Now so far as the submission on behalf of the accused that in
the subsequent trial one of the accused – Benny came to be
acquitted and therefore the benefit of acquittal of Benny must be
given to the present accused and thereafter they may be acquitted is concerned the same has no substance. At the outset, it is required to be noted that the accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also required to be noted that Benny came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of Benny, it appears that PW1 during the trial in case of Benny turned hostile. In the case of Benny only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case PW1 not only supported the case of prosecution but as many as 15
witnesses came to be examined. Therefore, merely because in the
subsequent split trial the Benny came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants –
accused as the prosecution has been successful in proving the case against the present accused. At this stage, the decision of this Court 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
Raja vs. State, (2013) 12 SCC 674 are required to be referred to. In the case of Amrita (Supra), it is observed and held that mere
acquittal of some of the accused on the same evidence by itself does not lead to a conclusion that all deserve to be acquitted in case appropriate reasons have been given on appreciation of evidence both in regard to acquittal and conviction of the accused. Similar view has been expressed in case of Raja (Supra) and Gangadhar (Supra). Therefore, on considering the facts narrated hereinabove which led to acquittal in case of Benny, the present accused against whom the prosecution has been successful in proving the case by leading the evidence, the appellants – accused are not to be acquitted. {Para 17}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.903 OF 2021
GANESAN Vs STATE
Author: M. R. Shah, J.
Dated: October 29, 2021
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 16.07.2019 passed by the High Court of
Judicature at Madras in Criminal R.C. Nos. 405 and 429 of 2012 by
which the High Court has dismissed the said revision applications
and has confirmed the judgment and order passed by the Learned
trial Court confirmed by Learned First Appellate Tribunal – Learned
Sessions Court convicting the appellants herein – original accused
no.1 and accused no.4 for the offence under Section 397 IPC present
appeals are preferred.
2. Criminal Appeal No.903 of 2021 has been preferred by the
accused Ganesan as original accused – A1 and Criminal Appeal
No.904 of 2021 has been preferred by the accused Shanmugam @
Babu – A3. At this stage, it is required to be noted that initially the
charge-sheet was filed against five persons for the offences
punishable under Section 395 read with Section 397 of the Indian
Penal Code (hereinafter referred to as ‘IPC’) and Ganesan was
shown as A1, one Benny who at the relevant time was absconding
was shown as A2, one Prabhakaran was shown as A3, Shanmugam
@ Babu was shown as A4 and one Shajahan was shown as A5.
However, at the relevant time A2 - Benny and A5 - Shajahan
absconded, the trial was then separated and post-trial, Ganesan was
shown as A1, Prabhakaran was shown as A2 and Shanmugam was
shown as A3. Benny was subsequently arrested after a period of 15
years and therefore he was tried separately and vide judgment and
order dated 15.11.2018 he has been acquitted (acquittal of Benny
shall be dealt with hereinafter).
3. As per the case of the prosecution, with the intention of robbery
jointly by the accused – A1 to A5 at about 8:00 pm on 19.08.1996
proceeded in a car bearing No.T.N. 31 8686 from Cuddalore with
knife and iron pipe and reached Panruti. A1 – Ganesan stayed in the
car and sent 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 the bicycle near Vallalar Street, Panruti where they pushed
him and A3 Prabhakaran attacked with iron rod on the head and righthand
finger and injured him and one among accused 2 to 5 plucked
the bag hanging in 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, A2 (Benny) assaulted witness
Palanivel on the head and hand with the rod he was having and tried
to escape and accused 3, 4 and 5 escaped and ran away from the
place along with the above-mentioned bag. After conclusion of the
investigation, the investigating officer filed the charge-sheet against
five accused persons for the offences punishable under Section 395
read with Section 397 IPC. Even the charges were framed against
five accused persons. However, as A3 - Benny and A5 - Shajahan
absconded, 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 is reported that even Shajahan is still absconding.
That the accused denied the charges and therefore they were put to
trial by the Learned Magistrate. During the trial, to prove the case
against the accused, the prosecution examined as many as 15
witnesses. Prosecution examined Thiru Duraisamy as PW1,
complainant and the injured eye-witness Thiru Palanivel as PW2,
Thiru Aravind Kumar and Thiru Ashok Kumar as PW3 and PW4
respectively. Prosecution examined Thiru Shanmugam as 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
record the documentary evidences. On appreciation of entire
evidence on record, both, the oral as well as the documentary, the
Learned trial Court vide Judgment and Order dated 13.04.2010 in
S.C. No.363 of 2009 convicted the accused for the offence
punishable under Section 397 IPC and sentenced them to undergo 7
years RI each and in default to further undergo one year RI.
4. Feeling aggrieved and dissatisfied with the judgment and order
of conviction passed by the Learned trial Court convicting the
accused for the offence punishable under Section 397 IPC and
imposing the sentence of 7 years RI, accused Ganesan and
Shanmugam – A1 and A3 respectively (preferred appeal bearing
Criminal Appeal No.48 of 2010 before the Learned Sessions Court).
