Holding

Section 397 IPC applies only to the offender who actually uses a deadly weapon; consequently, the appellants' conviction under that provision was set aside, but their conviction under Section 391 IPC read with Section 395 IPC was upheld.

Summary

The case involved a robbery in which five accused, including Ganesan (A1) and Shanmugam (A3), allegedly used knives and iron rods to assault victims and steal cash and jewellery. The trial court convicted all accused under Section 397 IPC, imposing a minimum seven‑year term, and the conviction was affirmed by the appellate and High Courts. On appeal, the Supreme Court held that Section 397 applies only to the offender who actually uses a deadly weapon; since Ganesan and Shanmugam were not alleged to have used any weapon, their conviction under Section 397 was unsustainable. However, the Court found that the prosecution had proved the participation of five persons in the robbery, satisfying the requirement for dacoity under Section 391 IPC, and therefore upheld the conviction under Section 391 read with Section 395 IPC. The benefit of the acquittal of a co‑accused (Benny) could not be extended to the appellants. The appeals were partly allowed: the conviction under Section 397 was set aside, while the conviction under Section 391/395 was affirmed.

Issues considered

The applicability of Section 397 IPC where the appellant did not personally use a deadly weapon.
Whether the conviction under Section 391 IPC (dacoity) punishable under Section 395 IPC can be sustained despite only four accused being tried.
Whether the acquittal of a co‑accused (Benny) can be extended to the appellants.
Whether constructive liability can be invoked for Section 397 IPC.
The relevance of the absence of a Test Identification Parade (TIP) to the conviction.

Legislation cited

Indian Penal Code, 1860s. 390, s. 391, s. 392, s. 393, s. 394, s. 395, s. 396, s. 397, s. 398

Subjects

dacoityrobberySection 397 IPCdeadly weaponconstructive liabilityminimum punishmentTest Identification Paradebenefit of acquittalIndian Penal Codecriminal law

Judgment

514 [2021]REPORTS
SUPREME COURT 10 S.C.R. 514 [2021] 10 S.C.R.

A GANESAN
v.
STATE REP. BY STATION HOUSE OFFICER
(Criminal Appeal No. 903 of 2021)
B OCTOBER 29, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Penal Code, 1860: s.397 – Applicability of – Held: To bring
the case within s.397, the offender who uses any deadly weapon,
C
or causes grievous hurt to any person shall be liable for minimum
punishment under s.397 – The term ‘offender ’ under s.397 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 s.397 for the imposition of minimum punishment on
D another offender who has not used any deadly weapon.
Penal Code, 1860: ss.391, 395, 397 – Prosecution case was
that on the fateful night, A-1 to A-5, with an intention to commit
robbery, proceeded in a car with knife and iron pipes and reached
a place where PW-1 was coming on bicycle – A-1 remained in the
E car – A-2 to A-5 pushed PW-1, A-3 attacked him with iron rod on
his head and one of them plucked the bag containing Rs.60,000
and 16 gram jewellery hanging on the cycle handle – When PW-2
prevented A-2 to A-5 from escaping, A-2 assaulted him on the head
with the rod – All accused ran away from the place along with the
bag – Charges framed against the accused except ‘B’ (absconded
F
accused) who was tried separately – Trial court convicted accused
under s.397 – Conviction was affirmed by appellate court and also
High Court – Instant appeal filed by A-1 and A-3 – Held: The
allegation of use of weapon was against A-2 and accused ‘B’ –
Appellants (A-1 and A-3) were not alleged to have used any weapon
G – Therefore, in the absence of any allegations of use of any deadly
weapon by the appellants, s.397 shall not be attracted and to that
extent they ought not to have been convicted for the offence
punishable under s.397 – As regards the offence under s.391,
submission of the appellants was that even no case was made out
for offence under s.391 and they cannot be punished under s.395
H
514
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 515

as what is required to be proved is involvement of five or more A
persons conjointly in committing the robbery and in this case only
four persons were tried and the prosecution has failed to prove the
involvement of five or more persons – However, as such in the FIR,
there was a reference to five persons involved in committing the
robbery – Even the charge-sheet was filed against five persons –
B
However, as two accused absconded, the trial was split and three
accused came to be tried – Accused ‘B’ was tried subsequently and
one person is still absconding – Further, there were concurrent
findings recorded by all the courts below that five persons were
involved in committing the offence of robbery – Merely because
some of the accused absconded and less than five persons came to C
be tried in the trial, it cannot be said that the offence under s.391
punishable under s.395 was not made out – What is required to be
considered is the involvement and commission of the offence of
robbery by five persons or more and not whether five or more
persons were tried – Once it is found on evidence that five or more
D
persons conjointly committed the offence of robbery or attempted
to commit the robbery, a case would fall under s.391 and would fall
within the definition of ‘dacoity’ – Therefore, in the facts and
circumstances, appellants are liable to be convicted for the offence
under s.391 punishable under s.395 IPC.
Penal Code, 1860: s.395 and s.397 – Essential ingredients – E
‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a
difference in number of accused – Therefore, even in a case where
the accused is not convicted for the offence under s.397, still he
can be punished under s.395 and no prejudice shall be caused to
him as ultimately the prosecution has to prove the ‘robbery’ and F
‘dacoity’ either for the offence punishable under s.395 or under
s.397 – However, to bring the case against the accused under s.397,
the prosecution has to prove one additional fact that the offender
has used any deadly weapon or has caused grievous hurt to any
person, or has attempted to cause death or grievous hurt to any
person. G

Criminal jurisprudence: Acquittal of accused ‘B’ who was
tried separately as he absconded after incident – Benefit of acquittal
of ‘B’ claimed by other accused – Held: The accused are to be tried
and convicted on the basis of evidence made in the trial in which
H
516 SUPREME COURT REPORTS [2021] 10 S.C.R.

