Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1333 OF 2018
Ram Ratan .…Appellant(s)
Versus
State of Madhya Pradesh ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
The appellant is before this Court in this appeal
1.
assailing the judgment dated 23.02.2017 passed by the
High Court of Madhya Pradesh in Criminal Appeal
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2021.12.17
16:06:10 IST
Reason:
No.691/2013 titled Ram Ratan vs. State of Madhya
1
Pradesh. Though the said appeal was disposed of by the
High Court along with the companion appeal, the
consideration herein is limited to the case against the
appellant herein i.e. Ram Ratan who was arrayed as the
first accused before the trial court.
The appeal before the High Court was filed by the
2.
appellant, being aggrieved by the judgment dated
31.07.2013 passed by the Special Judge (MPDVPK Act)
1981, Sheopur in Special Case No.13/2013 (old case
No.26/2012). 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 (“IPC” for
short) read with Section 11/13 of Madhya Pradesh
Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam
1981 Act (“MPDVPK Act, 1981” for short) 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
2
period of 4 months. The coaccused Raju alias Rajendra
was further convicted and sentenced under Section 25 (1
B) (a) of Arms Act to oneyear rigorous imprisonment with
fine of Rs.500/, in default of the same, to further
undergo 2 months rigorous imprisonment. Though all the
three accused had filed the respective appeals before the
High Court against the said conviction and sentence, the
coaccused Chotu died during the pendency of his
appeal, due to which the said appeal abated. As noted
above, though the appeal of Raju alias Rajendra was also
considered by the High Court through the common
judgment, the present appeal is filed by the appellant
alone and as such the conviction and sentence of the
appellant based on the contentions putforth on his
behalf only are adverted to in this judgment.
The brief facts are that one, Rajesh Meena lodged a
3.
complaint on 27.06.2012, alleging that on the intervening
night of 2627/6/2012, while he was sleeping in the hut
constructed in the field to guard the crops, at about
3
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 the 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 also the mobile phone and
4
apprehended the accused. The police on completing the
investigation filed the chargesheet against the appellant
for the offences under Sections 392/397 of IPC and
under Sections 11/13 of MPDVPK Act, 1981.
The trial court framed charges through the order
4.
dated 26.02.2013 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 (1B) (a)/27 of the Arms Act was framed
against the other coaccused namely, Raju alias
Rajendra. The appellant and his coaccused having
pleaded not guilty, stood trial in the matter.
The trial court having noted the evidence tendered
5.
through PW1 to PW12, the documents which were
marked and the material objects identified, arrived at its
ultimate conclusion. While doing so, the trial court has
referred in detail to the evidence tendered by the
complainant Rajesh (PW1) who narrated the entire
incident from the time he was woken up in the midnight
5
and stated about having identified the accused as there
was a light burning in the hut. Tulsiram (PW2), uncle of
the complainant and Mukesh (PW3), brother of the
complainant corroborated the version stated by the
complainant. Dhanpal (PW5), father of the complainant
had also stated with regard to the sequence in which he
had come to know about the incident in the same
sequence as had been stated by PW3. Mahavir (PW4),
Ramjilal (PW6) and Dhanjeet (PW7) are the witnesses to
the seizure of motorcycle and the gun respectively.
However, PW6 and PW7 had turned hostile.
Chandrabhan Singh (PW8) is the witness who examined
the 12bore gun. A.L. Azad (PW11) is the police officer
who arrested the accused and the other witnesses are the
procedural official witnesses.
The trial court on analysing the said evidence
6.
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
6
and the sentence were accordingly handed down. The
appellant and his coaccused 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 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 adverted to the matter in detail
has reappreciated 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 this appeal.
Heard Mr. Shishir Kumar Saxena, learned counsel
7.
for the appellant, Mr. Sunny Choudhary, learned counsel
for the respondent and perused the appeal papers.
7
The learned counsel for the appellant while
8.
assailing the judgments would at the outset contend that
the complaint lodged by PW1 and the evidence tendered
by him are not sufficient to indicate that the appellant is
guilty of the charge alleged against him. It is contended
that the appellant has been implicated due to political
rivalry, though no such incident as alleged had taken
place. In addition to the judgments cited before the High
Court and the contentions putforth therein, learned
counsel has also relied on the decision of this Court
dated 29.10.2021 in titled
Crl. Appeal No.903 of 2021
Ganesan vs. State Rep. by Station House Officer and
connected appeal With
i.e Crl. Appeal No.904 of 2021.
reference to the said judgment, it is contended that
firstly, the charge under Section 397 of the IPC would not
be sustainable since the gun has not been used and the
conviction can be sustained only if the ‘offender’ uses any
deadly weapon while committing robbery. It is contended
that even otherwise, the charge under Section 397 IPC
8
would not be sustainable against the appellant herein
since there is no serious allegation or proof of the
appellant having used any weapon much less deadly
weapon even if the incident of robbery which occurred is
held to be proved against the appellant. In that view, it is
contended that the appellant is liable to be acquitted or
in the alternative, even if it is held that the charge under
Section 392 IPC is proved, the appellant has undergone
sentence of nearly 4 years which is sufficient
punishment, which aspect be considered by this Court.
