Allowed

Chhota Lal and Others v. State of U.P.

Allahabad HC8 Aug 2022CRLA/1859/1983

Case brief

AI extract

What is this about?

The High Court held that elements of robbery were missing, as no hurt, death, or fear was caused. Challenging a conviction under Section 392 IPC for snatching a gun, the court held the offence at most amounted to theft under Section 379 IPC and converted the conviction accordingly.

What did the court decide?

Conviction under Section 392 IPC was quashed and converted to conviction under Section 379 IPC.

Chhota Lal and Others Vs State of U.P. — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 89

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Case : - CRIMINAL APPEAL No. - 1859 of 1983 Appellant : - Chhota Lal And Others Respondent : - State of U.P. Counsel for Appellant : - Surendra Pratap Singh,Kameshwar Singh,Ramesh Chandra Yadav,Surendra Singh Counsel for Respondent : - A.G.A.

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Hon'ble Karunesh Singh Pawar,J.

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Heard Shri Ramesh Chandra Yadav, learned counsel for the appellant, Shri Suraj Singh, learned State Law Officer and perused the record.

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This criminal appeal is of the year 1983, during pendency of this appeal the appellant no. 1 Chhote Lal and appellant no. 3 Piyare have died, therefore, appeal with respect to appellant nos. 1 and 3 have already been dismissed as abated vide order dated 10.12.2018. Rest of the appellants namely appellant no. 2 Bihari and appellant no. 4 Pattu are pressing this appeal against the judgement and order dated 30.07.1983 passed by the Additional Sessions Judge, Mirzapur in Sessions Trial No. 306 of 1982, whereby the appellants have been convicted under section 392 I.P.C. and sentenced them for 3 years rigorous imprisonment.

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Prosecution case as per the written report is that on 04.02.1981 at about 10 a.m., complainant with his licensee double barrel gun went towards canal and found that his field was filled with water of the canal. He started flowing that water into the field of Chhote Lal by cutting the boundary of his field. The accused persons Chhote Lal, Bihari, Piyare and Puttu arrived there and started hurling abuse on him as water was flowing in their field. In the meantime, Chhote Lal exhorted to snatch the gun of the complainant. Then the remaining accused persons caught hold the complainant Girja Shankar and Chhote Lal snatched the gun of complainant and did not return upon asking and upon alarm Raj Kumar,

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Vijai Kumar Singh, Dhyan Singh and others reached there, then accused persons ran away with the gun.

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A written report was given at 6:30 p.m. at P.S.- Chunar which was 14 miles from the place of occurrence and consequently chik F.I.R. Ext. Ka-2 was prepared on that written report which is Ext. Ka-1, the case was registered under section 392 I.P.C, which is Ext.-Ka-3.

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Prosecution in support has produced as many as five witnesses P.W.-1 Girja Shankar, P.W.-2 Vijai Kumar, P.W.-3 Raj Kumar Singh, P.W.4 Head Constable Uma Shankar Singh who had prepared the chik F.I.R. and had proved it, P.W.-5 S.I. Ajimuddin Siddique who had recovered the gun.

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P.W.-1, P.W.-2 and P.W.-3 have supported the prosecution case and all of them have reiterated the same version as stated in the written report and the role of snatching the gun has been attributed to accused Chhote Lal by the prosecution witnesses P.W.-1, P.W.-2 and P.W.-3 and other accused persons have been assigned the role of catching hold.

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P.W.-5 S.I. Ajimuddin Siddique in his examination-in-chief has stated that on the next day i.e. on 05.02.1981 at about 2 p.m. while he came to the office of Circle Officer, Mirzapur, the co-accused persons appellant Chhote Lal and Bihari were present with an application and on the instructions of Circle Officer and upon pointing out of the appellants, he went to recover the looted gun alongwith other police personnel and on the way he has also taken two public witnesses Radhey Shyam and Tara Chand and on the saying of the appellants Chhote Lal and Bihari, accused Piyare Lal was arrested and from whom a double barrel gun no. 125870 D.B.B.L 12 bore and one live cartridge was recovered and recovery memo was prepared.

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Learned counsel for the appellants submits that a cross case was lodged from the appellants side and no finding has been given on that by the trial court. The F.I.R. is delayed and the delay has not been properly

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explained. It is further submitted that there is no independent witness of the prosecution case. He further submits that appellants have no criminal history. The allegation of snatching the gun was on Chhote Lal, the accused-appellant who is dead. Learned counsel for the appellants submits that rest of the appellants namely Bihari is aged about 76 years and Pattu is 83 years old. He submits that perusal of statement of the P.W.-5 S.I. Ajimuddin Siddique shows that on the very next day, when he came to the office of Circle Officer, both the appellants Chhote Lal and Bihari were present there. He submits that they came there with the intention to return the gun and took the P.W.-5 with them and they handed over the gun, which was with Piyare Lal accused alongwith live cartridges and they had no intention to commit any theft or retain the gun. However the prosecution has framed them in a false case under section 392 I.P.C.