That by judgment and order dated 03.01.2012, the Learned Sessions
Court dismissed the said appeal and confirmed the judgment and
order of conviction passed by the Learned Trial Court. The High
Court by the impugned Judgment and order has confirmed the
conviction under Section 397 IPC.
5. Feeling aggrieved and dissatisfied with the judgment and order
passed by the High Court in dismissing the Revision Applications and
confirming the conviction under Section 397 IPC, A1 Ganesan has
preferred Criminal Appeal No.903 of 2021 and A3 Shanmugam has
preferred Criminal Appeal No.904 of 2021. As observed hereinabove
subsequently after a period of 15 years from the occurrence of the
offence original accused no.2 – Benny was apprehended and he
came to be tried separately. In Sessions Case No.12 of 2018 and by
its judgment and order dated 15.11.2018 he has been acquitted.
Acquittal of accused Benny shall be discussed and considered
hereinbelow.
6. Submissions on behalf of the Accused – Ganesan in
Criminal Appeal No.903 of 2021
Learned Counsel appearing on behalf of accused - Ganesan
has made the following submissions:
(1) That the FIR is clouded with suspicion. It is submitted
that PW1 Duraisamy deposed that the incident took place
on 19.08.1996 at about 11:00 PM and he was attacked by
the accused persons and immediately he become
unconscious and then he was admitted in Government
Hospital and he gained conscious after one week.
Contrary to the same PW13 - I.O. deposed that he
reached the Government Hospital in the early morning at
2.30 AM on 20.08.1996 and recorded the statement of
PW1 - Duraisamy and he reached police station at 3.00
AM and on the basis of the statement he registered Crime
No.678 of 1996 under Section 394 IPC. It is submitted
that even PW13 in his cross-examination admitted that in
the complaint Ex.P1 neither complainant’s signature nor
the thumb affixation were found. It is submitted that
therefore complaint Ex.P1 could not have come into
existence as claimed by the prosecution and
consequently the FIR registered by the IO is legally
inadmissible;
(2) The identification of accused persons has not been
established inasmuch as no Test Identification Parade
(TIP) proceedings was conducted. It is submitted that in
the present case no TIP was conducted by the police. It
is submitted that even before the Learned trial Court, the
prosecution witnesses very categorically stated that they
could not identify the accused persons due to the reason
that; (i) PW1 become unconscious after the incident; (ii)
PW2 deposed “whether I knew the accused, I did not
remember as long time have passed”; (iii) PW3 deposed
“Since 14 years have passed, I could not keep memory
and to tell who is that person among the persons now
before this Court.” It is submitted that even PW3 deposed
that “at the time of incident, the place of occurrence was
dark and rainy”; (iv) PW4 also deposed that “because 14
years have passed, they could not be able to tell
correctly”.
6.1 It is submitted that even in the accident register as well PW10 –
Doctor recorded that he was informed that the complainant was
attacked by three unknown persons. It is submitted therefore that it
creates serious doubt about the number of persons involved whether
3 or 5; Accused Ganesan did not participate in the crime as he was in
the car and therefore Section 397 IPC shall not be attracted. It is
submitted that even as per the case of the prosecution, the accused
Ganesan was in the car and he did not come to the place of
occurrence and therefore he cannot be convicted for the offence
punishable under Section 397 IPC; it is submitted that it is a settled
law that the term ‘offender’ is confined to the ‘offender’ who uses any
deadly weapon. It is submitted that use of deadly weapon at the time
of committing robbery cannot attract Section 397 IPC for the
imposition of the minimum punishment on another offender who had
not used any deadly weapon. Heavy reliance is placed on the
decisions of this Court in Shri Phool Kumar vs. Delhi
Administration, (1975) 1 SCC 797 (para 5 & 6) and Dilawar Singh
vs. State of Delhi, (2007) 12 SCC 641 (para 19 to 22). It is further
submitted by Learned Counsel appearing on behalf of the accused -
Ganesan that as such original accused Benny has been acquitted by
the Court vide judgment dated 15.11.2018. It is submitted that it is a
settled law that if the allegations made against the accused and the
other accused persons are one and the same then they are indivisible
and inseparable in nature, the benefit of acquittal of a co-accused
should be extended to the other accused persons as well. It is
submitted that as per the prosecution case A1 to A5 were involved in
the case. It is submitted that even the PWs could not identify and
point out who beat PW1 and PW2.
6.2. It is further submitted that even otherwise the injury caused to
PW1 and PW2 are simple in nature. It is submitted that as per the
medical records, the injuries caused to PW1 and PW2 are simple
injuries which is evident from the testimony of PW10 – Doctor R.
Elangoven. It is submitted that there is no possibility of any
‘dangerous weapon’ being recovered in the present case and
therefore, Section 397 IPC cannot be pressed into service.
