Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: K. Jagadischandran Nair
Judges
  • Padmanabhan, J.
Acts
  • Ss. 4 and 6 of the Probation of Offenders Act
  • S. 4(1) of the Probation of Offenders Act
  • S. 27 the Evidence Act
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: K. Jagadischandran Nair
Judges
  • Padmanabhan, J.
Acts
  • Ss. 4 and 6 of the Probation of Offenders Act
  • S. 4(1) of the Probation of Offenders Act
  • S. 27 the Evidence Act
See more information ...
Smart Summary

Judgment Summary — C.C. 441 of 1981; Crl. A.80/83; Crl. A.81/83; Crl. A.377/84; Crl. R.P. 37/84; Crl. R.P. 57/84

Factual and Procedural Background

The Judicial First Class Magistrate, Kanjirappally tried three accused in C.C. 441 of 1981 for offences punishable under Sections 394 and 109 read with Section 34 of the Indian Penal Code. The third accused was acquitted at trial. Accused 1 and 2 were convicted under Section 394 IPC and each was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-, with a default sentence of rigorous imprisonment for two months.

On appeal, Crl. A.80/83 filed by the second accused was allowed by the Sessions Judge, Kottayam, resulting in his acquittal. Crl. A.81/83, filed by the first accused, was partly allowed by the Sessions Judge: the head of conviction was altered from Section 394 to Section 379 IPC and the sentence was reduced to rigorous imprisonment for two years.

The State filed Crl. A.377/84 challenging the acquittal of the second accused and the alteration of the head of conviction as well as reduction of sentence (the text states this was "as against the 2nd accused"). The first accused filed Crl. R.P. 37/84 against his conviction and sentence imposed by the Sessions Judge. Those matters were heard together.

The prosecution case (as recorded) concerned an incident on 1-8-1981 at about 8 p.m. when PW.2 (the victim, who ran a tea shop) was returning with Rs. 5,018/-. The prosecution alleged that accused 1 and 2 followed him with a common intention to rob him; the first accused beat him on the head with a rod, rendering him unconscious, after which the money was taken.

Legal Issues Presented

  1. Whether the evidence established the second accused's liability under Section 34 IPC (common intention) for the offence committed by the first accused.
  2. Whether the Sessions Judge was justified in altering the conviction of the first accused from Section 394 IPC to Section 379 IPC (theft) and reducing sentence.
  3. Whether voluntarily causing hurt to render the victim incapable of resisting, where done "in order to" commit theft, constitutes robbery within the meaning of Section 390 read with Section 394 IPC.
  4. Whether recoveries and items said to be recoverable under Section 27 of the Evidence Act could be admitted and relied upon when those items/evidence were not put to the accused under Section 313 Cr.P.C.
  5. Whether the provisions of Sections 4 and 6 of the Probation of Offenders Act apply so as to permit probation/release of the first accused who was stated to be under 21 years of age.

Arguments of the Parties

First Accused's Arguments

  • Learned counsel for the first accused (also the revision petitioner) argued that the charge was only for an offence punishable under Section 394 IPC and not for Section 392; therefore, conviction by the Sessions Judge under Section 379 IPC (theft) could not be justified.
  • It was urged that, being under 21 years of age, the first accused should be released on probation under Section 4(1) of the Probation of Offenders Act, in view of the mandatory injunction in Section 6 of that Act.

Defence Submissions (as recorded)

  • The defence emphasized the non-examination of a witness named Mariamma; that non-examination was relied upon by defence counsel as important to the case.

