To Attract S.397 IPC, Burden Of Proof Lies On Prosecution To Establish That Alleged Robber Put The Weapon To Use: Gujarat High Court

In a recent ruling, the Gujarat High Court acquitted a robbery accused, emphasising that to establish a charge under Section 397 of the IPC, it is essential for the prosecution to prove that the offender used a weapon, such as a knife.

The provision prescribes penalty for use of a weapon at the time of committing robbery or dacoity.

Justice Nisha M. Thakore presiding over the case, observed, “I have closely gone through the record and proceedings, more particularly, the list of muddamal and the arrest panchnama of accused at Exh.19 and Exh.21, there is no recovery of knife or any other weapon. The prosecution has maintained silence on such vital aspect. The basic requirement to attract section 397 of the I.P.C. is not fulfilled. In order to establish the charge under Section 397 of I.P.C., the burden was on the prosecution to prove that the offender has put the weapon knife to use.”

As per the factual matrix of the case, one Dineshbhai Vallabhbhai Amin, engaged in wholesale kerosene business and managing the ORO Petrol Pump in Bharuch with his family, collected Rs. 4,18,945 from the pump on November 3, 2003. He placed the cash in a violet bag and later went to a kerosene depot to sort the money. While en route to the bank with the witness one Bhupendrabhai Chhaganbhai Patel, two unidentified individuals on a motorcycle intercepted them. One of the individuals brandished a knife, striking Dineshbhai on the head and face, causing injuries. The assailants forcibly took the bag of money and fled on their bike.

An FIR was lodged, and an investigation ensued, leading to the recovery of the motorcycle and a bag containing Rs. 100 notes, stamped with the Bank of Baroda and ORO petrol pump markings. Subsequently, a charge sheet was filed against the accused under various sections of the Indian Penal Code and the Bombay Police Act. The accused pleaded not guilty, claiming innocence and suggesting the recovered money was meant for charitable distribution on the occasion of Ramzan. They also contested their arrest and the seizure of their motorcycle.

After considering the arguments and evidence presented by both sides, the judge concluded that the prosecution had not sufficiently proven its case beyond a reasonable doubt. Consequently, the accused were acquitted of the charges. Subsequently, the state filed an appeal against this decision.

The Court observed that two crucial factors essential to establish the involvement of the respondent-accused were not proven by the prosecution before the trial court.The Court further pointed out the absence of a Test Identification Parade (T.I. Parade) conducted by the Investigating Agency, despite the original complaint alleging the involvement of two unknown persons.

“The obligation was there on the Investigating Agency to carry out the T.I. Parade in order to establish the involvement of the accused. Even before the trial court, during the course of recording of evidence of the original complainant, the complainant has failed to identify the respondent-accused. Thus, the prosecution has failed to bring on record any substantial evidence or a corroborating evidence to establish involvement of accused in alleged offence,” the Court stated.

This lack of evidence, the Court asserted, made it difficult to link the respondent-accused to the alleged offense.

The Court noted, “Noticing the charge alleged about robbery of the money in the alleged incident, the arrest panchnama of the respondent-accused was examined. From the appreciation of aforesaid panchnama, what can be noticed as deposed by the Police Sub-Inspector-P.W. No.12, is that the initial investigation was started on suspicion, noticing the fact that the respondent-accused had failed to produce any document of ownership of bike. This led the Investigating Officer to examine dikky of his bike, wherein he noticed the bag containing notes of “Rs.100” denomination.”

“It is the specific case of the prosecution that said notes recovered from the respondent-accused bear the slip of the bank and behind the slip, there was stamp of ORO petrol pump. In all, an amount of Rs.1,24,400/- is alleged to have been recovered from the respondent-accused, which were forming part of the loot money. However, during recording of the evidence before the trial court in his deposition, the said witness has not been able to identify the muddamal notes as the notes recovered during the course of the investigation, in absence of slip of the bank and the endorsement of stamp of ORO petrol pump,” the Court added.

This led the Court to consider the arguments presented by the APP for the appellant-State. The Court remarked that the cross-examination of witnesses raised doubts about the manner in which the panchnama was recorded regarding the recovery of the bike and money from the respondent-accused.

The Court opined, “no fault can be found with the approach of learned Judge in discarding the aforesaid evidence. Even panch witnesses of the said recovery panchnama have not supported the case of the prosecution. … With such evidence on record, the prosecution has failed to establish the case against the respondent-accused for the offence alleged beyond reasonable doubt.”

The Court relied on the Supreme Court's judgement in the case of Ravi Sharma vs State (Government Of N.C.T. Of Delhi) reported in 2022 LiveLaw (SC) 615, whereby, the Supreme Court's judgement highlighted the legal parameters to be examined in appeals under Section 378 of the Code against the order of acquittal. It observed that the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, especially when evidence on record has been analysed. The Court had further noted in the above judgement that an order of acquittal strengthens the presumption of innocence in favour of the accused, and thus, the Appellate Court must be cautious in reversing the Trial Court's acquittal.

The court pointed, “Learned APP appearing for the appellant-State has not been able to point out any perversity in the findings recorded by the trial court. Nothing has been pointed out to suggest that the findings as recorded by the trial court, have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material.”

“In my opinion, even on appreciation of the entire evidence on record, the prosecution has miserably failed to establish the involvement of the respondent-accused for the offence alleged. No fault can be found with the approach of trial court in dealing with evidence and the conclusions arrived upon in absence of any evidence establishing the involvement of the respondent-accused. In my opinion, the trial court has rightly recorded the acquittal of the respondent-accused and the order of trial court does not suffer any infirmity,” the Court concluded while dismissing the appeal.

Case Title: State Of Gujarat Versus Suhel Ismail Ibrahim Vora Patel

LL Citation: 2024 LiveLaw (Guj) 75

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