A they are convicted – ‘B’ came to be tried after a period of 15 years
as his trial was split as he absconded – From the acquittal order
passed in the case of ‘B’, it appears that PW1 during the trial of ‘B’
turned hostile – In the case of ‘B’, only five witnesses came to be
examined and for whatever reasons other witnesses were not
examined – In this case, PW1 not only supported the case of
B
prosecution but as many as 15 witnesses came to be examined –
Therefore, merely because in the subsequent split trial, ‘B’ came to
be acquitted, the benefit of such acquittal cannot be in favour of
the appellants-accused as the prosecution was successful in proving
the case against the accused.
C Partly allowing the appeals, the Court
HELD: 1.1 As per Section 390 IPC, for ‘robbery’ there is
either theft or extortion. When in committing the theft, or in
carrying away or attempting to carry away property obtained by
the theft, the offender voluntarily causes or attempts to cause to
D any person death or hurt or wrongful restraint or fear of instant
death or of instant hurt, or of instant wrongful restraint, the theft
can be said to be ‘robbery’. In similar situation the ‘extortion’
can be said to have committed ‘robbery’. Section 391 IPC defines
‘dacoity’. When five or more persons conjointly commit or attempt
E to commit a robbery, the accused then can be said to have
committed the ‘dacoity’. As per Section 392 IPC, 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. [Para 12.3][534-F-G; 535-A-B]

F 1.2 As per Section 393 IPC, even an attempt to commit
robbery is punishable with rigorous imprisonment for a term which
may extend to seven years with fine. As per Section 394 IPC, if
any person, in committing or in attempting to commit robbery,
voluntarily causes hurt, such person, and any other person jointly
concerned in committing or attempting to commit such robbery,
G shall be punished with imprisonment for life or with rigorous
imprisonment for a term which may extend to ten years and shall
also be liable to fine. Section 395 IPC provides for punishment
for ‘dacoity’. Whoever commits dacoity shall be punished with
imprisonment for life or with rigorous imprisonment for a term
H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 517

which may extend to ten years and shall also be liable to fine. A
[Para 12.3][535-C-E]
1.3 In case of dacoity with murder, if any one of five or
more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall
be punished with death, or imprisonment for life, or rigorous B
imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC, if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous
hurt to any person, or attempts to cause death or grievous hurt
to any person, the imprisonment with which such offender shall
be punished shall not be less than seven years. Similarly, if, at C
the time of committing robbery or dacoity, the offender is armed
with any deadly weapon, the imprisonment with which such
offender shall be punished shall not be less than seven years. On
conjoint reading of these provisions, commission of ‘robbery’ is
sine qua non. The ‘dacoity’ can be said to be an exaggerated D
version of robbery. If five or more persons conjointly commit or
attempt to commit robbery it can be said to be committing the
‘dacoity’. Therefore, the only difference between the ‘robbery’
and the ‘dacoity’ would be the number of persons involved in
conjointly committing or attempt to commit a ‘robbery’. The
punishment for ‘dacoity’ and ‘robbery’ would be the same except E
that in the case of ‘dacoity’, the punishment can be with
imprisonment for life. However, in the case of ‘dacoity with
murder’ the punishment can be with death also. However, in a
case where the offender uses any deadly weapon or causes
grievous hurt to any person, or attempts to cause death or grievous F
hurt to any person the imprisonment with which such offender
shall be punished shall not be less than seven years. To bring the
case within Section 397 IPC, the offender who uses any deadly
weapon, or causes grievous hurt to any person shall be liable for
minimum punishment under Section 397 IPC. [Paras 12.3,
12.4][535-E-H; 536-A-C] G

2.1 Section 392 and Section 390 IPC are couched in different
words. In Sections 390, 394, 397 and 398 IPC the word used is
‘offender’. Therefore, for the purpose of Sections 390 to 398 IPC
only the offender/person who committed robbery and/or voluntarily
H
518 SUPREME COURT REPORTS [2021] 10 S.C.R.

A causes hurt or attempt to commit such robbery and who uses any
deadly weapon or causes grievous hurt to any person, or commits
to cause death or grievous death any person at the time of
committing robbery or dacoity can be punished for the offences
under Sections 390, 392, 393, 394, 395, 397 and 398 IPC. The
accused cannot be convicted on the basis of constructive liability
B
and only the ‘offender’ who ‘uses any deadly weapon….’ can be
punished. However, so far as Section 391 IPC ‘dacoity’ and Section
396 IPC – ‘dacoity with murder’ is concerned, an accused can be
convicted on the basis of constructive liability, however the only
requirement would be the involvement of five or more persons
C conjointly committing or attempting to commit a robbery – dacoity/
dacoity with murder. [Para 12.4][536-D-F]
2.2 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
D attract Section 397 IPC for the imposition of minimum punishment
on another offender who has not used any deadly weapon. Even
there is distinction and difference between Section 397 and Section
398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly
weapon and the word used in Section 398 IPC is ‘offender is
armed with any deadly weapon’. Therefore, Section 397 IPC shall
E be attracted when the ‘offender’ ‘uses’ any deadly weapon Section
397 IPC. Even as per the case of the prosecution and even
considering the evidence on record, it can be seen that A1 and
A3 are not alleged to have used any weapon. The allegation of
use of any weapon was against A-2 and ‘B’ . Therefore, in absence
F of any allegations of use of any deadly weapon by the appellants –
A-1 and A-3, Section 397 IPC shall not be attracted and to that
extent they ought not to have been convicted for the offence
punishable under Section 397 IPC. [Para 12.7][539-F-H;
540-A-C]
G Shri Phool Kumar v. Delhi Administration (1975) 1 SCC
797 : [1975] 3 SCR 917; Dilawar Singh v. State of Delhi
(2007) 12 SCC 641 – relied on.
3.1 Now so far as the submission on behalf of the accused
that the appellants – accused cannot be convicted for the offence
H under Section 397 IPC and that the requirement to bring the
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 519