State / Appellant Position (as recorded)

  • The State filed Crl. A.377/84 challenging (as recorded) the acquittal of the second accused and the alteration and reduction of sentence (the text identifies those challenges in the State's appeal filings).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Joseph v. State of Kerala (1982 KLT 20) Holds that where the victim does not offer resistance against dispossession, even if hurt is caused voluntarily, an offence under Section 394 IPC may not be made out; decision turned on absence of evidence of hurt in order to or during theft. The court distinguished Joseph: the facts of Joseph did not involve a voluntary hurt caused calculatedly "in order to" commit theft (i.e., to render victim incapable of resistance). The present case was found to be different in that the hurt was inflicted for the purpose of committing theft.
Velayudhan v. State of Kerala (1986 KLT S.N. 5, Case No. 10) The judge's earlier holding — that Sections 4 and 6 of the Probation of Offenders Act are not applicable when an offence punishable with imprisonment for life is alternatively punishable with imprisonment for a term. The present court observed that that earlier decision was incorrect relative to certain Supreme Court decisions not previously before the judge. The court disavowed that earlier view as having been against the spirit of those Supreme Court decisions and stated it could not be taken as correctly laying down the law.

Court's Reasoning and Analysis

The court proceeded in a stepwise manner, applying evidentiary and substantive criminal law to the record before it:

  1. Evidence assessment and limitation by procedural defect:
    • The court noted that, although many witnesses, documents and material objects were produced, the critical relevant testimony for determining the guilt of accused 1 and 2 was that of PWs. 1 to 4 and 14.
    • The court found that several items of evidence (recoveries and purchases) admitted under Section 27 of the Evidence Act were not put to the accused under Section 313 Cr.P.C. The Magistrate and the Sessions Judge had failed to adequately put such circumstances to the accused during questioning under Section 313, depriving the accused of the opportunity to explain those circumstances. The court emphasized that all circumstances in the evidence connecting the accused with the crime must be put to him and his explanation recorded; failure to do so prevents those circumstances from being considered against the accused.
  2. On the second accused's liability (common intention / Section 34):
    • The only direct evidence against the second accused was his presence with the first accused going ahead of PW.2 immediately before the incident (as deposed by PWs.2 and 3). There was no direct evidence of his presence or participation at the time the assault occurred. The court held that mere presence earlier, without proof of presence at the time of commission or participation in the assault, cannot by itself prove a common intention sufficient to make the second accused vicariously liable under Section 34 IPC. Accordingly, the acquittal of the second accused (by the Sessions Judge) was confirmed.
  3. On the first accused's actions and whether those constituted robbery under Section 390/394:
    • The court accepted PW.2's testimony that the first accused struck him on the head with a rod, rendering him unconscious, and that the money he carried was subsequently missing. PW.14 (doctor) corroborated that the injuries were consistent with the account of being beaten with a rod.
    • The court rejected the Sessions Judge's interpretation that robbery requires that force be used to overcome active resistance by the victim. Instead, the court analyzed the statutory definition of robbery (Section 390 IPC) and concluded that the Section does not require prior or contemporaneous resistance by the victim; it requires that the offender voluntarily causes hurt "in order to" the committing of the theft. Therefore, causing hurt to render the victim incapable of resisting, where that hurt was inflicted for the purpose of committing the theft, falls within the definition of robbery. The Sessions Judge's narrower construction was held to be incorrect and unsuited to the facts of this case.
    • The court distinguished Joseph v. State of Kerala on the basis that Joseph lacked evidence that the hurt was caused "in order to" commit theft; by contrast, the present case contained evidence that the assault was committed for the express purpose of committing the theft.
  4. On the request for probation (Sections 4 and 6 of the Probation of Offenders Act):
    • The court considered whether Sections 4 and 6 barred probation for an accused under 21 when the offence is punishable with imprisonment for life but alternatively punishable with imprisonment for a term. The court reviewed the nature of alternative sentences (life vs. term) and concluded that an offence under Section 394 IPC remains an offence punishable with imprisonment for life (even where an alternative term of imprisonment is prescribed), and therefore the prohibitions in Sections 4 and 6 of the Probation of Offenders Act apply—meaning probation was not available in this case.
    • The court also stated that an earlier decision of the same judge (Velayudhan) had been incorrect in this respect and did not correctly lay down the law in view of higher authority (Supreme Court precedents not specifically named in the text).
  5. Conclusion on sentences and convictions:
    • Because the first accused caused hurt for the purpose of committing theft and the prosecution established that sequence, the court held that the offence of causing hurt in order to commit theft constituted an offence under Section 394 IPC (robbery as defined in Section 390 read with Section 394).
    • Therefore, the Magistrate's original conviction of the first accused under Section 394 and the sentence imposed were correct; the Sessions Judge had erred in altering the conviction to Section 379 and reducing the sentence.

