RAM RATAN versus STATE OF MADHYA PRADESH
[2021] 9 S.C.R. 866, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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   [2021] 9 S.C.R. 866
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RAM RATAN
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No.1333 of 2018)
DECEMBER 17, 2021
[N. V. RAMANA, CJI, A. S. BOPANNA
AND HIMA KOHLI, JJ.]
Penal Code, 1860 – ss.392, 397 – Appellant along with other
two accused was convicted u/ss.392, 397 r/w s.11/13, MPDVPK
Act, 1981 – On appeal, held: Complainant narrated in detail the
manner in which he was woken up by the accused while he was
sleeping in the hut and the demand for money that was made by
brandishing the firearm – Motorcycle and mobile which was stolen
were recovered – Appellant participated in the offence of committing
robbery as the motorcycle was recovered at his instance – His
conviction u/s.392 by trial court which was upheld by High Court
is sustained – Sentence modified to the period of imprisonment
undergone – Further, though all the three accused had taken part
in the offence of committing robbery, only one of the co-accused
had used the firearm – There was no allegation apart from a stray
sentence nor was such charge of having used firearm proved against
the appellant – Charge u/s.397 can be fastened on the offender
who actually uses the firearm – In the instant case, the appellant
was not an offender who used the firearm – Thus, the judgment
convicting the appellant u/s.397 r/w s.11/13, MPDVPK, 1981,
upheld by the High Court is set aside to that extent – Sentence of 7
years rigorous imprisonment set aside – Madhya Pradesh
Dakaiti
Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act – ss.11,
13 – Arms Act – s.25(1-B) (a).
Penal Code, 1860 – s.397 – Use of weapon – What is – Held:
Use of the weapon to constitute offence u/s.397 does not require
that the offender should actually fire from the firearm or actually
stab if it is a knife or a dagger – Mere exhibition of the same,
brandishing or holding it openly to threaten and create fear or
apprehension in the mind of the victim is sufficient.
Penal Code, 1860 – s.397 and ss.34, 149 – Vicariability of
offence u/s.397, if charges u/ss.34, 149 are invoked – Discussed.
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Partly allowing the appeal, the Court
HELD : 1.1 The complainant (PW-1) has spoken in detail
with regard to the manner in which he was woken up by the
accused and the demand for money that was made by brandishing
the firearm. The identification of the persons which was possible
due to the light which was on, is also stated. The incident relating
to which PW1 had given the detailed account, has remained intact
and has not been discredited. The evidence is sufficient and
convincing to arrive at the conclusion that the incident as narrated
by PW1 had occurred and the appellant and his co-accused had
committed robbery. [Paras 10, 11][873-E-F; 874-C-D]
1.2 The use of the weapon to constitute the offence under
Section 397 IPC does not require that the ‘offender’ should
actually fire from the firearm or actually stab if it is a knife or a
dagger but the mere exhibition of the same, brandishing or holding
it openly to threaten and create fear or apprehension in the mind
of the victim is sufficient. The other aspect is that if the charge of
committing the offence is alleged against all the accused and only
one among the ‘offenders’ had used the firearm or deadly weapon,
only such of the ‘offender’ who has used the firearm or deadly
weapon alone would be liable to be charged under Section 397
IPC. Though this would be the effect and scope of Section 397
IPC as a standalone provision, the application of the same will
arise in the totality of the allegation and the
consequent charge
that will be framed and the accused would be tried for such charge.
