.. c

PHOOL KUMAR

DELHI ADMINISTRATION March 13, 1975

IA. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.]

Penal Code-Ss. 397 and 398-Scope of-Meaning of the words 'uses' in s. 397 and 'is armed with any deadly weapon' in s. 398.

The appellant, alongwith two others, was alleged to have raided a petrol pump sometime after midnight and decamped with the cash. At the time of the raid he was armed with a knife to frighten and terrorise the attendants. One of his associates fired three shots.

His associates were acquitted but the appellant was convicted of an offence under ss. 397 read with 342 J.P.C. and sentenced to. undergo imorisonment for seven years, which was the minimum sentence.

The High Court dismissed his appeal. ·

On further appeal it was contended that the appellant ought to have been convicted under s. 392 sinmliciter in which case he would have been awarded a lesser sentnc.e.

Dismissing the appeal, HELD : ( 1) When an 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 rnpable of creating a terror in his mind, the offender must be deemed to have used the deadly weapon in the commission of the robbery.

Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offence within the ambit of s. 397. 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 tci any fruitful use because it would have bten of use when the offender succeeded in committing the robbery.

[920 F-G; CJ

(2) The le.rm 'offender' in s. 397 is confined to the offender who uses. any deadly weai1on.

The use of a deadly weapon by one offender at the time of committing robbery cannot attract s. 397 for the im!losition on another offender who had not used any deadly weapon. l n that view of the mtter use of the gun by one of the culprits whether he was one of the accused or somebody else could not be and has not been the basis of sentencing the appellant with the ;1id of s. 397. [920 A] .

(3) It appears unreasonable to think that if the offender who merely attempted to commit ro\Jbery but did not succeed in committing it attracts the minimum

punishment of seven years under s. 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 s. 397 if he succeeds in committing the robbery.

But the anomaly created by the use of word 'uses' in s. 397 and 'is armed' in s. 398 will disappear if the two terms are given identical meaning. [920 El

Gol'ind Dipali More v. State A.I.R. 1956 i3ombay, 353, approved.

Chandra Natl1 v. Emperor A.I.R. 1932 Oudh, 103; Nagar Singh v. Emprror A.LR. 1933 Lahore, 35 and Inder Singh v. Emperor A.l.R. 1934 Lahore 522, referred to.

The view taken in Stale v. Chand Singh and another I.LR. [1970] 2 Punjab & Har\'ana. 108. is incorrect.

CRIMINAL APPELLATE JURISDICTION: Cr!. Appeal No. 62 of 1971.

Appeal by special leave from the judgment and order dated the '.?3rd October, 1969 of the Delhi High Court in Criminal Appeal No. 87 of 1969.

SUPREME COURT REPORTS [19751 3 s., c.R.

R. Bana, for the appellant.

V. C. Mahajan and M .. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.-lrf the night between the 8th and 9th September, 1966, to be pn:cise, at about 1.45 A.M. on the 9th September, a daring B robbery was committed at a petrol pump of the Gasolene Service Station ctn the Ma!l, Delhi:. The robbers who are said to be four in number broke into the office of the Service Station and decamped with Rs. 585/- in cash after locking in the two attendants. After investigation three pe:rsons were put on trial in the Sessions Court. On.e of the culprits, amed Sube Singh,. absconded. The names of the three . are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal.

The c latter two were acquitted by the learned Assistant Sessions Judge, Delhi for want of sufficient evidel!lce against them. The only person convicted at the said trial was appellant Phool Kumar. He has been convicted under s. 397 of the Penal Code and sentenced to undergo rigorous imprisonment for 7 years.

A concurrent sentence olC 6 months was also imposed for his conviction under section 342 of tl'ie Penal Code.

The Delhi High Court maintained his convictions and D sentences aind dismissed his appeal.

He has approached this Court by special leave.

Mr. R. Bana, learned counsel for the appellant took pains to submit as many as 8 points in support of this appeal. The first s1:ven points were concerned with the assailing of .concurrent findings of fact recorded by the two Courts below and do not merit any specific men- E tion or detailed discussion. The eighth point was a question of law.

After briefly referring to the facts found against the appellaint to justify his conviction for robbery the point of law will be discussed hereinnfter in this judgment.

The two eye witnesses to the oceurrence are P.W. l3 Sham Lal and P.W. 16 Ram Sewan. At the time of the occurrence both were dischatgin.g their respective duties as the empoyees of the Service Station. P.W. 16 was working as a Salesman and P.W. 13 was em ployed as a helper. The prosecution story as broadly told by them is that while dy were sitting outside the office of the petrol pump two persons who were identified as appellant Phool Kumar and Ram Kumar (since ; i.cquitted) came theoo. Phool Kumar was armed with

a knife while Ram Kmnar had. a small gun in his hand. The for?J.er asked P.W. 13 to hand over the keys.

On being told that the keys were with P.W .. 16 the/ appellant asked him to hand over the keys.

