Supreme Court alters Section 394 conviction to grievous hurt where robbery itself was never proved

Justices Prashant Kumar Mishra and Shree Chandrashekhar held that with no jewellery recovered and no proof of its value, the robbery element failed, leaving only a dislodged tooth.

A man convicted of robbery with hurt over a night-time raid on a Nashik farmhouse in January 1993 has had his conviction altered to grievous hurt, because the prosecution proved the assault but never proved the robbery. A Division Bench of Justice Prashant Kumar Mishra and Justice Shree Chandrashekhar accepted that the appellant was correctly identified and that he punched the complainant hard enough to knock out a tooth, but found that no jewellery was recovered, nothing incriminating was seized from him, and the beads found scattered on the porch were never connected by evidence to the mangalsutra he was said to have snatched. His sentence stands reduced to the period already served, and he was ordered released.

A farmhouse on an onion field, and four men after dinner

The incident was on 23 January 1993. The complainant lived with her husband and their minor daughter in a three-roomed farmhouse standing in their agricultural fields. After dinner she was asleep on a cot on the porch, her daughter on the floor nearby, and her husband had gone to irrigate the onion crop near the well when four men came to the house.

Her daughter shouted on seeing them. The complainant woke to find the appellant sitting beside her on her cot. He pointed a knife at her neck and told her to stop talking. When she tried to seize the knife she was injured on the hand. He then punched her in the face, knocking out an upper tooth, and removed her gold mangalsutra and dorle, weighing around five tolas and said to be worth Rs 4,000. A second assailant, accused No. 2, took her daughter inside, assaulted her, and demanded to know where the money from the onion crop was kept. The remaining two tied the husband's hands and took him into a room. The complainant untied him; the family shouted; villagers came. All four men fled towards the railway line, taking a torch with them.

The Sarpanch sent word, a police van came, and all three injured were taken to the police station, where a complaint was lodged. FIR Crime No. 21 of 1993 was registered at Police Station Manmad City under Section 394 read with Section 34 of the Indian Penal Code. The family was examined at the Rural Hospital, Manmad by Dr. Lalchand Jadhav the same night. Only the appellant and accused No. 2 were traced and arrested; the other two were never found. The chargesheet followed on 25 April 1993.

The Additional Sessions Judge, Malegaon convicted the appellant, accused No. 1, under Section 394 and sentenced him to seven years rigorous imprisonment with a fine of Rs 1,000, in default of which he was to undergo a further six months. The Bombay High Court dismissed his appeal, Criminal Appeal No. 690 of 1998, on 16 January 2026. Accused No. 2, tried alongside him and convicted under Section 376, was acquitted by the High Court; the present appeal was confined to the sole appellant's conviction.

The trial's outcome had already come apart in several directions by the time the matter reached Delhi. Two of the four men were never traced, so no charge was ever laid against them. Accused No. 2, who was alleged to have taken the daughter inside the house, was tried alongside the appellant, convicted under Section 376 of the Indian Penal Code and given the same seven-year sentence, and was then acquitted by the High Court. The High Court dismissed the appeal only so far as the present appellant was concerned. What came to the Supreme Court was therefore the conviction of one man out of four, on one of the two charges the trial court had found proved. Leave was granted and the appeal taken up on that narrow footing.

Why the absence of a test identification parade did not matter

The appellant's principal attack was on identification. The incident happened at night, the assailants' faces were admittedly covered, no test identification parade was held, he was shown to the witnesses by the police after arrest, and both the complainant's husband and her daughter said in cross-examination that the assailants were not previously known to them.

The Bench held the courts below had already considered all of this and were justified in treating the identification as proved. The FIR was lodged at 1:50 a.m., within four hours of a late-night incident. The complainant, PW-1, identified the appellant by name and place of residence and described how she had known him earlier, repeating it in examination-in-chief and in cross-examination. Her daughter, PW-2, and her husband, PW-6, both injured eyewitnesses, corroborated her; the husband said the appellant used to visit their village to meet relatives. The act attributed to the appellant was that he sat close to her on the cot and threatened and assaulted her, and the incident lasted about an hour, with multiple witnesses saying the porch bulb was switched on. On those facts the want of a parade could not be fatal.

