GANESAN versus STATE REP. BY STATION HOUSE OFFICER on 29 October 2021

SUPREME COURT REPORTS

[2021] 10 S.C.R.

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GANESAN

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STATE REP. BY STATION HOUSE OFFICER

(Criminal Appeal No. 903 of 2021)

BOCTOBER 29, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Penal Code, 1860: s.397 – Applicability of – Held: To bringthe case within s.397, the offender who uses any deadly weapon,Cor causes grievous hurt to any person shall be liable for minimumpunishment under s.397 – The term ‘offender’ under s.397 isconfined to the ‘offender’ who uses any deadly weapon and use ofdeadly weapon by one offender at the time of committing robberycannot attract s.397 for the imposition of minimum punishment onDanother offender who has not used any deadly weapon.

Penal Code, 1860: ss.391, 395, 397 – Prosecution case wasthat on the fateful night, A-1 to A-5, with an intention to commitrobbery, proceeded in a car with knife and iron pipes and reacheda place where PW-1 was coming on bicycle – A-1 remained in theEcar – A-2 to A-5 pushed PW-1, A-3 attacked him with iron rod onhis head and one of them plucked the bag containing Rs.60,000and 16 gram jewellery hanging on the cycle handle – When PW-2prevented A-2 to A-5 from escaping, A-2 assaulted him on the headwith the rod – All accused ran away from the place along with thebag – Charges framed against the accused except ‘B’ (abscondedFaccused) who was tried separately – Trial court convicted accusedunder s.397 – Conviction was affirmed by appellate court and alsoHigh Court – Instant appeal filed by A-1 and A-3 – Held: Theallegation of use of weapon was against A-2 and accused ‘B’ –Appellants (A-1 and A-3) were not alleged to have used any weaponG– Therefore, in the absence of any allegations of use of any deadlyweapon by the appellants, s.397 shall not be attracted and to thatextent they ought not to have been convicted for the offencepunishable under s.397 – As regards the offence under s.391,submission of the appellants was that even no case was made outfor offence under s.391 and they cannot be punished under s.395H

as what is required to be proved is involvement of five or morepersons conjointly in committing the robbery and in this case onlyfour persons were tried and the prosecution has failed to prove theinvolvement of five or more persons – However, as such in the FIR,there was a reference to five persons involved in committing therobbery – Even the charge-sheet was filed against five persons –However, as two accused absconded, the trial was split and threeaccused came to be tried – Accused ‘B’ was tried subsequently andone person is still absconding – Further, there were concurrentfindings recorded by all the courts below that five persons wereinvolved in committing the offence of robbery – Merely becausesome of the accused absconded and less than five persons came tobe tried in the trial, it cannot be said that the offence under s.391punishable under s.395 was not made out – What is required to beconsidered is the involvement and commission of the offence ofrobbery by five persons or more and not whether five or morepersons were tried – Once it is found on evidence that five or morepersons conjointly committed the offence of robbery or attemptedto commit the robbery, a case would fall under s.391 and would fallwithin the definition of ‘dacoity’ – Therefore, in the facts andcircumstances, appellants are liable to be convicted for the offenceunder 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 adifference in number of accused – Therefore, even in a case wherethe accused is not convicted for the offence under s.397, still hecan be punished under s.395 and no prejudice shall be caused tohim as ultimately the prosecution has to prove the ‘robbery’ and‘dacoity’ either for the offence punishable under s.395 or unders.397 – However, to bring the case against the accused under s.397,the prosecution has to prove one additional fact that the offenderhas used any deadly weapon or has caused grievous hurt to anyperson, or has attempted to cause death or grievous hurt to anyperson.

Criminal jurisprudence: Acquittal of accused ‘B’ who wastried separately as he absconded after incident – Benefit of acquittalof ‘B’ claimed by other accused – Held: The accused are to be triedand convicted on the basis of evidence made in the trial in which ABC

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Athey are convicted – ‘B’ came to be tried after a period of 15 yearsas his trial was split as he absconded – From the acquittal orderpassed 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 beexamined and for whatever reasons other witnesses were notexamined – In this case, PW1 not only supported the case ofBprosecution but as many as 15 witnesses came to be examined –Therefore, merely because in the subsequent split trial, ‘B’ came tobe acquitted, the benefit of such acquittal cannot be in favour ofthe appellants-accused as the prosecution was successful in provingthe case against the accused.CPartly allowing the appeals, the Court HELD: 1.1 As per Section 390 IPC, for ‘robbery’ there iseither theft or extortion. When in committing the theft, or incarrying away or attempting to carry away property obtained bythe theft, the offender voluntarily causes or attempts to cause toDany person death or hurt or wrongful restraint or fear of instantdeath or of instant hurt, or of instant wrongful restraint, the theftcan 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 attemptEto commit a robbery, the accused then can be said to havecommitted the ‘dacoity’. As per Section 392 IPC, whoevercommits robbery shall be punished with rigorous imprisonmentfor a term which may extend to ten years and shall also be liableto fine. [Para 12.3][534-F-G; 535-A-B]

F1.2 As per Section 393 IPC, even an attempt to commitrobbery is punishable with rigorous imprisonment for a term whichmay extend to seven years with fine. As per Section 394 IPC, ifany person, in committing or in attempting to commit robbery,voluntarily causes hurt, such person, and any other person jointlyconcerned in committing or attempting to commit such robbery,Gshall be punished with imprisonment for life or with rigorousimprisonment for a term which may extend to ten years and shallalso be liable to fine. Section 395 IPC provides for punishmentfor ‘dacoity’. Whoever commits dacoity shall be punished withimprisonment for life or with rigorous imprisonment for a term H

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 ormore persons, who are conjointly committing dacoity, commitsmurder in so committing dacoity, every one of those persons shallbe punished with death, or imprisonment for life, or rigorousimprisonment for a term which may extend to ten years with fine.As per Section 397 IPC, if at the time of committing robbery ordacoity, 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. Similarly, if, atthe time of committing robbery or dacoity, the offender is armedwith any deadly weapon, the imprisonment with which suchoffender shall be punished shall not be less than seven years. Onconjoint reading of these provisions, commission of ‘robbery’ issine qua non. The ‘dacoity’ can be said to be an exaggeratedversion of robbery. If five or more persons conjointly commit orattempt 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 inconjointly committing or attempt to commit a ‘robbery’. Thepunishment for ‘dacoity’ and ‘robbery’ would be the same exceptthat in the case of ‘dacoity’, the punishment can be withimprisonment for life. However, in the case of ‘dacoity withmurder’ the punishment can be with death also. However, in acase where the offender uses any deadly weapon or causesgrievous hurt to any person, or attempts to cause death or grievoushurt to any person the imprisonment with which such offendershall be punished shall not be less than seven years. To bring thecase within Section 397 IPC, the offender who uses any deadlyweapon, or causes grievous hurt to any person shall be liable forminimum 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 differentwords. In Sections 390, 394, 397 and 398 IPC the word used is‘offender’. Therefore, for the purpose of Sections 390 to 398 IPConly the offender/person who committed robbery and/or voluntarily AB

