SEC 397 IPC
Ram Ratan v State of Madhya Pradesh, SC 2021
FACTS – Rajesh Meena lodged a complaint, 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 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 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 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 on analysing the said evidence held the charge to be proved. The conviction 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 had 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.
CAUSE – The appellant claiming to be aggrieved by the judgment passed by the trial court and upheld by the High Court.
ARGUMENTS – The learned counsel for the appellant while assailing the judgements 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.
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 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.
The learned 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 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 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.
ISSUE – 1) Whether the contention that the firearm had not been put to use and therefore the charge under Section 397 IPC is not sustainable 2) Whether the 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.
DECISION – 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 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. Further, based on the said evidence it is Raju alias Rajendra alone who has been convicted under the provisions of the Arms Act.
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 sentence nor was such charge of having used firearm proved against the appellant. In that light, 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 imposed on the appellant needs consideration. Since, we 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 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.