Phool Kumar Vs. Delhi Administration
 INSC 71 (13 March 1975)
CITATION: 1975 AIR 905 1975 SCR (3) 917 1975
SCC (1) 797
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.
The appellant, along with 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
ofthe 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 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
[19701 2 Punjab & Haryana, 108, is
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
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 investigation 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 tookpains 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 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 committed on the highway between sunset and 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.  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 somebody 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,
(2) A.I.R. 1933, Lahore. 35.
921 Emperor(1) some overt act such as
brandishing the weapon 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
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