Madras High Court
Ganesan @ Selvam vs State on 2 August, 2012
Bench: K.N.Basha, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.08.2012 CORAM THE HON'BLE MR.JUSTICE K.N.BASHA and THE HON'BLE MR.JUSTICE P.DEVADASS Crl.A.No.170 of 2012 Ganesan @ Selvam ... Appellant Versus State rep. by the Inspector of Police, Paramathi Police Station, Namakkal Taluk, Namakkal District. ... Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C., to call for the records and set aside the judgment and sentence dated 29.11.2002 by the learned Additional District and Sessions Judge/Chief Judicial Magistrate, Namakkal in S.C.No.128 of 2002 by allowing this Criminal Appeal. For Appellant : Mr.V.Balu For Respondent : Mr.V.M.R.Rajendran Addl. Public Prosecutor - - - - - JUDGMENT
P.DEVADASS, J., A2, in the Sessions Case, in S.C.No.128 of 2002, in the Court of Additional Sessions Judge, Namakkal, is the appellant.
2. A1 to A5 were prosecuted in the said Court on the allegation that on 28.11.2000, at about 7 p.m., wielding knives they have barged into a petrol bunk in Keerampur Village in Namakkal District, robbed Rs.1,21,352/- from the cashier Kuruvan(P.W.1) and while tooking to their heels with the booty, A1 had cut P.W.1, who sustained injuries.
3. On the above allegations, they were tried together for charges under Section 394, 395 and 395 r/w 397 I.P.C.
4. To substantiate the charges, prosecution examined P.Ws.1 to 11, marked Exs.1 to 7and exhibited M.O.1.
5. When they were examined on the incriminating aspects appearing as against them in the prosecution evidence, they came forward with the version that they have been falsely implicated. They did not let in any evidence on their side.
6. Analysing the ocular testimony of P.W.1, other eye witnesses, medical evidence and recovery evidence, the Trial Court acquitted A5 since there is no evidence as against him, however, convicted A1 to A4 under Section 394 IPC and also under Section 392 r/w 397.
7. The Trial Court sentenced them as detailed below:-
Accused Conviction Sentence A1
(i) u/s 394 IPC
(ii) u/s.392 r/w 397 IPC Life imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
10 years Rigorous Imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
A2
(i) u/s 394 IPC
(ii) u/s.392 r/w 397 IPC Life imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
10 years Rigorous Imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
A3
(i) u/s 394 IPC
(ii) u/s.392 r/w 397 IPC Life imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
10 years Rigorous Imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
A4
(i) u/s 394 IPC
(ii) u/s.392 r/w 397 IPC Life imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
10 years Rigorous Imprisonment and fine Rs.1,000/- in default 6 months rigorous imprisonment.
The learned Judge directed the sentences imposed on each accused shall run concurrently.
8. Earlier, challenging their conviction and sentences, A3 and A1 have preferred Criminal Appeal Nos.1863 of 2002 and 1816 of 2003 respectively to this Court.
9. On 16.12.2004, by its common Judgment, a Division Bench of this Court, while dismissing their appeals, set aside their conviction under Section 394 IPC., instead convicted A1 under Section 392 r/w 397 IPC and A3 under Section 392 r/w 34 IPC and sentenced them to 10 years rigorous imprisonment each and in other respects including the fine amount maintained the judgment of the Trial Court.
10. Now, in the present Appeal before us, A2, who had not earlier appealed, challenges his conviction and sentences stated already in para 7 above.
11. Mr.V.Balau, the learned counsel for the appellant would contend that the Division Bench in its earlier Judgment dated 16.12.2004 assessed the evidence afresh and modified the conviction of A1 under Section 394 IPC to Section 392 r/w 397 IPC and modified the conviction of A3 under Section 394 IPC to Section 392 r/w 34 IPC and set aside their life sentences and sentenced them to 10 years rigorous imprisonment, thus, in effect, totally they were given 10 years rigorous imprisonment. Since same evidence was let in as against the appellant herein also thus the finding rendered by the Division Bench, as regards A3 squarely applies to the appellant herein. The learned counsel contended that in the circumstances A2's sentence under Section 394 IPC must also go and instead he will suffer imprisonment for 10 years under Section 392 r/w 34 IPC as it was imposed on A3. Thus, the learned counsel would submit that the benefit of the judgment of the Division Bench given in the earlier appeals may be extended to the present appellant also.
