12. Though, this remains the position, the question which needs consideration is with regard to the contention that the firearm had not been put to use and 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)
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 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 available to the appellant if there is no specific allegation against him.
PARTY: Ram Ratan vs.. State of Madhya Pradesh – CRIMINAL APPEAL NO.1333 OF 2018 – December 17, 2021.
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