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In Re: Diwansingh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1980CriLJ760
AppellantIn Re: Diwansingh and anr.
Excerpt:
.....to their bail bonds to undergo the imprisonment of 4 months in default of payment of..........for bringing her. he was riding on a mare. when he reached by the side of the river, the two accused persons who were having sticks fixed with iron spears forcibly took the mare away from him and asked him to tell his master that he may take back the mare from the village of the accused persons. it was also suggested that there was some ill-will between the accused dewansingh and babusingh in the context of breakdown of the negotiations of marriage of babu singh's son with the daughter of accused dewansingh. ranjit singh had stated that the accused persons came to him. they were holding sticks fixed with iron spears. they forcibly took away the mare from him and proceeded towards their village vamroli across the river. ranjit singh who was a young boy came weeping to the village.....
Judgment:
ORDER

J.P. Bajpai, J.

1. This revision is at the instance of the two accused-applicants who seek to challenge their conviction for the offence punishable under Section 382 of the Indian Penal Code and sentence of three years' rigorous imprisonment and a fine of Rs. 700/- each in default of payment of which to further suffer rigorous imprisonment for nine months each.

2. The facts giving rise to the prosecution are as below:

Ranjit Singh, the complainant, was going to his mother-in-law's place in village Barahet for bringing her. He was riding on a mare. When he reached by the side of the river, the two accused persons who were having sticks fixed with iron spears forcibly took the mare away from him and asked him to tell his master that he may take back the mare from the village of the accused persons. It was also suggested that there was some ill-will between the accused Dewansingh and Babusingh in the context of breakdown of the negotiations of marriage of Babu Singh's son with the daughter of accused Dewansingh. Ranjit Singh had stated that the accused persons came to him. They were holding sticks fixed with iron spears. They forcibly took away the mare from him and proceeded towards their village Vamroli across the river. Ranjit Singh who was a young boy came weeping to the village and told various persons about the Incident. A report was lodged. The courts below have believed the testimony of Ranjitsingh and have held the accused persons guilty for the offence punishable under Section 382 I.P.C.

3. Shri J.M. Anand, learned Counsel appearing for the applicants, contended that in view of the limited scope of interference in revision, he may not be in a position to challenge the finding on the question of fact of the accused persons removing the mare from the possession of Ranjit Singh. His argument was that his challenge to the conviction was confined to the legal aspect of the applicability of Section 382 I.P.C. to the undisputed circumstances of the present case as alleged by the prosecution itself. The contention was that according to the language of Section 382 I.P.C. as reproduced below, for securing a conviction for the offence punishable under the aforesaid section, the prosecution must establish that the accused persons committed theft after having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of their escape after the committing of such theft, or in order to the retaining of property taken by theft:

382. Theft after preparation made for causing death, hurt or restraint in order to committing of the theft.-Whoever commits theft having made preparation for causing death, or hurt, or restraint or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the affecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

It was also contended that there was nothing on record to show that the accused persons had at any time made any preparation for causing death or hurt or restraint. The only eye-witness, i.e., Ranjit Singh from whose possession, the mare was removed, had also not said a single word that the accused persons caused any injury, gave any threat or even made any attempt to cause hurt or restraint. Thus, the only fact established was that at the time of committing theft the accused persons were armed with weapons. Thus according to the learned Counsel it was a simple case of removal of the property from the possession of Raniit Singh by the accused persons without his consent.

4. The learned Counsel appearing for the State, however, contended that the fact that the accused persons were found to be in possession of spears while committing the theft was sufficient to infer that they had made preparation to cause hurt, even if from the evidence on record there was nothing to show that they either actually caused any hurt or gave a threat of the same. It was also argued that though in the present case there was no evidence to show that the accused persons even made a show of force by raising the weapons the presence of weapons with them at the time of committing the offence was sufficient to infer the act of preparation. It cannot be ruled out that sometimes in the facts and circumstances of a case the possession of a weapon by an offender while committing an offence may in itself be sufficient to hold that he had made preparation to cause hurt for committing the offence or for securing his escape. The complainant Ranjeet Singh had specifically stated that the accused persons forcibly took the mare from him. The accused persons were armed with spears. In the context of the aforesaid circumstances the courts below were right in holding that the accused persons committed theft after having made preparation to cause hurt.

5. In a case under Section 382 I.P.C. it is not necessary that hurt must be caused or an attempt to cause hurt must be made. When hurt is actually caused or an attempt is made to cause hurt for committing theft, the offence may become punishable as 'Robbery.' But in an offence under Section 382 I.P.C. the preparation on the part of the accused to cause hurt, though he may or may not have caused hurt, is sufficient. One who keeping a knife with him commits theft may be liable for conviction for the offence under Section 382 I.P.C. even though there was no occasion for him to wield the knife or to cause injury. What is relevant is the preparedness of the accused in such a manner that he may be able to cause hurt to others who might resist or may come in his way of escaping away or taking the stolen property away.

6. In the opinion of this Court, the conviction of the applicants for the offence under Section 382 I.P.C. does not call for any interference. However, in the facts and circumstances of the case, ends of justice would be met if the sentence of imprisonment is reduced to that already undergone. Each of the applicants has suffered about three weeks' imprisonment during the course of trial and the pendency of appeal and revision. The fine of Rs. 700/- already imposed on each of the applicants by the Courts below is, however, sustained.

7. This revision is, therefore, partly allowed on the point of sentence alone, The sentence of imprisonment is reduced to that already undergone. Out of the amount of fine recovered, a sum of Rupees 700/- be given to the complainant. It is apparent from the record that the mare could not be recovered. With the aforesaid modification on the question of sentence and the direction regarding payment of compensation out of the amount of fine recovered, this revision is partly allowed.

8. The applicants are directed to appear before the Chief Judicial Magistrate, Morena, on 2-8-1979 to hear the result of this revision. On the aforesaid date, they shall deposit the amount of fine of Rs. 700/- each, if not already deposited. On their failure to do so, they shall surrender to their bail bonds to undergo the imprisonment of 4 months In default of payment of fine. If they deposit the amount of fine, their bail bonds shall stand cancelled.


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