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CASE NO.: Appeal (crl.)  491 of 2002

PETITIONER: Dilawar Singh

RESPONDENT: State of Delhi

DATE OF JUDGMENT: 05/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.491 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of the learned  Single Judge, Delhi High Court, dismissing the appeal filed by  the appellant and affirming his conviction for offences  punishable under Sections 452, 392 and 397 of the Indian  Penal Code, 1860 (in short the ’IPC’) and sentencing him to  undergo one year, two years and seven years rigorous  imprisonment respectively with fine in each case with default  stipulation.  The sentences were directed to run concurrently.   

2.      Prosecution version in a nutshell is as follows: Complaint was filed by Balwant Singh (hereinafter  referred to as the Complainant-PW1) alleging as follows:

On 8.8.1984 he was sitting at Kali Mata Ka Mandir,  Udaseen Ashram at Village Taharpur, Shahdara, Delhi.  He  acts as a priest in the temple.  Donations were collected from  various persons to build the temple and he was maintaining  the temple.  He was residing at the temple and performing  regular puja. On 8.8.1984 at about 9.30 p.m.,  after  performing evening puja and aarti and after having dinner he  was doing meditation when five persons including two accused  persons namely the present appellant and one Ram Saran and  three persons who were Sikhs and whose names he did not  know but could identify them, entered into the temple, tied  him with a rope and ran away with the donation box with   cash of about Rs.5,000/-.  Appellant was carrying a knife,  Ram Saran was having a lathi and one of the three others who  was a Sikh was having a revolver. After some time two local  persons namely Kanwar Singh and Dr. Salekh Chand came to  the temple and they also saw five persons running towards  Gagan Cinema.  Both of them identified the appellant and  Ram Saran; they untied the rope and cried for help.  After  hearing their cry several local residents gathered at the temple  and the complainant narrated the whole incident to them.   Complainant along with Kanwar Singh and Dr. Salekh Chand  and others went to lodge report at the police station, Seema  Puri. But the duty officer did not listen to him and the local  residents and directed them to go away. On 9.8.1984  complainant made a written complaint to the Prime Minister,   police officials but to no avail.  Therefore, the complaint was

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filed on 31.8.1984. After going through the evidence, the  learned Magistrate came to the conclusion that there was  material to proceed against the appellant, Ram Saran and the  three others.  He committed the case in the Court of Sessions  as offence relatable to Section 395 IPC is exclusively triable by  that Court.  Accused Dilawar Singh pleaded innocence.  Ram  Saran died during the proceedings and the charges against  him were dropped. Except PW-1, no other witness was  examined. It was stated by the prosecution that Dr. Salesh  Chand, Kanwar Singh and others could not be traced despite  the liberty granted to the prosecution.  The trial court found  that the delay in making a grievance has been explained and  complainant’s version was acceptable.

3.      The appeal before the High Court was dismissed by the  impugned judgment on the ground that PW1’s evidence was  clear and cogent.

4.      In support of the appeal learned counsel for the appellant  submitted that the alleged incident took place on 8.8.1984 and  the complaint was lodged on 31.8.1984. Except a bare  statement to the effect that representations were made to  various persons but no material in that regard was adduced.   Further, the modalities to be adopted when the police does not  register the FIR are indicated in Section 154 (3) of the Code of  Criminal Procedure, 1973 (in short the ’Cr.P.C.’). Admittedly,  that has not been done.  It has also not been explained as to  how and why the Prime Minister of the country was moved.  Even no material has been adduced to show that any such  complaint was made either to the Prime Minister or the Police  Official claimed.  In any event, no advocate was engaged for  the accused who did not have the means to engage a lawyer  and therefore the mandate of Section 304 Cr.P.C. has been  clearly violated.  In any event, the ingredients of Section 397  IPC have not been established.  

5.      Learned counsel for the respondent on the other hand  submitted that mere delay in lodging the complaint does not in  any way affect the credibility of PW1’s version.   

6.      The evidence of PW1 is the only material on which the  conviction has been recorded.  In court his statement was that  accused appellant and Ram Saran were holding knives and  other Sikh accused were holding lathi. But in the complaint it  was stated that Ram Saran was carrying a lathi and one of the  accused Sikh was holding a revolver.  It was accepted that no  injury was inflicted on the complainant by any of the accused.

7.      The effect of not adducing material to show that in fact  the grievance was made before the police and the FIR was not  recorded has been considered by this court in several cases.  Section 304 Cr.P.C. mandates that when the accused is not  represented, the Court has to appoint a counsel so that the  accused does not go undefended.   