case under Section 391 IPC punishable under Section 395 IPC A
namely five persons or more persons conjointly committing the
robbery has not been established and proved and only four
persons came to be tried and the courts below did not convict
the accused for the offence under Section 391 punishable under
Section 395 IPC is concerned, at the outset, it is required to be
B
noted that as such all the accused were charged by the trial Court
for the offences under Section 395 IPC as well as 397 IPC. With
the aforesaid offences parties went for trial. Therefore, once a
case under Section 391 IPC punishable under Section 395 IPC is
made out, they can be convicted for the offence under Section
391 IPC punishable under Section 395 IPC as no prejudice shall C
be caused to the accused. Even otherwise, when a charge of a
major offence is not made out, conviction for a minor offence
even in the absence of the charge for the said minor offence can
be sustained. If an accused is charged with a grave offence but
the same is not established on merit or for default of technical
D
nature, he can be convicted and punished for a minor offence
without altering of a charge. [Para14][540-D-H]
Rameshbhai Mohanbhai Koli v. State of Gujarat (2011)
11 SCC 111 : [2010] 14 SCR 1– relied on.
3.2 Even otherwise there is no difference between Section E
391/395 and Section 397 IPC so far as sentence/punishment
except the difference in case of Section 397 IPC the punishment
shall not be less than seven years. Otherwise, the ‘robbery’ and
‘dacoity’ are sine qua non. ‘Dacoity’ is nothing but an exaggerated
version of ‘robbery’ with a difference in number of accused.
Therefore, also even in a case where the accused is not convicted F
for the offence under Section 397 IPC, still he can be punished
under Section 395 IPC and no prejudice shall be caused to him
as ultimately the prosecution has to prove the ‘robbery’ and
‘dacoity’ either for the offence punishable under Section 395 IPC
or under Section 397 IPC. However, to bring the case against G
the accused under Section 397 IPC, the prosecution has to prove
one additional fact that the offender has used any deadly weapon
or has caused grievous hurt to any person, or has attempted to
cause death or grievous hurt to any person. Therefore, the case

H
520 SUPREME COURT REPORTS [2021] 10 S.C.R.

A is made out under Section 391 IPC read with Section 395 IPC.
Despite the fact that the courts below convicted the accused under
Section 397 IPC which is held to be unsustainable, in that case
also if the case is made out under Section 391 IPC read with
Section 395 IPC, still they can be convicted for the offence
punishable under Section 391 read with Section 395 IPC even
B
without even altering the charge. The trial court had framed the
charge against the accused for the offence under Sections 395
and 397 IPC both. [Para 15][541-G-H; 542-A-D]
3.3 Now so far as the submission on behalf of the appellants
– accused that even no case is made out for the offence under
C Section 391 IPC and they cannot be punished under Section 395
IPC as what is required to be proved is involvement of five or
more persons conjointly in committing the robbery and in the
present case only four persons are tried and the prosecution has
failed to prove the involvement of five or more persons. However,
D as such in the FIR, there was a reference to five persons involved
in committing the robbery. Even the charge-sheet was filed against
five persons. However, as two accused absconded, the trial was
split and three accused came to be tried. One accused ‘B’ came
to be tried subsequently and one person is still absconding. Even
there are concurrent findings recorded by all the courts below
E that five persons were involved in committing the offence of
robbery. Merely because some of the accused absconded and
less than five persons came to be tried in the trial, it cannot be
said that the offence under Section 391 IPC punishable under
Section 395 IPC is not made out. What is required to be
F considered is the involvement and commission of the offence of
robbery by five persons or more and not whether five or more
persons were tried. Once it is found on evidence that five or
more persons conjointly committed the offence of robbery or
attempted to commit the robbery a case would fall under Section
391 IPC and would fall within the definition of ‘dacoity’. Therefore,
G in the facts and circumstances, the accused can be convicted for
the offence under Section 391 IPC punishable under Section 395
IPC. [Para 16][542-D-H; 543-A]

H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 521

3.4 Now so far as the submission on behalf of the accused A
that in the subsequent trial one of the accused – ‘B’ came to be
acquitted and therefore the benefit of acquittal of ‘B’ must be
given to the present accused and thereafter they may be acquitted
is concerned the same has no substance. The accused are to be
tried and convicted on the basis of evidence made in the trial in
B
which they are convicted. It is also required to be noted that ‘B’
came to be tried after a period of 15 years as his trial was split as
he absconded. From the judgment and order of acquittal passed
in the case of ‘B’, it appears that PW1 during the trial in case of
‘B’ turned hostile. In the case of ‘B’ only five witnesses came to
be examined and for whatever reasons other witnesses have not C
been examined. In the present case, PW1 not only supported
the case of prosecution but as many as 15 witnesses came to be
examined. Therefore, merely because in the subsequent split
trial ‘B’ came to be acquitted the benefit of such acquittal cannot
be in favour of the present appellants-accused as the prosecution
D
has been successful in proving the case against the accused.
[Para 17][543-B-E]
Amrita v. State of M.P. (2004) 12 SCC 224; Gangadhar
Behera v. State of Orissa (2002) 8 SCC 381 : [2002] 3
Suppl. SCR 183; Raja v. State (2013) 12 SCC 674 :
[2013] 9 SCR 230 – relied on. E

Raj Kumar Alias Raju v. State of Uttaranchal (2008) 11
SCC 397; Balbir v. State of Uttar Pradesh 2020 SCC
Online All 845; Mohan Singh v. State of Punjab AIR
1963 SC 174 : [1962] Suppl. SCR 848; Ram Bilas Singh
& Ors. v. The State of Bihar [1964] 1 SCR 775; Manmeet F
Singh @ Goldie v. State of Punjab (2015) 7 SCC 167 :
[2015] 3 SCR 773; Harbhajan Singh v. State of Jammu
and Kashmir (1975) 4 SCC 480; Sathya Narayanan v.
State rep. by Inspector of Police (2012) 12 SCC 627 :
[2012] 10 SCR 950; Raju Manjhi v. State of Bihar G
(2019) 12 SCC 784; Rafiq Ahmad v. State of U.P. (2011)
8 SCC 300 : [2011] 11 SCR 907; Prema S. Rao v. Yadla
Srinivasa Rao (2003) 1 SCC 217 : [ 2002] 3 Suppl.
SCR 339 – referred to.

H
522 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Case law reference
[1975] 3 SCR 917 relied on Para 6.1
(2007) 12 SCC 641 relied on Para 6.1
(2008) 11 SCC 397 referred to Para 6.5
B [1962] Suppl. SCR 848 referred to Para 7
[1964] 1 SCR 775 referred to Para 7.1
[2015] 3 SCR 773 referred to Para 7.1
(1975) 4 SCC 480 referred to Para 8.5
C
[2012] 10 SCR 950 referred to Para 8.9
(2019) 12 SCC 784 referred to Para 8.9
[2011] 11 SCR 907 referred to Para 8.10
[2002] 3 Suppl. SCR 339 referred to Para 8.10
D
[2010] 14 SCR 1 relied on Para 14
(2004) 12 SCC 224 relied on Para 17
[2002] 3 Suppl. SCR 183 relied on Para 17
[2013] 9 SCR 230 relied on Para 17
E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
903 of 2021.
From the Judgment and Order dated 16.07.2019 of the High Court
of Judicature at Madras in Criminal Appeal No.429 of 2012.
F With
Criminal Appeal No.904 of 2021.
G. Sivabalamurugan, P. R. Kovilan Poongkuntran, V. Vasudevan,
Mrs. Geetha Kovilan, Advs. for the Appellant.
G Dr. Joseph Aristotle S., Ms. Preeti Singh, Ms. Ripul Swati Kumari,
Advs. for the Respondent.

