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Himatsing Shivsing Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1962CriLJ415; (1961)GLR678
AppellantHimatsing Shivsing
RespondentThe State of Gujarat
Cases Referred and King Emperor v. Mathura Thakul
Excerpt:
- - code must always be satisfied before wieff. 1941 oudh 476, in he following words ;the words 'for that end' in st 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft it does not mean that the assault or the hurt must be caused in 'the same transaction or in the same circumstances, in karuppa gounden v......1941 oudh 476, in he following words ;the words 'for that end' in st 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft it does not mean that the assault or the hurt must be caused in 'the same transaction or in the same circumstances,in karuppa gounden v. emperor a.i.r. 1918 mad 821, which followed two calcutta cases of otaruddi manjhi v. kafiluddi manjhi 5 cal wn 372, and king emperor v. mathura thakul 6 cal w n 72, it has been observed at page 824 as follows :now it is our duty to give effect to the words 'for that end'. it would have been open to the.....
Judgment:

V.B. Raju, J.

x x x x

19. It is next contended that even assuming that an offence of theft had been committed, it Hoes not amount to robbery, because the injuries of Narsing and Karansing were inflicted after the completion of theft and not for the purpose ot facilitating the commission of the (theft. Reliance is placed on Bishambhar Nath v. Emperor A.I.R. 1941 Oudh 476.

20. 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 or instant hurt, Or of instant wrongful restraint. Before theft can amount to 'robbery', the offender moist 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 01 committing theft hunt 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 its in Section 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 Section 390, I. P. Code must always be satisfied before Wieff. can amount to robbery, and this has been explained in A.I.R. 1941 Oudh 476, in he following words ;

The words 'for that end' in ST 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by the theft it does not mean that the assault or the hurt must be caused in 'the same transaction or in the same circumstances,

In Karuppa Gounden v. Emperor A.I.R. 1918 Mad 821, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi 5 Cal WN 372, and King Emperor v. Mathura Thakul 6 Cal W N 72, it has been observed at page 824 as follows :

Now it is our duty to give effect to the words 'for that end'. It would have been open to the legislature to have used other words which would not raise the difficulty that arises here, The Public Prosecuto,. has been forced to argue that 'for 'that end' must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a Section in the Penal Code. Undoubtedly, the words 'in those circumstances' would widen the application of the Section and we are not permitted o do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as 5 Cal WN 372. Their Lordships put the question in this way:It seems t0 us that the whole question turns upon the words 'for that end'. Was any hurt or fear of instant hurt, that was caused in the present case, cause for the end of 'the commission of the theft? We think not. It seems to us that whatever violence was used was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had n0 relation to the commission of theft, although theft was committed at the same time.

The language used in another case reported as 6 Cal WN 72 is as follows:

The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.

Those judgments in my opinion state the obvious intention of the Section and we are bound no give effect t0 it and I therefore follow the decisions in those two cases.

Ordinarily, if violence or hurt etc. is caused al the time of theft, it would be reasonable to infer hat violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in evidence to show that hurt or violence was caused not for this purpose but for a different purpose. In this case the property stolen was worth only Rs. O-50 nP. The appellant had been discovered while committing theft and Nursing said to him: 'why do you pick Tower from my field?' Gujarat version reads as follows;

'Bija Khetarman Mar ne' (original in Gujarati Ed.) which literally translated means 'die in another field'. It may be that finding that he had axiom detected in the commission of the offence, that his plan had been frustrated and that have abused, the appellant lost this tamper and in a fit of indignation he might have given a blow with his dhari. Two views can be taken as to the object for which violence had been used by the appellant, and it would be safer to take the view which is more favorable to the accused, Was I therefore, feel that in this case the prosecution has not proved beyond reasonable doubt that violence had been used by the accused for the end referred to in Section 390, I. P. Code, We, there-for hold that the ingredients of See, 390, I. P. 'Code have not been satisfied and 'that the theft do('s not amount to 'robbery'


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