In such circumstance, in the teeth of the offence under Section
397 IPC being applicable to the offender alone, the vicariability
of the same will also have to be noted if the charge against the
accused under Sections 34, 149 IPC and such other provisions
of law, which may become relevant, is also invoked along with
Section 397 IPC. In such event, it will have to be looked at
differently in the totality of the facts, evidence and circumstances
involved in that case and the provisions invoked in that particular
case to frame a charge against the accused. In the instant case,
the charge under Section 34 IPC was not framed against the
appellant nor was such an allegation raised and proved against
the appellant. Hence, benefit of the interpretation raised on the
scope of Section 397 IPC to hold the aggressor alone as being
RAM RATAN v. STATE OF MADHYA PRADESH
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guilty, will be available to the appellant if there is no specific
allegation against him. [Paras 17, 18][877-C-H]
1.3 From the evidence tendered by PW1, his account is
specific to the fact that it was ‘R’ (co-accused) who had pointed
out the firearm to his chest and indulged in the act of robbing him
of his possession namely, the mobile. It is no doubt true that in
the further portion of the evidence tendered by PW1 he had
referred to all the three accused having forced him to sit on the
motorcycle and had taken him away. It is further stated that after
they reached Nanawat village and the tyre of the motorcycle got
punctured, he was made to get down from the motorcycle. At this
point, it has been stated that the appellant pointed his ‘gun rifle’
at him and made him to step down from the motorcycle and by
threatening him, had taken him in the direction of Amalada village.
Though, he has deposed to that extent, the fact of the appellant
having used another country made rifle other than the one which
was being used by Raju alias Rajendra has not been established.
The appellant had participated in the offence of committing
robbery since ultimately the motorcycle was hidden at a place
which was known to the appellant and the property seizure memo
indicates that the motorcycle was recovered at the instance of
the appellant that certainly constitutes an offender under Section
392 IPC. Though all the three accused had taken
part in the
offence of committing robbery, only one of the accused namely
Raju alias Rajendra had used the firearm. The said firearm was
seized from the possession of ‘R’. It is established and proved
beyond doubt that only one of the accused ‘R’ had used the firearm
and there was neither any allegation apart from a stray sentence
nor was such charge of having used firearm proved against the
appellant. The charge under Section 397 IPC can be fastened on
the ‘offender’ who actually uses the firearm. In the instant case,
since the facts and the evidence does not indicate that the
appellant could be construed as an ‘offender’ who used the firearm,
the charge alleged against him and held to be proved by the trial
Court as also the High Court under Section 397 IPC and Section
11/13 of MPDVPK Act, 1981 cannot be sustained. However, the
appellant having participated in the offence of committing robbery
which stands established with sufficient evidence, the conviction
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handed down by the trial court and upheld by the High Court
under Section 392 IPC is sustainable to that extent. The charge
under Section 397 and Section 11/13 of MPDVPK, Act, 1981 are
not proved against the appellant, the sentence of 7 years rigorous
imprisonment imposed by the trial Court and upheld by the High
Court is set aside. Insofar as, the offence proved under Section
392 IPC, the same provides for the punishment of rigorous
imprisonment for a term which may extend to 10 years and also
to fine. The motorcycle and the mobile which was stolen have
been recovered. However, the appellant having indulged in the
offence of robbery, imprisonment of around 3 years would be
sufficient punishment. In instant case, it is noticed that the
appellant has undergone imprisonment for a period of 3 years 5
months and 1 day. The judgment passed by the Special Judge,
(MPDVPK Act) in Special Case No.13/2013 (Old Case No.26/
2012) insofar it has convicted the appellant under Section 397 IPC
read with Sections 11/13 of MPDVPK Act, 1981 and upheld by
the High Court of Madhya Pradesh in Criminal Appeal No.691/
2013 are set aside to that extent. The conviction of the appellant
under Section 392 IPC by the trial court and upheld by the High
Court, is sustained. The sentence imposed on the appellant is
modified to that of the period of imprisonment undergone by him
till this day. The fine imposed and default sentence thereof is
retained. [Paras 21, 23-26][878-G-H; 879-A-C,
H; 880-A, D-F,
G-H; 881-A, C-E]
Ganesan vs. State Rep. by Station House Officer
Decision of Supreme Court dtd.29.10.21 in Crl. Appeal
No.903 of 2021; Shri Phool Kumar vs. Delhi
Administration (1975) 1 SCC 797 : [1975] 3 SCR 917;
Dilawar Singh vs. State of Delhi (2007) 12 SCC 641
: [2007] 10 SCALE 556 – relied on.
Case Law Reference
[1975]  3  SCR  917
relied on
Para 14
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1333 of 2018.