6.3 It is further submitted that according to the prosecution the
number of accused persons involved in the present case was five
persons. It is submitted that all the prosecution witnesses stated that
number of accused persons involved was not more than 3 accused
persons. It is submitted that only in a case where five or more than
five persons commit or attempt to commit a robbery it would be
dacoity. It is submitted that it is more of an aggravated form of
robbery and generally the robber is armed with deadly weapons. It is
submitted that even in the present case, even the prosecution is not
sure about the number of accused persons involved in the present
case, therefore the Learned trial Court framed charge under Section
397 IPC alone despite charge-sheet filed under Sections 395 and 397
IPC.
6.4 It is further submitted that even PW2 to PW4 are not reliable
and trustworthy eye-witnesses. It is submitted that looking to the
distance between the house and the place of occurrence, it is not
possible to hear the cry of PW1 and that they reached the place of
occurrence only after the offence of robbery was committed by the
accused.
6.5 It is further submitted that there is an inordinate delay even in
filing the charge-sheet and conducting trial. It is submitted that in the
present case the charge-sheet was filed after 13 years and such a
delay has not been explained by the prosecution. It is further
submitted that even otherwise the accused involved were less than 5
persons and even Benny came to be acquitted by the Learned trial
Court and therefore the accused herein also cannot be convicted for
the offence punishable under Section 397 IPC. Reliance is placed on
the decisions of this Court in Raj Kumar Alias Raju vs. State of
Uttaranchal, (2008) 11 SCC 397 and Balbir vs. State of Uttar
Pradesh, 2020 SCC Online All 845. It is submitted that considering
the totality of the circumstances of the case, the accused is entitled to
the benefit of doubt.
Making the above submissions, it is prayed to allow the appeal
preferred by accused - Ganesan and to acquit him for the offence
punishable under Section 397 IPC for which he has been convicted.
7. Submissions on behalf of the accused Shanmugam @
Babu in Criminal Appeal No.904 of 2021
In addition to submissions by Learned Counsel appearing on
behalf of accused - Ganesan, it is submitted by Learned Counsel
appearing on behalf of accused - Shanmugam that in the present
case there is no substantive charge or conviction for robbery. It is
submitted that conviction of an accused can only be on substantive
charge and not otherwise, in the absence of any evidence to the
same. It is submitted that in the present 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 caused any grievous injury. The
accused cannot be convicted on the basis of constructive liability for
the offence punishable under Section 397 IPC. Reliance is placed on
the decision of this Court in the case of Mohan Singh vs State of
Punjab, AIR 1963 SC 174.
7.1 It is further submitted that in absence of any charge for robbery
under 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 is further submitted that dacoity is nothing but an exaggerated
version of robbery with a difference in number of accused (five or
more) which is a sine qua non to proof of dacoity. Reliance is placed
on the decisions of this Court in the case of Ram Bilas Singh & Ors.
Vs. The State of Bihar, (1964) 1 SCR 775; Raj Kumar @ Raju
(Supra) and Manmeet Singh @ Goldie vs. State of Punjab, (2015)
7 SCC 167. It is further submitted that even otherwise in the case of
accused – Shanmugam, he has been convicted relying upon the
confessional statement of co-accused which is inadmissible in the
evidence. It is submitted that confessional statement of A1 -
Ganesan and A2 - Benny which are before the Police Officer are
inadmissible in evidence. It is further submitted that there is no other
evidence against the accused - Shanmugam except the so-called
confessional statements of A1 - Ganesan and A2 - Benny. Making
the above submissions it is prayed to allow the present appeal and
acquit the accused - Shanmugam for the offence punishable under
Section 397 IPC for which he has been convicted.
8. Dr. Joseph Aristotle S., Learned Counsel appearing on behalf of
the State of Tamil Nadu has vehemently submitted that in the facts
and circumstances of the case as such the courts below have not
committed any error in convicting Ganesan – A1 and Shanmugam @
Babu – A3.
8.1 It is submitted that in the present case the presence of the
accused at the time of the commission of the offence has been
established and proved by the prosecution while leading evidence
both documentary and oral.
8.2 It is submitted that as such there are concurrent findings
recorded by the courts below namely the Learned trial Court, the First
Appellate Court and thereafter by the High Court and therefore the
interference in exercise of the powers under Article 136 of the
Constitution is not warranted. It is submitted that therefore, the High
Court’s order passed in exercise of its revisional jurisdiction does not
call for any interference under Article 136 of the Constitution.
8.3 It is further submitted that the Learned trial Court, First
Appellate Court and the Revisional Court as such have rightly
appreciated the evidence of PW1 (complainant), PW2 (injured
witness), PW10 (Doctor who treated PW1 and PW2) and PW13 (SI
who registered the FIR).
