Penal Code, 1860 – ss.392, 397 – Appellant along with other two accused was convicted u/ss.392, 397 r/w s.11/13, MPDVPK Act, 1981 – On appeal, held: Complainant narrated in detail the manner in which he was woken up by the accused while he was sleeping in the hut and the demand for money that was made by brandishing the firearm – Motorcycle and mobile which was stolen were recovered – Appellant participated in the offence of committing robbery as the motorcycle was recovered at his instance – His conviction u/s.392 by trial court which was upheld by High Court is sustained – Sentence modified to the period of imprisonment undergone – Further, though all the three accused had taken part in the offence of committing robbery, only one of the co-accused had used the firearm – There was no allegation apart from a stray sentence nor was such charge of having used firearm proved against the appellant – Charge u/s.397 can be fastened on the offender who actually uses the firearm – In the instant case, the appellant was not an offender who used the firearm – Thus, the judgment convicting the appellant u/s.397 r/w s.11/13, MPDVPK, 1981, upheld by the High Court is set aside to that extent – Sentence of 7 years rigorous imprisonment set aside – Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act – ss.11,
13 – Arms Act – s.25(1-B) (a).
Penal Code, 1860 – s.397 – Use of weapon – What is – Held: Use of the weapon to constitute offence u/s.397 does not require that the offender should actually fire from the firearm or actually stab if it is a knife or a dagger – Mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. Penal Code, 1860 – s.397 and ss.34, 149 – Vicariability of offence u/s.397, if charges u/ss.34, 149 are invoked – Discussed. Partly allowing the appeal, the Court
HELD : 1.1 The complainant (PW-1) has spoken in detail with regard to the manner in which he was woken up by the accused and the demand for money that was made by brandishing the firearm. The identification of the persons which was possible due to the light which was on, is also stated. The incident relating to which PW1 had given the detailed account, has remained intact and has not been discredited. The evidence is sufficient and convincing to arrive at the conclusion that the incident as narrated by PW1 had occurred and the appellant and his co-accused had committed robbery. [Paras 10, 11][873-E-F; 874-C-D]
1.2 The use of the weapon to constitute the offence under Section 397 IPC does not require that the ‘offender’ should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offence is alleged against all the accused and only one among the ‘offenders’ had used the firearm or deadly weapon, only such of the ‘offender’ who has used the firearm or deadly weapon alone would be liable to be charged under Section 397 IPC. Though this would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge. In such circumstance, in the teeth of the offence under Section
397 IPC being applicable to the offender alone, the vicariability of the same will also have to be noted if the charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC. In such event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused. In the instant case, the charge under Section 34 IPC was not framed against the appellant nor was such an allegation raised and proved against the appellant. Hence, benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, will be available to the appellant if there is no specific allegation against him. [Paras 17, 18][877-C-H]
1.3 From the evidence tendered by PW1, his account is specific to the fact that it was ‘R’ (co-accused) who had pointed out the firearm to his chest and indulged in the act of robbing him of his possession namely, the mobile. It is no doubt true that in the further portion of the evidence tendered by PW1 he had referred to all the three accused having forced him to sit on the motorcycle and had taken him away. It is further stated that after they reached Nanawat village and the tyre of the motorcycle got punctured, he was made to get down from the motorcycle. At this point, it has been stated that the appellant pointed his ‘gun rifle’ at him and made him to step down from the motorcycle and by threatening him, had taken him in the direction of Amalada village. Though, he has deposed to that extent, the fact of the appellant having used another country made rifle other than the one which was being used by Raju alias Rajendra has not been established. The appellant had participated in the offence of committing robbery since ultimately the motorcycle was hidden at a place which was known to the appellant and the property seizure memo indicates that the motorcycle was recovered at the instance of the appellant that certainly constitutes an offender under Section
392 IPC. Though all the three accused had taken part in the offence of committing robbery, only one of the accused namely Raju alias Rajendra had used the firearm. The said firearm was seized from the possession of ‘R’. It is established and proved beyond doubt that only one of the accused ‘R’ had used the firearm and there was neither any allegation apart from a stray sentence nor was such charge of having used firearm proved against the appellant. The charge under Section 397 IPC can be fastened on the ‘offender’ who actually uses the firearm. In the instant case, since the facts and the evidence does not indicate that the appellant could be construed as an ‘offender’ who used the firearm, the charge alleged against him and held to be proved by the trial Court as also the High Court under Section 397 IPC and Section 11/13 of MPDVPK Act, 1981 cannot be sustained. However, the appellant having participated in the offence of committing robbery which stands established with sufficient evidence, the conviction handed down by the trial court and upheld by the High Court under Section 392 IPC is sustainable to that extent. The charge under Section 397 and Section 11/13 of MPDVPK, Act, 1981 are not proved against the appellant, the sentence of 7 years rigorous imprisonment imposed by the trial Court and upheld by the High Court is set aside. Insofar as, the offence proved under Section
392 IPC, the same provides for the punishment of rigorous imprisonment for a term which may extend to 10 years and also to fine. The motorcycle and the mobile which was stolen have been recovered. However, the appellant having indulged in the offence of robbery, imprisonment of around 3 years would be sufficient punishment. In instant case, it is noticed that the appellant has undergone imprisonment for a period of 3 years 5 months and 1 day. The judgment passed by the Special Judge, (MPDVPK Act) in Special Case No.13/2013 (Old Case No.26/2012) insofar it has convicted the appellant under Section 397 IPC read with Sections 11/13 of MPDVPK Act, 1981 and upheld by the High Court of Madhya Pradesh in Criminal Appeal No.691/2013 are set aside to that extent. The conviction of the appellant under Section 392 IPC by the trial court and upheld by the High Court, is sustained. The sentence imposed on the appellant is modified to that of the period of imprisonment undergone by him till this day. The fine imposed and default sentence thereof is retained. [Paras 21, 23-26][878-G-H; 879-A-C, H; 880-A, D-F, G-H; 881-A, C-E]
Ganesan vs. State Rep. by Station House Officer Decision of Supreme Court dtd.29.10.21 in Crl. Appeal No.903 of 2021; Shri Phool Kumar vs. Delhi
Administration (1975) 1 SCC 797 : [1975] 3 SCR 917; Dilawar Singh vs. State of Delhi (2007) 12 SCC 641 : [2007] 10 SCALE 556 – relied on.
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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