From the Judgment and Order dated 23.02.2017 of the High Court
of Madhya Pradesh Bench at Gwalior in Criminal Revision No.691 of
2013.
RAM RATAN v. STATE OF MADHYA PRADESH
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Shishir Kumar Saxena, R. N. Pareek, Praveen Swarup, Ms. Payal
Swarup, Ms. Archna Sharma, Ms. Pooja Sharma, Advs. for the Appellant.
Sunny Choudhary, Abhinav Shrivastava, Advs. for the Respondent.
The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. The appellant is before this Court in this appeal assailing the
judgment dated 23.02.2017 passed by the High Court of Madhya Pradesh
in Criminal Appeal No.691/2013 titled Ram Ratan vs. State of Madhya
Pradesh. Though the said appeal was disposed of by the High Court
along with the companion appeal, the consideration herein is limited to
the case against the appellant herein i.e. Ram Ratan who was arrayed
as the first accused before the trial court.
2. The appeal before the High Court was filed by the appellant,
being aggrieved by the judgment dated 31.07.2013 passed by the Special
Judge (MPDVPK Act) 1981, Sheopur in Special Case No.13/2013 (old
case No.26/2012). Through the said judgment, the trial court has convicted
the appellant along with the other two accused namely, Chotu and Raju
alias Rajendra under Section 392 and 397 of Indian Penal Code (“IPC”
for short) read with Section 11/13 of Madhya Pradesh Dakaiti Aur
Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act (“MPDVPK Act,
1981” for short) and sentenced the appellant and other accused to rigorous
imprisonment of 7 years with fine of Rs.1000/-, in default of the same, to
undergo imprisonment for a further
period of 4 months. The co-accused
Raju alias Rajendra was further convicted and sentenced under Section
25 (1-B) (a) of Arms Act to one-year rigorous imprisonment with fine of
Rs.500/-, in default of the same, to further undergo 2 months rigorous
imprisonment. Though all the three accused had filed the respective
appeals before the High Court against the said conviction and sentence,
the co-accused Chotu died during the pendency of his appeal, due to
which the said appeal abated. As noted above, though the appeal of
Raju alias Rajendra was also considered by the High Court through the
common judgment, the present appeal is filed by the appellant alone and
as such the conviction and sentence of the appellant based on the
contentions put-forth on his behalf only are adverted to in this judgment.
3. The brief facts are that one, Rajesh Meena lodged a complaint
on 27.06.2012, alleging that on the intervening night of 26-27/6/2012,
while he was sleeping in the hut constructed in the field to guard the
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crops, at about 02:30 a.m, the appellant along with Raju alias Rajendra
and Chotu came to him and woke him up. The said Raju alias Rajendra
was having a gun with him and on pointing the same towards the chest
of the complainant, demanded to part with the money. The complainant
informed that he did not have any money, due to which the key of his
motorcycle was snatched and the said Raju alias Rajendra also took out
the mobile phone from the pocket of his shirt. Thereafter, all the three
accused persons forced the complainant to sit on the motorcycle along
with them. When they reached the village Nanawat, the motorcycle got
punctured and therefore all the persons compelled the complainant to
get down from the motorcycle and the motorcycle was taken away. By
the said time since it was dawn, his uncle named Tulsiram was passing
by to milk the buffaloes. The complainant narrated the incident, following
which, steps were taken to lodge the complaint. The police having taken
action, recovered the motorcycle as also the mobile phone and
apprehended the accused. The police on completing the investigation
filed the chargesheet against the appellant for the offences under Sections
392/397 of IPC and under Sections 11/13 of MPDVPK Act, 1981.
4. The trial court framed charges through the order dated
26.02.2013 under Sections 392/397 of IPC and Sections 11/13 of
MPDVPK Act, 1981 against the appellant and Chotu, while an additional
charge under Section 25 (1-B) (a)/27
of the Arms Act was framed against
the other co-accused namely, Raju alias Rajendra. The appellant and his
co-accused having pleaded not guilty, stood trial in the matter.