H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 523

The Judgment of the Court was delivered by A
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 B
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 C
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 D
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 E
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 F
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 G
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, H
524 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 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
B
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
C 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
D
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
E Judgment and Order dated 13.04.2010 in S.C. No.363 of 2009 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.
4. Feeling aggrieved and dissatisfied with the judgment and order
F of conviction passed by the Learned trial Court convicting the accused
for the offence punishable under Section 397 IPC and imposing the
sentence of 7 years RI, accused Ganesan and Shanmugam – A1 and A3
respectively (preferred appeal bearing Criminal Appeal No.48 of 2010
before the Learned Sessions Court). That by judgment and order dated
03.01.2012, the Learned Sessions Court dismissed the said appeal and
G
confirmed the judgment and order of conviction passed by the Learned
Trial Court. The High Court by the impugned Judgment and order has
confirmed the conviction under Section 397 IPC.
5. Feeling aggrieved and dissatisfied with the judgment and order
passed by the High Court in dismissing the Revision Applications and
H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 525
[M. R. SHAH, J.]

confirming the conviction under Section 397 IPC, A1 Ganesan has A
preferred Criminal Appeal No.903 of 2021 and A3 Shanmugam has
preferred Criminal Appeal No.904 of 2021. As observed hereinabove
subsequently after a period of 15 years from the occurrence of the offence
original accused no.2 – Benny was apprehended and he came to be
tried separately. In Sessions Case No.12 of 2018 and by its judgment
B
and order dated 15.11.2018 he has been acquitted. Acquittal of accused
Benny shall be discussed and considered hereinbelow.
6. Submissions on behalf of the Accused – Ganesan in
Criminal Appeal No.903 of 2021
Learned Counsel appearing on behalf of accused - Ganesan has C
made the following submissions:
(1) That the FIR is clouded with suspicion. It is submitted that
PW1 Duraisamy deposed that the incident took place on
19.08.1996 at about 11:00 PM and he was attacked by the
accused persons and immediately he become unconscious D
and then he was admitted in Government Hospital and he
gained conscious after one week. Contrary to the same
PW13 - I.O. deposed that he reached the Government
Hospital in the early morning at 2.30 AM on 20.08.1996
and recorded the statement of PW1 - Duraisamy and he
reached police station at 3.00 AM and on the basis of the E
statement he registered Crime No.678 of 1996 under Section
394 IPC. It is submitted that even PW13 in his cross-
examination admitted that in the complaint Ex.P1 neither
complainant’s signature nor the thumb affixation were found.
It is submitted that therefore complaint Ex.P1 could not F
have come into existence as claimed by the prosecution
and consequently the FIR registered by the IO is legally
inadmissible;
(2) The identification of accused persons has not been
established inasmuch as no Test Identification Parade (TIP) G
proceedings was conducted. It is submitted that in the
present case no TIP was conducted by the police. It is
submitted that even before the Learned trial Court, the
prosecution witnesses very categorically stated that they
could not identify the accused persons due to the reason
that; (i) PW1 become unconscious after the incident; (ii) H
526 SUPREME COURT REPORTS [2021] 10 S.C.R.

A PW2 deposed “whether I knew the accused, I did not
remember as long time have passed”; (iii) PW3 deposed
“Since 14 years have passed, I could not keep memory and
to tell who is that person among the persons now before
this Court.” It is submitted that even PW3 deposed that “at
the time of incident, the place of occurrence was dark and
B
rainy”; (iv) PW4 also deposed that “because 14 years have
passed, they could not be able to tell correctly”.
6.1 It is submitted that even in the accident register as well PW10
– Doctor recorded that he was informed that the complainant was
C attacked by three unknown persons. It is submitted therefore that it
creates serious doubt about the number of persons involved whether 3
or 5; Accused Ganesan did not participate in the crime as he was in the
car and therefore Section 397 IPC shall not be attracted. It is submitted
that even as per the case of the prosecution, the accused Ganesan was
in the car and he did not come to the place of occurrence and therefore
D he cannot be convicted for the offence punishable under Section 397
IPC; it is submitted that it is a settled law that the term ‘offender’ is
confined to the ‘offender’ who uses any deadly weapon. It is submitted
that use of deadly weapon at the time of committing robbery cannot
attract Section 397 IPC for the imposition of the minimum punishment
E on another offender who had not used any deadly weapon. Heavy
reliance is placed on the decisions of this Court in Shri Phool Kumar
vs. Delhi Administration, (1975) 1 SCC 797 (para 5 & 6) and Dilawar
Singh vs. State of Delhi, (2007) 12 SCC 641 (para 19 to 22). It is
further submitted by Learned Counsel appearing on behalf of the accused
- Ganesan that as such original accused Benny has been acquitted by
F the Court vide judgment dated 15.11.2018. It is submitted that it is a
settled law that if the allegations made against the accused and the other
accused persons are one and the same then they are indivisible and
inseparable in nature, the benefit of acquittal of a co-accused should be
extended to the other accused persons as well. It is submitted that as
G per the prosecution case A1 to A5 were involved in the case. It is
submitted that even the PWs could not identify and point out who beat
PW1 and PW2.
6.2. It is further submitted that even otherwise the injury caused
to PW1 and PW2 are simple in nature. It is submitted that as per the
medical records, the injuries caused to PW1 and PW2 are simple injuries
H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 527
[M. R. SHAH, J.]

