Section 390 of Indian Penal Code defines “Robbery”
In every 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.
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.
A meets Z and Z’s child on the high road. A takes the child, and threatens to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
In State vs . Naveen Lakhani And Another It was stated that to prove the allegations under section 392 IPC, prosecution was bound to prove the essential ingredients of section 390 IPC. Section 390 IPC talks about those circumstances when theft becomes robbery. Section 390 IPC is reproduced here under:
Section 390 Indian Penal Code defines robbery “In all robbery there is either theft or extortion.”
When theft is robbery “Theft is “robbery” if, in order to 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.”
Applying the definition of section 390 IPC to the facts of the prosecution case, it is clear that prosecution has failed to prove the fact that accused persons committed theft during the incident.
Section 392 of Indian Penal Code defines “Punishment for Robbery”
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
In Amarjit Singh vs State Of Nct Of Delhi it was stated that the court does not agree with the submission of the learned counsel for the petitioner that an offence under Section 392 of the IPC cannot be clubbed with an offence of conspiracy under Section 120-B of the IPC; Section 120-B of the IPC is also a substantive offence. If these arguments of the petitioner are accepted, the petitioner would be allowed to go scot free; further the provisions of Section 120-B of the IPC could never be made applicable to Section 392 of the IPC; this is not the intention of the legislature which can be gathered from a co-joint reading of Section 392 and 120-B of the IPC. Participation of an accused without being present at the spot is clearly covered by Section 120-B of the IPC. Offence under Section 392 of the IPC is not individual in the sense as it is under Section 397 of the IPC; Section 397 of the IPC fastens liability on the person who uses the deadly weapon and no other.
Section 393 of the Indian Penal Code
According to section 393 of Indian penal code, Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
In Pappu vs State it was stated that though the Appellant has been wrongly convicted for offence under Section 392 IPC however, this Court in the present appeal can convert the conviction for offence under Section 392 IPC to one under Section 393 IPC as both the charge and the finding are that of attempt of robbery. Referring to Section 464 Cr. PC, it is urged that the judgment rendered cannot be set aside merely due to an error or omission in the framing of a charge. By altering the conviction to one for an offence punishable under Section 393 IPC, no prejudice would be caused to the Appellant.
The issues which now arise for determination are whether the Appellant can be convicted for an offence under Section 392 IPC, though charged for offence under Sec. 393 and 397 IPC and secondly, once it is a case of attempt of robbery, whether the Appellant is liable to be convicted for offences punishable under Sections 393/398 IPC or under Sections 393/397 IPC.
Section 394 of Indian Penal Code defines “Voluntarily causing hurt in committing Robbery”
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
In State Of Maharashtra vs Vinayak Tukaram Utekar it was stated that neither has there been a failure of justice nor prejudice has been caused to respondent Vinayak on account of the circumstance that no charge under Section 394, I.P.C. has been framed by us.
In our judgment, since a charge under Section 397, I.P.C. was framed against the respondent Vinayak he can be convicted under Section 394 r/w. 397, I.P.C. in spite of the fact that he has not been charged under Section 394, I.P.C.
This brings us to the question of sentence. Mr. Borulkar urged that looking to the circumstance that on a railway platform at the dead of night in the heart of Thane Town, the respondent Vinayak committed robbery of gold buttons and while trying to run away with them assaulted the informant with a knife calls for a very deterrent sentence.
In Narain Singh vs State the trial court acquitted the appellants from the charge under Section 396 IPC and convicted under Section 394 IPC. It is also submitted that for charge for decoity all persons who conjointly committed decoity may be punished even if only anyone of them has committed crime of murder and the accused may be convicted for the act committed by other. But under Section 394 IPC individual act can make liable to that individual for the commission of offence and there cannot be jointness or common responsibility in a case under Section 394 IPC.
Learned Counsel for the appellant Shri Mohanani also submitted that there is no evidence for the charge under Section 120B IPC and, therefore, the conviction of the accused under Section 302 and 294 with the aid of Section 120B IPC is absolutely illegal as is not supported by any evidence. It is also submitted that in the act of robbery unless there is overt act of a person in the commission of offence of robbery, he cannot be convicted because of his presence with the person, who in fact, and actually committed offence of robbery.