5. The trial court having noted the evidence tendered through
PW1 to PW12, the documents which were marked and the material
objects identified, arrived at its ultimate conclusion. While doing so, the
trial court has referred in detail to the evidence tendered by the
complainant Rajesh (PW1) who narrated the entire incident from the
time he was woken up in the midnight and stated about having identified
the accused as there was a light burning in the hut. Tulsiram (PW2),
uncle of the complainant and Mukesh (PW3), brother of the complainant
corroborated the version stated by the complainant. Dhanpal (PW5),
father of the complainant had also stated with regard to the sequence in
which he had come to know about the incident in the same sequence as
had been stated by PW3. Mahavir (PW4), Ramjilal (PW6) and Dhanjeet
(PW7) are the witnesses to the seizure of motorcycle and the gun
respectively. However, PW6 and PW7 had turned hostile. Chandrabhan
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]
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Singh (PW8) is the witness who examined the 12-bore gun. A.L. Azad
(PW11) is the police officer who arrested the accused and the other
witnesses are the procedural official witnesses.
6. The trial court on analysing the said evidence returned the finding
that the appellant and his co-accused had indulged in the incident
complained of and therefore held the charge to be proved. The conviction
and the sentence were accordingly handed down. The appellant and his
co-accused while assailing the judgment of the trial court, apart from
contending that the case has been falsely alleged against them, had also
contended that the charge under Section 397 of IPC cannot be sustained.
It was their case that the firearm even if was proved to be carried, had
not been used and as such the charge under Section 397 IPC would not
lie. The High Court having adverted to the matter in detail has
reappreciated the evidence with regard to the incident and accordingly
upheld the judgment passed by the trial court convicting the appellant
and sentencing him in the manner as has been done. The appellant
therefore claiming to be aggrieved by the judgment passed by the trial
court and upheld by the High Court, is assailing the same in this appeal.
7. Heard Mr. Shishir Kumar Saxena, learned counsel for the
appellant, Mr. Sunny Choudhary, learned counsel for the respondent and
perused the appeal papers.
8. The learned counsel for the appellant while
assailing the
judgments would at the outset contend that the complaint lodged by PW1
and the evidence tendered by him are not sufficient to indicate that the
appellant is guilty of the charge alleged against him. It is contended that
the appellant has been implicated due to political rivalry, though no such
incident as alleged had taken place. In addition to the judgments cited
before the High Court and the contentions put-forth therein, learned
counsel has also relied on the decision of this Court dated 29.10.2021 in
Crl.Appeal No. 903 of 2021 titled Ganesan vs. State Rep. by Station
House Officer and connected appeal i.e Crl. Appeal No. 904 of 2021.
With reference to the said judgment, it is contended that firstly, the charge
under Section 397 of the IPC would not be sustainable since the gun has
not been used and the convictioncan be sustained only if the ‘offender’
uses any deadly weapon while committing robbery. It is contended that
even otherwise, the charge under Section 397 IPC would not be
sustainable against the appellant herein since there is no serious allegation
or proof of the appellant having used any weapon much less deadly
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weapon even if the incident of robbery which occurred is held to be
proved against the appellant. In that view, it is contended that the appellant
is liable to be acquitted or in the alternative, even if it is held that the
charge under Section 392 IPC is proved, the appellant has undergone
sentence of nearly 4 years which is sufficient punishment, which aspect
be considered by this Court.
9. The learned counsel for the State would refer to the evidence
tenderedbefore the trial court in detail and has pointed out that the trial
court as also the High Court has taken note of the said evidence. The
charge having been proved, both the Courts have arrived at the conclusion
that the contention as put-forth by the appellant or his co-accused was
not acceptable. It is contended that the motorcycle and the mobile phone
which had been stolen by the accused had been recovered and the gun
which was used was also seizedand examined by the expert. In that
circumstance, it is contended that when the expert has opined that the
gun was in working condition, the actual use of the firearm by firing
from it is not required but the exposure of the weapon so as to create
fear in the mind of the victim is sufficient to prove the charge under
Section 397 IPC. It is, therefore, contended that the judgment passed by
the trial court and confirmed by the High Court does not call for
interference.
