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1 - 10 of 27 (0.26 seconds)Section 389 in The Code of Criminal Procedure, 1973 [Entire Act]
Section 120B in The Indian Penal Code, 1860 [Entire Act]
Section 395 in The Indian Penal Code, 1860 [Entire Act]
Section 397 in The Indian Penal Code, 1860 [Entire Act]
Kishori Lal vs Rupa And Ors on 23 September, 2004
In
the case of Kishori Lal v. Rupa and others, reported in (2004)
7 SCC 638, the Supreme Court has indicated the factors that
require to be considered by the Courts while granting benefit under
Section 389 in cases involving serious offences like murder etc., it
is useful to refer to the observations made therein. They are :-
Himatsing Shivsing vs The State Of Gujarat on 20 March, 1961
Now,
in this background of the entire prosecution case and the evidence on
record, can it be said that the common object of the unlawful
assembly was to commit an offence of dacoity. Can it be said that the
motive behind the crime was commission of dacoity or whether the
common object of the unlawful assembly was to thrash the first
informant for the reason that he developed intimacy with Gitaben and
got married with Gitaben surreptitiously without seeking any
permission from the family members of Gitaben. This is the core issue
which, prima facie, needs to be considered in the appeal. However,
prima facie, I am of the view that without going much into
appreciation of evidence the conviction under Sections 395 and 397
appears to be unsustainable. I am of the view that the Court owes a
duty to consider, as to whether the accused has a fair chance of
succeeding in the appeal or not ? I may consider my prima facie
opinion in light of what has been explained by the Division Bench of
this High Court so far as Section 390 of IPC is concerned. The
Division Bench of this High Court, in the case of Himatsing
Shivsing v. The State of Gujarat, reported in 1961 GLR 678,
has observed as under:-
Vishambhar Nath & Others vs S B I A D B Bahraich & Another on 15 July, 2010
Theft
amounts to '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. Before theft can amount to
'robbery', the offender must have voluntarily caused or attempted 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 second necessary ingredient is that this must be 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
third necessary ingredient is that the offender must voluntarily
cause or attempt to cause to any person hurt etc., for that end, that
is, in order to the committing of the theft or for the purpose of
committing theft or for carrying away or attempting to carry away
property obtained by the theft. It is not sufficient that in the
transaction of committing theft hurt etc., had been caused. If hurt
etc., is caused at the time of the commission of the theft but for an
object other than the one referred to in sec.390, I.P.Code, theft
would not amount to robbery. It is also not sufficient that hurt had
been caused in the course of the same transaction as commission of
the theft. The three ingredients mentioned in sec.390, I.P.Code, must
always be satisfied before theft can amount to robbery, and this has
been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476,
in the following words:-