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Acauses hurt or attempt to commit such robbery and who uses anydeadly weapon or causes grievous hurt to any person, or commitsto cause death or grievous death any person at the time ofcommitting robbery or dacoity can be punished for the offencesunder Sections 390, 392, 393, 394, 395, 397 and 398 IPC. Theaccused cannot be convicted on the basis of constructive liabilityBand only the ‘offender’ who ‘uses any deadly weapon….’ can bepunished. However, so far as Section 391 IPC ‘dacoity’ and Section396 IPC – ‘dacoity with murder’ is concerned, an accused can beconvicted on the basis of constructive liability, however the onlyrequirement would be the involvement of five or more personsCconjointly 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 confinedto the ‘offender’ who uses any deadly weapon and use of deadlyweapon by one offender at the time of committing robbery cannotDattract Section 397 IPC for the imposition of minimum punishmenton another offender who has not used any deadly weapon. Eventhere is distinction and difference between Section 397 and Section398 IPC. The word used in Section 397 IPC is ‘uses’ any deadlyweapon and the word used in Section 398 IPC is ‘offender isarmed with any deadly weapon’. Therefore, Section 397 IPC shallEbe attracted when the ‘offender’ ‘uses’ any deadly weapon Section397 IPC. Even as per the case of the prosecution and evenconsidering the evidence on record, it can be seen that A1 andA3 are not alleged to have used any weapon. The allegation ofuse of any weapon was against A-2 and ‘B’ . Therefore, in absence

Fof 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 thatextent they ought not to have been convicted for the offencepunishable under Section 397 IPC. [Para 12.7][539-F-H;540-A-C]

GShri Phool Kumar v. Delhi Administration (1975) 1 SCC797 : [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 accusedthat the appellants – accused cannot be convicted for the offenceHunder Section 397 IPC and that the requirement to bring the case under Section 391 IPC punishable under Section 395 IPCnamely five persons or more persons conjointly committing therobbery has not been established and proved and only fourpersons came to be tried and the courts below did not convictthe accused for the offence under Section 391 punishable underSection 395 IPC is concerned, at the outset, it is required to benoted that as such all the accused were charged by the trial Courtfor the offences under Section 395 IPC as well as 397 IPC. Withthe aforesaid offences parties went for trial. Therefore, once acase under Section 391 IPC punishable under Section 395 IPC ismade out, they can be convicted for the offence under Section391 IPC punishable under Section 395 IPC as no prejudice shallbe caused to the accused. Even otherwise, when a charge of amajor offence is not made out, conviction for a minor offenceeven in the absence of the charge for the said minor offence canbe sustained. If an accused is charged with a grave offence butthe same is not established on merit or for default of technicalnature, he can be convicted and punished for a minor offencewithout 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 Section391/395 and Section 397 IPC so far as sentence/punishmentexcept the difference in case of Section 397 IPC the punishmentshall not be less than seven years. Otherwise, the ‘robbery’ and‘dacoity’ are sine qua non. ‘Dacoity’ is nothing but an exaggeratedversion of ‘robbery’ with a difference in number of accused.Therefore, also even in a case where the accused is not convictedfor the offence under Section 397 IPC, still he can be punishedunder Section 395 IPC and no prejudice shall be caused to himas ultimately the prosecution has to prove the ‘robbery’ and‘dacoity’ either for the offence punishable under Section 395 IPCor under Section 397 IPC. However, to bring the case againstthe accused under Section 397 IPC, the prosecution has to proveone additional fact that the offender has used any deadly weaponor has caused grievous hurt to any person, or has attempted tocause death or grievous hurt to any person. Therefore, the case AB

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Ais made out under Section 391 IPC read with Section 395 IPC.Despite the fact that the courts below convicted the accused underSection 397 IPC which is held to be unsustainable, in that casealso if the case is made out under Section 391 IPC read withSection 395 IPC, still they can be convicted for the offencepunishable under Section 391 read with Section 395 IPC evenBwithout even altering the charge. The trial court had framed thecharge against the accused for the offence under Sections 395and 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 underCSection 391 IPC and they cannot be punished under Section 395IPC as what is required to be proved is involvement of five ormore persons conjointly in committing the robbery and in thepresent case only four persons are tried and the prosecution hasfailed to prove the involvement of five or more persons. However,

Das such in the FIR, there was a reference to five persons involvedin committing the robbery. Even the charge-sheet was filed againstfive persons. However, as two accused absconded, the trial wassplit and three accused came to be tried. One accused ‘B’ cameto be tried subsequently and one person is still absconding. Eventhere are concurrent findings recorded by all the courts belowEthat five persons were involved in committing the offence ofrobbery. Merely because some of the accused absconded andless than five persons came to be tried in the trial, it cannot besaid that the offence under Section 391 IPC punishable underSection 395 IPC is not made out. What is required to be Fconsidered is the involvement and commission of the offence ofrobbery by five persons or more and not whether five or morepersons were tried. Once it is found on evidence that five ormore persons conjointly committed the offence of robbery orattempted to commit the robbery a case would fall under Section391 IPC and would fall within the definition of ‘dacoity’. Therefore,Gin the facts and circumstances, the accused can be convicted forthe offence under Section 391 IPC punishable under Section 395IPC. [Para 16][542-D-H; 543-A]

3.4 Now so far as the submission on behalf of the accusedthat in the subsequent trial one of the accused – ‘B’ came to beacquitted and therefore the benefit of acquittal of ‘B’ must begiven to the present accused and thereafter they may be acquittedis concerned the same has no substance. The accused are to betried and convicted on the basis of evidence made in the trial inwhich 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 ashe absconded. From the judgment and order of acquittal passedin 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 tobe examined and for whatever reasons other witnesses have notbeen examined. In the present case, PW1 not only supportedthe case of prosecution but as many as 15 witnesses came to beexamined. Therefore, merely because in the subsequent splittrial ‘B’ came to be acquitted the benefit of such acquittal cannotbe in favour of the present appellants-accused as the prosecutionhas been successful in proving the case against the accused.[Para 17][543-B-E]

Amrita v. State of M.P. (2004) 12 SCC 224; GangadharBehera v. State of Orissa (2002) 8 SCC 381 : [2002] 3Suppl. SCR 183; Raja v. State (2013) 12 SCC 674 :[2013] 9 SCR 230 – relied on.

Raj Kumar Alias Raju v. State of Uttaranchal (2008) 11SCC 397; Balbir v. State of Uttar Pradesh 2020 SCCOnline All 845; Mohan Singh v. State of Punjab AIR1963 SC 174 : [1962] Suppl. SCR 848; Ram Bilas Singh& Ors. v. The State of Bihar [1964] 1 SCR 775; ManmeetSingh @ Goldie v. State of Punjab (2015) 7 SCC 167 :[2015] 3 SCR 773; Harbhajan Singh v. State of Jammuand 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. YadlaSrinivasa Rao (2003) 1 SCC 217 : [ 2002] 3 Suppl.SCR 339 – referred to.

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Case law reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.903 of 2021.

From the Judgment and Order dated 16.07.2019 of the High Courtof Judicature at Madras in Criminal Appeal No.429 of 2012.

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With

Criminal Appeal No.904 of 2021.