10. From the evidence as noted by the trial court and the High
Court, it is seen at
the outset that the complainant Rajesh (PW-1) has
spoken in detail with regard to the incident which occurred on the
intervening night of 26-27/6/2012. The manner in which he was woken
up by the accused and the demand for money that was made by
brandishing the firearm has been narrated in detail. The identification of
the persons which was possible due to the light which was on, is also
stated. Though lengthy cross-examination has been made, in so far as
the incident relating to which PW1 had given the detailed account, has
remained intact and has not been discredited. Insofar as the contention
put-forth by the learned counsel for the appellant that he has been
implicated due to political reasons, there is no material on record. It is no
doubt true that as pointed out from the cross-examination contained in
paras 27, 28 and 29 of the cross-examination, PW1 has stated that his
cousin Ramcharan is a political leader. Further, in the same paragraph,
though he has stated that all the members of his family advised him that
he should file a report against the accused persons and that he had filed
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]
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the report after getting the said suggestion, it does not indicate that there
was any incident of political rivalry due to which the story was created
and the complaint was filed. It is only an attempt by the learned counsel
to try and connect the unconnected matters.The cousin being a political
leader may be a fact but with regard to the complaint, all that PW1 has
mentioned is the manner in which the complaint was lodged relating to
the incident which had taken place after the suggestion given by the
family members that the law should be set in motion. The same does not
take away the gravity of the situation or alter the truth of the matter.
11. Having taken note of the manner in which the trial court has
referred to the evidence and the same has been reappreciated by the
High Court, we do not deem it necessary to once again go into the
evidence of the other witnesses, having noted the detailed account given
by PW1 which would be of substance in this proceeding to answer the
relevant contention. Therefore, the evidence is sufficient and convincing
to arrive at the conclusion that the incident as narrated by PW1 had
occurred and the appellant and his co-accused had committed robbery.
12. Though, this remains the position, the question which needs
consideration is with regard to the contention that the firearm had not
been put to use and therefore the charge under Section 397 IPC is not
sustainable and also the
further contention that the charge under Section
397 even otherwise would not be sustainable against the appellant since
there is no material or evidence to indicate that the appellant had used
the firearm, even if it is held that the incident had occurred as alleged.
13. For better understanding, it would be appropriate to take note
of the provisions contained in Sections 392 and 397 of IPC which read
as hereunder:
“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.
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.”
(Emphasis supplied)
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14. On the said aspect, it would be appropriate to take note of the
decision in the case of Shri Phool Kumar vs. Delhi Administration
(1975) 1 SCC 797 wherein it is observed as hereunder: -
“5. Section 392 of the Penal Code provides: Whoever 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.”
(Emphasis supplied)
15. Further, in Dilawar Singh vs. State of Delhi (2007) 12 SCC
641, it is held as hereunder: -
“19. The essential ingredients of Section 397 IPC are as follows:
1. the accused committed robbery.
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]
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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.
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.”
(Emphasis supplied)
16. In the decision of Ganesan (supra) referred to by the learned
counsel for the appellant, the above noted decisions of this Court has
been referred and this Court has held as hereunder: -
 “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
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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.”
17. From the position of law as enunciated by this Court and noted
above, firstly, it is clear that the use of the weapon to constitute the
offence under Section 397 IPC does not require that the ‘offender’ should
actually fire from the firearm or actually stab if it is a knife or a dagger
but the mere exhibition of the same, brandishing or holding it openly to
threaten and create fear or apprehension in the mind of the victim is
sufficient. The other aspect is that if the charge of committing the offence
is alleged against all the accused and only one among the ‘offenders’
had used the firearm or deadly weapon, only such of the ‘offender’ who
has used the firearm or deadly weapon alone would be liable to be charged
under Section 397 IPC.