Holding and Implications

Core Rulings:

  • Crl. R.P. 57/84 is dismissed.
  • Criminal Appeal 377/84 is partly allowed. As against the first accused, the trial Magistrate's conviction under Section 394 IPC and the sentence of rigorous imprisonment for three years with a fine of Rs. 1,000/- (default rigorous imprisonment for two months) are restored; the Sessions Judge's alteration of conviction and sentence is vacated.
  • The Sessions Judge's judgment acquitting the second accused is confirmed and, to that extent, Crl. A.377/84 is dismissed.

Implications:

  • The direct effect is to restore the trial court's conviction and sentence against the first accused for an offence under Section 394 IPC, while maintaining the acquittal of the second accused for lack of evidence of common intention/participation at the time of the assault.
  • The court clarified the statutory meaning of "robbery" (Section 390) and held that voluntarily causing hurt "in order to" commit theft—including causing hurt to render a victim incapable of resistance—falls within robbery punishable under Section 394 IPC. This reasoning reversed the narrower approach adopted by the Sessions Judge in this case and distinguished the decision in Joseph v. State of Kerala on facts.
  • The court ruled that the prohibitions in Sections 4 and 6 of the Probation of Offenders Act apply to offences under Section 394 IPC because such offences remain offences punishable with imprisonment for life (even where alternative terms are also provided); consequently probation was not available to the first accused despite his age being under 21 (as recorded).
  • If no broader or binding precedent-creating statement is explicitly declared in the text, the immediate legal consequences are those stated above for the parties in these matters.

This summary is strictly based on the content of the provided opinion and does not add or infer facts beyond those stated in the judgment.

Show full summary ...

    State Of Kerala v. Rajappan Nair

    JUDGMENT

    1. In C.C 441 of 1981 the Judicial First Class Magistrate, Kanjirappally tried three accused for offences punishable under Ss. 394 and 109 read with S. 34 of the Indian Penal Code. Third accused was acquitted. Accused 1 and 2 were convicted for the offence under S 394 IPC and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- with a default sentence of rigorous imprisonment for two months.

    2. Crl. A. 80/83 filed by the second accused was allowed by the Sessions Judge, Kottayam and he was acquitted. Crl. A. 81/83 filed by the first accused was partly allowed altering the conviction under S. 394 to one under S. 379 IPC and reducing the sentence to rigorous imprisonment for two years.

    3. Crl. A. 377/84 was filed by the State challenging the acquittal of the second accused and alteration of the head of conviction as. well as reduction of sentence as against the 2nd accused. Crl. R.P 37/84 was filed by the first accused against his conviction and sentence by the Sessions Judge. Both were heard together. PW. 2 is the victim. He is running a tea shop. Accused 1 and 2 belong to the adjacent village. They have no acquaintance or association with PW. 2. Neither the prosecution nor the defence has got a case that there was any illwill between them or any motive for the accused to attack Pw. 2 other than in order to commit theft of the money with him.

    4. The prosecution case is that on 1-8-1981 at about 8 p.m when Pw. 2 was returning borne with Rs. 5,018/- in band accused 1 and 2 followed him with the common intention of robbing him of the amount and in furtherance of that common intention and in order to commit theft the first accused beat him on his head with a rod and when he fell down unconscious the accused committed theft of the amount.