G. Sivabalamurugan, P. R. Kovilan Poongkuntran, V. Vasudevan,Mrs. Geetha Kovilan, Advs. for the Appellant.

Dr. Joseph Aristotle S., Ms. Preeti Singh, Ms. Ripul Swati Kumari,Advs. for the Respondent.

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The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 16.07.2019 passed by the High Court ofJudicature at Madras in Criminal R.C. Nos. 405 and 429 of 2012 bywhich the High Court has dismissed the said revision applications andhas confirmed the judgment and order passed by the Learned trial Courtconfirmed by Learned First Appellate Tribunal – Learned Sessions Courtconvicting the appellants herein – original accused no.1 and accusedno.4 for the offence under Section 397 IPC present appeals are preferred.

2. Criminal Appeal No.903 of 2021 has been preferred by theaccused Ganesan as original accused – A1 and Criminal Appeal No.904of 2021 has been preferred by the accused Shanmugam @ Babu – A3.At this stage, it is required to be noted that initially the charge-sheet wasfiled against five persons for the offences punishable under Section 395read with Section 397 of the Indian Penal Code (hereinafter referred toas ‘IPC’) and Ganesan was shown as A1, one Benny who at the relevanttime was absconding was shown as A2, one Prabhakaran was shownas A3, Shanmugam @ Babu was shown as A4 and one Shajahan wasshown as A5. However, at the relevant time A2 - Benny and A5 -Shajahan absconded, the trial was then separated and post-trial, Ganesanwas shown as A1, Prabhakaran was shown as A2 and Shanmugam wasshown as A3. Benny was subsequently arrested after a period of 15years and therefore he was tried separately and vide judgment and orderdated 15.11.2018 he has been acquitted (acquittal of Benny shall bedealt with hereinafter).

3. As per the case of the prosecution, with the intention of robberyjointly by the accused – A1 to A5 at about 8:00 pm on 19.08.1996proceeded in a car bearing No. T.N. 31 8686 from Cuddalore with knifeand iron pipe and reached Panruti. A1 – Ganesan stayed in the car andsent A2 to A5. As per the plan A2 to A5 committed robbery of Rs.60,000/-. As per the case of the prosecution, PW1 – Duraisamy came with thebicycle near Vallalar Street, Panruti where they pushed him and A3Prabhakaran attacked with iron rod on the head and right-hand fingerand injured him and one among accused 2 to 5 plucked the bag hangingin the handle bar of cycle of witness Duraisamy containing Rs.60,000/-and 16 gram jewellery and ran away. As per the case of the prosecution,when the witness Palanivel prevented the accused 2 to 5 from escaping, A

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AA2 (Benny) assaulted witness Palanivel on the head and hand with therod he was having and tried to escape and accused 3, 4 and 5 escapedand ran away from the place along with the above-mentioned bag. Afterconclusion of the investigation, the investigating officer filed the charge-sheet against five accused persons for the offences punishable underSection 395 read with Section 397 IPC. Even the charges were framedBagainst five accused persons. However, as A3 - Benny and A5 - Shajahanabsconded, the trial was split and the trial proceeded against Ganesan,Prabhakaran and Shanmugam. In the trial Ganesan was shown as A1,Prabhakaran was shown as A3 and Shanmugam was shown as A4. It isreported that even Shajahan is still absconding. That the accused deniedCthe charges and therefore they were put to trial by the Learned Magistrate.During the trial, to prove the case against the accused, the prosecutionexamined as many as 15 witnesses. Prosecution examined ThiruDuraisamy as PW1, complainant and the injured eye-witness ThiruPalanivel as PW2, Thiru Aravind Kumar and Thiru Ashok Kumar as PW3 and PW4 respectively. Prosecution examined Thiru ShanmugamDas PW5, Doctor Thiru Elangovan as PW10 who gave treatment to PW1.Prosecution also examined the I.O. Thiru Subramanian as PW13.Through the aforesaid witnesses the prosecution also brought on recordthe documentary evidences. On appreciation of entire evidence on record,both, the oral as well as the documentary, the Learned trial Court videEJudgment and Order dated 13.04.2010 in S.C. No.363 of 2009 convictedthe accused for the offence punishable under Section 397 IPC andsentenced them to undergo 7 years RI each and in default to furtherundergo one year RI.

4. Feeling aggrieved and dissatisfied with the judgment and orderFof conviction passed by the Learned trial Court convicting the accusedfor the offence punishable under Section 397 IPC and imposing thesentence of 7 years RI, accused Ganesan and Shanmugam – A1 and A3respectively (preferred appeal bearing Criminal Appeal No.48 of 2010before the Learned Sessions Court). That by judgment and order dated03.01.2012, the Learned Sessions Court dismissed the said appeal andGconfirmed the judgment and order of conviction passed by the LearnedTrial Court. The High Court by the impugned Judgment and order hasconfirmed the conviction under Section 397 IPC.

5. Feeling aggrieved and dissatisfied with the judgment and orderpassed by the High Court in dismissing the Revision Applications andH

confirming the conviction under Section 397 IPC, A1 Ganesan haspreferred Criminal Appeal No.903 of 2021 and A3 Shanmugam haspreferred Criminal Appeal No.904 of 2021. As observed hereinabovesubsequently after a period of 15 years from the occurrence of the offenceoriginal accused no.2 – Benny was apprehended and he came to betried separately. In Sessions Case No.12 of 2018 and by its judgmentand order dated 15.11.2018 he has been acquitted. Acquittal of accusedBenny shall be discussed and considered hereinbelow.

6. Submissions on behalf of the Accused – Ganesan inCriminal Appeal No.903 of 2021

Learned Counsel appearing on behalf of accused - Ganesan hasmade the following submissions:

(1) That the FIR is clouded with suspicion. It is submitted thatPW1 Duraisamy deposed that the incident took place on19.08.1996 at about 11:00 PM and he was attacked by theaccused persons and immediately he become unconsciousand then he was admitted in Government Hospital and hegained conscious after one week. Contrary to the samePW13 - I.O. deposed that he reached the GovernmentHospital in the early morning at 2.30 AM on 20.08.1996and recorded the statement of PW1 - Duraisamy and hereached police station at 3.00 AM and on the basis of thestatement he registered Crime No.678 of 1996 under Section394 IPC. It is submitted that even PW13 in his cross-examination admitted that in the complaint Ex.P1 neithercomplainant’s signature nor the thumb affixation were found.It is submitted that therefore complaint Ex.P1 could nothave come into existence as claimed by the prosecutionand consequently the FIR registered by the IO is legallyinadmissible;

(2) The identification of accused persons has not beenestablished inasmuch as no Test Identification Parade (TIP)proceedings was conducted. It is submitted that in thepresent case no TIP was conducted by the police. It issubmitted that even before the Learned trial Court, theprosecution witnesses very categorically stated that theycould not identify the accused persons due to the reasonthat; (i) PW1 become unconscious after the incident; (ii)

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APW2 deposed “whether I knew the accused, I did notremember as long time have passed”; (iii) PW3 deposed“Since 14 years have passed, I could not keep memory andto tell who is that person among the persons now beforethis Court.” It is submitted that even PW3 deposed that “atthe time of incident, the place of occurrence was dark andBrainy”; (iv) PW4 also deposed that “because 14 years havepassed, they could not be able to tell correctly”.

