RAM RATAN versus STATE OF MADHYA PRADESH on 17 December 2021

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[2021] 9 S.C.R. 866

SUPREME COURT REPORTS

[2021] 9 S.C.R.

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RAM RATAN

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No.1333 of 2018)

BDECEMBER 17, 2021

[N. V. RAMANA, CJI, A. S. BOPANNAAND HIMA KOHLI, JJ.]

Penal Code, 1860 – ss.392, 397 – Appellant along with othertwo accused was convicted u/ss.392, 397 r/w s.11/13, MPDVPKCAct, 1981 – On appeal, held: Complainant narrated in detail themanner in which he was woken up by the accused while he wassleeping in the hut and the demand for money that was made bybrandishing the firearm – Motorcycle and mobile which was stolenwere recovered – Appellant participated in the offence of committingrobbery as the motorcycle was recovered at his instance – HisDconviction u/s.392 by trial court which was upheld by High Courtis sustained – Sentence modified to the period of imprisonmentundergone – Further, though all the three accused had taken partin the offence of committing robbery, only one of the co-accusedhad used the firearm – There was no allegation apart from a strayEsentence nor was such charge of having used firearm proved againstthe appellant – Charge u/s.397 can be fastened on the offenderwho actually uses the firearm – In the instant case, the appellantwas not an offender who used the firearm – Thus, the judgmentconvicting 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 7Fyears rigorous imprisonment set aside – Madhya Pradesh DakaitiAur 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 requireGthat the offender should actually fire from the firearm or actuallystab if it is a knife or a dagger – Mere exhibition of the same,brandishing or holding it openly to threaten and create fear orapprehension in the mind of the victim is sufficient.

Penal Code, 1860 – s.397 and ss.34, 149 – Vicariability ofHoffence u/s.397, if charges u/ss.34, 149 are invoked – Discussed.866

Partly allowing the appeal, the Court

HELD : 1.1 The complainant (PW-1) has spoken in detailwith regard to the manner in which he was woken up by theaccused and the demand for money that was made by brandishingthe firearm. The identification of the persons which was possibledue to the light which was on, is also stated. The incident relatingto which PW1 had given the detailed account, has remained intactand has not been discredited. The evidence is sufficient andconvincing to arrive at the conclusion that the incident as narratedby PW1 had occurred and the appellant and his co-accused hadcommitted robbery. [Paras 10, 11][873-E-F; 874-C-D]

1.2 The use of the weapon to constitute the offence underSection 397 IPC does not require that the ‘offender’ shouldactually fire from the firearm or actually stab if it is a knife or adagger but the mere exhibition of the same, brandishing or holdingit openly to threaten and create fear or apprehension in the mindof the victim is sufficient. The other aspect is that if the charge ofcommitting the offence is alleged against all the accused and onlyone among the ‘offenders’ had used the firearm or deadly weapon,only such of the ‘offender’ who has used the firearm or deadlyweapon alone would be liable to be charged under Section 397IPC. Though this would be the effect and scope of Section 397IPC as a standalone provision, the application of the same willarise in the totality of the allegation and the consequent chargethat will be framed and the accused would be tried for such charge.In such circumstance, in the teeth of the offence under Section397 IPC being applicable to the offender alone, the vicariabilityof the same will also have to be noted if the charge against theaccused under Sections 34, 149 IPC and such other provisionsof law, which may become relevant, is also invoked along withSection 397 IPC. In such event, it will have to be looked atdifferently in the totality of the facts, evidence and circumstancesinvolved in that case and the provisions invoked in that particularcase to frame a charge against the accused. In the instant case,the charge under Section 34 IPC was not framed against theappellant nor was such an allegation raised and proved againstthe appellant. Hence, benefit of the interpretation raised on thescope of Section 397 IPC to hold the aggressor alone as being A

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Aguilty, will be available to the appellant if there is no specificallegation against him. [Paras 17, 18][877-C-H]