8.4 It is submitted that injured eye-witnesses PW1 and PW2 were
brought to the hospital by PW3 (eye-witness) at about 11.55 PM on
19.08.1996. PW10 treated PW1 and PW2 and made entries in the
accident register. That on receiving information from the Government
Hospital, PW13 went to hospital and recorded the statement of PW1
at 2.30 AM and came to the police to register the FIR at 3.00 AM
which was marked as Ex.P1. It is submitted that as PW1’s fingers of
both hands had serious injuries which is corroborated by medical
evidence, he was only able to affix the thumb impression on the
complaint. It is submitted that discrepancy in PW1’s testimony
regarding him becoming unconscious immediately after he was
injured may not be used against him as the said statement was made
after a lapse of 14 years from the date of occurrence. It is submitted
that as such on the careful reading of the evidence of PW1 it can be
understood to mean PW1 went unconscious only after giving a
complaint to PW13. It is submitted that as rightly appreciated by
both, the trial Court and the Appellate Court, the testimonies of PW10
and PW13 are corroborated and correspond to the testimony of the
prosecution witnesses. It is submitted that the ocular and the medical
evidence in this case are corroborated and do not call for any
adverse interference.
8.5 It is submitted that in the present case, failure to perform Test
Identification Parade (TIP) is not fatal to prosecution’s case because
there is other overwhelming evidence including witness accounts of
injured PW1 and PW2 pointing to the guilt of the accused. It is
submitted that it is well-settled law that TIP is not a substantive piece
of evidence and may only be relied upon when the substantial
evidence is uncorroborated. Identification tests are primarily meant
for the purpose of helping the investigating agency with an assurance
that their progress with the investigation into the offence is
proceeding on the right lines. It is submitted that as such there is no
provision in the Code of Criminal Procedure which obliges the
investigating agency to hold or confers a right upon the accused to
claim a TIP. Reliance is placed on the decision of 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 prosecution
has clearly established the presence of five accused. It is submitted
that even the charge-sheet was filed against the five accused
persons, however two accused absconded and therefore, the trial
proceeded against three accused. It is submitted that otherwise there
is ample evidence to show the involvement of five accused persons
and therefore Section 395 IPC will be attracted.
8.7 It is further submitted that in the present case the presence of
A1 - Ganesan has been established by the prosecution by examining
PW6, PW11 and PW14. It is submitted that vide Ex.P10, A1 was
arrested on 21.08.1996.
8.8 It is further submitted that even the presence of five persons
involved in commission of the offence has been established and
proved and Section 395 IPC shall be attracted.
8.9 It is submitted that although PW11 turned hostile, it is a settled
principle in law that evidence of hostile witness can be relied upon to
the extent it supported the case of the prosecution. Reliance is
placed on the judgment of this Court in Sathya Narayanan vs. State
rep. by Inspector of Police, (2012) 12 SCC 627. It is submitted that
during the confession of A2 before the Investigating Officer about the
joint attack and stealing of the jewels and cash in which he stated that
he – A2 Ganesan, Shajahan, Shanmugam and another person were
there. It is submitted that based on the aforesaid confession and
recovery of an iron rod and the information obtained in the confession
of A2, there were recoveries and arrest of the other accused. In
support of the submission that the confessional 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 the
accused in the court and at the same time some of the other accused
have been arrested by the information obtained from confession
statements. It is submitted that even otherwise, non-identification of
all the accused by the witnesses would not vitiate the case of
prosecution especially in cases of robbery and dacoity. It is further
submitted by learned counsel for the State that as per the settled
proposition of law the person charged with a heinous or grave offence
can be punished for a less grave offence of cognate nature. Reliance
is placed on Rafiq Ahmad 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 charge
was rightly framed for the offences under Section 395 read with
Section 397 IPC and the ingredients for the offences have been
proved by the prosecution 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
present appeals.
10. Heard the Learned Counsels for the respective parties at
length.
11. Present appeals have been preferred by the Original Accused
No.1 - Ganesan and Accused No.3 - Shanmugam @ Babu
challenging their conviction for the offence under Section 397 IPC. At
the outset, it is required to be noted that as such there are concurrent
findings recorded by the Learned trial Court, Learned Sessions Court
and the High Court on presence of the accused at the time of
commission of the offence and their active involvement. Their
presence at the time of commission of the offence has been
established and proved by the prosecution by examining the relevant
witnesses during the course of trial.
11.1 PW1 – Duraisamy, PW2 – Palanivel and PW3 – Aravind Kumar
are three eye-witnesses, out of which PW1 and PW2 are the injured
eye-witnesses. We have gone through in detail the deposition of
relevant witnesses more particularly PW1, PW2 and PW3 and even
PW11 (who turned hostile) and the medical evidence and some of the
accused identified in the Court, we are of the opinion that the
presence and 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 material contradictions which affect the case of the
prosecution
as a whole. It is to be noted that the witnesses were examined after
almost 14 years have passed and therefore there may be some
contradictions. As per the settled proposition of law only those
contradictions which are material contradictions may create the doubt
and benefit of such material contradictions can be given to the
accused.
12. In light of the above findings and observations now we may
consider the other submissions on merits.
