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PETITIONER: PHOOL KUMAR

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT13/03/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A.

CITATION:  1975 AIR  905            1975 SCR  (3) 917  1975 SCC  (1) 797

ACT: Penal Code--Ss. 397 and 398--Scope of--Meaning of the words ’uses’ in s. 397 and ’is armed with any deadly weapon’ in s. 398.

HEADNOTE: The  appellant,  alongwith two others, was alleged  to  have raided  a petrol pump sometime after midnight  and  decamped with the cash.  At the time of the raid he was armed with  a knife to frighten and terrorise the attendants.  One of  his associates fired three shots.  His associates were acquitted but the appellant was convicted of an offence under ss.  397 read  with 342 I.P.C. and sentenced to undergo  imprisonment for  seven years. which was the minimum sentence.  The  High Court dismissed his appeal. On further appeal it was contended that the appellant  ought to  have ’been convicted under s. 392 simpliciter  in  which case he would have been awarded a lesser sentence. Dismissing the appeal, HELD  :  (1) When an offence of robbery is committed  by  an offender, being armed with a deadly weapon, which 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 the  deadly  weapon in the commission of the  robbery.   Any other  overt  act,  such as. brandishing  of  the  knife  or causing of grievous hurt with it was not necessary to  bring the  offence within the ambit of s. 397.  On the other  hand if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not  nut to any fruitful use because it would have been, of use  when the offender succeeded in committing the robbery. [920  F-G; C] (2)  The  term  ’offender’  in s. 397  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 s. 397 for the imposition 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 one of the accused or somebody else could not be and has not been  the basis of sentencing the appellant with the aid  of s. 397. [920 A] (3)  It appears unreasonable to think that if  the  offender

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who  merely attempted to commit robbery but did not  succeed in  committing it attracts the minimum punishment  of  seven years  under  s. 398 if he is merely armed with  any  deadly weapon,  while  an  offender so armed  will  not  incur  the liability  of  the  minimum punishment under s.  397  if  he succeeds in committing the robbery.  But the anomaly created by the use of word ’uses’ in s. 397 and ’is armed’ in s. 398 will disappear if the two terms are given identical meaning. [920 E] Govind  Dipali  More  v.  State  A.I.R.  1956  Bombay,  353, approved.  Chanda  Nath v. Emperor A.I.R.  1932  Oudh,  103; Nagar  Singh  v. Emperor A.I.R. 1933 Lahore,  35  and  Inder Singh v. Emperor A.I.R. 1934 Lahore 522, referred to. The  view taken in State v. Chand Singh and  another  I.L.R. [19701 2 Punjab & Haryana, 108, is incorrect.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Crl.  Appeal No.  62  of 1971. Appeal  by special leave from the judgment and  order  dated the  23rd October, 1969 of the Delhi High Court in  Criminal Appeal No. 87 of 1969. 918 R. Bana, for the appellant. V. C. Mahajan and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by UNTWALIA, J.-In the night between the 8th and 9th September, 1966,  to  be  precise,  at  about  1.45  A.M.  on  the  9th September,  a daring robbery was committed at a petrol  pump of  the  Gasolene Service Station on the Mall,  Delhi.   The robbers  who  are said to be four in number broke  into  the office of the Service Station and decamped with Rs. 585/- in cash  after locking in the two attendants.   After  investi- gation  three  persons  were put on trial  in  the  Sessions Court.   One of the culprits, named Sube  Singh,  absconded. The  names of the three are (1) Phool Kumar, (2)  Ram  Kumar and  (3)  Dharampal.  The latter two were acquitted  by  the learned   Assistant  Sessions  Judge,  Delhi  for  want   of sufficient evidence against them.  The only person convicted at  the said trial was appellant Phool Kumar.  He  has  been convicted  under s. 397 of the Penal Code and  sentenced  to undergo  rigorous  imprisonment for 7 years.   A  concurrent sentence  of  6 months was also imposed for  his  conviction under  section 342 of the Penal Code.  The Delhi High  Court maintained  his convictions and sentences and dismissed  his appeal.  He has approached this Court by special leave. Mr.  R. Bana, learned counsel for the appellant took-  pains to  submit  as many as 8 points in support of  this  appeal. The first seven points were concerned with the assailing  of concurrent findings of fact recorded by the two Courts below and   do  not  merit  any  specific  mention   or   detailed discussion.  The eighth point was a question of law.   After briefly  referring to the facts found against the  appellant to justify his conviction for robbery the point of law  will be discussed hereinafter in this judgment. The two eye witnesses to the occurrence are P.W. 13 Sham Lal and  P.W. 16 Ram Sewan.  At the time of the occurrence  both were discharging their respective duties as the employees of the Service Station.  P.W. 16 was working as a Salesman  and P.W. 13 was employed as a helper.  The prosecution story  as broadly told by them is that while they were sitting outside the  office  of  the  petrol  pump  two  persons  who   were identified  as  appellant Phool Kumar and Ram  Kumar  (since