    5. Though the prosecution examined 17 witnesses, proved 18 documents and got identified 14 material objects, we are mainly concerned with only the evidence of Pws. 1 to 4 in deciding the guilt or innoceace of accused 1 and 2. Second accused was charge-sheeted only with the aid of S. 34 IPC. The only evidence against him is that Pws. 2 and 3 saw him in the company of the first accused going ahead of Pw. 2 just before the incident. Pw. 2 further said that when be flashed his torch and identified the persons both the accused retreated to a side of the road. Regarding the subsequent incident namely the attack we have got only the evidence of Pw. 2 toe victim. He only said that on proceeding further when he heard foot-steps and looked back he was beaten by the first accused on his head and he fell down unconscious. He did not mention the presence of 2nd accused at that time along with the first accused. Thus the direct evidence regarding participation of 2nd accused is only his presence along with the first accused prior to the incident. That evidence by itself without proof of presence at the time of commission of the offence or participation in it cannot prove common intention on the part of the 2nd accused in order to make him vicariously liable for the offence committed by the first accused.

    6. The other items of evidence consist of the depositions of Pws. 5 to 12, 15 to 17 and the documents proved by them evidencing some recoveries under S. 27 the Evidence Act consequennt on information given by the accused and also some purchases made by them presumably with the money obtained by robbery. These items of evidence were accepted by the Magistrate as against accused 1 and 2 and by the Sessions Judge as against the first accused alone.

    7. Both the Magistrate and the Sessions Judge lost sight of the fact that these items of evidence were not at all put to the accused when questioned under S. 313 of the Code of Criminal Procedure. The Magistrate seems to to have understood the questioning under S. 313 only as an empty formality and therefore he thought that a show of questioning is sufficient. Though the questioning under S. 313(1)(a) is discretionary, the questioning under S. 313(1)(b) is mandatory. The object is to afford an opportunity to the accused to personally explain any circumstance appearing in the evidence against him. When the particular evidence or circumstance is not put to the accused the effect is that he is denied an opportunity to offer his own expla nation in that matter. That denial in turn deprives the Magistrate of the benefit of his explanation and evaluating the evidence and circumstances in the light of the explanation personally given by the accused. Sometimes accused may be able to give acceptable explanation which is personally known to him alone. The explanation may sometimss effectively errace the incri minating aspect of the evidence or circumstance or may have a bearing on the question of sentence. Any how all circumstances appearing in the evidence against the accused, whether they are major or minor, having any bearing in connecting him with the crime will have definitely to be put to him and his explanation recorded and the same considered. They must be put in the form of simple understandable questions. Those circumstances appearing in the evidence against the accused and not put to him afford sag an opport unity to explain cannot at all be considered as evidence to decide his criminality.

    8. The evidence of Pws. 1 to 4 and 14 alone could therefore be considered in deciding the guilt. Just before the incident Pw. 3 saw both the accused going in front and immediately thereafter he also saw Pw. 2 going towards his house. He is not an occurrence witness and he heard about the incident only the next day. His evidence only established the presence of accused 1 and 2.

    9. Pw. 2 had occasion to see both the accused several times before the incident even though there is no acquaintance or friendship between them. Anyhow he knew them well though their names were not known to him. Just before the incident he saw them going ahead of him. By flashing the torch he knew their identity also. Then they withdrew to the side of the road and again came behind him. He said that first accused beat him with a rod on his head and he fell down unconscious with injuries. He also said that he was beaten by the first accused only for the purpose of robbing him of the amount he was carrying. The evidence of the Doctor, examined as Pw. 14, who attended Pw, 2 and issued Ext. P 7 wound certificate corroborated the evidencs of Pw. 2 that he was beaten with a rod. Pw. 14 said that the injuries are possible in the manner spoken to by Pw. 2. Both the trial court and the Sessions Judge accepted his evidence in toto and I do not have any reason to disargee with them. Neither the prosecution nor defence had any case that accused had any enmity or motive to attack Pw. 2. If so what follows from the evidence of Pw. 2 is that he was attacked and assaulted by the first accused only to committing of the theft and for that end. That was also found by both the courts and I am also of the same opinion.

