ARUNACHELLA THEVAN AND ARUNACHELLA THEVAN Vs. EMPEROR

JUDGEMENT

(1.) The appellants have been convicted by a jury of offences under Sections 392 and 397, Indian Penal Code and sentenced each to 5 years rigorous imprisonment. This sentence, as the learned Sessions Judge himself subsequently discovered and has pointed out in a letter of reference, is less than the minimum prescribed by Section 397, I.P.C.

(2.) I do not find any misdirection in the charge to the jury except as regards the liability of the appellants to conviction under Section 397, I.P.C The Judge, while pointing out to the jury that there is no evidence that these appellants caused the grievous hurt or (apparently) used deadly weapons, has directed the jury that they may convict the appellant of an offence under Section 397, I.P.C., merely because grievous hurt was caused by some of the robbers and (apparently) that some of the robbers used knives. This view finds no support in the wording of the section, especially as compared with Section 394,I.P.C., and is opposed to the ruling of this court in Cr. Ap. No. 315 of 1886 reported at page 450 of Vol. 1 of Weir s Law of Offences and Criminal Procedure and of the Allahabad High Court in Emperor v. Nageshwar1. It is not supported by the Public Prosecutor, I hold it to be erroneous. It follows that the conviction under Section 397, I.P.C., was wrong and was induced by a misdirection of the Judge. It must, therefore, be set aside.

(3.) But I see no reason to interfere with the conviction under Section 392, I.P.C. This is fully supported by the evidence and it is impossible to see how the verdict of the jury as regards this offence could have been influenced by the misdirection above referred to. I quash the conviction under Section 397, I.P.C,, and uphold the conviction under Section 392, I.P.C. The sentence is reduced to three years rigorous imprisonment in the case of each appellant.