1.3 From the evidence tendered by PW1, his account isspecific to the fact that it was ‘R’ (co-accused) who had pointedout the firearm to his chest and indulged in the act of robbing himBof his possession namely, the mobile. It is no doubt true that inthe further portion of the evidence tendered by PW1 he hadreferred to all the three accused having forced him to sit on themotorcycle and had taken him away. It is further stated that afterthey reached Nanawat village and the tyre of the motorcycle gotpunctured, he was made to get down from the motorcycle. At thisCpoint, it has been stated that the appellant pointed his ‘gun rifle’at him and made him to step down from the motorcycle and bythreatening him, had taken him in the direction of Amalada village.Though, he has deposed to that extent, the fact of the appellanthaving used another country made rifle other than the one whichDwas being used by Raju alias Rajendra has not been established.The appellant had participated in the offence of committingrobbery since ultimately the motorcycle was hidden at a placewhich was known to the appellant and the property seizure memoindicates that the motorcycle was recovered at the instance ofthe appellant that certainly constitutes an offender under SectionE392 IPC. Though all the three accused had taken part in theoffence of committing robbery, only one of the accused namelyRaju alias Rajendra had used the firearm. The said firearm wasseized from the possession of ‘R’. It is established and provedbeyond doubt that only one of the accused ‘R’ had used the firearm Fand there was neither any allegation apart from a stray sentencenor was such charge of having used firearm proved against theappellant. The charge under Section 397 IPC can be fastened onthe ‘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,Gthe charge alleged against him and held to be proved by the trialCourt as also the High Court under Section 397 IPC and Section11/13 of MPDVPK Act, 1981 cannot be sustained. However, theappellant having participated in the offence of committing robberywhich stands established with sufficient evidence, the convictionH

handed down by the trial court and upheld by the High Courtunder Section 392 IPC is sustainable to that extent. The chargeunder Section 397 and Section 11/13 of MPDVPK, Act, 1981 arenot proved against the appellant, the sentence of 7 years rigorousimprisonment imposed by the trial Court and upheld by the HighCourt is set aside. Insofar as, the offence proved under Section392 IPC, the same provides for the punishment of rigorousimprisonment for a term which may extend to 10 years and alsoto fine. The motorcycle and the mobile which was stolen havebeen recovered. However, the appellant having indulged in theoffence of robbery, imprisonment of around 3 years would besufficient punishment. In instant case, it is noticed that theappellant has undergone imprisonment for a period of 3 years 5months 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 IPCread with Sections 11/13 of MPDVPK Act, 1981 and upheld bythe High Court of Madhya Pradesh in Criminal Appeal No.691/2013 are set aside to that extent. The conviction of the appellantunder Section 392 IPC by the trial court and upheld by the HighCourt, is sustained. The sentence imposed on the appellant ismodified to that of the period of imprisonment undergone by himtill this day. The fine imposed and default sentence thereof isretained. [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 OfficerDecision of Supreme Court dtd.29.10.21 in Crl. AppealNo.903 of 2021; Shri Phool Kumar vs. DelhiAdministration (1975) 1 SCC 797 : [1975] 3 SCR 917;Dilawar Singh vs. State of Delhi (2007) 12 SCC 641: [2007] 10 SCALE 556 – relied on.

Case Law Reference

[1975] 3 SCR 917relied onPara 14

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1333 of 2018.

From the Judgment and Order dated 23.02.2017 of the High Courtof Madhya Pradesh Bench at Gwalior in Criminal Revision No.691 of2013.

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AShishir Kumar Saxena, R. N. Pareek, Praveen Swarup, Ms. PayalSwarup, Ms. Archna Sharma, Ms. Pooja Sharma, Advs. for the Appellant.

Sunny Choudhary, Abhinav Shrivastava, Advs. for the Respondent.

The Judgment of the Court was delivered by BA. S. BOPANNA, J.