which is evident from the testimony of PW10 – Doctor R. Elangoven. It A
is submitted that there is no possibility of any ‘dangerous weapon’ being
recovered in the present case and therefore, Section 397 IPC cannot be
pressed into service.
6.3 It is further submitted that according to the prosecution the
number of accused persons involved in the present case was five persons. B
It is submitted that all the prosecution witnesses stated that number of
accused persons involved was not more than 3 accused persons. It is
submitted that only in a case where five or more than five persons commit
or attempt to commit a robbery it would be dacoity. It is submitted that it
is more of an aggravated form of robbery and generally the robber is C
armed with deadly weapons. It is submitted that even in the present
case, even the prosecution is not sure about the number of accused
persons involved in the present case, therefore the Learned trial Court
framed charge under Section 397 IPC alone despite charge-sheet filed
under Sections 395 and 397 IPC.
D
6.4 It is further submitted that even PW2 to PW4 are not reliable
and trustworthy eye-witnesses. It is submitted that looking to the distance
between the house and the place of occurrence, it is not possible to hear
the cry of PW1 and that they reached the place of occurrence only after
the offence of robbery was committed by the accused.
E
6.5 It is further submitted that there is an inordinate delay even in
filing the charge-sheet and conducting trial. It is submitted that in the
present case the charge-sheet was filed after 13 years and such a delay
has not been explained by the prosecution. It is further submitted that
even otherwise the accused involved were less than 5 persons and even
Benny came to be acquitted by the Learned trial Court and therefore F
the accused herein also cannot be convicted for the offence punishable
under Section 397 IPC. Reliance is placed on the decisions of this Court
in Raj Kumar Alias Raju vs. State of Uttaranchal, (2008) 11 SCC
397 and Balbir vs. State of Uttar Pradesh, 2020 SCC Online All 845.
It is submitted that considering the totality of the circumstances of the G
case, the accused is entitled to the benefit of doubt.
Making the above submissions, it is prayed to allow the appeal
preferred by accused - Ganesan and to acquit him for the offence
punishable under Section 397 IPC for which he has been convicted.
H
528 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 7. Submissions on behalf of the accused Shanmugam @ Babu
in Criminal Appeal No.904 of 2021
In addition to submissions by Learned Counsel appearing on behalf
of accused - Ganesan, it is submitted by Learned Counsel appearing on
behalf of accused - Shanmugam that in the present case there is no
B substantive charge or conviction for robbery. It is submitted that conviction
of an accused can only be on substantive charge and not otherwise, in
the absence of any evidence to the same. It is submitted that in the
present case, the substantive charge is only under Section 395 (Dacoity)
IPC and even otherwise nothing is on record that the accused -
Shanmugam gave any blow and/or use any deadly weapon and/or caused
C any grievous injury. The accused cannot be convicted on the basis of
constructive liability for the offence punishable under Section 397 IPC.
Reliance is placed on the decision of this Court in the case of Mohan
Singh vs State of Punjab, AIR 1963 SC 174.
7.1 It is further submitted that in absence of any charge for robbery
D under Sections 390/392 read with Section 378 (Theft), Section 383
(Extortion) either in the form of Charge-sheet or in the form of charges,
the accused cannot be convicted for the aforesaid offences also. It is
further submitted that dacoity is nothing but an exaggerated version of
robbery with a difference in number of accused (five or more) which is
E a sine qua non to proof of dacoity. Reliance is placed on the decisions of
this Court in the case of Ram Bilas Singh & Ors. Vs. The State of
Bihar, (1964) 1 SCR 775; Raj Kumar @ Raju (Supra) and Manmeet
Singh @ Goldie vs. State of Punjab, (2015) 7 SCC 167. It is further
submitted that even otherwise in the case of accused – Shanmugam, he
has been convicted relying upon the confessional statement of co-accused
F which is inadmissible in the evidence. It is submitted that confessional
statement of A1 - Ganesan and A2 - Benny which are before the Police
Officer are inadmissible in evidence. It is further submitted that there is
no other evidence against the accused - Shanmugam except the so-
called confessional statements of A1 - Ganesan and A2 - Benny. Making
G the above submissions it is prayed to allow the present appeal and acquit
the accused - Shanmugam for the offence punishable under Section 397
IPC for which he has been convicted.
8. Dr. Joseph Aristotle S., Learned Counsel appearing on behalf
of the State of Tamil Nadu has vehemently submitted that in the facts
H and circumstances of the case as such the courts below have not
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 529
[M. R. SHAH, J.]

committed any error in convicting Ganesan – A1 and Shanmugam @ A
Babu – A3.
8.1 It is submitted that in the present case the presence of the
accused at the time of the commission of the offence has been established
and proved by the prosecution while leading evidence both documentary
and oral. B
8.2 It is submitted that as such there are concurrent findings
recorded by the courts below namely the Learned trial Court, the First
Appellate Court and thereafter by the High Court and therefore the
interference in exercise of the powers under Article 136 of the
Constitution is not warranted. It is submitted that therefore, the High C
Court’s order passed in exercise of its revisional jurisdiction does not
call for any interference under Article 136 of the Constitution.
8.3 It is further submitted that the Learned trial Court, First
Appellate Court and the Revisional Court as such have rightly appreciated
the evidence of PW1 (complainant), PW2 (injured witness), PW10 D
(Doctor who treated PW1 and PW2) and PW13 (SI who registered the
FIR).
8.4 It is submitted that injured eye-witnesses PW1 and PW2 were
brought to the hospital by PW3 (eye-witness) at about 11.55 PM on
19.08.1996. PW10 treated PW1 and PW2 and made entries in the E
accident register. That on receiving information from the Government
Hospital, PW13 went to hospital and recorded the statement of PW1 at
2.30 AM and came to the police to register the FIR at 3.00 AM which
was marked as Ex.P1. It is submitted that as PW1’s fingers of both
hands had serious injuries which is corroborated by medical evidence,
he was only able to affix the thumb impression on the complaint. It is F
submitted that discrepancy in PW1’s testimony regarding him becoming
unconscious immediately after he was injured may not be used against
him as the said statement was made after a lapse of 14 years from the
date of occurrence. It is submitted that as such on the careful reading of
the evidence of PW1 it can be understood to mean PW1 went G
unconscious only after giving a complaint to PW13. It is submitted that
as rightly appreciated by both, the trial Court and the Appellate Court,
the testimonies of PW10 and PW13 are corroborated and correspond to
the testimony of the prosecution witnesses. It is submitted that the ocular
and the medical evidence in this case are corroborated and do not call
for any adverse interference. H
530 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 8.5 It is submitted that in the present case, failure to perform Test
Identification Parade (TIP) is not fatal to prosecution’s case because
there is other overwhelming evidence including witness accounts of injured
PW1 and PW2 pointing to the guilt of the accused. It is submitted that it
is well-settled law that TIP is not a substantive piece of evidence and
may only be relied upon when the substantial evidence is uncorroborated.
B
Identification tests are primarily meant for the purpose of helping the
investigating agency with an assurance that their progress with the
investigation into the offence is proceeding on the right lines. It is
submitted that as such there is no provision in the Code of Criminal
Procedure which obliges the investigating agency to hold or confers a
C right upon the accused to claim a TIP. Reliance is placed on the decision
of this Court in Harbhajan Singh vs. State of Jammu and Kashmir,
(1975) 4 SCC 480.
8.6 It is further submitted that in the present case, the prosecution
has clearly established the presence of five accused. It is submitted that
D even the charge-sheet was filed against the five accused persons, however
two accused absconded and therefore, the trial proceeded against three
accused. It is submitted that otherwise there is ample evidence to show
the involvement of five accused persons and therefore Section 395 IPC
will be attracted.
E 8.7 It is further submitted that in the present case the presence of
A1 - Ganesan has been established by the prosecution by examining
PW6, PW11 and PW14. It is submitted that vide Ex.P10, A1 was arrested
on 21.08.1996.
8.8 It is further submitted that even the presence of five persons
F involved in commission of the offence has been established and proved
and Section 395 IPC shall be attracted.
8.9 It is submitted that although PW11 turned hostile, it is a settled
principle in law that evidence of hostile witness can be relied upon to the
extent it supported the case of the prosecution. Reliance is placed on the
G judgment of this Court in Sathya Narayanan vs. State rep. by Inspector
of Police, (2012) 12 SCC 627. It is submitted that during the confession
of A2 before the Investigating Officer about the joint attack and stealing
of the jewels and cash in which he stated that he – A2 Ganesan, Shajahan,
Shanmugam and another person were there. It is submitted that based
on the aforesaid confession and recovery of an iron rod and the
H information obtained in the confession of A2, there were recoveries and
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 531
[M. R. SHAH, J.]