The learned counsel for the State would refer to
9.
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 putforth by the
appellant or his coaccused was not acceptable. It is
contended that the motorcycle and the mobile phone
which had been stolen by the accused had been
9
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.
From the evidence as noted by the trial court and
10.
the High Court, it is seen at the outset that the
complainant Rajesh (PW1) has spoken in detail with
regard to the incident which occurred on the intervening
night of 2627/6/2012. The manner in which he was
woken up by the accused and the demand for money that
was made by brandishing the firearm has been narrated
in detail. The identification of the persons which was
possible due to the light which was on, is also stated.
10
Though lengthy crossexamination has been made, in so
far as the incident relating to which PW1 had given the
detailed account, has remained intact and has not been
discredited. Insofar as the contention putforth by the
learned counsel for the appellant that he has been
implicated due to political reasons, there is no material
on record. It is no doubt true that as pointed out from the
crossexamination contained in paras 27, 28 and 29 of
the crossexamination, PW1 has stated that his cousin
Ramcharan is a political leader. Further, in the same
paragraph, though he has stated that all the members of
his family advised him that he should file a report against
the accused persons and that he had filed the report after
getting the said suggestion, it does not indicate that there
was any incident of political rivalry due to which the story
was created and the complaint was filed. It is only an
attempt by the learned counsel to try and connect the
unconnected matters. The cousin being a political leader
may be a fact but with regard to the complaint, all that
11
PW1 has mentioned is the manner in which the
complaint was lodged relating to the incident which had
taken place after the suggestion given by the family
members that the law should be set in motion. The same
does not take away the gravity of the situation or alter the
truth of the matter.
Having taken note of the manner in which the trial
11.
court has referred to the evidence and the same has been
reappreciated by the High Court, we do not deem it
necessary to once again go into the evidence of the other
witnesses, having noted the detailed account given by
PW1 which would be of substance in this proceeding to
answer the relevant contention. Therefore, the evidence is
sufficient and convincing to arrive at the conclusion that
the incident as narrated by PW1 had occurred and the
appellant and his coaccused had committed robbery.
Though, this remains the position, the question
12.
which needs consideration is with regard to the
contention that the firearm had not been put to use and
12
therefore the charge under Section 397 IPC is not
sustainable and also the further contention that the
charge under Section 397 even otherwise would not be
sustainable against the appellant since there is no
material or evidence to indicate that the appellant had
used the firearm, even if it is held that the incident had
occurred as alleged.
13. For better understanding, it would be appropriate
to take note of the provisions contained in Sections 392
and 397 of IPC which read as hereunder:
“ 392. Punishment for robbery. 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; and, if the robbery be committed on the
highway between sunset and sunrise, the
imprisonment may be extended to fourteen
years.
397. Robbery, or dacoity, with attempt to
cause death or grievous hurt. 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.”
(Emphasis supplied)
13
14. On the said aspect, it would be appropriate to take
note of the decision in the case of
Shri Phool Kumar vs.
Delhi Administration (1975) 1 SCC 797 wherein it is
observed as hereunder:
“5. Section 392 of the Penal Code provides:
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; and, if the robbery be
committed on the highway between sunset
and sunrise, the imprisonment may be
extended to fourteen years. The sentence of
imprisonment to be awarded under Section
392 cannot be less than seven years if at the
time of committing robbery the offender uses
any deadly weapon or causes grievous hurt to
any person or attempts to cause death or
grievous hurt to any person: vide Section
397.
A difficulty arose in several High
Courts as to the meaning of the word
“uses” in Section 397. The term ‘offender’
in that section, as rightly held by several
High Courts, is confined to the offender
who uses any deadly weapon. The use of a
deadly weapon by one offender at the time
of committing robbery cannot attract
Section 397 for the imposition of the
minimum punishment on 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
Kumar or somebody else, (surely one was
there who had fired three shots) could not be
and has not been the basis of sentencing the
appellant with the aid of Section 397. So far
as he is concerned, he is said to be armed
with a knife which is also a deadly weapon.