To terrorize P.Ws. 13 and 16 Ram Kumar fired three shots in the air one of.which stmck the window panes of the office while the other two hit the ground. 11ie appeUant and his associates thereafter oge:ned the door of the office, ransacked the drawers of the tab~ and damped with the money lying in the cash box, after pushing ..,_Ws. 13 and 16 in the office and bolting hs door from outside. It is not neces:; ary for us to mention the details of the information given to the policP- • and the facts leading to. the apprehending of the three culprits after

getting the clue from the absconding accused Sube Singh.

Suffice it to say that the evidence of identification in court against the culprits given by P.Ws. 13 and 16 was not found to be of a kind which could by itself form the basis of the conviction of the accused put on trial. On;: of the two eye witnesses had not identified the appellant at all at any of the identification paractes and one of them indentifie<l him at the 4th or the 5th round.

The clinobing evidence against the appellant wa8 his thumb impression on the kunda'. of the cash box. It was conclusively proved to be his on the opinion of the expert. The report of the expert was used as evidence by the prosecution wjthout examining him in court. .Neither the court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The oourt was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievaoce of the appellant apropos the report of the expert being used without his examination in court made in the High Court and repeated in this Court had no substance. The evidence of P.Ws 13 and 16 against .

the appellant in Court found ample and clinching corroboration from the fact of his thumb impression occurring on the kunda of the cash box. Soon after the occurrence during the course of the investigation photographs of the impressions .on the kunJa had been taken long before the appellant was apprehended for the participation in the crime.

TI1erc was absolutely no scope for any kind of manipulation in' the

mattr as was argued onj behalf of the appellant in desperation. We are, therefore, cleady of the opinion that the participation of the appellant in the commission of the robbery at the petrol pump was proved beyond an)l reasonable doubt; so also the charge under section 342 of the Penal Code.

The last submission on behalf of the appellant vas that sentencing him to undergo rigorous imprisonment for 7 years under section 397 of the Penal Code was illegal and he ought to have been convicted under section 392 simpliciter which would have enabled the court on the facts of this case to pass a lesser sentence of imprisonment. Reliance was placed upon the majority opinion of the full Bench of ftle High Court of Punjab & Haryana in the case of State v. Chad Singh another(1). The argument' was attractive at the first sight bat did not stand our careful scrutiny.

Section 392 of the Penal Code provides :

 ''.Wftver commits robbery shall be punished with rigor-· ous 1mpnsonment or a term which may extend to ten years,

ad shall also hable to fine; and, if the robbery be comtted on the highway between sun.set and sunrise, the im-

nsoruhent may be extended to fourteen years."

The >.entence of imprisonment to be awarded under section 392 n

not be less tha~ 7 years if at the time of committing robbery the offender uses any deadly wpon or causes grievous hurt t" any pit-

(!) I.L.R. [1970] 2 Punjab & Haryana, tos'.

SUPRE]\11-\ COURT REPORTS l1975l 3 s.c.R.

son or attempts to cause death or grievous .hurt to any person : ride section 397. A difficulty arose n several High Courts as to e. meaning of the word "uses" in section 39?. The tern~ 'offenper m that section as rightly held by several High Courts, 1s confined to the

offendr who uses any deadly weapon. The use of , a deadly \\eapan by one offender at the time of comit.ting robery cannot attract &ection 397 for the imposition of the nummum pumshment O)l 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 K11mar or some body else, (surely one was ther~ who had ed three shots) could not be and has not been the basts of sentencmg thr appellant with th~ aid of secti?n 39~. o far as he is concerned he is .said to be armed with a knife which 1s also a deadly weapon.

To be. more precise from the evidence of P.W. 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 kn.ife or causi, ng of grievous hurt with it was not necessary to bring the offender within the ambit of section 397 of the Penal Code.

Section 398 uses the expression "armed with any deadly weapo, n" and the minimum punishment provided therein is also 7 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 succ:eed in committing it attracts the minimum punishment ·

of 7 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 judgmenUhe af\omaly is resolved if the two terms arc 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 creatin" 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 an:y fruit ful use because it would have been of use only when the offenlder succeeded in committing the robbery.

If the deadly weapon is actually used by the offender in the comission of. te robbery such as in causing grievous hurt, death or the like then 1t 1s clearly used.

In the cases of Chandra Nath v.

Emperor(!); Nagar Singh v.

Emperor( 2 ) and lnder Siii'gh v.

(I) A.LR. 1932, Oudh. 103.

(2) A.T.R. 1933. Lahore. 35.

Emperor( 1 ) some overt act such as brandishing the weapon against another person in order to over-awe him or displaying the deadly weapon to frigl1ten 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.

Statee) that if the knife "was used for the purpose of producing such an impression upon the mind of a person that he would be coinpelled to part with his property, that would amount to 'using' the weapon within the meaning of section 397". In that case also he evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim.

In our op aion this is the correct view of the law and the restricted meaning given to the 'Yord 'uses' in the case of Chand Singh ('l) is not correct.

For the reasons stated above we see no justification to interfere with the convictions of an, d the sentences imposed upon th{( appellant under ariy of the counts.

The appeal accordingly fails and is dis-. missed.

P.B.R.

(I) A .T.R. 1934, Lahore, 522.

(2) A.T.R. 1956, Bombay, 353.

(3) I. L. R. (1970) 2 Punjab & Haryana 108.

Appeal dismissed