1. The appellant is before this Court in this appeal assailing thejudgment dated 23.02.2017 passed by the High Court of Madhya Pradeshin Criminal Appeal No.691/2013 titled Ram Ratan vs. State of MadhyaPradesh. Though the said appeal was disposed of by the High CourtCalong with the companion appeal, the consideration herein is limited tothe case against the appellant herein i.e. Ram Ratan who was arrayedas the first accused before the trial court.

2. The appeal before the High Court was filed by the appellant,being aggrieved by the judgment dated 31.07.2013 passed by the SpecialDJudge (MPDVPK Act) 1981, Sheopur in Special Case No.13/2013 (oldcase No.26/2012). Through the said judgment, the trial court has convictedthe appellant along with the other two accused namely, Chotu and Rajualias Rajendra under Section 392 and 397 of Indian Penal Code (“IPC”for short) read with Section 11/13 of Madhya Pradesh Dakaiti AurVyapharan Pravbhavit Kshetra Adhiniyam 1981 Act (“MPDVPK Act,E1981” for short) and sentenced the appellant and other accused to rigorousimprisonment of 7 years with fine of Rs.1000/-, in default of the same, toundergo imprisonment for a further period of 4 months. The co-accusedRaju alias Rajendra was further convicted and sentenced under Section25 (1-B) (a) of Arms Act to one-year rigorous imprisonment with fine ofFRs.500/-, in default of the same, to further undergo 2 months rigorousimprisonment. Though all the three accused had filed the respectiveappeals before the High Court against the said conviction and sentence,the co-accused Chotu died during the pendency of his appeal, due towhich the said appeal abated. As noted above, though the appeal ofRaju alias Rajendra was also considered by the High Court through theGcommon judgment, the present appeal is filed by the appellant alone andas such the conviction and sentence of the appellant based on thecontentions put-forth on his behalf only are adverted to in this judgment.

3. The brief facts are that one, Rajesh Meena lodged a complainton 27.06.2012, alleging that on the intervening night of 26-27/6/2012,Hwhile he was sleeping in the hut constructed in the field to guard the crops, at about 02:30 a.m, the appellant along with Raju alias Rajendraand Chotu came to him and woke him up. The said Raju alias Rajendrawas having a gun with him and on pointing the same towards the chestof the complainant, demanded to part with the money. The complainantinformed that he did not have any money, due to which the key of hismotorcycle was snatched and the said Raju alias Rajendra also took outthe mobile phone from the pocket of his shirt. Thereafter, all the threeaccused persons forced the complainant to sit on the motorcycle alongwith them. When they reached the village Nanawat, the motorcycle gotpunctured and therefore all the persons compelled the complainant toget down from the motorcycle and the motorcycle was taken away. Bythe said time since it was dawn, his uncle named Tulsiram was passingby to milk the buffaloes. The complainant narrated the incident, followingwhich, steps were taken to lodge the complaint. The police having takenaction, recovered the motorcycle as also the mobile phone andapprehended the accused. The police on completing the investigationfiled the chargesheet against the appellant for the offences under Sections392/397 of IPC and under Sections 11/13 of MPDVPK Act, 1981.

4. The trial court framed charges through the order dated26.02.2013 under Sections 392/397 of IPC and Sections 11/13 ofMPDVPK Act, 1981 against the appellant and Chotu, while an additionalcharge under Section 25 (1-B) (a)/27 of the Arms Act was framed againstthe other co-accused namely, Raju alias Rajendra. The appellant and hisco-accused having pleaded not guilty, stood trial in the matter.

