victims in fear of instant death by pointing knives at them and thus effected the robbery. This is a sufficient use within the meaning of S.397, IPC where the word' "uses" is not to be narrowly construed as meaning that, if the weapon used is a knife there should be an actual stabbing, or, if gun an actual firing. It is quite enough if the deadly weapon is employed in some way or other as, for example, to intimidate. It is not necessary that it should be actually used for the special purpose for which it is designed. This" is quite apparent from a comparison of S.397 with S.398 in which latter section, dealing with a mere attempt as distinguished from a completed offence, it is enough if the offender is armed with a deadly weapon to make him liable for the same minimum sentence of seven years' imprisonment. Hence the word "uses" in S.397 must be given as wide a meaning as possible; else we are driven to the absurdity that an offender who merely brandishes a deadly weapon is not liable to the minimum sentence of seven years' imprisonment imposed by S.397 and 398 if he completes the robbery but is so liable if he stops short with an attempt -- See Nga I v. Emperor (13 Criminal Law Journal page 267) for a very trenchant discussion of the question]. All the accused persons have been sentenced to two years' rigorous imprisonment under S.450 IPC; accused 2, 3 and 6 to six years' rigorous imprisonment under S.395 IPC; accused 1, 4 and 5 to seven years' rigorous imprisonment under S.395 read with S.398 IPC; and the sentences are to run concurrently.

(2.) The dacoity is alleged to have taken place in the house of P. W. 1 who lives in a village called Meenadom about 10 miles south east of Kottayam. The 6th accused belongs to Meenadom, while accused 1 to 5 belong to places in the neighbourhood of Palai, 18 miles north east of Kottayam. The 5th accused is the brother inlaw of the 1st accused and accused 3 and 4 are brothers.

(3.) P. W. 1 was living with his 80 year old father, P. W. 2, his wife P. W. 3, and his two sons aged 14 and 8, of whom the elder has been examined as P. W. 4. He used to keep his money in a box in his house, and, at one time, he had a fairly considerable sum of money, part of it borrowed by pledging his wife's ornaments for the purpose of the treatment of his younger son, a chronic invalid. However, at the time of the offence, he had run through all his money having spent about Rs. 1000/- on putting up a building and over Rs. 2000/- on the treatment of his son.