K.K. Narendran, J.
1. Wine and women are considered to be two of the weaknesses which many a man is said to have. Sebastian aged 26, PW 1 in this case, was not a vegetable even though he was employed in a vegetable shop. His job was to go to Tamilnadu, purchase vegetables and bring it in a lorry to Kottayam. On 7-2-1979 he was accompanying the vegetable lorry to Kottayam. A few hours before sunrise the lorry reached the road in front of Pushpagiri church south of the Karithas Junction. He saw a young woman standing on the road in front tn church wearing a saree. He told the driver that he wanted to answer ths calls of najture. The driver stopped the lorry and he got down. He followed the woman and ascended the steps leading to the Pushpa-giri church. Three others appeared on the scene. He lost his Seikho watch, Rupees 300/- cash he had with him and a gold chain, got done in jalaja fashion with a cross, weighing three sovereigns. He cried aloud and came to the road. By that time, the driver had left with the lorry. He got into another vehicle and reached Kottayam.
2. The three persons and the woman were charged for an offence Under Section 394, IPC read with Section 34. The Judicial Magistrate of the First Class, Ettumanoor who tried the case found all the accused guilty of an offence Under Section 394, I. P. C, read with Section 34, convicted and sentenced them to undergo rigorous imprisonment for two years.
3. The accused challenged the judgment of the Magistrate in appeals filed before the Court of Session, Kottayam The Court of Session dismissed the appeals holding that the finding of the learned Magistrate that the accused were guilty of the offence Under Section 394 IPC read with Section 34 thereof is correct.
4. It is the above judgment of the Court of Session that the 2nd accused has challenged in this criminal revision. The learned Counsel for the revision petitioner contended that the petitioner is innocent. It was then contended that if at all the petitioners can be found guilty it cannot be for voluntarily causing hurt in committing robbery Under Section 394, I. I5. C. and if can only be for theft under Section 379, IPC It was further contended that if the petitioner is only guilty of theft then this is a fit case where the accused has to be given the benefit of Section 360 of the Code of Criminal Procedure, 1973.
5. In view of the oral evidence adduced and the recoveries proved in the case, it is now too late in the day for the revision petitioner to contend that he is innocent. Then the only question is as to whether the offence committed is theft or robbery. On this aspect of the matter the only evidence is that of PW 1, the victim. It has to be remembered that PW 1 is one who omitted to mention a material aspect when he gave Ext. P-l first information to the Police. The fact that he saw the 4th accused lady standing alone and it was then that tie asked the driver to stop the lorry and got down and, following her, he climbed the steps leading to the church does not find a place in Ext. P-l. In view of this, it is not safe to take all that PW 1 has said as gospel truth.
6. In Rex v. Thomes Gnosil, (1824) 1 C & F 304 'the prisoner was indicted for a highway robbery. The prosecutor proved that as he was going along the street of Walsal the prisoner laid hold of his watch chain, and with considerable force jerked his watch from his pocket; a scuffle then ensued, and the prisoner was secured', Garrow B, held:
The mere act of taking, being forcible, will not make this offence a highway robbery : to constitute the crime of highway robbery, the force used must be either before, or at the time of the taking and must be of such a nature, as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the_ property stolen. Thus, if a man walking after a woman in the street, were by violence to pull her shawl from her shoulders, though he might use considerable violence, it would not, in my. opinion, be highway robbery; because the violence was not for the purpose of overpowering the party robbed, but only to get possession of the property,' (p. 1206).
In Rex v. George Mason (1820 Russ & Ry 420) it was held that the prisoner could not get the watch at once but had to overcome the resistance the steel chain made and actual force was used for the purpose. In Karmun v. Emperor AIR 1933 Lab. 407 :1934) 35 Cri LJ 297 it was held :
In order that theft may amount to robbery, it must be shown that hurt . was caused in order to commit the theft or in carrying away or attempting to carry away the property obtained by theft, The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself.' (at p. 408)(of AIR : at p. 298 of Cri LJ.
In Karuppa Goundan v. Emperor AIR 1918 Mad 821 :1917) 18 Cri LJ 346 the Court said thai tne words 'for that end' in Section 390, IPC cannot be read as meaning 'in those circumstances'. In Bishambharnath v. Emperor AIR 1941 Oudh 476 :1941) 42 Cri LJ 530 'the accused persons first belaboured tha complainant and his servant and subsequently committed the theft of his cash. Whatever injury was caused to the complainant and his servant it was caused when the assault was made upon them with the primary object of enabling the accused to the committing of the theft. The assault or the beating had no relation whatever to the commission of the theft, although the theft was committed at the same time or immediately after-wards'. The Court held the accused nbt guilty Under Section 394, IPC
7. Section 390 of the Indian Penal Code reads :
390. Robbery.- In all robbery there is either theft or extortion.
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.
Section 394, IPC reads ;
394. Voluntarily causing hurt in committing robbery.- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, to 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.
Section 378, IPC reads ;
378. Theft.- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Dispossessing one of a movable without his consent and with a dishonest intention is theft. If, in the act of dispossession, the person in possession of the movable resists and the offender causes or attempts to cause death, hurt or wrongful restraint or fear of instant death or instant hurt or of instant wrongful restraint to any person then the offence will not be theft. The offence will be robbery. If hurt etc, is caused to overcome the resistance in carrying away the movable dispossessed or in attempting to carry away the same then also the offence will be robbery. So, in a case where the victim does not offer any resistance, the dispossession of a movable against his consent will not become an offence of robbery. Only in an offence of robbery, Section 394, I. P, C. will be attracted because the causing of voluntary hurt must be in committing a robbery or in an attempt to commit robbery. So, in a case where the victim does not offer any resistance against the dispossession of the movables even if hurt is caused valijntarily, no offence Under Section 394, IPC can be said to have been committed. In this case, there is no whisper either in Ext. P-l first information statement or in the evidence of PW 1 that Sebastian resisted when he was actually dispossessed of the movables and cash. So. the offence committed by the accuse'd is only theft and not one under Sec 394, IPC
8. For the reasons stated above, I set aside the conviction of the accused-petitioner Under Section 394, IPC and the sentence passed against him and find him guilty of theft Under Section 378, IPC and convict him undftr Section 379, IPC for rigorous imprisonment for 2 years.
9. In Ved Prakash v. State of Haryana (1981) 1 SCC 4I7 : 1981 Cri LJ 161 on the question of dealing with an accused Under Section 360, Cr.P.C. Mr, Justice Krishna Iyer has said :
We must emphasise that seatencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant alhough in practice criminal courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360, Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant....In the present case, the offender is a young person and his antecedents have no blemish. His life is not unsettled or restless and the report indicates that he is an agriculturist, pursuing a peaceful vocation.
In this case, Jose the accused-petitioner was only 19 at the time when the offence was committed. He was not a previous convict when he was involved in this case. This is a fit case for invoking Section 360 (1, Cr.P.C. and releasing the accused-petitioner on probation of good conduct. Hence instead of sentencing the accused-petitioner at once to any punishment I direct that he be released on probation on his entering into a bond with two sureties to appear and receive sentence when called upon during a period of two years and in the meantime to keep the peace and be of good behaviour. The Criminal Revision Petition is allowed as above.