    10. Pw. 1 is the brother-in-law of Pw. 2 and he is the first informant who went to the scene immediately after the occurrence on hearing the cry of a lady by name Mariamma residing closeby. Pw. 4 is a jeep driver who came driving his jeep to the scene just after the incident. Both of them saw Pw. 2 lying with injuries and said that the money carried by Pw. 2 was found missing. Though non-examination of Mariamma was made much of by the defence I do not find any merit in it because Pws. 1 and 4 were examined. There is not even a suggestion that anybody else had occasion to come to the scene and take away the money after the incident and before Pws. 1 and 4 came. It so the normal conclusion from the circumstances is that the first accused who voluntarily caused hurt to Pw. 2 in order to committing the theft and for that end has committed the theft. This finding entered by the courts below is also sound and correct.

    11. Learned counsel for the first accused, who is the revision petitioner, told me that the charge is only for an offence punishable under S. 394 IPC which deals only with voluntarily causing hurt in committing robbery and not under S. 392 for robbery and therefore conviction by the Sessions Judge under S. 379 cannot be justified. I do not think that there is any foundation for this argument.

    12. It is true that charge is the basic record which gives notice to the accused on what accusation he is going to be tried so that he can understand the details of the accusations and shape his defence properly. Normal rule is that a person could be convicted only for the offence for which he is charge-sheeted because he is having notice only of that accusation. He cannot be convicted for a different offence for which he is not charged even if such offence is proved. But there may be cases in which a person charged of a major offence may have to be convicted on the basis of the evidence for a minor offence included in the major offence charged. For this purpose provision is made in S. 222 Cr. P.C That is possible in two contingencies. The first is when the offence charged consists of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved but the remaining particulars constituting the major offence are not proved. That is in cases where the minor offence is a component part of the major offence. For example when a person is charged for having committed grievous hurt punishable under S. 326 IPC if the offence proved is only one punishable under S. 324 IPC punishment under S. 324 is legal though there was no charge for that offence. The second category is where facts are proved which reduce the offence charged to a minor offence. For example when an accused is charged for murder punishable under S. 302 IPC if any of the exceptions to S. 300 IPC is proved to exist, punishment could be had under S. 304 even though there is no charge under that section. In such cases the offence for which punishment is imposed need not be a component of the main offence. But the major offence must be more or less a cognate offence because it is the proof of certain additional facts which reduces it to a minor offence.

    13. But when the offence which the accused is sought to be convicted is totally independent of the offence with which he is charged and the two offences do not form part of the same transaction the section cannot be invoked. Conviction for a different offence is possible only when notice of the major offence will constitute notice of the minor offence also. If a person is charged only for causing hurt he cannot be punished for theft because the ingredients constituting theft are not there in a charge of causing hurt and it cannot be taken as notice of the offence of theft. Causing hurt is not a major offence consisting of several particulars, a combination of some only of which will constitute the complete offence of theft. Both are independent offences having nothing common between them and one cannot be said to be major and the other minor.

    14. But in this case that question does not arise. Here the charge is for an offence punishable under S. 394 which includes not only causing of hurt but causing of hurt in committing or in attempting to commit robbery which is an aggravated form of theft. Even though S. 394 alone is there in the police charge and the court charge all the ingredients constituting robbery as defined in S. 390 and made punishable under S. 392 of the Indiaa Penal Code are also there in the charge and the accused had sufficient notice that he was being tried for robbery as well. In the case of robbery different degrees of punishment are provided in Ss. 392, 394 and 397. The charge is not for causing burr alone and robbery is also there. Robbery and causing hurt in committing robbery include several particulars, a combination of some only of which will constitute a complete offence of theft. Simply because S. 392 is not there in the charge there cannot be a technical plea that conviction for theft is illegal. There is no question of prejudice also because the accused had notice of the accusation of theft also. Only in an offence of robbery the offence punishable under S. 394 IPC will be attracted because the causing of voluntary hurt must be in committing robbery or in an attempt to commit robbery.