12.1 It is the case on behalf of the accused that their conviction for
the offence under Section 397 IPC is unsustainable. It is also the
case on behalf of the accused that even for the offence under Section
391 IPC punishable under Section 395 IPC involvement of five or
more persons in commission of robbery is sine qua non. It is the
case on behalf of the accused that in the present case only three
accused were tried and subsequently one another accused Benny
came to be tried and therefore the condition precedent for bringing
the case under Section 391 IPC (Dacoity) has not been satisfied as
the involvement of five or more persons in commission of the offence
has not been established and proved and only four accused were
tried. It is also the case on behalf of the accused that the courts
below have materially erred in convicting the accused for the offence
punishable under Section 397 IPC even as per the case of the
prosecution the present appellants Accused Nos.1 and 3 did not use
any deadly weapon. Relying upon the decision of this Court in the
case of Shri Phool Kumar (Supra) and Dilawar Singh (Supra), it is
submitted that the accused who has not used any deadly weapon at
the time of committing robbery cannot be convicted under Section
397 IPC for the imposition of the minimum punishment and the term
‘offender’ is confined to the offender who uses any deadly weapon to
attract Section 397 IPC for the imposition of the minimum
punishment. It is also the case on behalf of the accused that one
another accused Benny came to be acquitted subsequently and
therefore the benefit of acquittal of Benny should go to the present
appellants – accused.
12.2 To appreciate the aforesaid submissions the relevant provisions
with respect to ‘robbery’ and ‘dacoity’ are required to be referred to.
The relevant provisions would be Section 390 IPC to Section 398 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
the committing of the theft, or in committing the theft, or in
carrying away or attempting to carry away property
obtained by the theft, the offender, for that end voluntarily
causes or attempts to cause to any person death or hurt
or wrongful restraint, or fear of instant death or of instant
hurt, or of instant wrongful restraint.
When extortion is robbery.—Extortion is “robbery” if the
offender, at the time of committing the extortion, is in the
presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, of
instant hurt, or of instant wrongful restraint to that person
or to some other person, and, by so putting in fear,
induces the person so put in fear then and there to deliver
up the thing extorted.
Explanation.—The offender is said to be present if he is
sufficiently near to put the other person in fear of instant
death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.—When five or more persons conjointly
commit or attempt to commit a robbery, or where the
whole number of persons conjointly committing or
attempting to commit a robbery, and persons present
1.Subs. by Act 26 of 1955, s. 117 and the Sch., for
“transportation for life” (w.e.f. 1-1-1956). 99 and aiding
such commission or attempt, amount to five or more,
every person so committing, attempting or aiding, is said
to commit “dacoity”.
392. Punishment for robbery.—Whoever commits
robbery shall be punished with rigorous imprisonment for
a term which may extend to ten years, and shall also be
liable to fine; and, if the robbery be committed on the
highway between sunset and sunrise, the imprisonment
may be extended to fourteen years.
393. Attempt to commit robbery.—Whoever attempts to
commit robbery shall be punished with rigorous
imprisonment for a term which may extend to seven
years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.—
If any person, in committing or in attempting to commit
robbery, voluntarily causes hurt, such person, and any
other person jointly concerned in committing or attempting
to commit such robbery, shall be punished with 1
[imprisonment for life], or with rigorous imprisonment for a
term which may extend to ten years, and shall also be
liable to fine.
395. Punishment for dacoity.—Whoever commits
dacoity shall be punished with 1 [imprisonment for life], or
with rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to fine.
396. Dacoity with murder.—If any one of five or more
persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those
persons shall be punished with death, or 1 [imprisonment
for life], or rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or
grievous hurt.—If, at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes
grievous hurt to any person, or attempts to cause death or
grievous hurt to any person, the imprisonment with which
such offender shall be punished shall not be less than
seven years.
398. Attempt to commit robbery or dacoity when
armed with deadly weapon.—If, at the time of
attempting to commit robbery or dacoity, the offender is
armed with any deadly weapon, the imprisonment with
which such offender shall be punished shall not be less
than seven years.”
12.3 As per Section 390 IPC, for ‘robbery’ there is either theft or
extortion. When in the committing of the theft, or in committing the
theft, or in carrying away or attempting to carry away property
obtained by the theft, the offender, voluntarily causes or attempts to
cause to any person death or hurt or wrongful restraint or fear of
instant death or of instant hurt, or of instant wrongful restraint the theft
can be said to be ‘robbery’. In similar situation the ‘extortion’ can be
said to have committed ‘robbery’. As pe
r explanation to Section 390 IPC the offender is said to be present if
he is sufficiently near to put the other person in fear of instant death,
of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines ‘dacoity’. When five or more persons
conjointly commit or attempt to commit a robbery, the accused then
can be said to have committed the ‘dacoity’.
As per Section 392 IPC whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to
ten years and shall also be liable to fine. However, if the robbery is
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
As per Section 393 IPC even an attempt to commit robbery is
punishable with rigorous imprisonment for a term which may extend
to seven years with fine. As per Section 394 IPC if any person, in
committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be punished
with imprisonment for life or with rigorous imprisonment for a term
which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for ‘dacoity’.
Whoever commits dacoity shall be punished with imprisonment for life
or with rigorous imprisonment for a term which may extend to ten
years and shall also be liable to fine.
In case of dacoity with murder if any one of five or more
persons, who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished
with death, or imprisonment for life, or rigorous imprisonment for a
term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous
hurt to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished
shall not be less than seven years.