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6.1 It is submitted that even in the accident register as well PW10– Doctor recorded that he was informed that the complainant wasCattacked by three unknown persons. It is submitted therefore that itcreates serious doubt about the number of persons involved whether 3or 5; Accused Ganesan did not participate in the crime as he was in thecar and therefore Section 397 IPC shall not be attracted. It is submittedthat even as per the case of the prosecution, the accused Ganesan wasin the car and he did not come to the place of occurrence and thereforeDhe cannot be convicted for the offence punishable under Section 397IPC; it is submitted that it is a settled law that the term ‘offender’ isconfined to the ‘offender’ who uses any deadly weapon. It is submittedthat use of deadly weapon at the time of committing robbery cannotattract Section 397 IPC for the imposition of the minimum punishmentEon another offender who had not used any deadly weapon. Heavyreliance is placed on the decisions of this Court in Shri Phool Kumarvs. Delhi Administration, (1975) 1 SCC 797 (para 5 & 6) and DilawarSingh vs. State of Delhi, (2007) 12 SCC 641 (para 19 to 22). It isfurther submitted by Learned Counsel appearing on behalf of the accused- Ganesan that as such original accused Benny has been acquitted byFthe Court vide judgment dated 15.11.2018. It is submitted that it is asettled law that if the allegations made against the accused and the otheraccused persons are one and the same then they are indivisible andinseparable in nature, the benefit of acquittal of a co-accused should beextended to the other accused persons as well. It is submitted that asper the prosecution case A1 to A5 were involved in the case. It isGsubmitted that even the PWs could not identify and point out who beatPW1 and PW2.

6.2. It is further submitted that even otherwise the injury causedto PW1 and PW2 are simple in nature. It is submitted that as per themedical records, the injuries caused to PW1 and PW2 are simple injuriesH

which is evident from the testimony of PW10 – Doctor R. Elangoven. Itis submitted that there is no possibility of any ‘dangerous weapon’ beingrecovered in the present case and therefore, Section 397 IPC cannot bepressed into service.

6.3 It is further submitted that according to the prosecution thenumber of accused persons involved in the present case was five persons.It is submitted that all the prosecution witnesses stated that number ofaccused persons involved was not more than 3 accused persons. It issubmitted that only in a case where five or more than five persons commitor attempt to commit a robbery it would be dacoity. It is submitted that itis more of an aggravated form of robbery and generally the robber isarmed with deadly weapons. It is submitted that even in the presentcase, even the prosecution is not sure about the number of accusedpersons involved in the present case, therefore the Learned trial Courtframed charge under Section 397 IPC alone despite charge-sheet filedunder Sections 395 and 397 IPC.

6.4 It is further submitted that even PW2 to PW4 are not reliableand trustworthy eye-witnesses. It is submitted that looking to the distancebetween the house and the place of occurrence, it is not possible to hearthe cry of PW1 and that they reached the place of occurrence only afterthe offence of robbery was committed by the accused.

6.5 It is further submitted that there is an inordinate delay even infiling the charge-sheet and conducting trial. It is submitted that in thepresent case the charge-sheet was filed after 13 years and such a delayhas not been explained by the prosecution. It is further submitted thateven otherwise the accused involved were less than 5 persons and evenBenny came to be acquitted by the Learned trial Court and thereforethe accused herein also cannot be convicted for the offence punishableunder Section 397 IPC. Reliance is placed on the decisions of this Courtin Raj Kumar Alias Raju vs. State of Uttaranchal, (2008) 11 SCC397 and Balbir vs. State of Uttar Pradesh, 2020 SCC Online All 845.It is submitted that considering the totality of the circumstances of thecase, the accused is entitled to the benefit of doubt.

Making the above submissions, it is prayed to allow the appealpreferred by accused - Ganesan and to acquit him for the offencepunishable under Section 397 IPC for which he has been convicted.

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A7.Submissions on behalf of the accused Shanmugam @ Babuin Criminal Appeal No.904 of 2021

In addition to submissions by Learned Counsel appearing on behalfof accused - Ganesan, it is submitted by Learned Counsel appearing onbehalf of accused - Shanmugam that in the present case there is noBsubstantive charge or conviction for robbery. It is submitted that convictionof an accused can only be on substantive charge and not otherwise, inthe absence of any evidence to the same. It is submitted that in thepresent case, the substantive charge is only under Section 395 (Dacoity)IPC and even otherwise nothing is on record that the accused -Shanmugam gave any blow and/or use any deadly weapon and/or causedCany grievous injury. The accused cannot be convicted on the basis ofconstructive liability for the offence punishable under Section 397 IPC.Reliance is placed on the decision of this Court in the case of MohanSingh vs State of Punjab, AIR 1963 SC 174.

7.1 It is further submitted that in absence of any charge for robberyDunder Sections 390/392 read with Section 378 (Theft), Section 383(Extortion) either in the form of Charge-sheet or in the form of charges,the accused cannot be convicted for the aforesaid offences also. It isfurther submitted that dacoity is nothing but an exaggerated version ofrobbery with a difference in number of accused (five or more) which isEa sine qua non to proof of dacoity. Reliance is placed on the decisions ofthis Court in the case of Ram Bilas Singh & Ors. Vs. The State ofBihar, (1964) 1 SCR 775; Raj Kumar @ Raju (Supra) and ManmeetSingh @ Goldie vs. State of Punjab, (2015) 7 SCC 167. It is furthersubmitted that even otherwise in the case of accused – Shanmugam, hehas been convicted relying upon the confessional statement of co-accusedFwhich is inadmissible in the evidence. It is submitted that confessionalstatement of A1 - Ganesan and A2 - Benny which are before the PoliceOfficer are inadmissible in evidence. It is further submitted that there isno other evidence against the accused - Shanmugam except the so-called confessional statements of A1 - Ganesan and A2 - Benny. MakingGthe above submissions it is prayed to allow the present appeal and acquitthe accused - Shanmugam for the offence punishable under Section 397IPC for which he has been convicted.

8. Dr. Joseph Aristotle S., Learned Counsel appearing on behalfof the State of Tamil Nadu has vehemently submitted that in the factsand circumstances of the case as such the courts below have notH

committed any error in convicting Ganesan – A1 and Shanmugam @Babu – A3.

8.1 It is submitted that in the present case the presence of theaccused at the time of the commission of the offence has been establishedand proved by the prosecution while leading evidence both documentaryand oral.

8.2 It is submitted that as such there are concurrent findingsrecorded by the courts below namely the Learned trial Court, the FirstAppellate Court and thereafter by the High Court and therefore theinterference in exercise of the powers under Article 136 of theConstitution is not warranted. It is submitted that therefore, the HighCourt’s order passed in exercise of its revisional jurisdiction does notcall for any interference under Article 136 of the Constitution.

8.3 It is further submitted that the Learned trial Court, FirstAppellate Court and the Revisional Court as such have rightly appreciatedthe evidence of PW1 (complainant), PW2 (injured witness), PW10(Doctor who treated PW1 and PW2) and PW13 (SI who registered theFIR).

