Penal Code, 1860: s.397 – Applicability of – Held: To bring the case within s.397, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under s.397 – The term ‘offender ’ under s.397 is confined to the ‘offender’ who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract s.397 for the imposition of minimum punishment on another offender who has not used any deadly weapon. Penal Code, 1860: ss.391, 395, 397 – Prosecution case was that on the fateful night, A-1 to A-5, with an intention to commit robbery, proceeded in a car with knife and iron pipes and reached a place where PW-1 was coming on bicycle – A-1 remained in the car – A-2 to A-5 pushed PW-1, A-3 attacked him with iron rod on his head and one of them plucked the bag containing Rs.60,000 and 16 gram jewellery hanging on the cycle handle – When PW-2 prevented A-2 to A-5 from escaping, A-2 assaulted him on the head with the rod – All accused ran away from the place along with the bag – Charges framed against the accused except ‘B’ (absconded accused) who was tried separately – Trial court convicted accused under s.397 – Conviction was affirmed by appellate court and also High Court – Instant appeal filed by A-1 and A-3 – Held: The allegation of use of weapon was against A-2 and accused ‘B’ – Appellants (A-1 and A-3) were not alleged to have used any weapon – Therefore, in the absence of any allegations of use of any deadly weapon by the appellants, s.397 shall not be attracted and to that extent they ought not to have been convicted for the offence punishable under s.397 – As regards the offence under s.391, submission of the appellants was that even no case was made out for offence under s.391 and they cannot be punished under s.395 as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in this case only four persons were tried and the prosecution has failed to prove the involvement of five or more persons – However, as such in the FIR, there was a reference to five persons involved in committing the robbery – Even the charge-sheet was filed against five persons – However, as two accused absconded, the trial was split and three accused came to be tried – Accused ‘B’ was tried subsequently and one person is still absconding – Further, there were concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery – Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under s.391 punishable under s.395 was not made out – What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried – Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery, a case would fall under s.391 and would fall within the definition of ‘dacoity’ – Therefore, in the facts and circumstances, appellants are liable to be convicted for the offence under s.391 punishable under s.395 IPC.
Penal Code, 1860: s.395 and s.397 – Essential ingredients – ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a difference in number of accused – Therefore, even in a case where the accused is not convicted for the offence under s.397, still he can be punished under s.395 and no prejudice shall be caused to him as ultimately the prosecution has to prove the ‘robbery’ and ‘dacoity’ either for the offence punishable under s.395 or under s.397 – However, to bring the case against the accused under s.397, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person.
Criminal jurisprudence: Acquittal of accused ‘B’ who was tried separately as he absconded after incident – Benefit of acquittal of ‘B’ claimed by other accused – Held: The accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted – ‘B’ came to be tried after a period of 15 years as his trial was split as he absconded – From the acquittal order passed in the case of ‘B’, it appears that PW1 during the trial of ‘B’ turned hostile – In the case of ‘B’, only five witnesses came to be examined and for whatever reasons other witnesses were not examined – In this case, PW1 not only supported the case of prosecution but as many as 15 witnesses came to be examined – Therefore, merely because in the subsequent split trial, ‘B’ came to be acquitted, the benefit of such acquittal cannot be in favour of the appellants-accused as the prosecution was successful in proving the case against the accused.
Partly allowing the appeals, the Court
HELD: 1.1 As per Section 390 IPC, for ‘robbery’ there is either theft or extortion. When in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender 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, the theft can be said to be ‘robbery’. In similar situation the ‘extortion’ can be said to have committed ‘robbery’. Section 391 IPC defines ‘dacoity’. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the ‘dacoity’. As per Section 392 IPC, 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. [Para 12.3][534-F-G; 535-A-B]
1.2 As per Section 393 IPC, even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC, 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 imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. Section 395 IPC provides for punishment for ‘dacoity’. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. [Para 12.3][535-C-E]
1.3 In case of dacoity with murder, if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine. As per Section 397 IPC, if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. On conjoint reading of these provisions, commission of ‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the ‘dacoity’. Therefore, the only difference between the ‘robbery’ and the ‘dacoity’ would be the number of persons involved in conjointly committing or attempt to commit a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be the same except that in the case of ‘dacoity’, the punishment can be with imprisonment for life. However, in the case of ‘dacoity with murder’ the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. To bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. [Paras 12.3, 12.4][535-E-H; 536-A-C]
2.1 Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is ‘offender’. Therefore, for the purpose of Sections 390 to 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395, 397 and 398 IPC. The accused cannot be convicted on the basis of constructive liability and only the ‘offender’ who ‘uses any deadly weapon….’ can be punished. However, so far as Section 391 IPC ‘dacoity’ and Section
396 IPC – ‘dacoity with murder’ is concerned, an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery – dacoity/dacoity with murder. [Para 12.4][536-D-F]
2.2 The term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section
398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon and the word used in Section 398 IPC is ‘offender is armed with any deadly weapon’. Therefore, Section 397 IPC shall be attracted when the ‘offender’ ‘uses’ any deadly weapon Section
397 IPC. Even as per the case of the prosecution and even considering the evidence on record, it can be seen that A1 and A3 are not alleged to have used any weapon. The allegation of use of any weapon was against A-2 and ‘B’ . Therefore, in absence of any allegations of use of any deadly weapon by the appellants – A-1 and A-3, Section 397 IPC shall not be attracted and to that extent they ought not to have been convicted for the offence punishable under Section 397 IPC. [Para 12.7][539-F-H; 540-A-C]
Shri Phool Kumar v. Delhi Administration (1975) 1 SCC
797 : [1975] 3 SCR 917; Dilawar Singh v. State of Delhi (2007) 12 SCC 641 – relied on.