arrest of the other accused. In support of the submission that the A
confessional statement can be relied upon on certain circumstances,
reliance is placed in the case of Raju Manjhi vs. State of Bihar, (2019)
12 SCC 784.
8.10 It is submitted that the witnesses have identified some of the
accused in the court and at the same time some of the other accused B
have been arrested by the information obtained from confession
statements. It is submitted that even otherwise, non-identification of all
the accused by the witnesses would not vitiate the case of prosecution
especially in cases of robbery and dacoity. It is further submitted by
learned counsel for the State that as per the settled proposition of law
the person charged with a heinous or grave offence can be punished for C
a less grave offence of cognate nature. Reliance is placed on Rafiq
Ahmad vs. State of U.P., (2011) 8 SCC 300 and K. Prema S. Rao vs.
Yadla Srinivasa Rao, (2003) 1 SCC 217.
It is submitted that in the present facts of the case, the charge
was rightly framed for the offences under Section 395 read with Section D
397 IPC and the ingredients for the offences have been proved by the
prosecution beyond reasonable doubt even as otherwise in the alternative,
the conviction of the accused under Section 397 IPC can be sustained.
9. Making the above submissions it is prayed to dismiss the present
appeals. E

10. Heard the Learned Counsels for the respective parties at length.
11. Present appeals have been preferred by the Original Accused
No.1 - Ganesan and Accused No.3 - Shanmugam @ Babu challenging
their conviction for the offence under Section 397 IPC. At the outset, it F
is required to be noted that as such there are concurrent findings recorded
by the Learned trial Court, Learned Sessions Court and the High Court
on presence of the accused at the time of commission of the offence
and their active involvement. Their presence at the time of commission
of the offence has been established and proved by the prosecution by
examining the relevant witnesses during the course of trial. G
11.1 PW1 – Duraisamy, PW2 – Palanivel and PW3 – Aravind
Kumar are three eye-witnesses, out of which PW1 and PW2 are the
injured eye-witnesses. We have gone through in detail the deposition of
relevant witnesses more particularly PW1, PW2 and PW3 and even
PW11 (who turned hostile) and the medical evidence and some of the H
532 SUPREME COURT REPORTS [2021] 10 S.C.R.

A accused identified in the Court, we are of the opinion that the presence
and their participation has been established and proved by the prosecution.
There are some contradictions, however on reading the entire evidence,
we are of the opinion that the contradictions are not such material
contradictions which affect the case of the prosecution as a whole. It is
to be noted that the witnesses were examined after almost 14 years
B
have passed and therefore there may be some contradictions. As per
the settled proposition of law only those contradictions which are material
contradictions may create the doubt and benefit of such material
contradictions can be given to the accused.
12. In light of the above findings and observations now we may
C consider the other submissions on merits.
12.1 It is the case on behalf of the accused that their conviction
for the offence under Section 397 IPC is unsustainable. It is also the
case on behalf of the accused that even for the offence under Section
391 IPC punishable under Section 395 IPC involvement of five or more
D persons in commission of robbery is sine qua non. It is the case on
behalf of the accused that in the present case only three accused were
tried and subsequently one another accused Benny came to be tried and
therefore the condition precedent for bringing the case under Section
391 IPC (Dacoity) has not been satisfied as the involvement of five or
E more persons in commission of the offence has not been established and
proved and only four accused were tried. It is also the case on behalf of
the accused that the courts below have materially erred in convicting
the accused for the offence punishable under Section 397 IPC even as
per the case of the prosecution the present appellants Accused Nos.1
and 3 did not use any deadly weapon. Relying upon the decision of this
F Court in the case of Shri Phool Kumar (Supra) and Dilawar Singh
(Supra), it is submitted that the accused who has not used any deadly
weapon at the time of committing robbery cannot be convicted under
Section 397 IPC for the imposition of the minimum punishment and the
term ‘offender’ is confined to the offender who uses any deadly weapon
G to attract Section 397 IPC for the imposition of the minimum punishment.
It is also the case on behalf of the accused that one another accused
Benny came to be acquitted subsequently and therefore the benefit of
acquittal of Benny should go to the present appellants – accused.
12.2 To appreciate the aforesaid submissions the relevant
H provisions with respect to ‘robbery’ and ‘dacoity’ are required to be
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 533
[M. R. SHAH, J.]