12. We have heard Mr.V.M.R.Rajendran, learned Additional Public Prosecutor. He did not differ on the factual and legal aspects submitted by the learned counsel for the appellant.
13. We have anxiously considered the submissions of the learned counsels, perused the entire evidence, the impugned Judgment of the Trial Court and also went through the Judgment of the Division Bench.
14. Actually, now the appeal of the present appellant is extending of the benefit of the finding of the Division Bench rendered on 16.12.2004 with respect to A1, more particularly with respect to A3 to him also.
15. A1 (appellant in Crl.A.No.1816 of 2003), A2 (present appellant), A3(appellant in Crl.A.No.1863 of 2002) and A4 are associates. They were alleged to have robbed Rs.1,21,352/- on 28.11.2000 at a petrol bunk. In the Trial Court, prosecution let in oral and documentary evidence as against them. The conviction rendered as against them by the Trial Court is based on the common evidence let in and they were sentenced as already stated in para 7.
16. In its Judgment dated 16.12.2004, on reappraisal of the entire evidence, the Division Bench concluded that "the evidence of the witnesses clearly establish that all the four accused entered the petrol bunk, committed theft of cash and while leaving the place, when P.W.1 raised alarm, A1 caused injuries to P.W.1 and thereafter all the accused fled."
17. Chapter XVII of the Indian Penal Code deals with property offences. There is minute distinction between an offence under Section 392 I.P.C.(punishment for robbery) and offence under Section 394 I.P.C.(voluntarily causing hurt in committing robbery). The Division Bench it is judgment dated 16.12.2004 elaborately dealt with this distinction between the said two Penal provisions, which we will see shortly.
18. It is relevant here to note that the Trial Court had also convicted A1 to A4 under Section 394 IPC and sentenced them to life and also fined them. With regard to this conviction under Section 394 IPC, the Division Bench, in its Judgment dated 16.12.2004, in para 13, held as under:-
"13. The learned counsel for the first accused submits that even if the entire facts are taken to be true, the offence committed by the first accused will fall under Section 392 read with 397 I.P.C. and it will not attract the penal provision of Section 394 I.P.C. We will now take up the said contention and find out the nature of offence committed by the first accused. Robbery is defined under Section 390 I.P.C. and it states that in all robbery there is either theft or extortion. It further contemplates as to when theft becomes robbery by defining that 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 (emphasis supplied), 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. The definition, therefore, shows that theft becomes robbery if the offender 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 for the purpose of committing any of the following acts:
1) in order to commit theft,
2) in committing theft,
3) in carrying away the property obtained by way of theft, or
4) in attempting to carry away the property obtained by theft.
The facts, which we have extracted above, therefore, show that the act committed by the first accused will attract the third part of Section 390 I.P.C., since, according to P.W.1, while the first accused and the other accused were running away with the property and when P.W.1 raised alarm, he was cut. This means that the injury was caused on P.W.1 when A-1 along with the other accused was carrying away the property obtained by theft. Section 392 I.P.C. provides punishment for robbery and Section 394 I.P.C. is the aggravated form of robbery, since Section 394 I.P.C. reads as follows:
"If any person, in committing or in attempting to commit robbery, voluntarily 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 ten years, and shall also be liable to fine."
The above reading of Section 394 I.P.C. shows that a person, to be convicted under Section 394 I.P.C., should cause voluntarily hurt while committing or attempting to commit robbery. That is, the purpose of causing hurt under Section 394 I.P.C. is to commit robbery or attempt to commit robbery. The words 'for that end' occurring in the definition for Robbery indicates that if the hurt is caused while carrying away the property, the offender, who causes the hurt for the purpose of carrying away the property will be liable for punishment under Section 392 I.P.C., since the injury is caused for the purpose of carrying away the property in view of the said words 'for that end' used in that Section. In this case, the first accused caused hurt not to commit robbery, but caused hurt for carrying away the property obtained by theft and therefore, the offence committed by the first accused will fall under Section 392 read with 397 I.P.C. Therefore, the conviction of the first accused under Section 394 I.P.C. is to be set aside and instead, he is to be convicted under Section 392 read with 397 I.P.C. and accordingly, he is convicted under Section 392 read with 397 I.P.C. and for the said conviction, he is sentenced to ten years rigorous imprisonment."