Similarly, if, at the time of committing robbery or dacoity the
offender is armed with any deadly weapon, the imprisonment with
which such offender shall be punished shall not be less than seven
years.
12.4 On conjoint reading of the aforesaid provisions, commission of
‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an
exaggerated version of robbery. If five or more persons conjointly
commit or attempt to commit robbery it can be said to be committing
the ‘dacoity’. Therefore, the only difference between the ‘robbery’
and the ‘dacoity’ would be the number of persons involved in
conjointly committing or attempt to commit a ‘robbery’. The
punishment for ‘dacoity’ and ‘robbery’ would be the same except that
in the case of ‘dacoity’ the punishment can be with imprisonment for
life. However, in the case of ‘dacoity with murder’ the punishment
can be with death also. However, in a case where the offender uses
any deadly weapon or causes grievous hurt to any person, or
attempts to cause death or grievous hurt to any person the
imprisonment with which such offender shall be punished shall not be
less than seven years. Learned Counsel appearing on behalf of the
appellants have rightly submitted that to bring the case within Section
397 IPC, the offender who uses any deadly weapon, or causes
grievous hurt to any person shall be liable for minimum punishment
under Section 397 IPC.
Section 392 and Section 390 IPC are couched in different
words. In Sections 390, 394, 397 and 398 IPC the word used is
‘offender’. Therefore, for the purpose of Sections 390, 391, 392, 393,
394, 395, 396, 397, 398 IPC only the offender/person who committed
robbery and/or voluntarily causes hurt or attempt to commit such
robbery and who uses any deadly weapon or causes grievous hurt to
any person, or commits to cause death or grievous death any person
at the time of committing robbery or dacoity can be punished for the
offences under Sections 390, 392, 393, 394, 395 and 397 and 398
IPC. For the aforesaid the accused cannot be convicted on the basis
of constructive liability and only the ‘offender’ who ‘uses any deadly
weapon….’ can be punished. However, so far as Section 391 IPC
‘dacoity’ and Section 396 IPC – ‘dacoity with murder’ is concerned an
accused can be convicted on the basis of constructive liability,
however the only requirement would be the involvement of five or
more persons conjointly committing or attempting to commit a
robbery – dacoity/dacoity with murder.
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
Court has observed and considered Sections 397 and 398 IPC and
on interpretation of the aforesaid provisions, it is observed and held in
paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code provides:
“Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine; and, if the
robbery be committed on the highway between sunset
and sunrise, the imprisonment may be extended to
fourteen years.”
The sentence of imprisonment to be awarded under
Section 392 cannot be less than seven years if at the
time of committing robbery the offender uses any deadly
weapon or causes grievous hurt to any person or
attempts to cause death or grievous hurt to any
person: vide Section 397. A difficulty arose in several
High Courts as 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 use of a
deadly weapon by one offender at the time of committing
robbery cannot attract Section 397 for the imposition of
the minimum punishment on another offender who had
not used any deadly weapon. In that view of the matter
use of the gun by one of the culprits whether he was
accused Ram Kumar or somebody else, (surely one was
there who had fired three shots) could not be and has
not been the basis of sentencing the appellant with the
aid of Section 397. So far as he is concerned he is said
to be armed with a knife which is also a deadly weapon.
To be more precise from the evidence of PW 16 “Phool
Kumar had a knife in his hand”. He was therefore
carrying a deadly weapon open to the view of the victims
sufficient to frighten or terrorize them. Any other overt
act, such as, brandishing of the knife or causing of
grievous hurt with it was not necessary to bring the
offender within the ambit of Section 397 of the Penal
Code.
6. Section 398 uses the expression “armed with any
deadly weapon” and the minimum punishment provided
therein is also seven years if at the time of attempting to
commit robbery the offender is armed with any deadly
weapon. This has created an anomaly. It is unreasonable
to think that if the offender who merely attempted to
commit robbery but did not succeed in committing it
attracts the minimum punishment of seven years under
Section 398 if he is merely armed with any deadly
weapon, while an offender so armed will not incur the
liability of the minimum punishment under Section 397 if
he succeeded in committing the robbery. But then, what
was the purport behind the use of the different words by
the Legislature in the two sections viz. “uses” in Section
397 and “is armed” in Section 398. In our judgment the
anomaly is resolved if the two terms are given the
identical meaning. There seems to be a reasonable
explanation for the use of the two different expressions in
the sections. When the offence of robbery is committed
by an offender being armed with a deadly weapon which
was within the vision of the victim so as to be capable of
creating a terror in his mind, the offender must be
deemed to have used that deadly weapon in the
commission of the robbery. On the other hand, if an
offender was armed with a deadly weapon at the time of
attempting to commit a robbery, then the weapon was
not put to any fruitful use because it would have been of
use only when the offender succeeded in committing the
robbery.