14
To be more precise from the evidence of PW
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 knife or causing of
grievous hurt with it was not necessary to
bring the offender within the ambit of Section
397 of the Penal Code.”
(Emphasis supplied)
15. Further, in Dilawar Singh vs. State of Delhi
(2007) 12 SCC 641, it is held as hereunder:
“19. The essential ingredients of Section 397
IPC are as follows:
1. the accused committed robbery.
2. while committing robbery or dacoity (i) the
accused used deadly weapon
(ii) to cause grievous hurt to any person (iii)
attempted to cause death or grievous hurt to
any person.
3. “Offender” refers to only culprit who
actually used deadly weapon. When only
one has used the deadly weapon, others
cannot be awarded the minimum
punishment. It only envisages the
individual liability and not any
constructive liability. Section 397 IPC is
attracted only against the particular
accused who uses the deadly weapon or
does any of the acts mentioned in the
provision. But the other accused are not
vicariously liable under that section for
acts of the coaccused.
21. In the instant case admittedly no injury
has been inflicted. The use of weapon by
offender for creating terror in mind of victim
15
is sufficient. It need not be further shown to
have been actually used for cutting, stabbing
or shooting, as the case may be.”
(Emphasis supplied)
I n the decision of (supra) referred to by
16. Ganesan
the learned counsel for the appellant, the above noted
decisions of this Court has been referred and this Court
has held as hereunder:
“12.7. 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.
In light of the above observations and
the law laid down by this Court in the
aforesaid two decisions the case on behalf of
the accused in the present appeals is
required to be considered. Even as per the
case of the prosecution and even considering
the evidence on record it can be seen that the
present accused A1 and A3 are not alleged to
have used any weapon. The allegation of use
of any weapon was against Benny and
Prabhakaran. Therefore, in absence of any
allegations of use of any deadly weapon by
16
the appellants herein Accused Nos.1 and 3
Section 397 IPC shall not be attracted and to
that extent the Learned Counsel appearing on
behalf of the appellants accused are right in
submitting that they ought not to have been
convicted for the offence punishable under
Section 397 IPC.”
17. From the position of law as enunciated by this
Court and noted above, firstly, it is clear that the use of
the weapon to constitute the offence 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
offence 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.
18. Though the above would be the effect and scope
of Section 397 IPC as a standalone provision, the
17
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 offence under
Section 397 IPC being applicable to the offender alone,
the vicariability 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 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. In the instant 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
18
available to the appellant if there is no specific
allegation against him.
19. Keeping this aspect in view, it is necessary to
examine the manner in which PW1 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.
Apart from the narration of the incident contained
20.
in the FIR, the evidence tendered by the victim Rajesh
(PW1) about the incident is as hereunder:
“02. On the same night, at the aforesaid time
of 2:30 AM, all these three accused persons
who are present before me in this Court by
names Raju, Chotu and Gujar approached
me at which time I was sitting on a temporary
watch tower put by me near to the tube well
for guarding my cultivation field and a bulb
was glowing there. In the illumination of said
bulb, I could see and identify them. At that
relevant time, I was sleeping there.
Among
them Raju Gujar woke up me from my
sleep and pointed the nozzle of the
country rifle on my chest and demanded
with me to handover whatever money I
had in my possession at that relevant
19
moment. I informed Raju Gujar that I do
not have any money with me. Still, he
continued to keep the said weapon on my
chest itself and again asked me to hand
over the keys of my motor cycle. At that
relevant time, I was having my Splendour
Honda Motor Cycle. On being scared by the
fear of said Raju as well as apprehending
danger from his arm, I politely handed over
the key of the Motorcycle to said Raju Gujar
by putting those keys in his hand.
03. At that time in my pocket, my mobile was
kept. It was a Spice42 Model branded
company phone. By again putting the
firearm Rifle on my chest he took my
mobile by himself by inserting his hands
in my pocket and taking out the mobile
set from the pocket out.”
