Interpretation of Sec.394 and Sec.397 IPC in relation to the use of deadly weapons and the liability of each accused.

The Revision petitioner was convicted by the learned Assistant Sessions Judge/Chief Judicial Magistrate, Coimbatore in S.C.No.62 of 2005 for an offence punishable under Sec.394 read with Sec.397 IPC and sentenced to undergo R.I. for a period of seven years. The said sentence was confirmed by the learned Additional District and Sessions Judge, Fast Track Court No.III, Coimbatore in C.A.No.60 of 2006. Aggrieved by the said conviction and sentence, the Revision Petitioner-Accused has preferred this Criminal Revision Petition.

2. Totally there were three accused. Two other accused are absconding and the case against them was spilt up and the case was tried against this Petitioner alone.

3. On 16.02.2003 in the night at about 11.15 P.M. the absconding accused Rajan and Boopathy have entered into the house of P.W.1 at Door No.9-A, Anna Nagar, Ganapathy, Coimbatore under the guise of seeking employment under witness Sundaram, who died prior to the date of trial and the accused Rajan caused injury on his right thumb with knife. Sundarams wife Dhanalakshmi witness also died prior to the date of trial. P.W.1 Sathish Krishnakumar and his wife P.W.2 Saraswathi were put under the fear of death by accused. Then, the Revision petitioner-accused entered into the house and they demanded Rs.10 lakhs and also forcibly made to deliver all the gold ornaments weighing about 47 sovereigns and taken the silver articles worth about Rs.1,66,000/- and cash of Rs.5000/-.

4. In order to establish the case of the Prosecution, the Prosecution examined 12 witnesses on their side. 15 Exhibits were marked and 24 material objects were produced.

5. Both the trial court and the Appellate court considered the evidence let in by the Prosecution and found the Revision petitioner guilty of the offence under Sec.394 r/w.397 IPC and convicted and sentenced him as stated above.

6. The learned counsel for the Revision petitioner submitted that the Revision petitioner was arrested four months after the occurrence i.e. on 13.06.2003 and though the identification parade was conducted, the accused was shown to the witnesses in the police station before the test identification parade and photo of the accused were also taken and shown to witnesses. As such there is no value for test identification parade.

7. The learned counsel for the Revision petitioner further submitted that only the gold ingots were recovered in this case and they are not identifiable by the witnesses and even though the ingots were recovered from P.W.8 and P.W.9, they turned hostile and also no property was recovered from the possession of the Revision petitioner. Therefore, the conviction of the Revision petitioner is not sustainable.

8. The learned counsel for the Revision petitioner further submitted that the conviction of the Petitioner and sentencing him under Sec.397 IPC is not maintainable since even according to the Prosecution, it was only the accused Rajan was holding the knife and he only used the knife. Even according to the Prosecution, this Petitioner was not armed with any deadly weapon and he entered into the scene of occurrence only at a later point of time and as such awarding of minimum sentence of seven years is not attracted against the Revision petitioner. The learned counsel for the Revision petitioner further submitted that the alleged injury caused on the victim is only by the other accused and not by the Petitioner.

9. The learned Government Advocate (Criminal Side) submitted that out of four witnesses with regard to the occurrence, two of the witnesses i.e. Sundaram and his wife Dhanalakshmi died prior to the date of trial. But P.Ws.1 and 2 who were also present at the time of robbery committed by the accused have given evidence corroborating with each other and there is no contradiction in their evidence and further their evidence is strengthened by their identification of the Petitioner in the test identification parade.

10. The learned Government Advocate (Criminal