A conviction under Section 398 IPC requires identification of the specific 'offender' who used the deadly weapon, as constructive liability does not apply. In the absence of such proof, the court may exercise its power to convict the accused for the minor, cognate offence of robbery under Section 392 IPC.

CAV JUDGMENT

1. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 25.03.2000 passed by the Second Additional Sessions Judge, Raipur (C.G.) in Session Trial No. 398/34, wherein the said court convicted and sentenced the appellant as under:-

2. The prosecution’s case, in brief, is that the complainant, Ramsahay Devangan, son of Banturam Devangan and a resident of village Jaroid, was earning his livelihood by running a tailoring shop under the name and style of “Goodfit Tailor” at Bhatapara. He used to travel daily to Bhatapara for his work. On 04.02.1995, after closing his shop at about 6:00–6:30 PM, he was returning home on his bicycle. After covering a distance of approximately three kilometers, he encountered three unknown persons coming from the opposite direction on bicycles. One of them stopped him by blocking his path and inquired about the route to Hirmi, which he explained. They then stated that they would accompany him to village Jaroid and from there proceed to Hirmi. After travelling about half a kilometer further, the same persons again stopped him and blocked his way. One of the accused took out a knife, placed it on his neck, and threatened him to hand over all his valuables. Another accused caught hold of him from behind, while the person holding the knife searched him. They forcibly took ₹1.50 in cash and a wristwatch (Rico India make) valued at ₹300. At that moment, the sound of some people approaching from nearby was heard, upon which the accused fled from the spot with the stolen articles.

3. It is further the case of the prosecution that the complainant then returned home and informed this incident to his sister-in-law Girjabai, as well as his neighbors Meghnath and Manohar. Being extremely frightened, he was unable to even eat or drink properly and could not lodge a report that night. On the following morning, he went to the police station along with Jagdev and Vishwanath from his village and submitted a written complaint. The Investigating Officer, B.L. Soni, inspected the place of occurrence and prepared a site map. Identification proceedings were conducted before a Naib Tehsildar/Executive Magistrate. Statements of witnesses, including Ramsahay, Girjabai, Meghnath, and Manohar, were recorded under Section 161 of the Code of Criminal Procedure. After completion of the investigation, a charge sheet was filed before the Court of the Judicial Magistrate, Baloda Bazar, and the case was subsequently committed to the Court of Session. Based on the evidence on record, charges were framed against the accused persons under Section 398 read with Section 34 of the Indian Penal Code. The accused denied the charges and claimed to be tried.

4. The prosecution, in order to bring home the guilt of the accused, has examined witnesses namely Chhote Lal (PW-1), Daharlal (PW-2), Komaldas (PW-3), Budhwar Das (PW-4), Nandlal (PW-5), Garibdas (PW-6), B.S.L. Soni, Assistant Sub-Inspector (PW-7), Santosh Kumar, SDO (PW-8), Rajendra Kumar (PW-9), Girja Bai (PW-10), Gyaneshwar Bawnagade, Naib Tahsildar (PW-11), Ramsahay (PW-12), Meghnath (PW-13) & exhibited documents namely Panchnama (Ex. P/1), FIR (Ex. P/2), Najri Naksha (Ex. P/3), memo for information about the accused (Ex. P/4), Reply (Ex. P/5). The accused was examined under Section 313 of the Cr.P.C. wherein he has denied the charges levelle