8.4 It is submitted that injured eye-witnesses PW1 and PW2 werebrought to the hospital by PW3 (eye-witness) at about 11.55 PM on19.08.1996. PW10 treated PW1 and PW2 and made entries in theaccident register. That on receiving information from the GovernmentHospital, PW13 went to hospital and recorded the statement of PW1 at2.30 AM and came to the police to register the FIR at 3.00 AM whichwas marked as Ex.P1. It is submitted that as PW1’s fingers of bothhands had serious injuries which is corroborated by medical evidence,he was only able to affix the thumb impression on the complaint. It issubmitted that discrepancy in PW1’s testimony regarding him becomingunconscious immediately after he was injured may not be used againsthim as the said statement was made after a lapse of 14 years from thedate of occurrence. It is submitted that as such on the careful reading ofthe evidence of PW1 it can be understood to mean PW1 wentunconscious only after giving a complaint to PW13. It is submitted thatas rightly appreciated by both, the trial Court and the Appellate Court,the testimonies of PW10 and PW13 are corroborated and correspond tothe testimony of the prosecution witnesses. It is submitted that the ocularand the medical evidence in this case are corroborated and do not callfor any adverse interference.

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A8.5 It is submitted that in the present case, failure to perform TestIdentification Parade (TIP) is not fatal to prosecution’s case becausethere is other overwhelming evidence including witness accounts of injuredPW1 and PW2 pointing to the guilt of the accused. It is submitted that itis well-settled law that TIP is not a substantive piece of evidence andmay only be relied upon when the substantial evidence is uncorroborated.BIdentification tests are primarily meant for the purpose of helping theinvestigating agency with an assurance that their progress with theinvestigation into the offence is proceeding on the right lines. It issubmitted that as such there is no provision in the Code of CriminalProcedure which obliges the investigating agency to hold or confers aCright upon the accused to claim a TIP. Reliance is placed on the decisionof this Court in Harbhajan Singh vs. State of Jammu and Kashmir,(1975) 4 SCC 480.

8.6 It is further submitted that in the present case, the prosecutionhas clearly established the presence of five accused. It is submitted thatDeven the charge-sheet was filed against the five accused persons, howevertwo accused absconded and therefore, the trial proceeded against threeaccused. It is submitted that otherwise there is ample evidence to showthe involvement of five accused persons and therefore Section 395 IPCwill be attracted.

E8.7 It is further submitted that in the present case the presence ofA1 - Ganesan has been established by the prosecution by examiningPW6, PW11 and PW14. It is submitted that vide Ex.P10, A1 was arrestedon 21.08.1996.

8.8 It is further submitted that even the presence of five personsFinvolved in commission of the offence has been established and provedand Section 395 IPC shall be attracted.

8.9 It is submitted that although PW11 turned hostile, it is a settledprinciple in law that evidence of hostile witness can be relied upon to theextent it supported the case of the prosecution. Reliance is placed on theGjudgment of this Court in Sathya Narayanan vs. State rep. by Inspectorof Police, (2012) 12 SCC 627. It is submitted that during the confessionof A2 before the Investigating Officer about the joint attack and stealingof the jewels and cash in which he stated that he – A2 Ganesan, Shajahan,Shanmugam and another person were there. It is submitted that basedon the aforesaid confession and recovery of an iron rod and theHinformation obtained in the confession of A2, there were recoveries and arrest of the other accused. In support of the submission that theconfessional statement can be relied upon on certain circumstances,reliance is placed in the case of Raju Manjhi vs. State of Bihar, (2019)12 SCC 784.

8.10 It is submitted that the witnesses have identified some of theaccused in the court and at the same time some of the other accusedhave been arrested by the information obtained from confessionstatements. It is submitted that even otherwise, non-identification of allthe accused by the witnesses would not vitiate the case of prosecutionespecially in cases of robbery and dacoity. It is further submitted bylearned counsel for the State that as per the settled proposition of lawthe person charged with a heinous or grave offence can be punished fora less grave offence of cognate nature. Reliance is placed on RafiqAhmad vs. State of U.P., (2011) 8 SCC 300 and K. Prema S. Rao vs.Yadla Srinivasa Rao, (2003) 1 SCC 217.

It is submitted that in the present facts of the case, the chargewas rightly framed for the offences under Section 395 read with Section397 IPC and the ingredients for the offences have been proved by theprosecution beyond reasonable doubt even as otherwise in the alternative,the conviction of the accused under Section 397 IPC can be sustained.

9. Making the above submissions it is prayed to dismiss the presentappeals.

10. Heard the Learned Counsels for the respective parties at length.

11. Present appeals have been preferred by the Original AccusedNo.1 - Ganesan and Accused No.3 - Shanmugam @ Babu challengingtheir conviction for the offence under Section 397 IPC. At the outset, itis required to be noted that as such there are concurrent findings recordedby the Learned trial Court, Learned Sessions Court and the High Courton presence of the accused at the time of commission of the offenceand their active involvement. Their presence at the time of commissionof the offence has been established and proved by the prosecution byexamining the relevant witnesses during the course of trial.

11.1 PW1 – Duraisamy, PW2 – Palanivel and PW3 – AravindKumar are three eye-witnesses, out of which PW1 and PW2 are theinjured eye-witnesses. We have gone through in detail the deposition ofrelevant witnesses more particularly PW1, PW2 and PW3 and evenPW11 (who turned hostile) and the medical evidence and some of the A

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Aaccused identified in the Court, we are of the opinion that the presenceand their participation has been established and proved by the prosecution.There are some contradictions, however on reading the entire evidence,we are of the opinion that the contradictions are not such materialcontradictions which affect the case of the prosecution as a whole. It isto be noted that the witnesses were examined after almost 14 yearsBhave passed and therefore there may be some contradictions. As perthe settled proposition of law only those contradictions which are materialcontradictions may create the doubt and benefit of such materialcontradictions can be given to the accused.

12. In light of the above findings and observations now we mayCconsider the other submissions on merits.

12.1 It is the case on behalf of the accused that their convictionfor the offence under Section 397 IPC is unsustainable. It is also thecase on behalf of the accused that even for the offence under Section391 IPC punishable under Section 395 IPC involvement of five or moreDpersons in commission of robbery is sine qua non. It is the case onbehalf of the accused that in the present case only three accused weretried and subsequently one another accused Benny came to be tried andtherefore the condition precedent for bringing the case under Section391 IPC (Dacoity) has not been satisfied as the involvement of five orEmore persons in commission of the offence has not been established andproved and only four accused were tried. It is also the case on behalf ofthe accused that the courts below have materially erred in convictingthe accused for the offence punishable under Section 397 IPC even asper the case of the prosecution the present appellants Accused Nos.1and 3 did not use any deadly weapon. Relying upon the decision of thisFCourt in the case of Shri Phool Kumar (Supra) and Dilawar Singh(Supra), it is submitted that the accused who has not used any deadlyweapon at the time of committing robbery cannot be convicted underSection 397 IPC for the imposition of the minimum punishment and theterm ‘offender’ is confined to the offender who uses any deadly weaponGto attract Section 397 IPC for the imposition of the minimum punishment.It is also the case on behalf of the accused that one another accusedBenny came to be acquitted subsequently and therefore the benefit ofacquittal of Benny should go to the present appellants – accused.