7. If the deadly weapon is actually used by the
offender in the commission of the robbery such as in
causing grievous hurt, death or the like then it is clearly
used. In the cases of Chandra Nath v. Emperor [AIR
1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah
35] and Inder Singh v. Emperor [AIR 1934 Lah 522]
some overt act such as brandishing the weapon against
another person in order to overawe him or displaying the
deadly weapon to frighten his victim have been held to
attract the provisions of Section 397 of the Penal Code.
J.C. Shah and Vyas, JJ. of the Bombay High Court have
said in the case of Govind Dipaji More v. State [AIR 1956
Bom 353] that if the knife was used for the purpose of
producing such an impression upon the mind of a person
that he would be compelled to part with his property, that
would amount to ‘using’ the weapon within the meaning
of Section 397.
In that case also the evidence against the appellant was
that he carried 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 restricted meaning given to the word
“uses” in the case of Chand Singh [ILR (1970) 2 Punj
and Har 108] is not correct.”
12.6. The aforesaid view has been subsequently reiterated by this
Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to
21 it is observed and held as under:
“19. The essential ingredients of Section 397 IPC are
as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity (i) the accused
used deadly weapon (ii) to cause grievous hurt to any
person (iii) attempted to cause death or grievous hurt to
any person.
3. “Offender” refers to only culprit who actually used
deadly weapon. When only one has used the deadly
weapon, others cannot be awarded the minimum
punishment. It only envisages the individual liability and
not any constructive liability. Section 397 IPC is attracted
only against the particular accused who uses the deadly
weapon or does any of the acts mentioned in the
provision. But the other accused are not vicariously liable
under that 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] the term “offender” under Section 397 IPC is
confined to the offender who uses any deadly weapon.
Use of deadly weapon by one offender at the time of
committing robbery cannot attract Section 397 IPC for the
imposition of minimum punishment on another offender
who had not used any deadly weapon. There is distinction
between “uses” as used in Sections 397 IPC and 398 IPC.
Section 397 IPC connotes something more than merely
being armed with deadly weapon.
21. In the instant case admittedly no injury has been
inflicted. The use of weapon by offender for creating terror
in mind of victim is sufficient. It need not be further shown
to have been actually used for cutting, stabbing or
shooting, as the case may be. [See Ashfaq v. State (Govt.
of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253].”
12.7. Thus, as per the law laid down by this Court in the aforesaid
two decisions the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and use of deadly
weapon by one offender at the time of committing robbery cannot
attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there
is distinction and difference between Section 397 and Section 398
IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon
and the word used in Section 398 IPC is ‘offender is armed with any
deadly weapon’. Therefore, for 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 this
Court in the aforesaid two decisions the case on behalf of the
accused in the present appeals is required to be considered. Even
as per the case of the prosecution and even considering the evidence
on record it can be seen that the present accused A1 and A3 are not
alleged to have used any weapon. The allegation of use of any
weapon was against Benny and Prabhakaran. Therefore, in absence
of any allegations of use of any deadly weapon by the appellants
herein – Accused Nos.1 and 3 Section 397 IPC shall not be attracted
and to that extent the Learned Counsel appearing on behalf of the
appellants – accused are right in submitting that they ought not to
have been convicted for the offence punishable under Section 397
IPC.
13. However, the next question which is posed for the consideration
of this Court is once it is held that the accused could not have been
convicted for the offence under Section 397 IPC, still their conviction
and sentence can be sustained under Section 391 IPC or not.
14. Now so far as the submission on behalf of the accused that the
appellants – accused cannot be convicted for the offence under
Section 397 IPC and that the requirement to bring the case under
Section 391 IPC punishable under Section 395 IPC namely five
persons or more persons conjointly committing the robbery has not
been established and proved and only four persons came to be tried
and the courts below did not convict the accused for the offence
under Section 391 punishable under Section 395 IPC is concerned,
at the outset, it is required to be noted that as such all the accused
were charged by the Learned trial Court for the offences under
Section 395 IPC as well as 397 IPC. With the aforesaid offences
parties went for trial. Therefore, once a case under Section 391 IPC
punishable under Section 395 IPC is made out, they can be convicted
for the offence under Section 391 IPC punishable under Section 395
IPC as no prejudice shall be caused to the accused. Even otherwise
as held by this Court in the case of Rameshbhai Mohanbhai Koli
vs. State of Gujarat, (2011) 11 SCC 111, when a charge of a major offence is not made out, conviction for a minor offence even in the absence of the charge for the said minor offence can be sustained. It is observed that if an accused is charged with a grave offence but the same is not established on merit or for default of technical nature, he can be convicted and punished for a minor offence without altering of a charge. In paragraphs 31 and 43, it is observed and held as under:
“31. With the passage of time more and more such cases
came up for consideration of this Court as well as the High
Courts. The development of law has not changed the basic
principles which have been stated in the judgments
aforereferred. Usually an offence of grave nature includes in
itself the essentials of a lesser but cognate offence. In other
words, there are classes of offences like offences against the
human body, offences against property and offences relating
to cheating, misappropriation, forgery, etc. In the normal
course of events, the question of grave and less grave
offences would arise in relation to the offences falling in the
same class and normally may not be inter se the classes. It is
expected of the prosecution to collect all evidence in
accordance with law to ensure that the prosecution is able to
establish the charge with which the accused is charged,
beyond reasonable doubt. It is only in those cases, keeping in
view the facts and circumstances of a given case and if the
court is of the view that the grave offence has not been
established on merits or for a default of technical nature, it
may still proceed to punish the accused for an offence of a
less grave nature and content.
