Criminal Appeal No. 904 Of 2021
Date of Judgement:
Justice DY Chandrachud, Justice MR Shah
Appellants: Ganesan, Shanmugam @ Babu,
Respondents:State Rep. By Station House Officer,State Rep.By The Inspector Of Police
This case dealt with whether an accused who had not used deadly weapon at the time of committing robbery/ dacoity can be convicted under Section 397IPC on the ground of constructive liability.
Section 391of IPC Dacoity – When five or more person conjointly commit or attempt to commit robbery, then all the persons aiding such commission or attempt of robbery, is said to have committed dacoity.
Section 395 of IPC – A person committing dacoity shall be imprisoned for life or with rigorous imprisonment for a term which may extend 10 years, and shall also be liable to fine.
Section 397 of IPCIf aperson committing robbery or dacoity causes grievous hurt or death with a deadly weapon, then such an offender shall be liable for imprisonment not less than seven years.
- The appellants preferred an appeal against the decision passed by the High Court of Madras against conviction orders under Section 397 IPC.
- The five accused named in the case were involved in jointly committing robbery. It was also established that the accused proceeded in the car with a knife and iron pipe whereby one of the accused attacked the witness Duraisamy with an iron rod and robbed him of Rupees 60,000/- and 16gm jewellery. Further another witness was also attacked with an iron rod by another accused.
- The investigating officer charged all the five accused under Section 395 read with Section 397 IPC. However, out of the five accused, two were absconding and the trial proceedings were initiated against the remaining three accused.
- The learned trial court, after examining the oral and documentary evidence, passed an order convicting the accused under Section 397 IPC for 7 years of rigorous imprisonment and an additional 1 year of imprisonment in case of default.
- The counsel for the accused (Accused no 1) preferred appeal against the order of the High Court and contended that the victim Duraisamy’s statements had a lot of discrepancies and therefore was legally inadmissible as evidence. Further the counsel for the accused (Accused no. 1 Ganesan) contended that during the crime, he was seated in the car and thus did not participate in the crime and therefore Section 397 IPC shall not be applicable on him.
- It was contended by the counsel for the accused that the appellant - accused cannot be convicted under Section 397 IPC as the accused was not an offender who had used any deadly weapon.
- It was further contended that the number of people involved in the robbery were less than five and therefore provision of Section 397 IPC would not be binding on them.
- The counsel for the accused Shanmugam submitted that the accused cannot be convicted on the ground of constructive liability as there was nothing to prove that the accused was involved in causing grievous injury.
- It was submitted by the counsel for the state of Tamil Nadu that the oral and documentary evidence and witnesses’ statements at the time of commission of the offence were proved by the prosecution and hence the provisions of Section 397 IPC and Section 391 IPC were rightfully applicable to them.
- Is the conviction of the accused under Section 397 IPC unsustainable?
- Can conviction of the accused under Section 391 IPC be challenged on the ground that only four out of five accused came to be tried?
- Can non conviction of the accused persons under Section 397 IPC result in subsequent non conviction under Section 391 IPC?
- The Hon’ble Supreme Courtrelied on the judgement of Shri Phool Kumar (Supra) and Dilawar Singh (Supra), wherein it was held that the accused who had not used any deadly weapon cannot be convicted under Section 397 IPC.
- Further the court laid emphasis on the word “offender” wherein provisions of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 of IPC were discussed, and stated that the word offender shall mean the person who committed robbery and/or voluntarily caused hurt to any person and/ or used deadly weapon or caused grievous injury/death to any person.
- Further the court clarifying whether the use of deadly weapon by one offender at the time of committing robbery would amount to attracting Section 397 IPC on another offender who was involved in robbery but did not use deadly weapon, the court citing the case of Shri Pool Kumar stated that use of deadly weapon by one offender shall not attract provisions of Section 397 IPC on another offender who had not used the deadly weapon.
- Further the court, rejecting the contention of the accused, stated that commission of offence of robbery by five or more persons shall attract provisions of Section 391 IPC and merely because some accused are absconding would not amount to Section 391 IPC not being applicable to the remaining accused.
- Further citing the case of Chandra Nath v. Emperor Nath [AIR 1932 Oudh 103]; Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor, wherein it was established that act of brandishing the weapon or use of weapon to terrorize / frighten the victim would attract the provisions of Section 397 of Indian Penal Code.
- Further the court citing the case of Amrita v. State of M.P., (2004) 12 SCC 224; Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 and Raja v. State, (2013) 12 SCC 674, observed that the acquittal of one of the accused would not result in acquittal of other accused in the same case.
- Further the court observed that dacoity is nothing but an exaggerated version of robbery and acquittal of the accused and though both Section 397 IPC and Section 395 IPC are quite similar provisions, non-conviction of accused in Section 397 IPC would not result in subsequent non conviction in Section 395 IPC if the prosecution has proved the charge.
The Hon’ble Supreme Court partly allowed the appeal and quashed the proceedings against the accused under Section 397 of IPC. The appellants were convicted under Section 391 IPC punishable under Section 395 IPC and were sentenced to seven years of rigorous imprisonment along with a fine of Rupees 2000/- and in case of default a further rigorous imprisonment of six months.
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