12.2 To appreciate the aforesaid submissions the relevantHprovisions with respect to ‘robbery’ and ‘dacoity’ are required to be

referred to. The relevant provisions would be Section 390 IPC to Section398 IPC which read as under:

“390. Robbery.—In all robbery there is either theft or extortion.

When theft is robbery.—Theft is “robbery” if, in order to thecommitting of the theft, or in committing the theft, or in carryingaway or attempting to carry away property obtained by the theft,the offender, for that end voluntarily causes or attempts to causeto any person death or hurt or wrongful restraint, or fear of instantdeath or of instant hurt, or of instant wrongful restraint.

When extortion is robbery.—Extortion is “robbery” if theoffender, at the time of committing the extortion, is in the presenceof the person put in fear, and commits the extortion by putting thatperson in fear of instant death, of instant hurt, or of instant wrongfulrestraint to that person or to some other person, and, by so puttingin fear, induces the person so put in fear then and there to deliverup the thing extorted.

Explanation.—The offender is said to be present if he issufficiently near to put the other person in fear of instant death, ofinstant hurt, or of instant wrongful restraint.

391. Dacoity.—When five or more persons conjointly commit orattempt to commit a robbery, or where the whole number ofpersons conjointly committing or attempting to commit a robbery,and persons present 1.Subs. by Act 26 of 1955, s. 117 and theSch., for “transportation for life” (w.e.f. 1-1-1956). 99 and aidingsuch commission or attempt, amount to five or more, every personso committing, attempting or aiding, is said to commit “dacoity”.

392. Punishment for robbery.—Whoever commits robbery shallbe 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.

393. Attempt to commit robbery.—Whoever attempts tocommit robbery shall be punished with rigorous imprisonment fora term which may extend to seven years, and shall also be liableto fine.

394. Voluntarily causing hurt in committing robbery.—If anyperson, in committing or in attempting to commit robbery, voluntarily A

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causes hurt, such person, and any other person jointly concernedin committing or attempting to commit such robbery, shall bepunished with 1 [imprisonment for life], or with rigorousimprisonment for a term which may extend to ten years, and shallalso be liable to fine.

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395. Punishment for dacoity.—Whoever commits dacoity shallbe punished with 1 [imprisonment for life], or with rigorousimprisonment for a term which may extend to ten years, and shallalso be liable to fine.

396. Dacoity with murder.—If any one of five or more persons,Cwho are conjointly committing dacoity, commits murder in socommitting dacoity, every one of those persons shall be punishedwith death, or 1 [imprisonment for life], or rigorous imprisonmentfor a term which may extend to ten years, and shall also be liableto fine.

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397. Robbery, or dacoity, with attempt to cause death or grievoushurt.—If, at the time of committing robbery or dacoity, the offenderuses any deadly weapon, or causes grievous hurt to any person,or attempts to cause death or grievous hurt to any person, theimprisonment with which such offender shall be punished shallnot be less than seven years.

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398. Attempt to commit robbery or dacoity when armedwith deadly weapon.—If, at the time of attempting to commitrobbery or dacoity, the offender is armed with any deadly weapon,the imprisonment with which such offender shall be punished shallFnot be less than seven years.”

12.3 As per Section 390 IPC, for ‘robbery’ there is either theft orextortion. When in the committing of the theft, or in committing the theft,or in carrying away or attempting to carry away property obtained bythe theft, the offender, voluntarily causes or attempts to cause to anyGperson death or hurt or wrongful restraint or fear of instant death or ofinstant hurt, or of instant wrongful restraint the theft can be said to be‘robbery’. In similar situation the ‘extortion’ can be said to havecommitted ‘robbery’. As per explanation to Section 390 IPC the offenderis said to be present if he is sufficiently near to put the other person infear of instant death, of instant hurt, or of instant wrongful restraint.

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Section 391 IPC defines ‘dacoity’. When five or more personsconjointly commit or attempt to commit a robbery, the accused then canbe said to have committed the ‘dacoity’.

As per Section 392 IPC whoever commits robbery shall bepunished with rigorous imprisonment for a term which may extend toten years and shall also be liable to fine. However, if the robbery iscommitted on the highway between sunset and sunrise, the imprisonmentmay be extended to fourteen years.

As per Section 393 IPC even an attempt to commit robbery ispunishable with rigorous imprisonment for a term which may extend toseven years with fine. As per Section 394 IPC if any person, in committingor in attempting to commit robbery, voluntarily causes hurt, such person,and any other person jointly concerned in committing or attempting tocommit such robbery, shall be punished with imprisonment for life orwith rigorous imprisonment for a term which may extend to ten yearsand shall also be liable to fine.

Section 395 IPC provides for punishment for ‘dacoity’. Whoevercommits dacoity shall be punished with imprisonment for life or withrigorous imprisonment for a term which may extend to ten years andshall also be liable to fine.

In case of dacoity with murder if any one of five or more persons,who are conjointly committing dacoity, commits murder in so committingdacoity, every one of those persons shall be punished with death, orimprisonment for life, or rigorous imprisonment for a term which mayextend to ten years with fine.

As per Section 397 IPC if at the time of committing robbery ordacoity, the offender uses any deadly weapon, or causes grievous hurtto any person, or attempts to cause death or grievous hurt to any person,the imprisonment with which such offender shall be punished shall notbe less than seven years.

Similarly, if, at the time of committing robbery or dacoity theoffender is armed with any deadly weapon, the imprisonment with whichsuch offender shall be punished shall not be less than seven years.

12.4 On conjoint reading of the aforesaid provisions, commissionof ‘robbery’ is sine qua non. The ‘dacoity’ can be said to be anexaggerated version of robbery. If five or more persons conjointly commitor attempt to commit robbery it can be said to be committing the ‘dacoity’.

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ATherefore, the only difference between the ‘robbery’ and the ‘dacoity’would be the number of persons involved in conjointly committing orattempt to commit a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’would be the same except that in the case of ‘dacoity’ the punishmentcan be with imprisonment for life. However, in the case of ‘dacoity withmurder’ the punishment can be with death also. However, in a caseBwhere the offender uses any deadly weapon or causes grievous hurt toany person, or attempts to cause death or grievous hurt to any personthe imprisonment with which such offender shall be punished shall notbe less than seven years. Learned Counsel appearing on behalf of theappellants have rightly submitted that to bring the case within SectionC397 IPC, the offender who uses any deadly weapon, or causes grievoushurt to any person shall be liable for minimum punishment under Section397 IPC.

Section 392 and Section 390 IPC are couched in different words.In Sections 390, 394, 397 and 398 IPC the word used is ‘offender’.DTherefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396,397, 398 IPC only the offender/person who committed robbery and/orvoluntarily causes hurt or attempt to commit such robbery and who usesany deadly weapon or causes grievous hurt to any person, or commits tocause death or grievous death any person at the time of committingrobbery or dacoity can be punished for the offences under Sections 390,E392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accusedcannot 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 withmurder’ is concerned an accused can be convicted on the basis ofFconstructive liability, however the only requirement would be theinvolvement of five or more persons conjointly committing or attemptingto commit a robbery – dacoity/dacoity with murder.

