IMPORTANT POINT
An accused cannot be convicted under Section 397 /PC if has not used weapon for robbery. Similarly if weapon is used for self defence when victim threw a milk can in the course of robbery, accused cannot be convicted under Section 394 IPC but his conviction under Section 392 IPC is justified.

ORDER

This is an appeal filed by the appellant from jail under Section 19 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA). It appears that initially the charge-sheet was submitted against the appellant and the co-accused Raj Pal under Sectioin 394, 392 and 397 IPC and Section 5 of TADA Act. But at the trial the accused stood charged for offences under Sections 392 , 397 and 394 IPC before the Designated Court. Rohtak at Sonepat.

2. The prosecution case in short is that 12.4.90 when PW 7. Suresh was being accompanied by his brother PW 8. Subhash was going on a scooter to village Gadwal from Gonana, both the said accused suddenly appeared armed with pistol and they made an attempt to stop the scooter, but his brother Subhash did not allow to do so. The accused however caught hold of the scooter by its handle and pointed pistol on the back of Suresh urging him to handover whatever valuable was in his possession. Out of fear Suresh handed over a purse containing Rs.1775/- and his wrist watch and the wrist watch of his brother Subhash was also removed by the other accused Rajpal forcibly. Thereafter, an attempt was made to snatch the scooter, PW 7 Suresh then picked up an empty drum of milk and hit the accused Ajit with such drum. The accused Ajit thereafter opened fire from the pistol at Suresh which hit the left hand of Suresh and thumb and first finger of left hand of Suresh were injured, Suresh and Ajit grappled with each other. At that stage the accused Ajit inflicted a tooth bite on the left arm of Suresh and challenged both the brothers by firing the pistol but Suresh and Subhash could escape. On the next day, an FIR was lodged with the police station Baroda in the district Rohtak.

3. According to the prosecution case, both the accused were arrested on 16.5.90 and at the instance of the accused, the wrist watches snatched from PWs 7 and 8 were recovered on 18.5.90 which are stated to have been buried in a garden. It is also the prosecution case that both the accused did not agree to attend the test identification parade and as such test identification parade was not held. Considering the evidence adduced in this case, the learned Designated Court convicted both the accused for offences under Section 392 read with Section 397 IPC and also under Section 294 IPC and passed a sentence of 10 years rigorous imprisonment against both the accused and also a fine of Rs. 250/- under Section 394 in default of making payment of fine, to undergo further rigorous imprisonment for three months. Both the said accused were also sentenced to undergo rigorous imprisonment for seven years for offences under Section 392 read with Section 397 IPC.

4. Mr. Sushil Kumar, learned senior counsel appearing as amicus curiae for the appellant in this case, has submitted that an accused cannot be convicted under Section 347 IPC if he had not used a weapon. Insupports of such contention, a decision of this Court in Shri Phool Kumar v. Delhi Administration.1 Mr. Sushil Kumar has also submitted that conviction under Section 397 IPC of co-accused who was unwarned, only indicates that there has been non application of mind to the facts of the case in convicting the accused. Mr. Sushil Kumar has also submitted that against the appellant. Ajit, no conviction under Section 397 was warranted even if the prosecution case is accepted on its face value: He has indicated that it appears from the evidence of the witnesses for the prosecution that for committing alleged robbery, the said pistol was not used but when a milk can was thrown by Suresh on the accused Ajit, he has opened fire from his country-made pistol presumably by way of self defence which hit the thumb and finger of the left hand of Suresh, PW 7. Accordingly, the conviction of Ajit under Section 397 is also unjustified. Mr. Sushil Kumar has submitted that the evidences adduced in this case do not inspire confidence. It also does not appear now and whe