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acquitted)  came there.  Phool Kumar was armed with a  knife while  Ram  Kumar had a small gun in his hand.   The  former asked P.W. 13 to hand over the keys.  On being told that the keys were with P.W. 16 the appellant asked him to hand  over the  keys.   To terrorize P.Ws. 13 and 16  Ram  Kumar  fired three shots in the air one of which struck the window  panes of  the  office  while the other two hit  the  ground.   The appellant  and his associates thereafter opened the door  of the office, ransacked the drawers of the table and  decamped with the money lying in the cash box, after pushing P.Ws. 13 and 16 in the office and bolting its door from outside.   It is  not  necessary’  for us to mention the  details  of  the information given to the police and the facts leading to the apprehending of the three culprits after 919 getting  the  clue from the absconding accused  Sube  Singh. Suffice  it  to say that the evidence of  identification  in court against the culprits given by P.W’s. 13 and 16 was not found  to be of a kind which could by itself form the  basis of  the conviction of the accused put on trial.  One of  the two eye witnesses had not identified the appellant at all at any   of  the  identification  parades  and  one   of   them indentified him tit the 4th or the 5th round.  The clinching evidence  against the appellant was his thumb impression  on the kunda of the cash box.  It was conclusively proved to be his on the opinion of the expert.  The report of the  expert was  used as evidence by the prosecution  without  examining him  in  court.  Neither the court thought it  fit  nor  the prosecution  or the accused filed any application to  summon and  examine  the  expert as to the subject  matter  of  his report.   The  court was bound to summon the expert  if  the accused  would  have  filed any  such  application  for  his examination.  That not having been done the grievance of the appellant  apropos  the  report of  the  expert  being  used without his examination in court made in the High Court  and repeated  in this Court had no substance.  The  evidence  of P.Ws  13 and 16 against the appellant in Court  found  ample and  clinching  corroboration  from the fact  of  his  thumb impression  occurring  on the kunda of the cash  box.   Soon after the occurrence during the course of the  investigation photographs  of the impressions on the kunda had been  taken long   before   the  appellant  was  apprehended   for   the participation in the crime.  There was absolutely no  scope, for any kind of manipulation in the matter as was argued  on behalf of the appellant in desperation.  We are,  therefore, clearly  of  the  opinion  that  the  participation  of  the appellant  in  the commission of the robbery at  the  petrol pump  was  proved beyond any reasonable doubt; so  also  the charge under section 342 of the Penal Code. The  last  submission on behalf of the  appellant  was  that sentencing him to undergo rigorous imprisonment for 7  years under  section  397 of tit-- Penal Code was illegal  and  he ought  to have been convicted under section 392  simpliciter which would have enabled the court on the facts of this case to  pass  a lesser sentence of imprisonment.   Reliance  was placed  upon the majority opinion of the full Bench  of  the High Court of Punjab & Haryana in the case of State v. Chand Singh another(1).  The argument was attractive at the  first sight but did not stand our careful scrutiny.               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  com-               mitted  on  the  highway  between  sunset  and

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             sunrise,  the imprisonment may be extended  to               fourteen years-91" The Sentence of imprisonment to be awarded under section 392 cannot  be  less than 7 years if at the time  of  committing robbery  the  offender  uses any  deadly  weapon  or  causes grievous hurt to any per- (1) I.L.R. [1970] 2 Punjab & Haryana, 108. 920 son  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 some body 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.   To  be more precise from the evidence of  P.W.  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. Section  398  uses  the expression "armed  with  any  deadly weapon" and the minimum punishment provided therein is  also 7  years if at the time of attempting to commit robbery  the offender is armed with any deadly weapon.  This has  created an  anomaly.   It  is  unreasonable to  think  that  if  the offender who merely attempted to commit robbery but did  not succeed in committing it attracts the minimum punishment  of 7  years  under section 398 if he is merely armed  with  any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under section 397 if  he succeeded in committing the robbery.  But then, what was the purport  behind  the  use  of the  different  words  by  the Legislature in the two sections, viz., "uses" in section 397 and "is armed" in section 398.  In our judgment the  anomaly is resolved if the two terms are given the identical meaning There  seems to be a reasonable explanation for the  use  of the  two  different expressions in the sections.   When  the offence  of robbery is committed by an offender being  armed with  a  deadly weapon which 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.  On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not  put to  any fruitful use because it would have been of use  only when the offender succeeded in committing the robbery. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous  hurt, death or the like then it is clearly used.  In the cases  of Chandra  Nath v. Emperor(1); Nagar Singh v.  Emperor(2)  and Inder Singh v. (1) A.I.R. 1932, Oudh, 103. (2) A.I.R. 1933, Lahore. 35. 921 Emperor(1)  some  overt act such as brandishing  the  weapon

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against   another  person  in  order  to  over-awe  him   or displaying  the  deadly weapon to frighten his  victim  have been  held to attract the provisions of section 397  of  the Penal  Code.   J. C. Shah and Vyas, JJ. of the  Bombay  High Court  have  said  in  the case of  Govind  Dipaji  More  v. State(2)  that  if the knife "was used for  the  purpose  of producing such an impression upon the mind of a person  that he would be compelled to part with his property, that  would amount  to ’using’ the weapon within the meaning of  section 397".  In that case also the evidence against the  appellant was that he carried a knife in his hand when he went to  the shop of the victim.  In our opinion this is the correct view of  the  law and the restricted meaning given  to  the  word ’uses’ in the case of Chand Singh(3) is not correct. For  the  reasons stated above we see  no  justification  to interfere with the convictions of and the sentences  imposed upon  the  appellant under any of the  counts.   The  appeal accordingly fails and is dismissed. P.B.R.                         Appeal dismissed. (1) A.I.R. 1934, Lahore, 522. (2) A.I.R. 1956, Bombay, 353. (3) I. L. R. (1970) 2 Punjab & Haryana 108. 922