8.      In criminal trial one of the cardinal principles for the  Court is to look for plausible explanation for the delay in  lodging the report. Delay sometimes affords opportunity to the  complainant to make deliberation upon the complaint and to  make embellishment or even make fabrications. Delay defeats  the chance of the unsoiled and untarnished version of the case  to be presented before the Court at the earliest instance. That  is why if there is delay in either coming before the police or  before the Court, the Courts always view the allegations with  suspicion and look for satisfactory explanation. If no such

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satisfaction is formed, the delay is treated as fatal to the  prosecution case. In Thulia Kali v. The State of Tamil Nadu  (AIR 1973 SC 501), it was held that the delay in lodging the  first information report quite often results in embellishment as  a result of afterthought. On account of delay, the report not  only gets bereft of the advantage of spontaneity, but also  danger creeps in of the introduction of coloured version,  exaggerated account or concocted story as a result of  deliberation and consultation. In Ram Jag and others v. The  State of U.P. (AIR 1974 SC 606) the position was explained  that whether the delay is so long as to throw a cloud of  suspicion on the seeds of the prosecution case must depend  upon a variety of factors which would vary from case to case.  Even a long delay can be condoned if the witnesses have no  motive for implicating the accused and/or when plausible  explanation is offered for the same. On the other hand, prompt  filing of the report is not an unmistakable guarantee of the  truthfulness or authenticity of the version of the prosecution.  9.      The complainant has attempted to explain the delay by  stating that the matter was reported to the police but the  police did not take any action. Such statement can hardly be  taken to have explained the delay. It is the simplest of things  to contend that the police, though report had been lodged with  it, had not taken any steps. But it has to be established by  calling for the necessary records from the police to  substantiate that in fact a report with the police had been  lodged and that the police failed to take up the case. The  principle has been statutorily recognised in Section 210 of the  Cr.P.C. which enjoins upon the Magistrate, when it is made to  appear before him either during the inquiry or the trial of a  complaint, that a complaint before the police is pending  investigation in the same matter, he is to stop the proceeding  in the complaint case and is to call for a report from the police.  After the report is received from the police, he is to take up the  matter together and if cognizance has been taken on the police  report, he is to try the complaint case along with the G.R. Case  as if both the cases are instituted upon police report. The aim  of the provision is to safeguard the interest of the accused  from unnecessary harassment. The provisions of Section 210,  Cr.P.C, are mandatory in nature. It may be true that non- compliance of the provisions of Section 210, Cr.P.C., is not  ipso facto fatal to the prosecution because of the provision of  Section 465 Cr. P.C., unless error, omission or irregularity has  also caused the failure of justice and in determining the fact  whether there is a failure of justice the Court shall have regard  to the fact whether the objection could and should have been  raised at an earlier stage in the proceedings. But even  applying the very same principles it is seen that in fact the  appellant was in fact prejudiced because of the non- production of the records from the police. Delay in filing the  complaint because of police inaction has to be explained by  calling for the records from the police was explained by this  Court in Khedu Mohton and others v. State of Bihar (AIR 1971  SC 66). Where the Court took exception to the fact that the  complaint lodged with the police had not been summoned or  proved, no satisfactory proof of any such complaint had been  adduced before the Court, and none of the documents as  would have become available under Sec. 173, Cr. P.C., had  also been brought on record.

10.     When information is given at the police station, normally  two courses are open.  A station diary entry can be made or  the FIR registered.  In case there is any deviation, recourse to  Section 154(3) has to be made.  If that does not yield any  result a complaint can be filed.

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11.     Section 156 reads as follows: "156. Police officer’s power to investigate  cognizable cases. - (1) Any officer in charge of a  police station may, without the order of a  Magistrate, investigate any cognizable case  which a court having jurisdiction over the local  area within the limits of such station would  have power to inquire into or try under the  provisions of Chapter XIII.  (2) No proceeding of a police officer in any such  case shall at any stage be called in question on  the ground that the case was one which such  officer was not empowered under this section  to investigate.  (3) Any Magistrate empowered under Section  190 may order such an investigation as above  mentioned."