12.5 At this stage, the decision of this Court in Shri Phool Kumar(Supra) is required to be referred to. In the aforesaid decision this CourtGhas observed and considered Sections 397 and 398 IPC and oninterpretation of the aforesaid provisions, it is observed and held inparagraphs 5 to 7 as under:

“5. Section 392 of the Penal Code provides:

“Whoever commits robbery shall be punished with rigorousHimprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on thehighway between sunset and sunrise, the imprisonment may beextended 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 High Courtsas to the meaning of the word “uses” in Section 397. The term“offender” in that section, as rightly held by several High Courts,is confined to the offender who uses any deadly weapon. The useof a deadly weapon by one offender at the time of committingrobbery cannot attract Section 397 for the imposition of theminimum punishment on another offender who had not used anydeadly weapon. In that view of the matter use of the gun by oneof the culprits whether he was accused Ram Kumar or somebodyelse, (surely one was there who had fired three shots) could notbe and has not been the basis of sentencing the appellant with theaid of Section 397. So far as he is concerned he is said to bearmed with a knife which is also a deadly weapon. To be moreprecise from the evidence of PW 16 “Phool Kumar had a knife inhis hand”. He was therefore carrying a deadly weapon open tothe view of the victims sufficient to frighten or terrorize them.Any other overt act, such as, brandishing of the knife or causingof grievous hurt with it was not necessary to bring the offenderwithin the ambit of Section 397 of the Penal Code.

6. Section 398 uses the expression “armed with any deadlyweapon” and the minimum punishment provided therein is alsoseven years if at the time of attempting to commit robbery theoffender is armed with any deadly weapon. This has created ananomaly. It is unreasonable to think that if the offender who merelyattempted to commit robbery but did not succeed in committing itattracts the minimum punishment of seven years under Section398 if he is merely armed with any deadly weapon, while anoffender so armed will not incur the liability of the minimumpunishment under Section 397 if he succeeded in committing therobbery. But then, what was the purport behind the use of thedifferent words by the Legislature in the two sections viz. “uses”in Section 397 and “is armed” in Section 398. In our judgment the AB

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Aanomaly is resolved if the two terms are given the identicalmeaning. There seems to be a reasonable explanation for the useof the two different expressions in the sections. When the offenceof robbery is committed by an offender being armed with a deadlyweapon which was within the vision of the victim so as to becapable of creating a terror in his mind, the offender must beBdeemed to have used that deadly weapon in the commission ofthe robbery. On the other hand, if an offender was armed with adeadly weapon at the time of attempting to commit a robbery,then the weapon was not put to any fruitful use because it wouldhave been of use only when the offender succeeded in committingCthe robbery.

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7. If the deadly weapon is actually used by the offender in thecommission of the robbery such as in causing grievous hurt, deathor the like then it is clearly used. In the cases of ChandraNath v. Emperor [AIR 1932 Oudh 103]; Nagar Singh v.Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR1934 Lah 522] some overt act such as brandishing the weaponagainst another person in order to overawe him or displaying thedeadly weapon to frighten his victim have been held to attract theprovisions of Section 397 of the Penal Code. J.C. Shah and Vyas,JJ. of the Bombay High Court have said in the case of GovindDipaji More v. State [AIR 1956 Bom 353] that if the knife wasused for the purpose of producing such an impression upon themind of a person that he would be compelled to part with hisproperty, that would amount to ‘using’ the weapon within themeaning of Section 397.

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In that case also the evidence against the appellant was that hecarried a knife in his hand when he went to the shop of the victim.In our opinion this is the correct view of the law and the restrictedmeaning given to the word “uses” in the case of ChandSingh [ILR (1970) 2 Punj and Har 108] is not correct.”

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12.6. The aforesaid view has been subsequently reiterated by thisCourt in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21it is observed and held as under:

“19. The essential ingredients of Section 397 IPC are as follows:

1. The accused committed robbery.

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2. While committing robbery or dacoity (i) the accused used deadlyweapon (ii) to cause grievous hurt to any person (iii) attemptedto cause death or grievous hurt to any person.

3. “Offender” refers to only culprit who actually used deadlyweapon. When only one has used the deadly weapon, otherscannot be awarded the minimum punishment. It only envisagesthe individual liability and not any constructive liability. Section397 IPC is attracted only against the particular accused who usesthe deadly weapon or does any of the acts mentioned in theprovision. But the other accused are not vicariously liable underthat section for acts of the co-accused.

20. As noted by this Court in Phool Kumar v. Delhi Admn.[(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] theterm “offender” under Section 397 IPC is confined to the offenderwho uses any deadly weapon. Use of deadly weapon by oneoffender at the time of committing robbery cannot attract Section397 IPC for the imposition of minimum punishment on anotheroffender who had not used any deadly weapon. There is distinctionbetween “uses” as used in Sections 397 IPC and 398 IPC. Section397 IPC connotes something more than merely being armed withdeadly weapon.

21. In the instant case admittedly no injury has been inflicted.The use of weapon by offender for creating terror in mind ofvictim is sufficient. It need not be further shown to have beenactually used for cutting, stabbing or shooting, as the case maybe. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253].”

12.7. Thus, as per the law laid down by this Court in the aforesaidtwo decisions the term ‘offender’ under Section 397 IPC is confined tothe ‘offender’ who uses any deadly weapon and use of deadly weaponby one offender at the time of committing robbery cannot attract Section397 IPC for the imposition of minimum punishment on another offenderwho has not used any deadly weapon. Even there is distinction anddifference between Section 397 and Section 398 IPC. The word used inSection 397 IPC is ‘uses’ any deadly weapon and the word used inSection 398 IPC is ‘offender is armed with any deadly weapon’.Therefore, for the purpose of attracting Section 397 IPC the ‘offender’who ‘uses’ any deadly weapon Section 397 IPC shall be attracted.

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AIn light of the above observations and the law laid down by thisCourt in the aforesaid two decisions the case on behalf of the accused inthe present appeals is required to be considered. Even as per the case ofthe prosecution and even considering the evidence on record it can beseen that the present accused A1 and A3 are not alleged to have usedany weapon. The allegation of use of any weapon was against BennyBand Prabhakaran. Therefore, in absence of any allegations of use of anydeadly weapon by the appellants herein – Accused Nos.1 and 3 Section397 IPC shall not be attracted and to that extent the Learned Counselappearing on behalf of the appellants – accused are right in submittingthat they ought not to have been convicted for the offence punishableCunder Section 397 IPC.