19. In view of the above finding, consequently, with regard to A3, the Division Bench, in Para 14 of its judgment, held as under:-
"14. As A-3, who is the appellant in Crl.A.No.1863 of 2002, shared the common intention of the first accused and committed robbery and therefore, his conviction under Section 394 I.P.C. is set aside and instead, he is convicted under Section 392 read with 34 I.P.C., for which, he is sentenced to rigorous imprisonment for a period of ten years."
20. Ultimately, in view of its finding under Section 392 r/w 397 IPC instead of Section 394 IPC as against A1 and under Section 392 r/w 34 IPC as against A3, at the penultimate part of its judgment, in Para 15, the Division Bench gave the following result:-
"15. In the result, the conviction of A-1 and A-3, who are the appellants in C.A.Nos.1816 of 2003 and 1863 of 2002, under Section 394 I.P.C. is altered to one under Section 392 read with 397 I.P.C. and 392 read with 34 I.P.C. respectively, and for the said offence, each one of them is sentenced to undergo rigorous imprisonment for a period of ten years. In other respects including the fine amount, the judgment of the learned Sessions Judge will stand. The appeal is dismissed with the above modification in conviction and sentence."
21. It is seen that as regards the finding of the Division Bench under Section 392 r/w 34 IPC is concerned, the appellant herein and his associate A3, who is appellant in the earlier Criminal Appeal No.1863 of 2002 are standing on the same footing. Thus, the said finding rendered earlier as against A3 also applies to the present appellant. Had A2 earlier appealed along with A1 and A3, he would have had the benefit of the judgment of the earlier Division Bench, namely, 10 years rigorous imprisonment under Section 392 r/w 34 IPC instead of the life sentence awarded under Section 394 IPC.
22. It is appropriate here to notice the following observations of the Hon'ble Supreme Court made recently in SAHADEVAN Vs. STATE OF TAMIL NADU (2012 (6) SCC 403).
If, for compelling and inevitable reasons, like lack of finance, absence of any person to pursue his remedy and lack of proper assistance in the jail, an accused is unable to file appeal, then it would amount to denial of access to justice to such accused. The concept of fair trial would take within its ambit the right to be heard by the appellate court. It is hardly possible to believe that an accused would, out of choice, give up his right of appeal, especially in a crime where a sentence of imprisonment for life is prescribed and awarded.
23. Thus, the benefit of the judgment of the Division Bench dated 16.12.2004, modifying the life sentence to 10 years rigorous imprisonment, in view of the conversion of the conviction of A3 under Section 394 IPC to one under Section 392 r/w 34 IPC is also applicable to the similarly placed A2, the appellant herein.
24. In the result, this Criminal Appeal is partly allowed. The conviction of the appellant/A2 under Section 394 IPC is altered to one under Section 392 r/w 34 IPC. The life sentence awarded to him by the Trial Court under Section 394 IPC is set aside. Instead he is sentenced to 10 years rigorous imprisonment under Section 392 r/w 34 IPC. In other respects, including the fine amount, the judgment of the Trial Court is maintained. We make it clear that all the sentences imposed on the appellant shall run concurrently and he is entitled to set off under Section 428 Cr.P.C.
rrg To
1.The Principal Sessions Judge, Namakkal.
2.The Additional Sessions Judge, Namakkal.
3.The Chief Judicial Magistrate, Namakkal.
4.The District Munsif-cum- Judicial Magistrate, Paramathi, Namakkal District.
5.The District Collector, Namakkal.
6.The Superintendent of Police, Namakkal.
7.The Superintendent, Central Prison, Coimbatore.
8.The Inspector of Police, Paramathi Police Station, Paramathi.
9.The Additional Public Prosecutor, High Court, Madras.
10.The Section Officer, Criminal Section, High Court, Madras