The element that Section 394 requires and the record did not supply

Medical evidence supported the assault. Dr. Jadhav, PW-5, found seven recent injuries on the complainant, all sustained at least two hours before examination: a linear abrasion on the right chest over the fourth and fifth ribs; an abrasion on the right side of the neck; a left upper incisor fallen out with bleeding gums and a swollen upper lip; an incised wound on the back of the left hand running obliquely from the base of the thumb to the wrist; blunt trauma to the lumbar region, to both eyes, and to the chest, each with tenderness. He described the tooth injury as grievous and the rest as simple.

That left the question the Bench framed for itself: whether the conviction under Section 394 was sustainable at all. The provision applies where an offender voluntarily causes hurt in committing or attempting robbery. Robbery or attempted robbery, the Court said, is not a peripheral circumstance but an essential component of the offence.

Here the allegation of robbery rested entirely on the complainant's assertion that the appellant snatched her mangalsutra and dorle from her neck. There was no recovery of the jewellery and nothing incriminating was seized from the appellant's possession. There was no purchase receipt or other material establishing the identity or the value of the articles, as the complainant herself admitted in cross-examination. The High Court had relied on an observation in the spot panchanama that wooden tulsi beads and black beads were found scattered on the porch, but those beads were never connected through evidence to the mangalsutra; only pieces of rope were exhibited, their seizure proved through PW-3, one of the two panch witnesses. On that record the Section 394 conviction could not stand.

From robbery to grievous hurt, through Section 222

Setting aside the conviction did not mean an acquittal. Section 222 of the Code of Criminal Procedure, 1973, which corresponds to Section 245 of the Bharatiya Nagarik Suraksha Sanhita, 2023, allows a person charged with an offence consisting of several particulars to be convicted where the proved facts constitute a minor offence, even though that minor offence was not separately charged. In Rafiq Ahmed @ Rafi vs State of U.P., 2011 INSC 546, the Court had described this as the principle of cognate offences, enabling courts to convict for a less grave offence whose essentials the evidence satisfies even where the charge was framed for the graver one.

Why Section 326 was ruled out and Section 325 was not

The Bench then worked through which minor offence fitted. It considered the knife. The complainant said the appellant threatened her with it and slashed her left palm during a brief scuffle, and the incised wound on her hand partly corroborated that. But Dr. Jadhav only opined that the wound was caused by a sharp, hard object; no such weapon was ever recovered from the appellant or linked to the injury; and the wound itself, measuring 7 by half by half centimetres, was relatively shallow. Section 326, grievous hurt by a dangerous weapon, was therefore not attracted.

The punch was different. The assertion that the appellant struck the complainant in the mouth and caused her left upper incisor to fall out was proved by witness testimony and by the medical evidence, and it falls squarely within the definition of grievous hurt in Section 320 of the Indian Penal Code, which includes “fracture or dislocation of a bone or tooth”. The conviction was accordingly altered to one under Section 325.

On sentence, the Court set out the custody history. The appellant was in custody for 91 days between 27 January 1993 and 27 April 1993, remained on bail through the long pendency of the proceedings, and surrendered pursuant to this Court's direction of 27 February 2026, so that he had by now served about ten months. His age was stated to be around 63 or 64. The Bench referred to Mathai vs State of Kerala, 2005 INSC 30, where a conviction was similarly altered to Section 325 and the sentence restricted to the period already undergone, that judgment observing that no hard and fast rule applies to assessing a proper sentence and that “a long passage of time cannot always be a determinative factor”.

The parallel with Mathai is close enough to be useful. There the weapon was a stone, and the material on record did not show it to be of a size that made it a dangerous weapon, so Section 326 gave way to Section 325. Here the weapon was a knife, but it was never recovered and never linked by the doctor to the wound it was said to have caused, which leaves the prosecution in the same position: an aggravating instrument asserted but not established. In both cases what survives is the injury that medical evidence independently proves.

Order

The appeal was partly allowed. The appellant stands convicted under Section 325 of the Indian Penal Code, his substantive sentence reduced to the period already undergone, with the fine of Rs 1,000 left untouched. He was ordered to be released forthwith unless required to be in custody in connection with any other case. Pending applications were disposed of.