3.1 Now so far as the submission on behalf of the accused that the appellants – accused cannot be convicted for the offence under Section 397 IPC and that the requirement to bring the case under Section 391 IPC punishable under Section 395 IPC namely five persons or more persons conjointly committing the robbery has not been established and proved and only four persons came to be tried and the courts below did not convict the accused for the offence under Section 391 punishable under Section 395 IPC is concerned, at the outset, it is required to be noted that as such all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. With the aforesaid offences parties went for trial. Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section
391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused. Even otherwise, when a charge of a major offence is not made out, conviction for a minor offence even in the absence of the charge for the said minor offence can be sustained. If an accused is charged with a grave offence but the same is not established on merit or for default of technical nature, he can be convicted and punished for a minor offence without altering of a charge. [Para14][540-D-H]
Rameshbhai Mohanbhai Koli v. State of Gujarat (2011)
11 SCC 111 : [2010] 14 SCR 1– relied on.
3.2 Even otherwise there is no difference between Section 391/395 and Section 397 IPC so far as sentence/punishment except the difference in case of Section 397 IPC the punishment shall not be less than seven years. Otherwise, the ‘robbery’ and ‘dacoity’ are sine qua non. ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a difference in number of accused. Therefore, also even in a case where the accused is not convicted for the offence under Section 397 IPC, still he can be punished under Section 395 IPC and no prejudice shall be caused to him as ultimately the prosecution has to prove the ‘robbery’ and ‘dacoity’ either for the offence punishable under Section 395 IPC or under Section 397 IPC. However, to bring the case against the accused under Section 397 IPC, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person. Therefore, the case is made out under Section 391 IPC read with Section 395 IPC. Despite the fact that the courts below convicted the accused under Section 397 IPC which is held to be unsustainable, in that case also if the case is made out under Section 391 IPC read with Section 395 IPC, still they can be convicted for the offence punishable under Section 391 read with Section 395 IPC even without even altering the charge. The trial court had framed the charge against the accused for the offence under Sections 395 and 397 IPC both. [Para 15][541-G-H; 542-A-D]
3.3 Now so far as the submission on behalf of the appellants – accused that even no case is made out for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, as such in the FIR, there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused ‘B’ came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery. Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section
391 IPC and would fall within the definition of ‘dacoity’. Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC. [Para 16][542-D-H; 543-A]
3.4 Now so far as the submission on behalf of the accused that in the subsequent trial one of the accused – ‘B’ came to be acquitted and therefore the benefit of acquittal of ‘B’ must be given to the present accused and thereafter they may be acquitted is concerned the same has no substance. The accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also required to be noted that ‘B’ came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of ‘B’, it appears that PW1 during the trial in case of ‘B’ turned hostile. In the case of ‘B’ only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case, PW1 not only supported the case of prosecution but as many as 15 witnesses came to be examined. Therefore, merely because in the subsequent split trial ‘B’ came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants-accused as the prosecution has been successful in proving the case against the accused. [Para 17][543-B-E]
Amrita v. State of M.P. (2004) 12 SCC 224; Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 : [2002] 3 Suppl. SCR 183; Raja v. State (2013) 12 SCC 674 : [2013] 9 SCR 230 – relied on.
Raj Kumar Alias Raju v. State of Uttaranchal (2008) 11 SCC 397; Balbir v. State of Uttar Pradesh 2020 SCC Online All 845; Mohan Singh v. State of Punjab AIR 1963 SC 174 : [1962] Suppl. SCR 848; Ram Bilas Singh & Ors. v. The State of Bihar [1964] 1 SCR 775; Manmeet Singh @ Goldie v. State of Punjab (2015) 7 SCC 167 : [2015] 3 SCR 773; Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC 480; Sathya Narayanan v. State rep. by Inspector of Police (2012) 12 SCC 627 : [2012] 10 SCR 950; Raju Manjhi v. State of Bihar (2019) 12 SCC 784; Rafiq Ahmad v. State of U.P. (2011)
8 SCC 300 : [2011] 11 SCR 907; Prema S. Rao v. Yadla Srinivasa Rao (2003) 1 SCC 217 : [ 2002] 3 Suppl. SCR 339 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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