12.     Section 156 falling within Chapter XII, deals with powers  of police officers to investigate cognizable offences.  Investigation envisaged in Section 202 contained in Chapter  XV is different from the investigation contemplated under  Section 156 of the Cr.P.C..  13.     Chapter XII of the Cr.P.C. contains provisions relating to  "information to the police and their powers to investigate",  whereas Chapter XV, which contains Section 202, deals with  provisions relating to the steps which a Magistrate has to  adopt while and after taking cognizance of any offence on a  complaint. Provisions of the above two chapters deal with two  different facets altogether, though there could be a common  factor i.e. complaint filed by a person. Section 156, falling  within Chapter XII deals with powers of the police officers to  investigate cognizable offences. True, Section 202, which falls  under Chapter XV, also refers to the power of a Magistrate to  "direct an investigation by a police officer". But the  investigation envisaged in Section 202 is different from the  investigation contemplated in Section 156 of the Cr.P.C..  14.     The various steps to be adopted for investigation under  Section 156 of the Cr.P.C. have been elaborated in Chapter XII  of the Cr.P.C.. Such investigation would start with making the  entry in a book to be kept by the officer in charge of a police  station, of the substance of the information relating to the  commission of a cognizable offence. The investigation started  thereafter can end up only with the report filed by the police  as indicated in Section 173 of the Cr.P.C. The investigation  contemplated in that chapter can be commenced by the police  even without the order of a Magistrate. But that does not  mean that when a Magistrate orders an investigation under  Section 156(3) it would be a different kind of investigation.  Such investigation must also end up only with the report  contemplated in Section 173 of the Cr.P.C. But the significant  point to be noticed is, when a Magistrate orders investigation  under Chapter XII he does so before he takes cognizance of the  offence.  15.     But a Magistrate need not order any such investigation if  he proposes to take cognizance of the offence. Once he takes  cognizance of the offence he has to follow the procedure  envisaged in Chapter XV of the Cr.P.C. A reading of Section  202(1) of the Cr.P.C. makes the position clear that the  investigation referred to therein is of a limited nature. The  Magistrate can direct such an investigation to be made either  by a police officer or by any other person. Such investigation is  only for helping the Magistrate to decide whether or not there  is sufficient ground for him to proceed further. This can be

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discerned from the culminating words in Section 202(1) i.e.  "or direct an investigation to be made by a  police officer or by such other person as he  thinks fit, for the purpose of deciding whether  or not there is sufficient ground for  proceeding".  

16.     This is because he has already taken cognizance of the  offence disclosed in the complaint, and the domain of the case  would thereafter vest with him.  17.     The clear position therefore is that any Judicial  Magistrate, before taking cognizance of the offence, can order  investigation under Section 156(3) of Cr.P.C. If he does so, he  is not to examine the complainant on oath because he was not  taking cognizance of any offence therein. For the purpose of  enabling the police to start investigation it is open to the  Magistrate to direct the police to register an FIR. There is  nothing illegal in doing so. After all, registration of an FIR  involves only the process of entering the substance of the  information relating to the commission of the cognizable  offence in a book kept by the officer in charge of the police  station as indicated in Section 154 of Cr.P.C. Even if a  Magistrate does not say in so many words while directing  investigation under Section 156(3) of the Cr.P.C. that an FIR  should be registered, it is the duty of the officer in charge of  the police station to register the FIR regarding the cognizable  offence disclosed by the complaint because that police officer  could take further steps contemplated in Chapter XII of the  Cr.P.C. only thereafter.  18.     The above position was highlighted in Suresh Chand Jain  v. State of M.P. and Another [2001(2) SCC 628].

19.     In Gopal Das Sindhi and Ors. v. State of Assam and Anr.  (AIR 1961 SC 986) it was observed as follows:                          "When the complaint was received by Mr.  Thomas on August 3, 1957, his order, which  we have already quoted, clearly indicates that  he did not take cognizance of the offences  mentioned in the complaint but had sent the  complaint under Section 156(3) of the Cr.P.C.  to the Officer Incharge of Police Station  Gauhati for investigation.  Section 156(3)  states "Any Magistrate empowered under  section 190 may order such investigation as  above-mentioned". Mr. Thomas was certainly a  Magistrate empowered to take cognizance  under Section 190 and he was empowered to  take cognizance of an offence upon receiving a  complaint.  He, however, decided not to take  cognizance but to send the complaint to the  police for investigation as Sections 147, 342  and 448 were cognizable offences.  It was,  however, urged that once a complaint was filed  the Magistrate was bound to take cognizance  and proceed under Chapter XVI of the Cr.P.C.  It is clear, however, that Chapter XVI would  come into play only if the Magistrate had taken  cognizance of an offence on the complaint filed  before him, because Section 200 states that a  Magistrate taking cognizance of an offence on  complaint shall at once examine the  complainant and the witnesses present, if any,  upon oath and the substance of the  examination shall be reduced to writing and

