Offender Who Had Not Used Deadly Weapon During Robbery Cannot Be Convicted Under Section 397 IPC: Supreme Court

The Supreme Court has observed that an offender who had not used any deadly weapon at the time of committing robbery/dacoity cannot be convicted under Section 397 of the Indian Penal Code.

The use of deadly weapon by one offender at the time of committing robbery/dacoity cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon,

In this case, the appellants -accused were convicted under Section 397 IPC which reads thus: 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. Before the Apex Court, it was contended that the allegation of use of any weapon was against the other accused only and thus in absence of any allegations of use of any deadly weapon by the appellants, Section 397 IPC is not attracted.

To address this argument, the court first noticed Sections 391-398 and summarized the law regarding robbery and dacoity as follows:

1. As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
2. Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
3. As per Section 392 IPC 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. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
4. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine.
5. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
6. Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine
7. In case of dacoity with murder (Section 396 IPC) if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
8. As per Section 397 IPC 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. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years

'Dacoity' an exaggerated version of robbery

Taking note of this , the bench observed that the 'dacoity' can be said to be an exaggerated version of robbery

On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where 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.

The court thus agreed with the contention that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC.

Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person  at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid, the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon….' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC – 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery – dacoity/dacoity with murder (Para 12.4)

In the instant case, the court noted that there is no allegation against the appellant accused that they used dangerous weapons. The court referred to  Phool Kumar vs. Delhi Administration, (1975) 1 SCC 797 (para 5 & 6) and Dilawar Singh vs. State of Delhi, (2007) 12 SCC 641 (para 19 to 22) and observed:

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. (Para 12.7)

The other issue in this case was whether if the accused could not have been convicted for the offence under Section 397 IPC, still their conviction and sentence can be sustained under Section 391 IPC or not. The court noticed that in this case all the accused were charged by the trial Court for the offences under Section 395 IPC as well as 397 IPC. Therefore, once a case under Section 391 IPC punishable under Section 395 IPC is made out, they can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC as no prejudice shall be caused to the accused, the court held. Regarding this, the court observed:

"Even otherwise there is no difference between Section 391/395 and Section 397 IPC so far as sentence/punishment except the difference in case of Section 397 IPC the punishment shall not be less than seven years. Otherwise, the 'robbery' and 'dacoity' are sine qua non. 'Dacoity' is nothing but an exaggerated version of 'robbery' with a difference in number of accused. Therefore, also even in a case where the accused is not convicted for the offence under Section 397 IPC, still he can be punished under Section 395 IPC and no prejudice shall be caused to him as ultimately the prosecution has to prove the 'robbery' and 'dacoity' either for the offence punishable under Section 395 IPC or under Section 397 IPC. However, to bring the case against the accused under Section 397 IPC, the prosecution has to prove one additional fact that the offender has used any deadly weapon or has caused grievous hurt to any person, or has attempted to cause death or grievous hurt to any person. Therefore, the case is made out under Section 391 IPC read with Section 395 IPC. Despite the fact that the courts below convicted the accused 36 under Section 397 IPC which is held to be unsustainable, in that case also if the case is made out under Section 391 IPC read with Section 395 IPC, still they can be convicted for the offence punishable under Section 391 read with Section 395 IPC even without even altering the charge."

In this case, in FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. Thus one another contention raised by the accused was that no case is made out for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. In this regard, the court said:

"Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of 'dacoity'." 

The court also rejected the contention that, since in a subsequent trial one of the co- accused came to be acquitted and therefore the benefit of acquittal must be given to the present accused. In this regard, the court observed:

"At the outset, it is required to be noted that the accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also required to be noted that Benny came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of Benny, it appears that PW1 during the trial in case of Benny turned hostile. In the case of Benny only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case PW1 not only supported the case of prosecution but as many as 15 witnesses came to be examined. Therefore, merely because in the subsequent split trial the Benny came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants – accused as the prosecution has been successful in proving the case against the present accused"

Partly allowing the appeal, the bench set aside the conviction of the accused under Section 397 IPC and convicted them for the offences under Section 391 IPC punishable under Section 395 IPC and sentenced to undergo seven years Rigorous Imprisonment.

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