referred to. The relevant provisions would be Section 390 IPC to Section A
398 IPC which read as under:
“390. Robbery.—In all robbery there is either theft or extortion.
When theft is robbery.—Theft is “robbery” if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft, B
the offender, for that end voluntarily causes or attempts to cause
to any person death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.—Extortion is “robbery” if the
offender, at the time of committing the extortion, is in the presence C
of the person put in fear, and commits the extortion by putting that
person in fear of instant death, of instant hurt, or of instant wrongful
restraint to that person or to some other person, and, by so putting
in fear, induces the person so put in fear then and there to deliver
up the thing extorted.
D
Explanation.—The offender is said to be present if he is
sufficiently near to put the other person in fear of instant death, of
instant hurt, or of instant wrongful restraint.
391. Dacoity.—When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of
E
persons conjointly committing or attempting to commit a robbery,
and persons present 1.Subs. by Act 26 of 1955, s. 117 and the
Sch., for “transportation for life” (w.e.f. 1-1-1956). 99 and aiding
such commission or attempt, amount to five or more, every person
so committing, attempting or aiding, is said to commit “dacoity”.
392. Punishment for robbery.—Whoever commits robbery shall F
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.
393. Attempt to commit robbery.—Whoever attempts to G
commit robbery shall be punished with rigorous imprisonment for
a term which may extend to seven years, and shall also be liable
to fine.
394. Voluntarily causing hurt in committing robbery.—If any
person, in committing or in attempting to commit robbery, voluntarily H
534 SUPREME COURT REPORTS [2021] 10 S.C.R.

A causes hurt, such person, and any other person jointly concerned
in committing or attempting to commit such robbery, shall be
punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine.
B 395. Punishment for dacoity.—Whoever commits dacoity shall
be punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine.
396. Dacoity with murder.—If any one of five or more persons,
C who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished
with death, or 1 [imprisonment for life], or rigorous imprisonment
for a term which may extend to ten years, and shall also be liable
to fine.
D 397. Robbery, or dacoity, with attempt to cause death or grievous
hurt.—If, at the time of committing robbery or dacoity, the offender
uses any deadly weapon, or causes grievous hurt to any person,
or attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished shall
not be less than seven years.
E
398. Attempt to commit robbery or dacoity when armed
with deadly weapon.—If, at the time of attempting to commit
robbery or dacoity, the offender is armed with any deadly weapon,
the imprisonment with which such offender shall be punished shall
F not be less than seven years.”
12.3 As per Section 390 IPC, for ‘robbery’ there is either theft or
extortion. When in the committing of the theft, or in committing the theft,
or in carrying away or attempting to carry away property obtained by
the theft, the offender, voluntarily causes or attempts to cause to any
G person death or hurt or wrongful restraint or fear of instant death or of
instant hurt, or of instant wrongful restraint the theft can be said to be
‘robbery’. In similar situation the ‘extortion’ can be said to have
committed ‘robbery’. As per explanation to Section 390 IPC the offender
is said to be present if he is sufficiently near to put the other person in
fear of instant death, of instant hurt, or of instant wrongful restraint.
H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 535
[M. R. SHAH, J.]

Section 391 IPC defines ‘dacoity’. When five or more persons A
conjointly commit or attempt to commit a robbery, the accused then can
be said to have committed the ‘dacoity’.
As per Section 392 IPC 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. However, if the robbery is B
committed on the highway between sunset and sunrise, the imprisonment
may be extended to fourteen years.
As per Section 393 IPC even an attempt to commit robbery is
punishable with rigorous imprisonment for a term which may extend to
seven years with fine. As per Section 394 IPC if any person, in committing C
or in attempting to commit robbery, voluntarily causes hurt, such person,
and any other person jointly concerned in committing or attempting to
commit such robbery, shall be punished with imprisonment for life or
with rigorous imprisonment for a term which may extend to ten years
and shall also be liable to fine.
D
Section 395 IPC provides for punishment for ‘dacoity’. Whoever
commits dacoity shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years and
shall also be liable to fine.
In case of dacoity with murder if any one of five or more persons,
who are conjointly committing dacoity, commits murder in so committing E
dacoity, every one of those persons shall be punished with death, or
imprisonment for life, or rigorous imprisonment for a term which may
extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous hurt F
to any person, or attempts to cause death or grievous hurt to any person,
the imprisonment with which such offender shall be punished shall not
be less than seven years.
Similarly, if, at the time of committing robbery or dacoity the
offender is armed with any deadly weapon, the imprisonment with which G
such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission
of ‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an
exaggerated version of robbery. If five or more persons conjointly commit
or attempt to commit robbery it can be said to be committing the ‘dacoity’. H
536 SUPREME COURT REPORTS [2021] 10 S.C.R.

A Therefore, the only difference between the ‘robbery’ and the ‘dacoity’
would be the number of persons involved in conjointly committing or
attempt to commit a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’
would be the same except that in the case of ‘dacoity’ the punishment
can be with imprisonment for life. However, in the case of ‘dacoity with
murder’ the punishment can be with death also. However, in a case
B
where the offender uses any deadly weapon or causes grievous hurt to
any person, or attempts to cause death or grievous hurt to any person
the imprisonment with which such offender shall be punished shall not
be less than seven years. Learned Counsel appearing on behalf of the
appellants have rightly submitted that to bring the case within Section
C 397 IPC, the offender who uses any deadly weapon, or causes grievous
hurt to any person shall be liable for minimum punishment under Section
397 IPC.
Section 392 and Section 390 IPC are couched in different words.
In Sections 390, 394, 397 and 398 IPC the word used is ‘offender’.
D Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396,
397, 398 IPC only the offender/person who committed robbery and/or
voluntarily causes hurt or attempt to commit such robbery and who uses
any deadly weapon or causes grievous hurt to any person, or commits to
cause death or grievous death any person at the time of committing
robbery or dacoity can be punished for the offences under Sections 390,
E 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused
cannot be convicted on the basis of constructive liability and only the
‘offender’ who ‘uses any deadly weapon….’ can be punished. However,
so far as Section 391 IPC ‘dacoity’ and Section 396 IPC – ‘dacoity with
murder’ is concerned an accused can be convicted on the basis of
F constructive liability, however the only requirement would be the
involvement of five or more persons conjointly committing or attempting
to commit a robbery – dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar
(Supra) is required to be referred to. In the aforesaid decision this Court
G has observed and considered Sections 397 and 398 IPC and on
interpretation of the aforesaid provisions, it is observed and held in
paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code provides:
“Whoever commits robbery shall be punished with rigorous
H imprisonment for a term which may extend to ten years, and shall
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 537
[M. R. SHAH, J.]