5. The trial court having noted the evidence tendered throughPW1 to PW12, the documents which were marked and the materialobjects identified, arrived at its ultimate conclusion. While doing so, thetrial court has referred in detail to the evidence tendered by thecomplainant Rajesh (PW1) who narrated the entire incident from thetime he was woken up in the midnight and stated about having identifiedthe accused as there was a light burning in the hut. Tulsiram (PW2),uncle of the complainant and Mukesh (PW3), brother of the complainantcorroborated the version stated by the complainant. Dhanpal (PW5),father of the complainant had also stated with regard to the sequence inwhich he had come to know about the incident in the same sequence ashad been stated by PW3. Mahavir (PW4), Ramjilal (PW6) and Dhanjeet(PW7) are the witnesses to the seizure of motorcycle and the gunrespectively. However, PW6 and PW7 had turned hostile. Chandrabhan A

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ASingh (PW8) is the witness who examined the 12-bore gun. A.L. Azad(PW11) is the police officer who arrested the accused and the otherwitnesses are the procedural official witnesses.

6. The trial court on analysing the said evidence returned the findingthat the appellant and his co-accused had indulged in the incidentBcomplained of and therefore held the charge to be proved. The convictionand the sentence were accordingly handed down. The appellant and hisco-accused while assailing the judgment of the trial court, apart fromcontending that the case has been falsely alleged against them, had alsocontended that the charge under Section 397 of IPC cannot be sustained.It was their case that the firearm even if was proved to be carried, hadCnot been used and as such the charge under Section 397 IPC would notlie. The High Court having adverted to the matter in detail hasreappreciated the evidence with regard to the incident and accordinglyupheld the judgment passed by the trial court convicting the appellantand sentencing him in the manner as has been done. The appellantDtherefore claiming to be aggrieved by the judgment passed by the trialcourt and upheld by the High Court, is assailing the same in this appeal.

7. Heard Mr. Shishir Kumar Saxena, learned counsel for theappellant, Mr. Sunny Choudhary, learned counsel for the respondent andperused the appeal papers.E

8. The learned counsel for the appellant while assailing thejudgments would at the outset contend that the complaint lodged by PW1and the evidence tendered by him are not sufficient to indicate that theappellant is guilty of the charge alleged against him. It is contended thatthe appellant has been implicated due to political rivalry, though no suchFincident as alleged had taken place. In addition to the judgments citedbefore the High Court and the contentions put-forth therein, learnedcounsel has also relied on the decision of this Court dated 29.10.2021 inCrl.Appeal No. 903 of 2021 titled Ganesan vs. State Rep. by StationHouse Officer and connected appeal i.e Crl. Appeal No. 904 of 2021.With reference to the said judgment, it is contended that firstly, the chargeGunder Section 397 of the IPC would not be sustainable since the gun hasnot been used and the convictioncan be sustained only if the ‘offender’uses any deadly weapon while committing robbery. It is contended thateven otherwise, the charge under Section 397 IPC would not besustainable against the appellant herein since there is no serious allegationHor proof of the appellant having used any weapon much less deadly

weapon even if the incident of robbery which occurred is held to beproved against the appellant. In that view, it is contended that the appellantis liable to be acquitted or in the alternative, even if it is held that thecharge under Section 392 IPC is proved, the appellant has undergonesentence of nearly 4 years which is sufficient punishment, which aspectbe considered by this Court.

9. The learned counsel for the State would refer to the evidencetenderedbefore the trial court in detail and has pointed out that the trialcourt as also the High Court has taken note of the said evidence. Thecharge having been proved, both the Courts have arrived at the conclusionthat the contention as put-forth by the appellant or his co-accused wasnot acceptable. It is contended that the motorcycle and the mobile phonewhich had been stolen by the accused had been recovered and the gunwhich was used was also seizedand examined by the expert. In thatcircumstance, it is contended that when the expert has opined that thegun was in working condition, the actual use of the firearm by firingfrom it is not required but the exposure of the weapon so as to createfear in the mind of the victim is sufficient to prove the charge underSection 397 IPC. It is, therefore, contended that the judgment passed bythe trial court and confirmed by the High Court does not call forinterference.

