Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 852

SUPREME COURT OF INDIA
(From the High Court of Judicature at Madras)
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
Ganesan - Appellant
Versus
State Rep. By Station House Officer - Respondent
Criminal Appeal No.903 of 2021
with
Shanmugam @ Babu - Appellant
Versus
State Rep.By The Inspector Of Police - Respondent
Criminal Appeal No. 904 of 2021
Decided on : 29-10-2021

Advocates appeared:
For the Appellant(s) :G. Sivabalamurugan, P.R. Kovilan Poongkuntran, V. Vasudevan, Geetha Kovilan, Advocates
For the Respondent(s):Joseph Aristotle S., Preeti Singh, Ripul Swati Kumari, Advocates

IMPORTANT POINTS
1. The term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and 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 has not used any deadly weapon.
2. Mere acquittal of some of the accused on the same evidence by itself does not lead to a conclusion that all deserve to be acquitted in case appropriate reasons have been given on appreciation of evidence both in regard to acquittal and conviction of the accused.

Headnote:
Indian Penal Code, 1860 – Sections 391 & 397 – Robbery – Trial Court convicted the accused persons – Sessions Court dismissed the appeal against the conviction – Subsequently High Court also dismissed the appeal and confirmed the conviction – As per the case of the prosecution and even considering the evidence on record it can be seen that the accused A1 and A3 are not alleged to have used any weapon – Hence, they ought not to have been convicted for the offence punishable under Section 397 – Once a case under Section 391 punishable under Section 395 is made out, thee accused persons can be convicted for the offence under Section 391 (Paras 12 & 14)
Facts of the Case:
The prosecution case is that, with the intention of robbery jointly by the accused – A1 to A5 at about 8:00 pm proceeded in a car. They plucked the bag hanging in the handle bar of cycle of witness and when another witness prevented an accused, other accused persons assaulted him and ran away from the place along with the bag. After conclusion of the investigation, the investigating officer filed the charge-sheet against five accused persons for the offences punishable under Section 395 read with Section 397 IPC. On appreciation of entire evidence on record, both, the oral as well as the documentary, the learned trial Court convicted the accused for the offence punishable under Section 397 IPC and sentenced them to undergo 7 years RI each and in default to further undergo one year RI. Feeling aggrieved and dissatisfied with the judgment and order of conviction A1 and A3 respectively preferred appeal Sessions Court. However, the Sessions Court dismissed the said appeal and confirmed the judgment and order of conviction. Further in an appeal, the High Court by the impugned Judgment and order has confirmed the conviction under Section 397 IPC. Hence this appeal.
Findings of the Court:
In absence of any allegations of use of any deadly weapon by the appellants, Section 397 IPC shall not be attracted and the accused persons ought not to have been convicted for the offence punishable under Section 397 IPC. Though the conviction under Section 397 is unsustainable, since a case is made out under Section 391 read with Section 395 IPC, they can be convicted for the offence punishable under Section 391 read with Section 395 IPC even without even altering the charge.
Result: Appeals partially allowed.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 16.07.2019 passed by the High Court of Judicature at Madras in Criminal R.C. Nos. 405 and 429 of 2012 by which the High Court has dismissed the said revision applications and has confirmed the judgment and order passed by the Learned trial Court confirmed by Learned First Appellate Tribunal - Learned Sessions Court convicting the appellants herein - original accused no.1 and accused no.4 for the offence under Section 397 IPC present appeals are preferred.

2. Criminal Appeal No.903 of 2021 has been preferred by the accused Ganesan as original accused - A1 and Criminal Appeal No.904 of 2021 has been preferred by the accused Shanmugam @ Babu - A3. At this stage, it is required to be noted that initially the charge-sheet was filed against five persons for the offences punishable under Section 395 read with Section 397 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Ganesan was shown as A1, one Benny who at the relevant time was absconding was shown as A2, one Prabhakaran was shown as A3, Shanmugam @ Babu was shown as A4 and one Shajahan was shown as A5. However, at the relevant time A2 -Benny and A5 -Shajahan absconded, the trial was then separated and post-trial, Ganesan was shown as A1, Prabhakaran was shown as A2 and Shanmugam was shown as A3. Benny was subsequently arrested after a period of 15 years and therefore he was tried separately and vide judgment and order dated 15.11.2018 he has been acquitted (acquittal of Benny shall be dealt with hereinafter).

3. As per the case of the prosecution, with the intention of robbery jointly by the accused - A1 to A5 at about 8:00 pm on 19.08.1996 proceeded in a car bearing No.T.N. 31 8686 from Cuddalore with knife and iron pipe and reached Panruti. A1 - Ganesan stayed in the car and sent A2 to A5. As per the plan A2 to A5 committed robbery of Rs.60,000/-. As per the case of the prosecution, PW1 - Duraisamy came with the bicycle near Vallalar Street, Panruti where they pushed him and A3 Prabhakaran attacked with iron rod on the head and right-hand finger and injured him and one among accused 2 to 5 plucked the bag hanging in the handle bar of cycle of witness Duraisamy containing Rs.60,000/-and 16 gram jewellery and ran away. As per the case of the prosecution, when the witness Palanivel prevented the accused 2 to 5 from escaping, A2 (Benny) assaulted witness Palanivel on the head and hand with the rod he was having and tried to escape and accused 3, 4 and 5 escaped and ran away from the place along with the above-mentioned bag. After conclusion of the investigation, the investigating officer filed the charge-sheet against five accused persons for the offences punishable under Section 395 read with Section 397 IPC. Even the charges were framed against five accused persons. However, as A3 -Benny and A5 -Shajahan absconded, the trial was split and the trial proceeded against Ganesan, Prabhakaran and Shanmugam. In the trial Ganesan was shown as A1, Prabhakaran was shown as A3 and Shanmugam was shown as A4. It is reported that even Shajahan is still absconding. That the accused denied the charges and therefore they were put to trial by the Learned Magistrate. During the trial, to prove the case against the accused, the prosecution examined as many as 15 witnesses. Prosecution examined Thiru Duraisamy as PW1, complainant and the injured eye-witness Thiru Palanivel as PW2, Thiru Aravind Kumar and Thiru Ashok Kumar as PW3 and PW4 respectively. Prosecution examined Thiru Shanmugam as PW5, Doctor Thiru Elangovan as PW10 who gave treatment to PW1. Prosecution also examined the I.O. Thiru Subramanian as PW13. Through the aforesaid witnesses the prosecution also brought on record the documentary evidences. On appreciation of entire evidence on record, both, the oral as well as the documentary, the Learned trial Court vide Judgment and Order dated 13.04.2010 in S.C. No.363 of