Point of Law : An analysis of section 378 and section 390 will reveal that when hurt is caused or injuries are inflicted in order to commit theft, that would also fall within definition of robbery.

JUDGMENT :

When an attempt to commit theft is prevented by a witness who gets injured in the process, will the offence of robbery lie? Can the identification of the accused in court after four years of the incident be relied upon in the absence of a test identification parade? These questions have been raised for consideration by Adv.Saipooja in this appeal challenging the conviction and sentence of the appellant for the offences under sections 394 and 450 of the Indian Penal Code, 1860 (for short ‘IPC’).

2. Prosecution alleges that on 10.09.2015 at about 01.00 am, the accused intruded into the house of PW1 after breaking open the window grills with the intention to commit theft and in the said process, voluntarily caused hurt to PW1 and his wife and daughter by using a deadly weapon and thereby committed the offences alleged.

3. The crime was registered based on the statement given by PW1. The three main witnesses i.e., PW1 to PW3, were not only eyewitnesses but had also been injured in the alleged attempt of the accused to commit theft. After attacking and seriously injuring the three inmates of the house, the accused escaped. However, within hours, he was apprehended by the police. To prove its case, the prosecution examined PW1 to PW9 and marked exhibits P1 to P11, apart from material objects MO1 to MO5. Though the defence did not adduce any evidence, exhibits D1 and D2 were marked.

4. After analysing the prosecution case, the learned Sessions Judge found the accused guilty and sentenced him to undergo imprisonment for 10 years under section 394 IPC and imprisonment for 5 years under section 450 IPC, apart from fine of Rs.25,000/-each, under both the above sections.

5. Adverting to the questions mentioned at the beginning of this judgment, Adv. Saipooja, vehemently contended that without any previous acquaintance with the accused, a test identification parade was essential and without such a procedure, the identification in court, that too, after a lapse of four years, is not reliable. The learned counsel also argued that the statement that led to the recovery of the knife was inadmissible under section 27 of the Indian Evidence Act, 1872 since the place where the alleged knife was concealed was easily accessible to the public apart from there being nothing to connect the weapon with the crime. The learned counsel further argued that the offence under section 394 IPC is not attracted since there was no evidence of any actual theft or even any attempt to commit theft.

6. Controverting the contentions, Sri. C.N.Prabhakaran, the learned Public Prosecutor argued that evidence of PWs 1 to 3 is very categoric, and their identification of the accused leaves no room for any doubt. It was also contended that the requirement of a test identification parade is not an inviolable rule and that what is material is the identification of the accused in court, which alone is the substantive evidence. Learned Public Prosecutor also contended that the statement that led to the recovery of the knife was admissible, and therefore there was nothing to disbelieve the said evidence.

7. I have considered the rival contentions and have also carefully perused the evidence that the learned counsel for the appellant took me through in detail.

8. PW1 to PW3 are the eyewitnesses and the injured. PW1 and PW2 have, in unmistakable terms, deposed that on noticing the presence of a stranger inside their bedroom at night, PW2 switched on the lights and both saw the accused under the said light. It has further come out in evidence that when PW1 caught hold of the accused, he was attacked and serious injuries were inflicted on him and when PW2 intervened, the accused turned his ire against her and she was also seriously wounded. PW3 mentions in her evidence that hearing the hue and cry of her parents, she came out of her room and saw the accused assaulting her parents and in a bid to flee the scene, the accused did not spare her from the attack and she too suffered in