10. From the evidence as noted by the trial court and the HighCourt, it is seen at the outset that the complainant Rajesh (PW-1) hasspoken in detail with regard to the incident which occurred on theintervening night of 26-27/6/2012. The manner in which he was wokenup by the accused and the demand for money that was made bybrandishing the firearm has been narrated in detail. The identification ofthe persons which was possible due to the light which was on, is alsostated. Though lengthy cross-examination has been made, in so far asthe incident relating to which PW1 had given the detailed account, hasremained intact and has not been discredited. Insofar as the contentionput-forth by the learned counsel for the appellant that he has beenimplicated due to political reasons, there is no material on record. It is nodoubt true that as pointed out from the cross-examination contained inparas 27, 28 and 29 of the cross-examination, PW1 has stated that hiscousin Ramcharan is a political leader. Further, in the same paragraph,though he has stated that all the members of his family advised him thathe should file a report against the accused persons and that he had filed A

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Athe report after getting the said suggestion, it does not indicate that therewas any incident of political rivalry due to which the story was createdand the complaint was filed. It is only an attempt by the learned counselto try and connect the unconnected matters.The cousin being a politicalleader may be a fact but with regard to the complaint, all that PW1 hasmentioned is the manner in which the complaint was lodged relating toBthe incident which had taken place after the suggestion given by thefamily members that the law should be set in motion. The same does nottake away the gravity of the situation or alter the truth of the matter.

11. Having taken note of the manner in which the trial court hasreferred to the evidence and the same has been reappreciated by theCHigh Court, we do not deem it necessary to once again go into theevidence of the other witnesses, having noted the detailed account givenby PW1 which would be of substance in this proceeding to answer therelevant contention. Therefore, the evidence is sufficient and convincingto arrive at the conclusion that the incident as narrated by PW1 hadoccurred and the appellant and his co-accused had committed robbery.D12. Though, this remains the position, the question which needsconsideration is with regard to the contention that the firearm had notbeen put to use and therefore the charge under Section 397 IPC is notsustainable and also the further contention that the charge under Section397 even otherwise would not be sustainable against the appellant sinceEthere is no material or evidence to indicate that the appellant had usedthe firearm, even if it is held that the incident had occurred as alleged.13. For better understanding, it would be appropriate to take noteof the provisions contained in Sections 392 and 397 of IPC which readas hereunder:

“392. Punishment for robbery.- Whoever commits robbery shallFbe punished with rigorous imprisonment for a term which mayextend to ten years, and shall also be liable to fine; and, if therobbery be committed on the highway between sunset and sunrise,the imprisonment may be extended to fourteen years.

397. Robbery, or dacoity, with attempt to cause death orGgrievous hurt.- If, at the time of committing robbery or dacoity,the offender uses any deadly weapon, or causes grievoushurt to any person, or attempts to cause death or grievous hurtto any person, the imprisonment with which such offender shallbe punished shall not be less than seven years.”

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14. On the said aspect, it would be appropriate to take note of thedecision in the case of Shri Phool Kumar vs. Delhi Administration(1975) 1 SCC 797 wherein it is observed as hereunder: - “5. Section 392 of the Penal Code provides: Whoever commitsrobbery shall be punished with rigorous imprisonment for a termwhich may extend to ten years, and shall also be liable to fine;and, if the robbery be committed on the highway between sunsetand sunrise, the imprisonment may be extended to fourteen years.The sentence of imprisonment to be awarded under Section 392cannot be less than seven years if at the time of committing robberythe offender uses any deadly weapon or causes grievous hurt toany person or attempts to cause death or grievous hurt to anyperson: vide Section 397. A difficulty arose in several HighCourts as to the meaning of the word “uses” in Section397. The term ‘offender’ in that section, as rightly held byseveral High Courts, is confined to the offender who usesany deadly weapon. The use of a deadly weapon by oneoffender at the time of committing robbery cannot attractSection 397 for the imposition of the minimum punishmenton another offender who had not used any deadly weapon.In that view of the matter use of the gun by one of the culpritswhether he was accused Ram Kumar or somebody else, (surelyone was there who had fired three shots) could not be and has notbeen the basis of sentencing the appellant with the aid of Section397. So far as he is concerned, he is said to be armed with a knifewhich is also a deadly weapon. To be more precise from theevidence of PW 16 “Phool Kumar had a knife in his hand”. Hewas therefore carrying a deadly weapon open to the view of thevictims sufficient to frighten or terrorize them. Any other overtact, such as, brandishing of the knife or causing of grievous hurtwith it was not necessary to bring the offender within the ambit ofSection 397 of the Penal Code.”

