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15. But in this case that question does not arise. Here the charge is for an offence punishable under Section 394 which includes not only causing of hurt but causing of hurt in committing or in attempting to commit robbery which is an aggravated form of theft. Even though Section 394 alone is there in the police charge and the court charge all die ingredients constituting robbery as defined in Section 390 and made punishable under Section 392 of the Indian Penal Code are also there in the charge and the accused had sufficient notice that he was being tried for robbery as well (Sic). In the case of robbery different degrees of punishment are provided in Sections 392, 394 and 397. The charge is not for causing hurt alone and robbery is also there. Robbery and causing hurt in committing robbery include several particulars, a combination of some only of which will constitute a complete offence of theft. Simply because Section 392 is not there in the charge there cannot be a technical plea that conviction for theft is illegal. There is no question of prejudice also because the accused had notice of the accusation of theft also. Only in an offence of robbery the offence punishable under Section 3941 PC will be attracted because the causing of voluntary hurt must be in committing robbery or in an attempt to commit robbery.

16. The learned Sessions Judge was of the view that in this case no offence of robbery is involved. The reason given by him is:

PW. 2 was attacked from behind and immediately on assault he fell down unconscious. So in carrying away the money in the plastic bag there was no occasion for Al to use any force against PW. 2. As such the definition of robbery is not attracted to the instant case.

17. According to the Sessions Judge theft will be robbery only if in committing or attempting to commit theft or in carrying or attempting to carry away the stolen property there was resistance from the victim and the resistance was overcome by causing or attempt to cause death, hurt or wrongful restraint etc. In other words the Sessions Judge thinks that in a case of theft even if to the committing of the theft or in committing theft or in carrying or attempting to carry away the stolen property, the thief, for that purpose, even before resistance is offered by the victim, knocks him down and makes him unconscious and incapable of resisting, and commits the offence it will not be robbery. Resistance by the victim and using force to overcome that resistance are, in the opinion of the Sessions Judge, necessary conditions precedent for an offence of robbery.

18. Robbery is defined in Section 390 of the Indian Penal Code thus:

When theft is robbery. 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, 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.

19. The Section does not say that resistance of the victim is necessary or that the acts or any of them mentioned therein should be in order to overcome the resistance. So far as necessary for the purpose of the facts of the present case alone robbery defined in the Section could be stated thus:

21. The learned Sessions Judge was following the dictum in Joseph v. State of Kerala 1982 Ker LT 20 : 1982 Cri LJ 714. That was a case in which the victim on seeing a lady on the way got down from a lorry and followed her. Driver of the lorry rode off. In the pursuit the victim lost his watch and some other belongings. The lady and three others were charge-sheeted for an offence punishable under Section 394 IPC. The only evidence-regarding robbery and hurt was the deposition of the victim who did not say in the first information statement or in his evidence before court that he followed a lady or he resisted when he was dispossessed of the movables and cash. He was found guilty of suppression of material facts also and it was held that all what he says cannot be accepted as gospel truth. There was also no acceptable evidence of commission or attempt to commit any of the offences enumerated in Section 390 IPC as against him in committing theft or in order to the committing of theft or in carrying away or attempting to carry away the stolen property or that he resisted or he was assaulted. It was in such circumstances that the decision said that in a case where the victim does not offer any resistance against dispossession of the movables, even if hurt is caused voluntarily, no offence under Section 394 can be said to have been committed. In that case there was no evidence of having caused voluntary hurt or that it was for the purpose of overcoming possible resistance in committing theft. What was held therein is only: