B.S.SOMASUNDARAM, J. -
(1.) POONAI Kannan alias Karuppa Valayan, the appellant herein, stands convicted and sentenced by the second Additional sessions Judge, Coimbatore, to suffer rigorous imprisonment under Section 447 and rigorous imprisonment for seven years under Section 392 read with Section 397 of the Indian Penal Code. Briefly the case of the prosecution is as below : P.W. 1, Krishna Goundan, with his sons P.Ws. 2 and 3, is cultivating as a lessee, a garden land by name Nallichettithottam situate at Chinnappachetty Puthur, a village in Coimbatore district. On the night of 23rd April, 1968, he had penned his sheep and goats, hundred in number, in the enclosures marked A and B in the shalai shown in the sketch Exhibit P -17. There was barking of the dog at midnight. The electric light was burning. P.W. 2 woke up and saw the appellant having a goat or sheep covered by a gunny bag on his shoulder. Two other persons, since acquitted viz., accused 2 and 3, were standing near the patti. P.Ws. 1 and 3 woke upon his alarm, and saw this appellant coming out of the shalai with the animal on his shoulder. They also found the other two persons standing outside. The appellant and those two persons took to their heels towards the east and ran in the itteri on the northern side and then into the Annur Road on the eastern side, chased by these three persons. P.W. 2 caught hold of the appellant at the point marked K in the plan. P.W. 3 beat the third accused with a stick which he had. The appellant then dropped the animal, whipped out the knife M.O. 1 and stabbed P.W. 2 an his head behind the hair, in the hand and the back. The animal slipped away from the scene and joined its fold in the shalai. The appellant also stabbed P.W. 3 in his back. He inflicted another injury on P.W. 1 on the right leg. He extricated himself and took to his heels. The other two persons also followed him. They had dropped at the spot, the bed -sheet M.O. 2), Chappals (M.Os. 3 to 5 series) and gunny bags (M.Os. 6 to 8). Immediately thereafter, P.W. 2 went to the village which is a furlong away and informed the owner of the land (P.W. 6) and Kandaswamy Gounder (P.W. 7) as to what had happened. With some more villagers, these two witnesses came to the spot. P.W. 6 took possession of M.Os. 2 to 8 which were there. The injured was then sent to Dr. Palaniswamy, a private medical practitioner at Annur. The latter saw them at 5 a.m. rendered some first aid and then sent them in an ambulance to the Headquarters hospital at Coimbatore. Meantime, P.W. 6 had given the report Exhibit P -4 to P.W 14, the Village Munsif at Selambarayapuram. P.W. 16, the Sub -Inspector, took up investigation, visited, the scene, seized M.Os. 2 to 8 from P.W. 6 under mahazar Exhibit P -6 and also scraped the blood -stained earth (M.O. 9) at the point marked K. P.W. 17, the Inspector, also arrived at the spot and took up further investigation. Murugan (P.W. 11), a washerman, identified M.O. 2, bed -sheet, as one belonging to the appellant. He also identified M.O. 10, dhoti, and M.O. 11, banian, seized by the Inspector from the house of the appellant, as the clothes of the appellant and said that the marks therein tallied with the marks found in M.O. 2. On 15th July, 1968, P.W. 17 the Inspector arrested the appellant at his residence and seized from him the knife M.O. 1 under mahazar Exhibit P -19. There was an identification parade held by the Sub -Magistrate on 23rd July, 1960 and in this parade the appellant was identified by the three witnesses, viz., P.Ws. 1 to 3. Charge -sheet was filed and at the trial, P.Ws.1 to 3 deposed to what happened on the night in question. P.W. 4 the Assistant Surgeon attached to the Government Hospital at Coimbatore, stated that when he examined P.W. 1 on 24th April, 1968, he bad on his person an incised wound in the right thigh as noted in the certificate Exhibit P -1. P.W. 2 had 8 injuries, most of which were incised wounds. P.W. 3 had a stab wound on the left side of the chest. The defence was one of denial. Believing the evidence adduced on the side of the prosecution, the learned Assistant Sessions Judge has convicted the appellant for the offence as stated above. The appellant now contends that these convictions are not correct.
(2.) THERE can be no dispute on the fact that P.Ws. 1 to 3 sustained the several injuries described in the certificates Exhibits P -1 to P -3 on the night of 23rd April, 1968. Most of the injuries found on them were incised wounds the medical evidence is that a weapon like M.O. 1 could have caused them. Dr. Palaniswamy (P.W. 5) had seen these injuries on them at Annur at about 5 a.m. P.W. 17, the Inspector, had scrapped the blood -stained earth M.O. 9 at the Annur Road very near the shalai of witnesses at the point marked K. Then the next question is as to whether these injuries were sustained by them in the circumstances stated by them, viz., at a time when they chased the appellant who was carrying a goat or sheep on his shoulder after having removed it from the sheep -pen in the shalai. There has been a feeble attempt on the part of the defence to show that P.Ws. 1 to 3 sustained the injuries due to an attack by some persons set up by P.W. 6, the owner of the land, who was anxious to evict these persons from the land. There is more of ingenuity than substance in this belated suggestion. The witnesses have promptly denied it. P.W. 6, the owner, had rushed to the spot immediately when he was told about it by P.W. 2. There is no reason as to why P.Ws. 1 to 3 should conceive a case of this type against this appellant and others, if in fact the injuries on them were inflicted by other persons.
(3.) MR . Gopinath appearing for the appellant contends that these witnesses could not have correctly and clearly identified the appellant in the admitted circumstances under which they claim to have seen him. There was electric light in the shed. These persons had seen this appellant at close quarters. They had chased him for some distance. P.W. 2 had flashed the torch -light. Thus, there is no possibility of their committing any mistake as regards the identity of the person seen by them. The matter does not rest here. Murugan (P.W. 11), the dhobi who washes the clothes of the appellant, has identified the bed -sheet M.O. 2, with reference to the dhobi mark, as that of the appellant. P.W. 17, the Inspector, had seized M.O. 10 (dhothi) and M.O. 11 (banian) from the house of the appellant. The dhobi marks in these two items tallied with the dhobi mark in M.O. 2. This appellant was also properly identified by this witness in the parade held by the Sub -Magistrate P.W. 9. Thus, the prosecution has established beyond all reasonable doubt that this appellant was the person who inflicted the injuries on P.Ws. 1 to 3 on the night in question.
Then the next question for consideration is as to whether the appellant could be found guilty of robbery with a deadly weapon under Section 397 of the Indian Penal Code. Theft becomes 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 death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. It is obvious that the emphasis for the commission of robbery is on " for that end." Use of violence by the offender must be for the purpose of committing theft or for the purpose of removing any article of theft. But, if it is otherwise in order to help the offender to escape, it may not come within the definition of "robbery". Where theft has already been committed by the accused and the injuries were inflicted subsequently in their attempt to escape, the element of robbery will be wanting. Vide Jalil Gope v. State of Bihar (1956) B.L.J.R. 473. The prosecution must affirmatively make out that the use of violence was calculated only for the purpose of the removal of the stolen article. Where in a case, violence was used to enable the culprit to escape, it was held that where both the views are possible, one favourable to the accused should be accepted. Vide Himatsingh Shiv Singh v. State of Gujarat : (1961) GLR 678.There is considerable doubt in accepting the version that this appellant dropped the goat at the point marked K and that this goat got back to the pen. P.W. 1 in his evidence states that he saw this appellant carrying a. goal; or sheep covered in a gunny bag. He could not then know as to whether it was a goat or sheep. The evidence of P.W. 2 is that when he woke up at the bark of the dog, he found this appellant having a goat or sheep on his shoulder. Similar is the evidence given by P.W. 3. Whether they could have seen the article at that time, particularly when it was covered with a gunny bag, is a matter which admits of ample doubt. Exhibit P -4 is the earliest report in the case. This was given at 4 a.m. There is no reference to any such carrying of either a goat or a sheep by this appellant, covering it with a gunny bag in his shoulder. What all we see in. Exhibit P -4, is that thieves came to commit theft of the sheep, that the goats and sheep created some noise, that the persons who were sleeping there got up and chased them and that those thieves stabbed them with a knife, and ran away from. the place. Therefore, it cannot be said that the appellant inflicted the injuries on (these witnesses when carrying away property obtained by theft. At the best, Exhibit P -4 only makes out a case of preparation, not even an attempt, for committing a theft. Therefore, the conviction under Section 397 of the Indian Penal Code, not be sustained.;