18. Though the above would be the effect and scope of Section
397 IPC as a standalone provision, the application of the same will
arise
in the totality of the allegation and the consequent charge that will be
framed and the accused would be tried for such charge. In such
circumstance, in the teeth of the offence under Section 397 IPC being
applicable to the offender alone, the vicariability of the same will also
have to be noted if the charge against the accused under Sections 34,
149 IPC and such other provisions of law, which may become relevant,
is also invoked along with Section 397 IPC. In such event, it will have to
be looked at differently in the totality of the facts, evidence and
circumstances involved in that case and the provisions invoked in that
particular case to frame a charge against the accused. In the instant
case, the charge under Section 34 IPC was not framed against the
appellant nor was such an allegation raised and proved against the
appellant. Hence, benefit of the interpretation raised on the scope of
Section 397 IPC to hold the aggressor alone as being guilty, will be
available to the appellant if there is no specific allegation against him.
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]
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19. Keeping this aspect in view, it is necessary to examine the
manner in which PW1 has alleged against the appellant so as to consider
whether the appellant is also an ‘offender’ who used the firearm so as
to be charged under both, Section 392 and 397 IPC even if he is complicit
to the incident, more particularly when Section 34 IPC has not been
invoked in the instant case.
20. Apart from the narration of the incident contained in the FIR,
the evidence tendered by the victim Rajesh (PW1) about the incident is
as hereunder: -
“02. On the same night, at the aforesaid time of 2:30 AM, all
these three accused persons who are present before me in this
Court by names Raju, Chotu and Gujar approached me at which
time I was sitting on a temporary watch tower put by me near to
the tube well for guarding my cultivation field and a bulb was
glowing there. In the illumination of said bulb, I could see and
identify them. At that relevant time, I was sleeping there. Among
them Raju Gujar woke up me from my sleep and pointed
the nozzle of the country rifle on my chest and demanded
with me to handover whatever money I had in my possession
at that relevant moment. I informed Raju Gujar that I do
not have any money with me. Still, he continued to keep
the said weapon on my chest itself and again asked me to
hand over the keys of my motor cycle. At that relevant time,
I was having my Splendour Honda Motor Cycle.On being scared
by the
fear of said Raju as well as apprehending danger from his
arm, I politely handed over the key of the Motorcycle to said Raju
Gujar by putting those keys in his hand.
03. At that time in my pocket, my mobile was kept. It was a
Spice-42 Model branded company phone. By again putting the
firearm - Rifle on my chest he took my mobile by himself
by inserting his hands in my pocket and taking out the
mobile set from the pocket out.”
(Emphasis supplied)
21. From the extracted portion and more particularly the emphasized
portion of the evidence tendered by PW1, his account is specific to the
fact that it was Raju Gujar alias Rajendra who had pointed out the firearm
to his chest and indulged in the act of robbing him of his possession
namely, the mobile. It is no doubt true that in the further portion of the
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evidence tendered by PW1 he had referred to all the three accused
having forced him to sit on the motorcycle and had taken him away. It is
further stated that after they reached Nanawat village and the tyre of
the motorcycle got punctured, he was made to get down from the
motorcycle. At this point, it has been stated that the appellant pointed his
‘gun rifle’ at him and made him to step down from the motorcycle and
by threatening him, had taken him in the direction of Amalada village.
Though, he has deposed to that extent, the fact of the appellant having
used another country made rifle other than the one which was being
used by Raju alias Rajendra has not been established. It is no doubt true,
that the appellant had participated in the offence of committing robbery
since ultimately the motorcycle was hidden at a place which was known
to the appellant and the property seizure memo indicates that the
motorcycle was recovered at the instance of the appellant that certainly
constitutes an offender under Section 392 IPC.
22. Further, the relevant contents in the FIR reads as hereunder:-
“At about 2:30 in the morning the accused Raju, Co-accused Chotu
and Ramratan came to him. The Raju was having a gun with
him and forced him to wake up and demanded money when
the complainant inform that he does not have any money,
therefore the Raju pointed out his gun towards the chest of
the complainant and the complainant in its turn handed over
the key of the motorcycle
the Raju has also took out the
mobile from the pocket of the shirt of the complainant,
thereafter all three accused person who is the complainant to sit
on the motorcycle along with them, when they reached near the
village Nanawat the motorcycle got punctured and therefore all
the three person compelled to complainant to get down from the
motorcycle and thereafter they took his motorcycle and went away
toward Aamlda and Morkhudana, then I reached at Aamlda, and
all happening narrated to his maternal uncle Tulsiram, and then
his father also came there, thereafter I searched the motorcycle
but it is not searched out therefore came to local police station for
lodging the report, and he wants to take necessary action.”