15. Further, in Dilawar Singh vs. State of Delhi (2007) 12 SCC641, it is held as hereunder: - “19. The essential ingredients of Section 397 IPC are as follows:

1. the accused committed robbery.

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A2. while committing robbery or dacoity (i) the accused used deadlyweapon

(ii) to cause grievous hurt to any person (iii) attempted to causedeath or grievous hurt to any person.

3. “Offender” refers to only culprit who actually used deadlyBweapon. When only one has used the deadly weapon, otherscannot be awarded the minimum punishment. It onlyenvisages the individual liability and not any constructiveliability. Section 397 IPC is attracted only against theparticular accused who uses the deadly weapon or does anyCof the acts mentioned in the provision. But the otheraccused are not vicariously liable under that section foracts of the co-accused.

21. In the instant case admittedly no injury has been inflicted. Theuse of weapon by offender for creating terror in mind of victim isDsufficient. It need not be further shown to have been actuallyused for cutting, stabbing or shooting, as the case may be.”

16. In the decision of Ganesan (supra) referred to by the learnedcounsel for the appellant, the above noted decisions of this Court hasEbeen referred and this Court has held as hereunder: - “12.7. Thus, as per the law laid down by this Court in the aforesaidtwo decisions the term ‘offender’ under Section 397 IPC isconfined to the ‘offender’ who uses any deadly weapon and useof deadly weapon by one offender at the time of committingFrobbery cannot attract Section 397 IPC for the imposition ofminimum punishment on another offender who has not used anydeadly weapon. Even there is distinction and difference betweenSection 397 and Section 398 IPC. The word used in Section 397IPC is ‘uses’ any deadly weapon and the word used in Section398 IPC is ‘offender is armed with any deadly weapon’. Therefore,Gfor the purpose of attracting Section 397 IPC the ‘offender’ who‘uses’ any deadly weapon Section 397 IPC shall be attracted.

In light of the above observations and the law laid down by thisCourt in the aforesaid two decisions the case on behalf of theaccused in the present appeals is required to be considered. Even H

as per the case of the prosecution and even considering theevidence on record it can be seen that the present accused A1and A3 are not alleged to have used any weapon. The allegationof use of any weapon was against Benny and Prabhakaran.Therefore, in absence of any allegations of use of any deadlyweapon by the appellants herein- Accused Nos.1 and 3 Section397 IPC shall not be attracted and to that extent the LearnedCounsel appearing on behalf of the appellants- accused are rightin submitting that they ought not to have been convicted for theoffence punishable under Section 397 IPC.”

17. From the position of law as enunciated by this Court and notedabove, firstly, it is clear that the use of the weapon to constitute theoffence under Section 397 IPC does not require that the ‘offender’ shouldactually fire from the firearm or actually stab if it is a knife or a daggerbut the mere exhibition of the same, brandishing or holding it openly tothreaten and create fear or apprehension in the mind of the victim issufficient. The other aspect is that if the charge of committing the offenceis alleged against all the accused and only one among the ‘offenders’had used the firearm or deadly weapon, only such of the ‘offender’ whohas used the firearm or deadly weapon alone would be liable to be chargedunder Section 397 IPC.