*** *** ***
43. Having stated the above, let us now examine what
kind of offences may fall in the same category except to the
extent of “grave or less grave”. We have already noticed that
a person charged with a heinous or grave offence can be
punished for a less grave offence of cognate nature whose
essentials are satisfied with the evidence on record.
Examples of this kind have already been noticed by us like a
charge being framed under Section 302 IPC and the accused
being punished under Section 304 Part I or II, as the
circumstances and facts of the case may demand.
Furthermore, a person who is charged with an offence under
Section 326 IPC can be finally convicted for an offence of
lesser gravity under Section 325 or 323 IPC, if the facts of the
case so establish.”
15 Even otherwise there is no difference between Section 391/395
and Section 397 IPC so far as sentence/punishment except the
difference in case of Section 397 IPC the punishment shall not be
less than seven years. Otherwise, the ‘robbery’ and ‘dacoity’ are sine
qua non. ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’
with a difference in number of accused. Therefore, also even in a
case where the accused is not convicted for the offence under
Section 397 IPC, still he can be punished under Section 395 IPC and
no prejudice shall be caused to him as ultimately the prosecution has
to prove the ‘robbery’ and ‘dacoity’ either for the offence punishable
under Section 395 IPC or under Section 397 IPC. However, to bring
the case against the accused under Section 397 IPC, the prosecution
has to prove one additional fact that the offender has used any
deadly weapon or has caused grievous hurt to any person, or has
attempted to cause death or grievous hurt to any person. Therefore,
the case is made out under Section 391 IPC read with Section 395
IPC. Despite the fact that the courts below convicted the accused
under Section 397 IPC which is held to be unsustainable, in that case
also if the case is made out under Section 391 IPC read with Section
395 IPC, still they can be convicted for the offence punishable under
Section 391 read with Section 395 IPC even without even altering the charge. As observed hereinabove in the present case, the learned
trial court framed the charge against the accused for the offence
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 Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny
came to be tried subsequently and one person is still absconding.
Even there are concurrent findings recorded by all the courts below
that five persons were involved in committing the offence of robbery.
Merely because some of the accused absconded and less than five
persons came to be tried in the trial, it cannot be said that the offence
under Section 391 IPC punishable under Section 395 IPC is not
made out. What is required to be considered is the involvement and
commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on
evidence that five or more persons conjointly committed the offence
of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’. Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under
Section 395 IPC.
17. Now so far as the submission on behalf of the accused that in
the subsequent trial one of the accused – Benny came to be
acquitted and therefore the benefit of acquittal of Benny must be
given to the present accused and thereafter they may be acquitted is
concerned the same has no substance. At the outset, it is required to
be noted that the accused are to be tried and convicted on the basis
of evidence made in the trial in which they are convicted. It is also
required to be noted that Benny came to be tried after a period of 15
years as his trial was split as he absconded. From the judgment and
order of acquittal passed in the case of Benny, it appears that PW1
during the trial in case of Benny turned hostile. In the case of Benny
only five witnesses came to be examined and for whatever reasons
other witnesses have not been examined. In the present case PW1
not only supported the case of prosecution but as many as 15
witnesses came to be examined. Therefore, merely because in the
subsequent split trial the Benny came to be acquitted the benefit of
such acquittal cannot be in favour of the present appellants –
accused as the prosecution has been successful in proving the case
against the present accused. At this stage, the decision of this Court
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
Raja vs. State, (2013) 12 SCC 674 are required to be referred to. In
the case of Amrita (Supra), it is observed and held that mere
acquittal of some of the accused on the same evidence by itself does
not lead to a conclusion that all deserve to be acquitted in case
appropriate reasons have been given on appreciation of evidence
both in regard to acquittal and conviction of the accused. Similar
view has been expressed in case of Raja (Supra) and Gangadhar
(Supra). Therefore, on considering the facts narrated hereinabove
which led to acquittal in case of Benny, the present accused against
whom the prosecution has been successful in proving the case by
leading the evidence, the appellants – accused are not to be
acquitted.
18. In view of the above and for the reasons stated above, both
these appeals are partly allowed so far as quashed and set aside the
conviction of the appellants – accused for the offence under Section
397 IPC. The conviction of the accused for the offence punishable
under Section 397 IPC is hereby set aside and the appellants –
accused are convicted for the offences under Section 391 IPC
punishable under Section 395 IPC and sentenced to undergo seven
years RI and a fine of Rs.2,000/- and in default to undergo further six
months RI.
Present appeals are partly allowed to the aforesaid extent only.
……………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
..………………………………….J.
[M. R. Shah]
New Delhi,
October 29, 2021
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