Order
1. This appeal is directed against the judgment and order of the High Court of Madras passed in Criminal Revision Case No. 16 of 1983 confirming the conviction and sentence of the appellant herein.
2. Broadly put, the case as found against the appellant is thus: PW 3 was a moneylender and his activities became a source of revulsion to the appellant. Evidence has been led by the prosecution to show that under the unfair deals of PW 3 the villagers were reeling in helplessness and agony. The appellant and his companions decided giving PW 3 a rough jolt. On the day of occurrence at about 6.30 p.m, the appellant and his companions trespassed into the house of PW 3. In the presence of PW 1, the son of PW 3, and PW 4, the wife of PW 3, he ransacked the house as if committing a robbery and in the process caused extensive injuries to PW 1 and PW 3. Some of those injuries were serious and were on vital parts. The weapon employed for the purpose was a big knife. Promptly the matter was reported by PW 1 to the Police and an FIR was recorded in which not only the name of the appellant, but that of his companions too figured. Occasion later arose to record the dying declaration of PW 3 since his condition was deteriorating. A Magistrate employed for the purpose recorded the statement of PW 3 in which specifically the appellant alone was mentioned by name and the names of others were missing, though their participation in the occurrence was fixed in that statement. All the same, during the occurrence no article was removed and, thus, in a sense, no robbery or dacoity was committed. Correspondingly, nothing was recovered from the appellant or his companions, which could be said to be robbed property. This is the sum total of the prosecution case.
3. The participation of the appellant has been established by three courts below and we have no reason to disbelieve PWs 1, 3 and 4 with regard to the complicity of the appellant in the crime. The argument available to others on the basis of omission of their names in the so-called dying declaration of PW 3 is of no avail to the appellant since he at least was named both in the FIR as also in the statement of PW 3. There could even be no reason for PWs 1, 3 and 4 to have falsely added the appellant to be one of the culprits of the crime. We entirely agree with the view of the courts below with regard to the appellant's participation in the occurrence.
4. It seems to us that the conviction of the appellant under Section 398 IPC whereunder he has been sentenced to seven years' rigorous imprisonment cannot be sustained. Section 398 IPC gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainants and nothing said to be belonging to the complainants was recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity. Scattering of articles in the house may cause a scene as if ransacked, but that does not prove the charge. We thus feel that on the evidence, the conviction of the appellant under Section 398 IPC is not sustainable. Accordingly, the same is set aside.
5. The appellant has been convicted under Section 307 IPC too for which he has been sentenced to three years' RI. Sentences under other counts are of lesser duration and all have been ordered to run concurrently. It is for this reason that attempt has been made by Mr Vanamamalai, learned counsel for the appellant to plead for reduction of sentence under the count of Section 307 IPC on the premise that the occurrence took place way back in 1972 and the trial was delayed because the appellant was said to be not available to face trail for a decade or so. It is urged by Mr Vanamamalai that at this point of time when the appellant has settled in life as a married man doing substantial business, no purpose would be served to incarcerate him. We appreciate the argument, but as said earlier, the injuries on PWs 1 and 3 were fairly extensive and on vital parts. Insofar as PW 1 is concerned, his hypochondrium was hit at two places. He had six injuries. PW 3 was injured in the chest. He had 11 injuries. The injuries were caused by a formidable weapon. It may be true that all the injuries are not attributable to the appellant but that does not tell on his guilt. The fact, however, cannot be lost sight of that these were injuries from which attempt to murder could be spelled out. For this reason, we find no scope for reduction of sentence. We have thus to reject the prayer of Mr Vanamamalai.
6. Thus to sum up, we partially allow this appeal, set aside the conviction and sentence of the appellant recorded under Section 398 IPC, but sustain rest of his convictions and sentences. The appellant is on bail. He is required to surrender to his bail bonds.