18. Though the above would be the effect and scope of Section397 IPC as a standalone provision, the application of the same will arisein the totality of the allegation and the consequent charge that will beframed and the accused would be tried for such charge. In suchcircumstance, in the teeth of the offence under Section 397 IPC beingapplicable to the offender alone, the vicariability of the same will alsohave 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 tobe looked at differently in the totality of the facts, evidence andcircumstances involved in that case and the provisions invoked in thatparticular case to frame a charge against the accused. In the instantcase, the charge under Section 34 IPC was not framed against theappellant nor was such an allegation raised and proved against theappellant. Hence, benefit of the interpretation raised on the scope ofSection 397 IPC to hold the aggressor alone as being guilty, will beavailable to the appellant if there is no specific allegation against him.

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A19. Keeping this aspect in view, it is necessary to examine themanner in which PW1 has alleged against the appellant so as to considerwhether the appellant is also an ‘offender’ who used the firearm so asto be charged under both, Section 392 and 397 IPC even if he is complicitto the incident, more particularly when Section 34 IPC has not beeninvoked in the instant case.B20. Apart from the narration of the incident contained in the FIR,the evidence tendered by the victim Rajesh (PW1) about the incident isas hereunder: - A

“02. On the same night, at the aforesaid time of 2:30 AM, allthese three accused persons who are present before me in thisCCourt by names Raju, Chotu and Gujar approached me at whichtime I was sitting on a temporary watch tower put by me near tothe tube well for guarding my cultivation field and a bulb wasglowing there. In the illumination of said bulb, I could see andidentify them. At that relevant time, I was sleeping there. AmongDthem Raju Gujar woke up me from my sleep and pointedthe nozzle of the country rifle on my chest and demandedwith me to handover whatever money I had in my possessionat that relevant moment. I informed Raju Gujar that I donot have any money with me. Still, he continued to keepthe said weapon on my chest itself and again asked me toEhand over the keys of my motor cycle. At that relevant time,I was having my Splendour Honda Motor Cycle.On being scaredby the fear of said Raju as well as apprehending danger from hisarm, I politely handed over the key of the Motorcycle to said RajuGujar by putting those keys in his hand.F03. At that time in my pocket, my mobile was kept. It was aSpice-42 Model branded company phone. By again putting thefirearm - Rifle on my chest he took my mobile by himselfby inserting his hands in my pocket and taking out themobile set from the pocket out.”

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21. From the extracted portion and more particularly the emphasizedportion of the evidence tendered by PW1, his account is specific to thefact that it was Raju Gujar alias Rajendra who had pointed out the firearmto his chest and indulged in the act of robbing him of his possessionHnamely, 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 accusedhaving forced him to sit on the motorcycle and had taken him away. It isfurther stated that after they reached Nanawat village and the tyre ofthe motorcycle got punctured, he was made to get down from themotorcycle. 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 andby threatening him, had taken him in the direction of Amalada village.Though, he has deposed to that extent, the fact of the appellant havingused another country made rifle other than the one which was beingused by Raju alias Rajendra has not been established. It is no doubt true,that the appellant had participated in the offence of committing robberysince ultimately the motorcycle was hidden at a place which was knownto the appellant and the property seizure memo indicates that themotorcycle was recovered at the instance of the appellant that certainlyconstitutes an offender under Section 392 IPC.

22. Further, the relevant contents in the FIR reads as hereunder:- “At about 2:30 in the morning the accused Raju, Co-accused Chotuand Ramratan came to him. The Raju was having a gun withhim and forced him to wake up and demanded money whenthe complainant inform that he does not have any money,therefore the Raju pointed out his gun towards the chest ofthe complainant and the complainant in its turn handed overthe key of the motorcycle the Raju has also took out themobile from the pocket of the shirt of the complainant,thereafter all three accused person who is the complainant to siton the motorcycle along with them, when they reached near thevillage Nanawat the motorcycle got punctured and therefore allthe three person compelled to complainant to get down from themotorcycle and thereafter they took his motorcycle and went awaytoward Aamlda and Morkhudana, then I reached at Aamlda, andall happening narrated to his maternal uncle Tulsiram, and thenhis father also came there, thereafter I searched the motorcyclebut it is not searched out therefore came to local police station forlodging the report, and he wants to take necessary action.”