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shall be signed by the complainant and the  witnesses and also by the Magistrate. If the  Magistrate had not taken cognizance of the  offence on the complaint filed before him, he  was not obliged to examine the complainant on  oath and the witnesses present at the time of  the filing of the complaint. We cannot read the  provisions of Section 190 to mean that once a  complaint is filed, a Magistrate is bound to  take cognizance if the facts stated in the  complaint disclose the commission of any  offence. We are unable to construe the word  ’may’ in Section 190 to mean ’must’. The  reason is obvious. A complaint disclosing  cognizable offences may well justify a  Magistrate in sending the complaint, under  Section 156(3) to the police for investigation.  There is no reason why the time of the  Magistrate should be wasted when primarily  the duty to investigate in cases involving  cognizable offences is with the police. On the  other hand, there may be occasions when the  Magistrate may exercise his discretion and  take cognizance of a cognizable offence. If he  does so then he would have to proceed in the  manner provided by Chapter XVI of the Cr.P.C.  Numerous cases were cited before us in  support of the submissions made on behalf of  the appellants. Certain submissions were also  made as to what is meant by "taking  cognizance." It is unnecessary to refer to the  cases cited. The following observations of Mr.  Justice Das Gupta in the case of  Superintendent and Remembrancer of Legal  Affairs, West Bengal v. Abani Kumar Banerjee,  AIR 1950 Cal 437

       "What is taking cognizance has  not been defined in the Criminal  Procedure Code and I have no desire  to attempt to define it. It seems to me  clear however that before it can be  said that any magistrate has taken  cognizance of any offence under  Section 190(1)(a), Criminal Procedure  Code, he must not only have applied  his mind to the contents of the  petition but he must have done so for  the purpose of proceeding in a  particular way as indicated in the  subsequent provisions of this  Chapter- proceeding under Section  200 and thereafter sending it for  inquiry and report under Section 202.  When the Magistrate applies his mind  not for the purpose of proceeding  under the subsequent sections of this  Chapter, but for taking action of  some other kind, e.g., ordering  investigation under Section 156(3), or  issuing a search warrant for the  purpose of the investigation, he  cannot be said to have taken  cognizance of the offence".                  

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were approved by this Court in R.R. Chari v.  State of Uttar Pradesh (1951 SCR 312). It  would be clear from the observations of Mr.  Justice Das Gupta that when a Magistrate  applies his mind not for the purpose of  proceeding under the various sections of  Chapter XVI but for taking action of some  other kind, e.g., ordering investigation under  Section 156(3) or issuing a search warrant for  the purpose of investigation, he cannot be said  to have taken cognizance of any offence. The  observations of Mr. Justice Das Gupta above  referred to were also approved by this Court in  the case of Narayandas Bhagwandas  Madhavdas v. State of West Bengal (AIR 1959  SC 1118). It will be clear, therefore, that in the  present case neither the Additional District  Magistrate nor Mr. Thomas applied his mind to  the complaint filed on August 3, 1957, with a  view to taking cognizance of an offence. The  Additional District Magistrate passed on the  complaint to Mr. Thomas to deal with it. Mr.  Thomas seeing that cognizable offences were  mentioned in the complaint did not apply his  mind to it with a view to taking cognizance of  any offence; on the contrary in his opinion it  was a matter to be investigated by the police  under Section 156(3) of the Cr.P.C.. The action  of Mr. Thomas comes within the observations  of Mr. Justice Das Gupta. In these  circumstances, we do not think that the first  contention on behalf of the appellants has any  substance."  

20.     In Narayandas Bhagwandas Madhavdas v. The State of  West Bengal (AIR 1959 SC 1118) it was observed as under: "On 19.9.1952, the appellant appeared before  the Additional District Magistrate who  recorded the following order:-  "He is to give bail of Rs.50,000 with ten  sureties of Rs. 5,000 each. Seen Police  report. Time allowed till 19th November,  1952, for completing investigation."  On 19.11.952, on perusal of the police report  the Magistrate allowed further time for  investigation until January 2, 1953, and on  that date time was further extended to  February 2, 1953. In the meantime, on  January 27, 1953, Inspector Mitra had been  authorized under s.23(3)(b) of the Foreign  Exchange Regulation Act to file a complaint.  Accordingly, a complaint was filed on February  2, 1953. The Additional District Magistrate  thereon recorded the following order:  "Seen the complaint filed to day against  the accused Narayandas Bhagwandas  Madhavdas under section 8(2) of the  Foreign Exchange Regulation Act read  with section 23B thereof read with  Section 19 of the Sea Customs Act and  Notification No. F.E.R.A. 105/51 dated  the 27th February, 1951, as amended,  issued by the Reserve Bank of India  under Section 8(2) of the Foreign  Exchange Regulation Act. Seen the letter