(Emphasis supplied)
23. Therefore, if the contents of the FIR and the evidence tendered
by PW1 are taken note of, it would stand established that though all the
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
three accused had taken part in the offence of committing robbery, only
one of the accused namely Raju alias Rajendra had used the firearm.
The said firearm was seized from the possession of Raju alias Rajendra
and from the evidence of A.L. Azad (PW11) it is clear that the accused
Raju alias Rajendra had disclosed that the firearm was kept in his house
and it was recovered in the presence of the witnesses. In addition, Pritam
Singh (PW9) has stated that permission had been sought for prosecuting
Raju alias Rajendra with regard to seizure of the 12-bore gun and
permission had been granted. Chandrabhan Singh (PW8) in his evidence
had stated that he had examined the gun and the same was capable of
being fired. His evidence would disclose that only one gun had been
seized and examined by him. Further, based on the said evidence it is
Raju alias Rajendra alone who has been convicted under the provisions
of the Arms Act.
24. If that be the position, it would stand established and proved
beyond doubt that only one of the accused namely Raju alias Rajendra
had used the firearm and there was neither any allegation apart from a
stray sentence nor was such charge of having used firearm proved
against the appellant. In that light, if the position of law enunciated by
this Court as noticed above is kept in view, the charge under Section 397
IPC can be fastened on the ‘offender’ who actually uses the firearm. In
the instant case,
since the facts and the evidence does not indicate that
the appellant could be construed as an ‘offender’ who used the firearm,
the charge alleged against him and held to be proved by the trial Court
as also the High Court under Section 397 IPC and Section 11/13 of
MPDVPK Act, 1981 cannot be sustained. However, the appellant having
participated in the offence of committing robbery which stands
established with sufficient evidence, the conviction handed down by the
trial court and upheld by the High Court under Section 392 IPC is
sustainable to that extent.
25. In view of the above conclusion, the sentence imposed on the
appellant needs consideration. Since, we have arrived at the conclusion
that the charge under Section 397 and Section 11/13 of MPDVPK, Act,
1981 are not proved against the appellant, the sentence of 7 years rigorous
imprisonment imposed by the trial Court and upheld by the High Court is
liable to be set aside, which is accordingly done. Insofar as, the offence
proved under Section 392 IPC, the same provides for the punishment of
rigorous imprisonment for a term which may extend to 10 years and also
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to fine. As noted, the motorcycle and the mobile which was stolen have
been recovered. However, the appellant having indulged in the offence
of robbery, in our opinion, imprisonment of around 3 years would be
sufficient punishment. In instant case, it is noticed that the appellant has
undergone imprisonment for a period of 3 years 5 months and 1 day as
on 10.11.2021, as per the statement filed before this Court. Hence, if the
sentence undergone by the appellant is treated as the punishment, it
would meet the ends of justice.
26. In the result, we pass the following order: -
i)
The judgment dated 19.10.2012 passed by the Special Judge,
(MPDVPK Act) in Special Case No.13/2013 (Old Case
No.26/2012) insofar it has convicted the appellant under
Section 397 IPC read with Sections 11/13 of MPDVPK
Act, 1981 and upheld by the High Court of Madhya Pradesh
in Criminal Appeal No.691/2013 are set aside to that extent.
ii)
The conviction of the appellant under Section 392 IPC by
the trial court and upheld by the High Court, is sustained.
iii)
The sentence imposed on the appellant is modified to that
of the period of imprisonment undergone by the him till this
day. The fine imposed and default sentence thereof is
retained.
(iv)
The appellant is ordered to be set at liberty forthwith if the
fine is paid and he is not required to be detained in any
other case.
(v)
The appeal is allowed in part to the extent indicated above.
(vi)
All pending applications, if any, shall
stand disposed of.
Divya Pandey
Appeal partly allowed.
RAM RATAN v. STATE OF MADHYA PRADESH
[A. S. BOPANNA, J.]