    15. The learned Sessions Judge was of the view that in this case no offence of robbery is involved. The reason given by him is:—

    “Pw. 2 was attacked from behind and immediately on assault be fell down unconscious. So in carrying away the money in the plastic bag there was no occasion for At to use any force against Pw. 2. As such the definition of robbery is not attracted to the instant case”.

    16. According to the Sessions Judge theft will be robbery only if in committing or attempting to commit theft or in carrying or attempting to carry away the stolen property there was resistance from the victim and the resistance was overcome by causing or attempt to cause death, hurt or wrongful restraint etc. In other words the Sessions Judge thinks that in a case of theft even if to the committing of the theft or in committing theft or in carrying or attempting to carry away the stolen property, the thief, for that purpose, even before resistance is offered by the victim, knocks him down and makes him unconscious and incapable of resisting, and commits the offence it will not be robbery. Resistance by the victim and using force to overcome that resistance are, in the opinion of the Sessions Judge, necessary conditions precedent for an offence of robbery.

    17. Robbery is defined in S. 390 of the Indian Penal Code thus:

    “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”.

    18. The Section does not say that resistance of the victim is necessary or that the acts or any of them mentioned therein should be in order to overcome the resistance. So far as necessary for the purpose of the facts of the present case alone robbery defined in the Section could be stated thus:

    “Theft is ‘robbery’ if. in order to the committing of the theft, the offender, for that end voluntarily causes hurt”

    19. If the interpretation of the Sessions Judge is accepted even in such a case the offence will not be robbery for the simple reason that in carrying or attempting to carry away the stolen property the offender had no occasion to use force because of the incapacity of the victim to resist on account of the hurt inflicted on him in order to the committing of the theft. If that view is accepted, there must be repetition of resistance and commission of the offences at every stage of the crime. That is not what the section contemplates.

    20. Courts cannot read into the Section something which is not there and which the legislature did not intend. If a man voluntarily causes hurt to another not in order to commit theft but thereafter he commits theft of some thing found it may not be robbery because volutarily causing hurt was not “in order to the committing of the theft, or in committing the theft” or “for that end”. But in a case where one voluntarily causes hurt to another solely in order to commit theft and for that end to do away with the possible resistance and commits theft I think it will be robbery. Before getting opportunity for resistance if the victim is overpowered or assaulted and made incapable of resistance only for the purpose of committing theft and thereafter theft was committed or stolen property was carried away without resistance it can only be robbery. Causing hurt for preventing possible or anticipated resistance in order to commit theft and for that end and then committing theft is nothing short of robbery.

    21. The learned Sessions Judge was following the dictum in Joseph v. State of Kerala (1982 KLT 20). That was a case in which the victim on seeing a lady on the way got down from a lorry and followed her. Driver of the lorry rode off. In the pursuit the victim lost his watch and some other belongings. The lady and three others were charge-sheeted for an offence punishable under S. 394 IPC. The only evidence regarding robbery and hurt was the deposition of the victim who did not say in the first information statement or in his evidence before court that he followed a lady or he resisted when he was dispossessed of the movables and cash. He was found guilty of suppiession of material facts also and it was held that all what he says cannot be accepted as gospel truth. There was also no acceptable evidence of commission of attempt to commit any of the offences enumerated in S. 390 IPC as against him in committing theft or in order to the committing of theft or in carrying away or attempting to carry away the stolen property or that he resisted or he was assaulted. It was in such circumstances that the decision said that in a case where the victim does not offer any resistance against dispossession of the movables, even if hurt is caused voluntarily, no offence under S. 394 can be said to have been committed. In that case there was no evidence of having caused voluntary hurt or that it was for the purpose of overcoming possible resistance in committing tneft. What was held therein is only:

    “Only in an offence of robbery S. 394 IPC will be attracted because 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 voluntarily, no offence under S. 394 IPC can be said to have been committed”.