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of authority. To Sri M. H. Sinha, S. D.M.  (Sadar), Magistrate 1st class (spl.  empowered) for favour of disposal  according to law. Accused to appear  before him."  Accordingly, on the same date Mr. Sinha then  recorded the following order:-  "Accused present. Petition filed for  reduction of bail. Considering all facts,  bail granted for Rs.25,000 with 5  sureties.  To 26.3.1952 and 27.3.1952 for  evidence."  It is clear from these orders that on 19.91952,  the Additional District Magistrate had not  taken cognizance of the offence because he  had allowed the police time till November 19,  1952, for completing the investigation. By his  subsequent orders time for investigation was  further extended until February 2, 1953. On  what date the complaint was filed and the  order of the Additional District Magistrate  clearly indicated that he took cognizance of the  offence and sent the case for trial to Mr. Sinha.  It would also appear from the order of Mr.  Sinha that if the Additional District Magistrate  did not take cognizance, he certainly did  because he considered whether the bail should  be reduced and fixed the 26th and 27th of  March, for evidence. It was, however, argued  that when Mitra applied for a search warrant  on September, 16, 1952, the Additional  District Magistrate had recorded an order  thereon, "Permitted. Issue search warrant." It  was on this date that the Additional District  Magistrate took cognizance of the offence. We  cannot agree with this submission because the  petition of Inspector Mitra clearly states that  "As this is non-cognizable offence, I pray that  you will kindly permit me to investigate the  case under section 155 Cr.P.C." That is to say,  that the Additional District Magistrate was not  being asked to take cognizance of the offence.  He was merely requested to grant permission  to the police officer to investigate a non- cognizable offence. The petition requesting the  Additional District Magistrate to issue a  warrant of arrest and his order directing the  issue of such a warrant cannot also be  regarded as orders which indicate that the  Additional District Magistrate thereby took  cognizance of the offence. It was clearly stated  in the petition that for the purposes of  investigation his presence was necessary. The  step taken by Inspector Mitra was merely a  step in the investigation of the case. He had  not himself the power to make an arrest  having regard to the provisions of s. 155(3) of  the Code of Criminal Procedure. In order to  facilitate his investigation it was necessary for  him to arrest the appellant and that he could  not do without a warrant of arrest from the  Additional District Magistrate. As already  stated, the order of the Additional District  Magistrate of September 19, 1952, makes it

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quite clear that he was still regarding the  matter as one under investigation. It could not  be said with any good reason that the  Additional District Magistrate had either on  September 16, or at any subsequent date upto  February 2, 1953, applied his mind to the case  with a view to issuing a process against the  appellant. The appellant had appeared before  the Magistrate on February 2, 1953, and the  question of issuing summons to him did not  arise. The Additional District Magistrate,  however, must be regarded as having taken  cognizance on this date because he sent the  case to Mr. Sinha for trial. There was no legal  bar to the Additional District Magistrate taking  cognizance of the offence on February 2, 1953,  as on that date Inspector Mitra’s complaint  was one which he was authorized to make by  the Reserve Bank under s. 23(3)(b) of the  Foreign Exchange Regulation Act. It is thus  clear to us that on a proper reading of the  various orders made by the Additional District  Magistrate no cognizance of the offence was  taken until February 2, 1953. The argument  that he took cognizance of the offence on  September 16, 1952, is without foundation.  The orders passed by the Additional District  Magistrate on September 16, 1952, September  19, 1952, November 19, 1952, and January 2,  1953, were orders passed while the  investigation by the police into a non- cognizable offence was in progress. If at the  end of the investigation no complaint had been  filed against the appellant the police could  have under the provisions of s. 169 of the  Cr.P.C. released him on his executing a bond  with or without sureties to appear if and when  so required before the Additional District  Magistrate empowered to take cognizance of  the offence on a police report and to try the  accused or commit him for trial. The  Magistrate would not be required to pass any  further orders in the matter. If, on the other  hand, after completing the investigation a  complaint was filed, as in this case, it would be  the duty of the Additional District Magistrate  then to enquire whether the complaint had  been filed with the requisite authority of the  Reserve Bank as required by s. 23(3)(b) of the  Foreign Exchange Regulation Act. It is only at  this stage that the Additional District  Magistrate would be called upon to make up  his mind whether he would take cognizance of  the offence. If the complaint was filed with the  authority of the Reserve Bank, as aforesaid,  there would be no legal bar to the Magistrate  taking cognizance. On the other hand, if there  was no proper authorization to file the  complaint as required by s. 23 the Magistrate  concerned would be prohibited from taking  cognizance. In the present case, as the  requisite authority had been granted by the  Reserve Bank on January 27, 1953, to file a  complaint, the complaint filed on February 2,  was one which complied with the provisions of

