Dhani Ram and Another vs State of U.P.

P.K. Jain, J.—Appellants Dhani Ram and Jagdish have preferred this appeal against the judgment and order dated 26.7.1980 passed by Sri S.N. Singh, the then Addl. Sessions Judge. Lalitpur convicting the Appellants u/s 392/397, I.P.C. and sentencing each of them to undergo 10 years'' rigorous imprisonment.

Heard Sri P.N. Mishra, learned Counsel for the Appellants and the learned A.G.A.

The main contention of the learned Counsel for the Appellants is that a charge u/s 397, I.P.C. is not established by the evidence on record and, therefore, conviction of the Appellants u/s 392, I.P.C. with the aid of 397, I.P.C. cannot be sustained. The learned Counsel further contends that the sentence awarded is too severe. Learned A.G.A. contends that there is specific allegation of use of firearm, a deadly weapon, in commission of the crime. Therefore, the Appellants were rightly convicted u/s 392/397, I.P.C. It is further contended that the minimum sentence where an accused convicted for offence of robbery and dacoity with the charge u/s 397, I.P.C. is 7 years. Therefore, the sentence awarded cannot be said to be too severe.

The occurrence took place on 1.7.77 at 5.00 a.m. It was alleged that on the said date and time, the first informant Nisar All was going to village Padwa when he reached in the village of Betpur minor within the local limits of P.S. Mehroni, district Lalitpur, three miscreants, two men and one woman, with a bicycle were going ahead on him. When the first informant went ahead of them, one of the miscreants stopped him by catching hold of carrier of his bicycle. They robbed him of his cycle. The other miscreant brandished pistol upon him and thereafter the first informant was taken near the road where at the pistol point he was relieved of his shirt and pant. His pant was torn and with a piece of it, his hands were tied. Thereafter the miscreants rah away. The first informant, however, managed to release himself and raised alarm. Witnesses Hamid Ali, Sattar Khan and others reached the scene of occurrence who pursued the miscreants but were unable to apprehend them. While they were searching for the miscreants, the first informant saw the miscreants with his looted cycle. On being challenged, one of the miscreants threatened to run away falling which they may be killed. At about 3.00 p.m., the complainant and the witnesses reached Gram Pulwara where they saw three miscreants sitting on a culvert and were found possessed of the looted cycle of the first informant and one more cycle. Anwar Ali brandished his licensed gun at the miscreants in reply to which one of the miscreants also pointed the pistol to the complainant''s party but in the meantime, Hasim Ali gave a blow on the hands of the said miscreants causing pistol to fall from the hands of the miscreant. Thereafter one of the miscreants, namely, Dhani Ram was apprehended and others were successful in running away.

The report of this incident was lodged by Nisar Ali. After Jagdish Appellant was apprehended he was put up for test identification. Out of the six witnesses who went to identify him, four identified him correctly without any mistake.

The prosecution examined 14 witnesses at the trial who corroborated the prosecution case. P. W. 1 Nisar All and P. W. 3 Rajjab Ali correctly identified Appellant Jagdish at the trial. The trial court believed the prosecution evidence and accordingly, convicted and sentenced the Appellants.

This is, no doubt, borne out from the prosecution evidence that pistol was used in the commission of the crime as there are clear allegations that the victims were looted at the pistol point. In Shri Phool Kumar Vs. Delhi Administration, , it was held that if the offender uses any deadly weapon at the time of committing robbery, Section 397 is attracted. That was also a case in which the victims were robbed at the pistol point. It was held by the Supreme Court that "if the deadly weapon was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. However, there must be positive evidence as to which of the several miscreants had used the deadly weapon. There is no vicarious liability u/s 397, I.P.C. as in the case of Sections 34 and 149, I.P.C. This is evident from the language of Section 397. I.P.C. which reads as follows:

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.

Only such of the several miscreants who use deadly weapon or cause grievous hurt to any person or attempt to cause death or grievous hurt could be covered by mischief of Section 397, I.P.C. Other participating with such miscreants and not proved to have used the deadly weapon or caused grievous hurt or attempt to cause death or grievous hurt cannot be convicted u/s 397, I.P.C. The prosecution should lead evidence as to which of the several miscreants had actually used the deadly weapon. In the present case, such evidence is lacking. Neither in the first information report nor in the statements before the Court. It has been specifically pointed out that as to which of the Appellants involved in the commission of the crime had used the deadly weapon. In the absence of such evidence, none of the Appellants could have been convicted u/s 397. I.P.C. Therefore, the Appellants'' conviction u/s 397, I.P.C. cannot be sustained. Offence u/s 392, I.P.C. is, however, proved against them beyond reasonable shadow of doubt.

The trial court awarded sentence of 10 years'' R. I. to the Appellants. I agree with the learned Counsel for the Appellants that considering the nature of the robbery committed and the nature of the criminal force used by the Appellants, the punishment awarded is too severe. Considering the nature of the offence committed by the Appellants, in my view, the sentence of two and a half years u/s 392, I.P.C. would meet the ends of justice.

The appeal is, consequently, partly allowed. The conviction of the Appellants u/s 392/397, I.P.C. is set aside. They are instead convicted u/s 392. I.P.C. and sentenced to undergo R.I. for a period of two and a half years. They shall surrender before the C.J.M., Lalitpur to serve out the sentence awarded to them.