“Offender uses any deadly weapon” under section 397 of Indian Penal Code also includes mere exhibition or brandishing of the weapon : Supreme Court

The appellant is before this Court in this appeal High Court of Madhya Pradesh in Criminal Appeal No.691 2013 titled Ram Ratan vs. State of Madhya High Court along with the companion appeal the consideration herein is limited to the case against the appellant being aggrieved by the judgment dated 31.07.2013 passed by the Special Judge read with Section 11 13 of Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam the appellant and other accused to rigorous of the same to undergo imprisonment for a further fine of Rs.500 ­ in default of the same to further co­accused Chotu died during the pendency of his appeal due to which the said appeal abated. As noted 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 put­forth on his constructed in the field to guard the crops at about 02:30 a.m the appellant along with Raju alias Rajendra alias Rajendra was having a gun with him and on demanded to part with the money. The complainant pocket of his shirt. Thereafter all the three accused the motorcycle got punctured and therefore all the motorcycle and the motorcycle was taken away. By the 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 for the offences under Sections 392 397 of IPC and 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 (a) 27 of the Arms Act was framed against the other co­accused namely Raju alias Rajendra. The appellant and his co­accused having through PW1 to PW12 the documents which were referred in detail to the evidence tendered by the complainant Rajesh who narrated the entire the complainant and Mukesh brother of the complainant corroborated the version stated by the complainant. Dhanpal father of the complainant had come to know about the incident in the same sequence as had been stated by PW3. Mahavir the seizure of motorcycle and the gun respectively However PW6 and PW7 had turned hostile the 12­bore gun. A.L. Azad is the police officer The trial court on analysing the said evidence returned the finding that the appellant and his co­ therefore held the charge to be proved. The conviction and the sentence were accordingly handed down. The appellant and his co­accused while assailing the judgment of the trial court apart from contending that contended that the charge under Section 397 of IPC has reappreciated the evidence with regard to the 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 for the appellant Mr. Sunny Choudhary learned counsel The learned counsel for the appellant while that the appellant has been implicated due to political rivalry though no such incident as alleged had taken Court and the contentions put­forth therein learned counsel has also relied on the decision of this Court dated 29.10.2021 in Crl. Appeal No.9021 titled Ganesan vs. State Rep. by Station House Officer and connected appeal i.e Crl. Appeal No.9021. With reference to the said judgment it is contended that 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 sentence of nearly 4 years which is sufficient The learned counsel for the State would refer to has pointed out that the trial court as also the High Court has taken note of the said evidence. The charge conclusion that the contention as put­forth by the appellant or his co­accused was not acceptable. It is contended that the motorcycle and the mobile phone which had been stolen by the accused had been firing from it is not required but the exposure of the is therefore contended that the judgment passed by the the High Court it is seen at the outset that the complainant Rajesh has spoken in detail with night of 26­27 6 2012. The manner in which he was in detail. The identification of the persons which was possible due to the light which was on is also stated Though lengthy cross­examination has been made in so discredited. Insofar as the contention put­forth by the learned counsel for the appellant that he has been cross­examination contained in paras 27 28 and 29 of the cross­examination PW1 has stated that his cousin Ramcharan is a political leader. Further in the same was created and the complaint was filed. It is only an attempt by the learned counsel to try and connect the PW1 has mentioned is the manner in which the taken place after the suggestion given by the family reappreciated by the High Court we do not deem it witnesses having noted the detailed account given by 12. Though this remains the position the question which needs consideration is with regard to the 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 “392. Punishment for robbery.­ Whoever commits robbery shall be punished with fine and if the robbery be committed on the highway between sunset and sunrise the imprisonment may be extended to fourteen 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 any person the imprisonment with which 14. On the said aspect it would be appropriate to take Delhi Administration 1 SCC 797 wherein it is “5. Section 392 of the Penal Code provides 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 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 High Courts is confined to the offender of committing robbery cannot attract Section 397 for the imposition of the who had not used any deadly weapon. In Kumar or somebody else referred to by the learned counsel for the appellant the above noted Section 397 IPC for the imposition of minimum punishment on another offender there is distinction and difference between weapon and the word used in Section 398 IPC is ‘offender is armed with any deadly weapon’. Therefore for the purpose of ‘uses’ any deadly weapon Section 397 IPC the law laid down by this Court in the the accused in the present appeals is required to be considered. Even as per the of any weapon was against Benny and Prabhakaran. Therefore in absence of any allegations of use of any deadly weapon by convicted for the offence punishable under From the position of law as enunciated by this Court and noted above firstly it is clear that the use of IPC does not require that the ‘offender’ should actually or holding it openly to threaten and