    22. That decision has not considered or contemplated a similar situation as the one in the present case wherein the voluntary hurt was calculatedly in order to committing theft and for that end by making the victim incapable of resistance.

    23. The learned Sessions Judge went wrong in applying the law-to the facts and evidence of the case in hand. Here the evidence is that as a result of the hurt the victim was lying unconscious. Hurt was caused in order to committing the theft and for that end and therefore what is established is the offence under S. 394 itself. The Magistrate was correct and the Sessions Judge went wrong in this respect. First accused being an offender under 21 years of age, there was a request to release him on probation under S. 4(1) of the Probation of Offenders Act in view of the mandatory injunction contained in S. 6 thereof. But the provisions of Ss. 4 and 6 are inapplicable to offences punishable with death or imprisonment for life. An offence under S. 394 IPC, of which the first accused is found guilty, is punishable with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and also with fine. In Velayudhan v. State of Kerala (1986 KLT S.N 5 Case No. 10), I had occasion to hold that the prohibition under Ss. 4 and 6 of the Probation of Offenders Act is not applicable when the offence punishable with imprisonment for life is also alternatively punishable with imprisonment for a term. It appears that the said decision of mine has unfortunately gone against the spirit of certain Supreme Court decisions which did not come to my notice at the time. Therefore that decision of mine cannot be said to have laid down the law correctly.

    24. The two broad categories of imprisonments provided under S. 53 IPC are imprisonment for life and imprisonment for a term. Imprisonment for a term could be either simple or rigorous. When an offence is made punishable with death or imprisonment for life alone as in the case of murder the court has no other alternative but to award any one of the sentences. Those are cases in which the legislature in its wisdom thought that whatever be the circumstances any one of the two penalties alone will suffice. But in the matter of some other offences when the disparity in the nature of offence and attendant circumstances could be wider in individual cases the legislature wanted to give the courts a wider discretion in the matter of sentence. For example the gravity of an offence punishable under S. 326 of the Iadian Paaal Code could be very great as between individual cases. In such offences there may be cases which deserve imprisonment for life. So also there may be cases where the ends of justice will be sufficiently met by awarding a short term of imprisonment. It is to meet such contingencies and modulate the sentencing discretion properly that alternative imprisonments for term are also provided in such cases along with imprisonment for life. Imprisonment for a term is evidently lesser than imprisonment for life. When imprisonment is for a term fixing only the maximum the court can award any term subject to that maximum according to its own judicial discretion. That does not mean that the offence is not one punishable with imprisonment for life. Imprisonment for life and imprisonment for a term are two separate sentences provided for the offence to be awarded in individual cases on relevant considerations. The fact that such offences are made triable under the first schedule to the Code of Criminal Procedure by courts not competent to award imprisonment lor life or imprisonment for the maximum term is no reason to conclude that they are not offences punishable with imprisonment for life or imprisonment for the maximum term. When the court trying the case finds that adequate sentence cannot be awarded on account of want of competency, appropriate provisions are therein the Code. Therefore inspite of the provision for alternate sentence an offence under S. 394 IPC continues to be one punishable with imprisonment for life and therefore comes within the prohibition under Ss. 4 and 6 of the Probation of Offenders Act.

    25. Crl. R.P 57/84 is therefore dismissed and Criminal Appeal 377/84 is partly allowed. As against the first accused the conviction for the offence under S. 394 IPC and the sentence of rigorous imprisonment for three years and fire of Rs. 1,000/- with a default sentence of rigorous imprisonment for two months ordered by the Magistrate are restored vacating the conviction and sentence ordered by the Sessions Judge. The judgment of the Sessions Judge acquitting the second accused is confirmed and to that extent Crl. A. 377/84 is dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    State Of Kerala v. Rajappan Nair
    (Mar 4, 1987)