KISHORI Vs. STATE

JUDGEMENT

(1.) THE applicants were convicted under section 394 I. P. C. and sentenced to nine months rigorous imprisonment by the Judicial Magistrate, Sadar, Jhansi. THEir conviction and sentence was confirmed in appeal by the Sessions Judge, Jhansi on 27th April, 1974. Hence this revision. A complaint was filed by Hira Lal on 4th December, 1972. It was alleged therein that on 12th November, 1972 at about 9 A. M. when he was going to village Sirsa to purchase a bullock and reached outside his village, the three accused-applicants met him, armed with lathis. THE complainant wanted to change his direction, but he was surrounded and belaboured with lathis. On receiving injuries he fell down. THEreafter Kishori put his leg on the neck of the complainant and removed the amount of Rs. 500/- from his pocket. THE miscreants then fled away holding out a threat to the complainant that they would see him later. On these allega tions the applicants have been prosecuted and convicted as above. THE courts below after considering the entire evi dence on the record have come to the conclusion that the prosecution case against the applicants has been fully established. As observed by the Sessions Judge, the medical evidence fully corro borates the prosecution case. As such the applicants have been convicted and sentenced as above. Learned counsel for the applicants has submitted that the court below has erred in law in convicting the accused under section 394 I. P. G. It is argued that only Kishori accused-applicant had robbed Hira Lal of the amount of Rs. 500/- and, therefore, he alone could be convicted under section 394 I. P. C. while, the offence, if any, made out against the other applicants was covered under section 323 I. P. C. Section 394 I. P. C. runs as follows :- "If any person in committing or in attempting to commit robbery volun tarily causes hurt, such person and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine." A perusal of the aforesaid section indicates that violence or hurt must be caused by a person while he is commit ting or attempting to commit a robbery. THE other persons who join him in com mitting or attempting to commit such robbery are also held guilty of the offence. THE evidence in the instant case indicates that all the three accused have caused hurt to Hira Lal. Dr. Khan had proved that Hira Lal had five injuries. THE evidence further indicate that after all the three applicants had caused these injuries to Hira Lal. He fell down. THEre after Kishori put his leg on the neck of the complainant and removed the amount of Rs. 500/- from his pocket. THE act of the accused in causing injuries to the complainant, on account of which he fell down, and the act of Kishori in continua tion thereof in pressing the neck of the complainant by putting his leg there on were all acts committed by the miscreants in an attempt to commit the theft of Rs. 500/-. In other words these injuries had been voluntarily caused to the com plainant for the end of committing a theft. THE incident took place in broad day light unprovoked, on a public road, on the outskirts of the village. In this set of facts and circumstances, there can be no doubt that all the three applicants were jointly concerned in committing the robbery. Merely because one person removed the money from the pocket of the complainant, does not indicate that it was his solitary act not connected with the offence in question. In my view therefore the offence under section 394 I. P. C. has been fully made out. In support of his submission learned counsel for the applicants has cited a decision reported in Maghaji Nathaji and another v. State(A. I. R. 1953 Saurashtra 85.). THE facts of that case are totally different. THE prosecution evi dence in that case discloses that the culp rits entered the room of the complainant in order to take revenge on Valoji. Imme diately on entering the room they asked for Valoji. A scuffle took place between the occupants of the room and the intru ders, in the course of which the accused no. 2. shot at Gulabaha "THE removal of the gun, or for the matter of that idea of theft was never in the minds of the accused or Muluji and it was only as they were leaving the room that Muluji picked up the gun lying in a corner and went away. That was the last act of the culprits and a casual part of the incident.'' While discussing the legal question it was observed in that case that hurt to Fakir Gulabshah was not caused in order to commit the theft of the gun. THE words for that end in section 390 I. P. C. clearly means 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 attemp ting to carry away property obtained by theft." In these circumstances it was held that theft of gun was the indivi dual act of Muluji, and other appellants could not be held liable under section 394 I.P.C. read with section 397 I.P.C. Learned counsel for the applicants has also relied upon a single Judge decision of this Court reported in Bishambhar Nath and another v. Emperor (A. 1. R. 1941 Oudh 476,). In that case the facts were that the applicants went to a carnival show at Hardoi, where they were trying their luck at a game known as dart shoot ing. Those who wanted to between given three darts with which they were to shoot at the board at the colour selected by them. THE customers paid one anna for such set of darts. Filas and his companions went on betting for three hours. Filas bet Rs. 2|- on a white colour and threw all his three darts. THEy did not hit the white colour at the Board but hit the black colour. Filas demanded his money back. THE Manager of the stall refused to accept his claim. This led to an altercation between the two. THEre was an exchange of abuses and hot words. THEreupon all the four accused including Filas tore down the cloth of the booth, entered the enclosure and began to belabour the Manager. THE accused overpowered the Manager and the Assistant and removed the cash box and the money lying on the table. THE cash box contained Rs. 114/-was given to Filas accused and thereafter all the accused went away with the cash box. THE court came to the conclusion that the assault made and beating, had no relation whatsoever with the commission of the theft. As such it was held that the offence under section 394 I. P. C. had not been proved. THE facts of the present caseiare totally different. For the reasons given above, I am of the opinion that there is no force in this revision which is hereby dismissed.