create fear or 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 of Section 397 IPC as a standalone provision the allegation and the consequent charge that will be IPC and such other provisions of law which may IPC. In such event it will have to be looked at differently in the totality of the facts evidence and 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 against the appellant. Hence benefit of the hold the aggressor alone as being guilty will be available to the appellant if there is no specific Keeping this aspect in view it is necessary to examine the manner in which PW1 has alleged against also an ‘offender’ who used the firearm so as to be is complicit to the incident more particularly when in the FIR the evidence tendered by the victim Rajesh names Raju Chotu and Gujar approached 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 not have any money with me. Still he chest itself and again asked me to hand over the keys of my motor cycle. At that relevant time I was having my Splendour fear of said Raju as well as apprehending danger from his arm I politely handed over kept. It was a Spice­42 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 From the extracted portion and more particularly alias Rajendra who had pointed out the firearm to his chest and indulged in the act of robbing him of his sit on the motorcycle and had taken him away. It is 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 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 appellant and the property seizure memo indicates that the motorcycle was recovered at the instance of the appellant that certainly constitutes an offender under “At about 2:30 in the morning the accused to him. The Raju was having a gun with him and forced him to wake up and demanded money when the complainant therefore the Raju pointed out his gun the complainant in its turn handed over the key of the motorcycle the Raju has 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 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 Therefore if the contents of the FIR and the evidence tendered by PW1 are taken note of it would it was recovered in the presence of the witnesses. In was capable of being fired. His evidence would disclose Further based on the said evidence it is Raju alias Rajendra alone who has been convicted under the 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 in view the charge under Section 397 IPC can be ‘offender’ who used the firearm the charge alleged 11 13 of MPDVPK Act 1981 cannot be sustained of committing robbery which stands established with sufficient evidence the conviction handed down by the In view of the above conclusion the sentence have arrived at the conclusion that the charge under Section 397 and Section 11 13 of MPDVPK Act 1981 are rigorous imprisonment imposed by the trial Court and our opinion imprisonment of around 3 years would be The judgment dated 19.10.2012 passed by the Special Judge in Special Case No.13 2013 The appellant is ordered to be set at liberty forthwith if the fine is paid and he is not The appeal is allowed in part to the extent vi) All pending applications if any shall stand

Summary: As per section 397 of Indian Penal Code that deals with use of any armed weapon during a robbery does not mean that the accused has to literally use the weapon in the sense he should actually fire or stab to be convicted under that section, this was decided by Chief Justice N.V. Ramana, Justice A.S. Bopanna and Hima Kohli in the case of RAM RATAN V. STATE OF MADHYA PRADESH [CRIMINAL APPEAL NO. 1333 OF 2018] In the present case Rajesh Meena lodged a complaint on 27.06.2012, at around 02:30 AM Rajendra and Chotu woke him up and pointed a gun at him pointing towards his chest demanding money, complainant informed that he did not have any money so the accused took their motorcycle instead. Upon the completion of investigation the police charged the appellant under section 392/397 of IPC. The trial court also framed the charges under section 392/397 of IPC where the accused counsel argued that the charge under section 397 of IPC cannot be sustained because even if we assume that they carried the fire arm, they did not use it. The question that was adjudicated upon was whether the accused has to actually use the weapon in the sense he had to fire it in order to come under section 397 of IPC or not because if it did not then the punishment for the accused would be lesser that otherwise. Upon this subject matter Justice Bopanna said that “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 fire arm” and further held that mere showing or exhibition of it openly in a way that it threatens the victim is sufficient.” But in the present case where there was more than one accused, it was also observed that if the accused who was pointing the gun actually used it, then only he will be charged under section 397 of IPC. The Supreme Court also said that vicarious liability against the offenders will also be noted if they have been charged under section 397 if it is read with section 34 or section 149 of IPC. This section and the confusing language as to what does “using” a deadly weapon mean is somewhat puzzling because the word “use” has a lot of meanings. It can be said that apprehending fear in the mind of the complainant is sufficient to make the case come under section 397 of IPC because creating fear is also a “use” of the gun. We can take example of bank robberies from movies where the offender points a gun at the cashier and forces them to give the offender all the money, even though in such scenes the offender does not actually fire or shoot the cashier but the process of robbery is made easier and faster because of the gun pointed at the cashier’s head so it can be said that mere use of the gun or a knife is not just to shoot or stab the complainant but it is also to do any such thing that makes the process of robbery easier for the offender. Though the language of the section 397 of IPC may appear confusing, the Supreme Court has in detail analysed and understood the object of the law makers and rightly convicted the accused under section 397 of IPC.