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s. 23 of the Foreign Exchange Regulation Act  and the Additional District Magistrate could  take cognizance of the offence which, indeed,  he did on that date. The following observation  by Das Gupta, J., in the case of  Superintendent and Remembrancer of Legal  Affairs, West Bengal v. Abani Kumar Banerji  [A.I.R. (1950) Cal. 437] was approved by this  Court in the case of R. R. Chari v. The State of  Uttar Pradesh [[1951] S.C.R. 312]:-  "What is taking cognizance has not been  defined in the Criminal Procedure Code.  and I have no desire to attempt to define  it. It seems to me clear however that  before it can be said that any magistrate  has taken cognizance of any offence  under section 190(1)(a) Criminal  Procedure Code, he must not only have  applied his mind to the contents of the  petition but must have done so for the  purpose of proceeding in a particular way  as indicated in the subsequent provisions  of this Chapter - proceeding under  section 200 and thereafter sending it for  inquiry and report under section 202.  When the magistrate applies his mind not  for the purpose of proceeding under the  subsequent sections of this Chapter, but  for taking action of some other kind, e.g.,  ordering investigation under section  156(3), or issuing a search warrant for  the purpose of the investigation, he  cannot be said to have taken cognizance  of the offence."  It is, however, argued that in Chari’s case this  Court was dealing with a matter which came  under the Prevention of Corruption Act. It  seems to us, however, that that makes no  difference. It is the principle which was  enunciated by Das Gupta, J., which was  approved. As to when cognizance is taken of  an offence will depend upon the facts and  circumstances of each case and it is  impossible to attempt to define what is meant  by taking cognizance. Issuing of a search  warrant for the purpose of an investigation or  of a warrant of arrest for that purpose cannot  by themselves be regarded as acts by which  cognizance was taken of an offence. Obviously,  it is only when a Magistrate applies his mind  for the purpose of proceeding under s. 200 and  subsequent sections of Chapter XVI of the  Code of Criminal Procedure or under s. 204 of  Chapter XVII of the Code that it can be  positively stated that he had applied his mind  and therefore had taken cognizance."

21.     These aspects were highlighted in Mohd. Yousuf v. Afaq  Jahan (Smt.) and Anr. (2006 (1) SCC 627).   22.     The essential ingredients of Section 397 IPC are as  follows:

1.      Accused committed robbery. 2.      While committing robbery or dacoity (i) accused used

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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 other accused are not vicariously  liable under that Section for acts of co-accused.  

23.     As noted by this court in Phool Kumar v. Delhi  Administration (AIR 1975 SC 905), the term "offender" under  Section 397 IPC is confined to the offender who uses any  deadly weapon.  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 had not used any deadly weapon.  There is distinction  between ’uses’ as used in Sections 397 IPC and 398 IPC.  Section 397 IPC connotes something more than merely being  armed with deadly weapon.  

24.     In the instant case admittedly no injury has been  inflicted.  The use of weapon by offender for creating terror in  mind of victim is sufficient. It need not be further shown to  have been actually used for cutting, stabbing or shooting, as  the case may be. (See: Ashfaq v. State (Govt. of NCT of Delhi)  AIR 2004 SC 1253).   

25.     Therefore, the offence under Section 397 IPC has clearly  not been established.  In addition, the ingredients necessary  for offence punishable under Sections 392 and 452 have not  been established in view of the highly inconsistent version of  the complainant PW 1.

26.     The conviction needs to be set aside and the appeal  deserves to be allowed, which we direct.  It would be  appropriate to note that courts while dealing with accused  persons during trial, when they are not represented by  counsel, to keep in view the mandate of Section 304 IPC.

27.     Appeal is allowed.