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Learned counsel for the appellants submits that the fact that the appellant Bihari went to the office of Superintendent of Police alongwith the co-accused to return the gun is evident from the written report dated 05.02.1981 given by the appellant Bihari to the Superintendent of Police, Mirzapur, which is exhibited before the trial court. The appellant Chhote Lal has also received injuries, however, there is no finding in this regard. It is contended on behalf of the appellants that even if the entire prosecution story is accepted as it is, the offence will not travel beyond theft, as per the admitted case of the prosecution, the offence in this case cannot be defined as robbery.

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Per-contra, learned Brief holder has opposed and has supported the prosecution case and has stated that merely because P.W.-1, P.W.-2 and P.W.-3 are interrelated witnesses, the admissibility of their evidence is not effected. The evidence is clear, the gun was snatched by one of the coaccused namely Chhote Lal and other three had caught hold the complainant and later on, the gun was recovered from one of the coaccused namely Piyare.

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Having heard the learned counsel for the appellants as well as learned Brief holder and considering the prosecution case, firstly to examine whether the charge under section 392 I.P.C. has been rightly framed and whether the offence alleged in the prosecution case as per the opponent fit case is offence of robbery or not.

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Section 390 I.P.C defines robbery which is extracted below:-

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" 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. When extortion is robbery.—Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.—The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

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A bare perusal of the section 390 I.P.C. provides that a theft may constitute robbery in case the prosecution is successful in establishing that if (a) in order to the committing of the theft; or (b) in committing the theft, or (c) in carrying away or attempting to carrier away property obtained by theft, (d) the offender, for that end, that is any of the ends contemplated by (a) to (c) has voluntarily caused or attempted to cause any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence will be robbery, otherwise, not.

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The second part of section 390 I.P.C. provides as to when extortion becomes robbery. Extortion becomes robbery when the conditions (1) when a person commits extortion by putting another in the fear of instant death, wrongful restraint or hurt (2) Then the offender induces the person under such fear to deliver the property at that very instant; then and there and (3) the offender is in the near presence of such a person put in fear at the time of extortion, are satisfied.

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All the aforesaid ingredients are interlinked so as to constitute the offence of robbery. In this case, it is admitted case of the prosecution that no one from the complainant side was hurt, neither any attempt was made by the appellants to cause death of the complainant, neither there was any wrongful restraint of the complainant nor any fear of the instant death was there. On account of any of the action of the appellants, neither it is a case of instant hurt or instant wrongful restraint, nor after snatching the gun, the complainant was put in fear of instant death, thus in absence of any of these factors as mentioned under section 390 I.P.C., I am of the opinion that no offence of robbery is made out and therefore, a charge under section 392 I.P.C. could not have been framed by the trial court. At the most, in case the prosecution case is taken as it is, charge under section 379 I.P.C. could have been made as there was a dishonest intention to take the gun from the possession of the complainant without his consent, thereby committing wrongful loss to him as defined under Section 24 I.P.C.

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Charge is framed under section 392 I.P.C. only and no charge under section 34 I.P.C. is framed. The role of snatching the gun was on Chhote Lal appellant who has died and other appellants have been assigned the role of catching hold. The gun has been recovered from the appellant Piyare Lal who has also died.

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At this stage, learned counsel for the appellants prays that the commission of the offence under section 392 I.P.C. be converted into section 379 I.P.C.

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Keeping in view what has been stated hereinabove. I am of the opinion that no offence under section 392 I.P.C. is made out and at the most, as held above, the accused appellant is held guilty of the offence under section 379 I.P.C. Thus, conviction of the accused is converted under section 379 I.P.C.

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16 . Considering the fact that appellant Bihari is aged about 76 years and Pattu is 83 years old and the judgment of conviction was passed in the year 1983, the appeal is pending since 1983, the ends of justice would be served if the appellants are sentenced with the period of imprisonment already undergone and it would be proper to reduce the sentence to the period of imprisonment already undergone by them.

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Ordered accordingly.

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In case the appellants are on bail, their bail bonds are cancelled.

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Let a copy of this judgment along with original lower Court record be sent to the Court concerned for compliance forthwith.

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Order Date :- 8.8.2022

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Bhanu

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Digitally signed by BHANU PRATAP KUSHWAHA Date: 2022.08.25 15:43:20 IST Reason: Location: High Court of Judicature at Allahabad

Chhota Lal and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Chhota Lal and Others v. State of U.P.

Case brief

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