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Athree accused had taken part in the offence of committing robbery, onlyone of the accused namely Raju alias Rajendra had used the firearm.The said firearm was seized from the possession of Raju alias Rajendraand from the evidence of A.L. Azad (PW11) it is clear that the accusedRaju alias Rajendra had disclosed that the firearm was kept in his houseand it was recovered in the presence of the witnesses. In addition, PritamBSingh (PW9) has stated that permission had been sought for prosecutingRaju alias Rajendra with regard to seizure of the 12-bore gun andpermission had been granted. Chandrabhan Singh (PW8) in his evidencehad stated that he had examined the gun and the same was capable ofbeing fired. His evidence would disclose that only one gun had beenCseized and examined by him. Further, based on the said evidence it isRaju alias Rajendra alone who has been convicted under the provisionsof the Arms Act.

24. If that be the position, it would stand established and provedbeyond doubt that only one of the accused namely Raju alias RajendraDhad used the firearm and there was neither any allegation apart from astray sentence nor was such charge of having used firearm provedagainst the appellant. In that light, if the position of law enunciated bythis Court as noticed above is kept in view, the charge under Section 397IPC can be fastened on the ‘offender’ who actually uses the firearm. Inthe instant case, since the facts and the evidence does not indicate thatEthe appellant could be construed as an ‘offender’ who used the firearm,the charge alleged against him and held to be proved by the trial Courtas also the High Court under Section 397 IPC and Section 11/13 ofMPDVPK Act, 1981 cannot be sustained. However, the appellant havingparticipated in the offence of committing robbery which standsFestablished with sufficient evidence, the conviction handed down by thetrial court and upheld by the High Court under Section 392 IPC issustainable to that extent.

25. In view of the above conclusion, the sentence imposed on theappellant needs consideration. Since, we have arrived at the conclusionGthat the charge under Section 397 and Section 11/13 of MPDVPK, Act,1981 are not proved against the appellant, the sentence of 7 years rigorousimprisonment imposed by the trial Court and upheld by the High Court isliable to be set aside, which is accordingly done. Insofar as, the offenceproved under Section 392 IPC, the same provides for the punishment ofrigorous imprisonment for a term which may extend to 10 years and alsoH

to fine. As noted, the motorcycle and the mobile which was stolen havebeen recovered. However, the appellant having indulged in the offenceof robbery, in our opinion, imprisonment of around 3 years would besufficient punishment. In instant case, it is noticed that the appellant hasundergone imprisonment for a period of 3 years 5 months and 1 day ason 10.11.2021, as per the statement filed before this Court. Hence, if thesentence undergone by the appellant is treated as the punishment, itwould meet the ends of justice.

A

B

26. In the result, we pass the following order: -

i)The judgment dated 19.10.2012 passed by the Special Judge,(MPDVPK Act) in Special Case No.13/2013 (Old CaseNo.26/2012) insofar it has convicted the appellant underSection 397 IPC read with Sections 11/13 of MPDVPKAct, 1981 and upheld by the High Court of Madhya Pradeshin Criminal Appeal No.691/2013 are set aside to that extent.

C

ii)The conviction of the appellant under Section 392 IPC byDthe trial court and upheld by the High Court, is sustained.

iii)The sentence imposed on the appellant is modified to thatof the period of imprisonment undergone by the him till thisday. The fine imposed and default sentence thereof isretained.

E

(iv) The appellant is ordered to be set at liberty forthwith if thefine is paid and he is not required to be detained in anyother case.

(v) The appeal is allowed in part to the extent indicated above.F(vi)All pending applications, if any, shall stand disposed of.

Divya Pandey

Appeal partly allowed.

G

H