13. However, the next question which is posed for the considerationof this Court is once it is held that the accused could not have beenconvicted for the offence under Section 397 IPC, still their convictionand sentence can be sustained under Section 391 IPC or not.D

14. Now so far as the submission on behalf of the accused thatthe appellants – accused cannot be convicted for the offence underSection 397 IPC and that the requirement to bring the case under Section391 IPC punishable under Section 395 IPC namely five persons or morepersons conjointly committing the robbery has not been established andEproved and only four persons came to be tried and the courts below didnot convict the accused for the offence under Section 391 punishableunder Section 395 IPC is concerned, at the outset, it is required to benoted that as such all the accused were charged by the Learned trialCourt for the offences under Section 395 IPC as well as 397 IPC. Withthe aforesaid offences parties went for trial. Therefore, once a caseFunder Section 391 IPC punishable under Section 395 IPC is made out,they can be convicted for the offence under Section 391 IPC punishableunder Section 395 IPC as no prejudice shall be caused to the accused.Even otherwise as held by this Court in the case of RameshbhaiMohanbhai Koli vs. State of Gujarat, (2011) 11 SCC 111, when aGcharge of a major offence is not made out, conviction for a minor offenceeven in the absence of the charge for the said minor offence can besustained. It is observed that if an accused is charged with a graveoffence but the same is not established on merit or for default of technicalnature, he can be convicted and punished for a minor offence withoutaltering of a charge. In paragraphs 31 and 43, it is observed and held asHunder:

“31. With the passage of time more and more such cases cameup for consideration of this Court as well as the High Courts. Thedevelopment of law has not changed the basic principles whichhave been stated in the judgments aforereferred. Usually anoffence of grave nature includes in itself the essentials of a lesserbut cognate offence. In other words, there are classes of offenceslike offences against the human body, offences against propertyand offences relating to cheating, misappropriation, forgery, etc.In the normal course of events, the question of grave and lessgrave offences would arise in relation to the offences falling inthe same class and normally may not be inter se the classes. It isexpected of the prosecution to collect all evidence in accordancewith law to ensure that the prosecution is able to establish thecharge with which the accused is charged, beyond reasonabledoubt. It is only in those cases, keeping in view the facts andcircumstances of a given case and if the court is of the view thatthe grave offence has not been established on merits or for adefault of technical nature, it may still proceed to punish theaccused for an offence of a less grave nature and content.

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43. Having stated the above, let us now examine what kind ofoffences may fall in the same category except to the extent of“grave or less grave”. We have already noticed that a personcharged with a heinous or grave offence can be punished for aless grave offence of cognate nature whose essentials are satisfiedwith the evidence on record. Examples of this kind have alreadybeen noticed by us like a charge being framed under Section 302IPC and the accused being punished under Section 304 Part I orII, as the circumstances and facts of the case may demand.Furthermore, a person who is charged with an offence underSection 326 IPC can be finally convicted for an offence of lessergravity under Section 325 or 323 IPC, if the facts of the case soestablish.”

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Adifference in number of accused. Therefore, also even in a case wherethe accused is not convicted for the offence under Section 397 IPC, stillhe can be punished under Section 395 IPC and no prejudice shall becaused to him as ultimately the prosecution has to prove the ‘robbery’and ‘dacoity’ either for the offence punishable under Section 395 IPC orunder Section 397 IPC. However, to bring the case against the accusedBunder Section 397 IPC, the prosecution has to prove one additional factthat the offender has used any deadly weapon or has caused grievoushurt to any person, or has attempted to cause death or grievous hurt toany person. Therefore, the case is made out under Section 391 IPCread with Section 395 IPC. Despite the fact that the courts belowCconvicted the accused under Section 397 IPC which is held to beunsustainable, in that case also if the case is made out under Section 391IPC read with Section 395 IPC, still they can be convicted for the offencepunishable under Section 391 read with Section 395 IPC even withouteven altering the charge. As observed hereinabove in the present case,the learned trial court framed the charge against the accused for theDoffence under Sections 395 and 397 IPC both.

16. Now so far as the submission on behalf of the appellants –accused that even no case is made out for the offence under Section391 IPC and they cannot be punished under Section 395 IPC as what isrequired to be proved is involvement of five or more persons conjointlyEin committing the robbery and in the present case only four persons aretried and the prosecution has failed to prove the involvement of five ormore persons. However, it is required to be noted that as such in the FIRthere was a reference to five persons involved in committing the robbery.Even the charge-sheet was filed against five persons. However, as twoFaccused absconded, the trial was split and three accused came to betried. One accused Benny came to be tried subsequently and one personis still absconding. Even there are concurrent findings recorded by allthe courts below that five persons were involved in committing the offenceof 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 theGoffence under Section 391 IPC punishable under Section 395 IPC is notmade out. What is required to be considered is the involvement andcommission of the offence of robbery by five persons or more and notwhether five or more persons were tried. Once it is found on evidencethat five or more persons conjointly committed the offence of robbery orHattempted to commit the robbery a case would fall under Section 391

IPC and would fall within the definition of ‘dacoity’. Therefore, in thefacts and circumstances, the accused can be convicted for the offenceunder Section 391 IPC punishable under Section 395 IPC.

17. Now so far as the submission on behalf of the accused that inthe subsequent trial one of the accused – Benny came to be acquittedand therefore the benefit of acquittal of Benny must be given to thepresent accused and thereafter they may be acquitted is concerned thesame has no substance. At the outset, it is required to be noted that theaccused are to be tried and convicted on the basis of evidence made inthe trial in which they are convicted. It is also required to be noted thatBenny came to be tried after a period of 15 years as his trial was split ashe absconded. From the judgment and order of acquittal passed in thecase of Benny, it appears that PW1 during the trial in case of Bennyturned hostile. In the case of Benny only five witnesses came to beexamined and for whatever reasons other witnesses have not beenexamined. In the present case PW1 not only supported the case ofprosecution but as many as 15 witnesses came to be examined. Therefore,merely because in the subsequent split trial the Benny came to beacquitted the benefit of such acquittal cannot be in favour of the presentappellants – accused as the prosecution has been successful in provingthe case against the present accused. At this stage, the decision of thisCourt in the case of Amrita vs. State of M.P., (2004) 12 SCC 224;Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381 and Rajavs. State, (2013) 12 SCC 674 are required to be referred to. In the caseof Amrita (Supra), it is observed and held that mere acquittal of some ofthe accused on the same evidence by itself does not lead to a conclusionthat all deserve to be acquitted in case appropriate reasons have beengiven on appreciation of evidence both in regard to acquittal and convictionof the accused. Similar view has been expressed in case of Raja (Supra)and Gangadhar (Supra). Therefore, on considering the facts narratedhereinabove which led to acquittal in case of Benny, the present accusedagainst whom the prosecution has been successful in proving the caseby leading the evidence, the appellants – accused are not to be acquitted.

18. In view of the above and for the reasons stated above, boththese appeals are partly allowed so far as quashed and set aside theconviction of the appellants – accused for the offence under Section397 IPC. The conviction of the accused for the offence punishable underSection 397 IPC is hereby set aside and the appellants – accused are AB

C

DE

F

G

H

Aconvicted for the offences under Section 391 IPC punishable underSection 395 IPC and sentenced to undergo seven years RI and a fine ofRs.2,000/- and in default to undergo further six months RI.

Present appeals are partly allowed to the aforesaid extent only.

B

Devika Gujral

Appeals partly allowed.

C

D

E

F

G

H