(Emphasis supplied)
From the extracted portion and more particularly
21.
the emphasized portion of the evidence tendered by PW1,
his account is specific to the fact that it was Raju Gujar
alias Rajendra who had pointed out the firearm to his
chest and indulged in the act of robbing him of his
possession namely, the mobile. It is no doubt true that in
the further portion of the evidence tendered by PW1 he
had referred to all the three accused having forced him to
sit on the motorcycle and had taken him away. It is
20
further stated that after they reached Nanawat village and
the tyre of the motorcycle got punctured, he was made to
get down from the motorcycle. At this point, it has been
stated that the appellant pointed his ‘gun rifle’ at him and
made him to step down from the motorcycle and by
threatening him, had taken him in the direction of
Amalada village. Though, he has deposed to that extent,
the fact of the appellant having used another country
made rifle other than the one which was being used by
Raju alias Rajendra has not been established. It is no
doubt true, that the appellant had participated in the
offence of committing robbery since ultimately the
motorcycle was hidden at a place which was known to the
appellant and the property seizure memo indicates that
the motorcycle was recovered at the instance of the
appellant that certainly constitutes an offender under
Section 392 IPC.
Further, the relevant contents in the FIR reads as
22.
hereunder:
21
“At about 2:30 in the morning the accused
Raju, Coaccused Chotu and Ramratan came
to him. The Raju was having a gun with
him and forced him to wake up and
demanded money when the complainant
inform that he does not have any money,
therefore the Raju pointed out his gun
towards the chest of the complainant and
the complainant in its turn handed over
the key of the motorcycle the Raju has
also took out the mobile from the pocket
of the shirt of the complainant, thereafter
all three accused person who is the
complainant to sit on the motorcycle along
with them, when they reached near the
village Nanawat the motorcycle got punctured
and therefore all the three person compelled
to complainant to get down from the
motorcycle and thereafter they took his
motorcycle and went away toward Aamlda
and Morkhudana, then I reached at Aamlda,
and all happening narrated to his maternal
uncle Tulsiram, and then his father also
came there, thereafter I searched the
motorcycle but it is not searched out
therefore came to local police station for
lodging the report, and he wants to take
necessary action.”
(Emphasis supplied)
23. Therefore, if the contents of the FIR and the
evidence tendered by PW1 are taken note of, it would
stand established that though all the three accused had
taken part in the offence of committing robbery, only one
of the accused namely Raju alias Rajendra had used the
22
firearm. The said firearm was seized from the possession
of Raju alias Rajendra and from the evidence of A.L. Azad
(PW11) it is clear that the accused Raju alias Rajendra
had disclosed that the firearm was kept in his house and
it was recovered in the presence of the witnesses. In
addition, Pritam Singh (PW9) has stated that permission
had been sought for prosecuting Raju alias Rajendra with
regard to seizure of the 12bore gun and permission had
been granted. Chandrabhan Singh (PW8) in his evidence
had stated that he had examined the gun and the same
was capable of being fired. His evidence would disclose
that only one gun had been seized and examined by him.
Further, based on the said evidence it is Raju alias
Rajendra alone who has been convicted under the
provisions of the Arms Act.
24. If that be the position, it would stand established
and proved beyond doubt that only one of the accused
namely Raju alias Rajendra had used the firearm and
there was neither any allegation apart from a stray
23
sentence nor was such charge of having used firearm
proved against the appellant. In that light, if the position
of law enunciated by this Court as noticed above is kept
in view, the charge under Section 397 IPC can be
fastened on the ‘offender’ who actually uses the firearm.
In the instant case, since the facts and the evidence does
not indicate that the appellant could be construed as an
‘offender’ who used the firearm, the charge alleged
against him and held to be proved by the trial Court as
also the High Court under Section 397 IPC and Section
11/13 of MPDVPK Act, 1981 cannot be sustained.
However, the appellant having participated in the offence
of committing robbery which stands established with
sufficient evidence, the conviction handed down by the
trial court and upheld by the High Court under Section
392 IPC is sustainable to that extent.
In view of the above conclusion, the sentence
25.
imposed on the appellant needs consideration. Since, we
have arrived at the conclusion that the charge under
24
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 offence 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 offence of robbery, in
our opinion, imprisonment of around 3 years would be
sufficient punishment. In instant case, it is noticed that
the appellant has undergone imprisonment for a period of
3 years 5 months and 1 day as on 10.11.2021, as per the
statement filed before this Court. Hence, if the sentence
undergone by the appellant is treated as the punishment,
it would meet the ends of justice.
In the result, we pass the following order:
26.
25
i) The judgment dated 19.10.2012 passed by
the Special Judge, (MPDVPK Act) in Special
Case No.13/2013 (Old Case No.26/2012)
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
No.691/2013 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 the 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.
26
(v) The appeal is allowed in part to the extent
indicated above.
(vi) All pending applications, if any, shall stand
disposed of.
….…………………….CJI.
(N.V. RAMANA)
..……………………….J.
(A.S. BOPANNA)
…….……………………J.
(HIMA KOHLI)
New Delhi,
December 17, 2021
27