The Supreme Court has clarified two important positions of the law relating to the offence of robbery under the Indian Penal Code. A three-judge bench comprising Chief Justice Justice N.V. Ramana and Justices A.S. Bopanna and Hima Kohli passed this order while hearing a petition filed by Ram Ratan.
The appeal before the High Court was filed by the appellant, being aggrieved by the judgment dated July 31, 2013 passed by the Special Judge (MPDVPK Act) 1981, Sheopur . Through the said judgment, the trial court has convicted the appellant along with the other two accused namely, Chotu and Raju alias Rajendra under Section 392 and 397 of Indian Penal Code read with Section 11/13 of Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam 1981 Act (MPDVPK Act, 1981”) and sentenced the appellant and other accused to rigorous imprisonment of 7 years with fine of Rs 1000, in default of the same, to undergo imprisonment for a further period of 4 months.
The facts are that one, Rajesh Meena lodged a complaint on June 27, 2012, alleging that on the intervening night of 26-27/6/2012, while he was sleeping in the hut constructed in the field to guard the crops, at about 02:30 a.m, the appellant along with Raju alias Rajendra and Chotu came to him and woke him up. The said Raju alias Rajendra was having a gun with him and on pointing the same towards the chest of the complainant, demanded to part with money. The complainant informed that he did not have any money, due to which the key of his motorcycle was snatched and the said Raju alias Rajendra also took out the mobile phone from the pocket of his shirt.
Thereafter, all the three accused persons forced the complainant to sit on the motorcycle along with them. When they reached the village Nanawat, the motorcycle got punctured and therefore all the persons compelled the complainant to get down from the motorcycle and the motorcycle was taken away. By the said time since it was dawn, his uncle named Tulsiram 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 well as the mobile phone and apprehended the accused. The police on completing the investigation filed the chargesheet against the appellant for the offenses under Sections 392/397 of IPC and under Sections 11/13 of MPDVPK Act, 1981.
The trial court framed charges through the order dated February 26, 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 (1-B) (a)/27 of the Arms Act was framed against the other co¬accused namely, Raju alias Rajendra. The appellant and his co-accused, having pleaded not guilty, stood trial in the matter.
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The trial court on analyzing the evidence returned the finding that the appellant and his co accused had indulged in the incident complained of and therefore held the charge to be proved. The conviction and the sentence were accordingly handed down. The appellant and his co-accused while assailing the judgment of the trial court, apart from contending that the case has been falsely alleged against them, had also contended that the charge under Section 397 of IPC cannot be sustained. It was their case that the firearm, even if it was proved to be carried, had not been used and as such the charge under Section 397 IPC would not lie.
The High Court having advertised the matter in detail has appreciated the evidence with regard to the incident and accordingly upheld the judgment passed by 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 passed by the trial court and upheld by the High Court, is assailing the same in the appeal.
The counsel for the appellant while assailing the judgments would at the outset contend that the complaint lodged by Rajesh and the evidence tendered by him are not sufficient to indicate that the appellant is guilty of the charge alleged against him.
The counsel for the State would refer to the evidence tendered before the trial court in detail and has pointed out that the trial court as also the High Court has taken note of the said evidence. The charge having been proved, both the Courts have arrived at the conclusion that the contention as put-forth by the appellant or his co¬accused was not acceptable.
The charge having been proved, both the Courts have arrived at the conclusion that the contention as put¬forth by the appellant or his co-accused was not acceptable. It is contended that the motorcycle and the mobile phone which had been stolen by the accused had been recovered and the gun which was used was also seized and examined by the expert.
In that circumstance, it is contended that when the expert has opined that the gun was in working condition, the actual use of the firearm by firing from it is not required but the exposure of the weapon so as to create fear in the mind of the victim is sufficient to prove the charge under Section 397 IPC. It is, therefore, contended that the judgment passed by the trial court and confirmed by the High Court does not call for interference.
Having taken note of the manner in which the trial court has referred to the evidence and the same has been appreciated by the High Court, the court do not deemed it necessary to once again go into the evidence of the other witnesses, having noted the detailed account given by Rajesh which would be of substance in this proceeding to answer the relevant contention.
Therefore, the court observed that the evidence is sufficient and convincing to arrive at the conclusion that the incident as narrated by Rajesh had occurred and the appellant and his co-accused had committed robbery.
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The Court held that,
From the position of law as enunciated by the Court and noted above, firstly, it is clear that the use of the weapon to constitute the offense under Section 397 IPC does not require that the ‘offender’ should actually fire from the firearm or actually stab if it is a knife or a dagger but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or apprehension in the mind of the victim is sufficient. The other aspect is that if the charge of committing the offense 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 charged under Section 397 IPC.
Though the above would be the effect and scope of Section 397 IPC as a standalone provision, the application of the same will arise in the totality of the allegation and the consequent charge that will be framed and the accused would be tried for such charge.
In such circumstance, in the teeth of the offense under Section 397 IPC being applicable to the offender alone, the variability of the same will also have to be noted if the charge against the accused under Sections 34, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC. In such an event, it will have to be looked at differently in the totality of the facts, evidence and circumstances involved in that case and the provisions invoked in that particular case to frame a charge against the accused.
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The Court further noted that,
In the case, the charge under Section 34 IPC was not framed against the appellant nor was such an allegation raised and proved against the appellant. Hence, benefit of the interpretation raised on the scope of Section 397 IPC to hold the aggressor alone as being guilty, will be available to the appellant if there is no specific allegation against him.
Keeping this aspect in view, it is necessary to examine the manner in which Rajesh has alleged against the appellant so as to consider whether the appellant is also an ‘offender’ who used the firearm so as to be charged under both, Section 392 and 397 IPC even if he is complicit to the incident, more particularly when Section 34 IPC has not been invoked in the instant case.
“Since, the court have arrived at the conclusion that the charge under Section 397 and Section 11/13 of MPDVPK, Act, 1981 are not proved against the appellant, the sentence of 7 years rigorous imprisonment imposed by the trial Court and upheld by the High Court is liable to be set aside, which is accordingly done. Insofar as, the offense proved under Section 392 IPC, the same provides for the punishment of rigorous imprisonment for a term which may extend to 10 years and also to fine. As noted, the motorcycle and the mobile which was stolen have been recovered. However, the appellant having indulged in the offense of robbery, in our opinion, imprisonment of around 3 years would be sufficient punishment. In case, it is noticed that the appellant has undergone imprisonment for a period of 3 years 5 months and 1 day as on November 10, 2021, as per the statement filed before the Court. Hence, if the sentence undergone by the appellant is treated as the punishment, it would meet the ends of justice,”
-the order reads.
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In the result, the court passed the following order:
i) The judgment dated 19.10.2012 passed by the Special Judge, (MPDVPK Act) in Special Case insofar it has convicted the appellant under Section 397 IPC read with Sections 11/13 of MPDVPK Act, 1981 and upheld by the High Court of Madhya Pradesh in Criminal Appeal are set aside to that extent.
ii) The conviction of the appellant under Section 392 IPC by the trial court and upheld by the High Court, is sustained.
iii) The sentence imposed on the appellant is modified to that of the period of imprisonment undergone by him till this day. The fine imposed and default sentence thereof is retained.
iv) The appellant is ordered to be set at liberty forthwith if the fine is paid and he is not required to be detained in any other case.
v) The appeal is allowed in part to the extent indicated above.
vi) All pending applications, if any, shall stand disposed of.