also be liable to fine; and, if the robbery be committed on the A
highway between sunset and sunrise, the imprisonment may be
extended to fourteen years.”
The sentence of imprisonment to be awarded under Section 392
cannot be less than seven years if at the time of committing robbery
the offender uses any deadly weapon or causes grievous hurt to B
any person 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 C
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 D
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 PW 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. E
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.
6. Section 398 uses the expression “armed with any deadly
weapon” and the minimum punishment provided therein is also F
seven 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 seven years under Section G
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 H
538 SUPREME COURT REPORTS [2021] 10 S.C.R.

A 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
B
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
C the robbery.
7. 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 [AIR 1932 Oudh 103]; Nagar Singh v.
D Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR
1934 Lah 522] some overt act such as brandishing the weapon
against another person in order to overawe 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
E Dipaji More v. State [AIR 1956 Bom 353] 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.
F 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 [ILR (1970) 2 Punj and Har 108] is not correct.”
G 12.6. The aforesaid view has been subsequently reiterated by this
Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21
it is observed and held as under:
“19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
H
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 539
[M. R. SHAH, J.]

2. While committing robbery or dacoity (i) the accused used deadly A
weapon (ii) to cause grievous hurt to any person (iii) attempted
to cause death or grievous hurt to any person.
3. “Offender” refers to only culprit who actually used deadly
weapon. When only one has used the deadly weapon, others
cannot be awarded the minimum punishment. It only envisages B
the individual liability and not any constructive liability. Section
397 IPC is attracted only against the particular accused who uses
the deadly weapon or does any of the acts mentioned in the
provision. But the other accused are not vicariously liable under
that section for acts of the co-accused.
C
20. As noted by this Court in Phool Kumar v. Delhi Admn.
[(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the
term “offender” under Section 397 IPC is confined to the offender
who uses any deadly weapon. 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 D
offender who had not used any deadly weapon. There is distinction
between “uses” as used in Sections 397 IPC and 398 IPC. Section
397 IPC connotes something more than merely being armed with
deadly weapon.
21. In the instant case admittedly no injury has been inflicted. E
The use of weapon by offender for creating terror in mind of
victim is sufficient. It need not be further shown to have been
actually used for cutting, stabbing or shooting, as the case may
be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC
116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253].” F
12.7. Thus, as per the law laid down by this Court in the aforesaid
two decisions 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 G
who has not used any deadly weapon. Even there is distinction and
difference between Section 397 and Section 398 IPC. The word used in
Section 397 IPC is ‘uses’ any deadly weapon and the word used in
Section 398 IPC is ‘offender is armed with any deadly weapon’.
Therefore, for the purpose of attracting Section 397 IPC the ‘offender’
who ‘uses’ any deadly weapon Section 397 IPC shall be attracted. H
540 SUPREME COURT REPORTS [2021] 10 S.C.R.

A In light of the above observations and the law laid down by this
Court in the aforesaid two decisions the case on behalf of the accused in
the present appeals is required to be considered. Even as per the case of
the prosecution and even considering the evidence on record it can be
seen that the present accused A1 and A3 are not alleged to have used
any weapon. The allegation of use of any weapon was against Benny
B
and Prabhakaran. Therefore, in absence of any allegations of use of any
deadly weapon by the appellants herein – Accused Nos.1 and 3 Section
397 IPC shall not be attracted and to that extent the Learned Counsel
appearing on behalf of the appellants – accused are right in submitting
that they ought not to have been convicted for the offence punishable
C under Section 397 IPC.
13. However, the next question which is posed for the consideration
of this Court is once it is held that the accused could not have been
convicted for the offence under Section 397 IPC, still their conviction
and sentence can be sustained under Section 391 IPC or not.
D 14. Now so far as the submission on behalf of the accused that
the appellants – accused cannot be convicted for the offence under
Section 397 IPC and that the requirement to bring the case under Section
391 IPC punishable under Section 395 IPC namely five persons or more
persons conjointly committing the robbery has not been established and
E proved and only four persons came to be tried and the courts below did
not convict the accused for the offence under Section 391 punishable
under Section 395 IPC is concerned, at the outset, it is required to be
noted that as such all the accused were charged by the Learned trial
Court for the offences under Section 395 IPC as well as 397 IPC. With
the aforesaid offences parties went for trial. Therefore, once a case
F under Section 391 IPC punishable under Section 395 IPC is made out,
they can be convicted for the offence under Section 391 IPC punishable
under Section 395 IPC as no prejudice shall be caused to the accused.
Even otherwise as held by this Court in the case of Rameshbhai
Mohanbhai Koli vs. State of Gujarat, (2011) 11 SCC 111, when a
G charge of a major offence is not made out, conviction for a minor offence
even in the absence of the charge for the said minor offence can be
sustained. It is observed that if an accused is charged with a grave
offence but the same is not established on merit or for default of technical
nature, he can be convicted and punished for a minor offence without
altering of a charge. In paragraphs 31 and 43, it is observed and held as
H under:
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 541
[M. R. SHAH, J.]

“31. With the passage of time more and more such cases came A
up for consideration of this Court as well as the High Courts. The
development of law has not changed the basic principles which
have been stated in the judgments aforereferred. Usually an
offence of grave nature includes in itself the essentials of a lesser
but cognate offence. In other words, there are classes of offences
B
like offences against the human body, offences against property
and offences relating to cheating, misappropriation, forgery, etc.
In the normal course of events, the question of grave and less
grave offences would arise in relation to the offences falling in
the same class and normally may not be inter se the classes. It is
expected of the prosecution to collect all evidence in accordance C
with law to ensure that the prosecution is able to establish the
charge with which the accused is charged, beyond reasonable
doubt. It is only in those cases, keeping in view the facts and
circumstances of a given case and if the court is of the view that
the grave offence has not been established on merits or for a
D
default of technical nature, it may still proceed to punish the
accused for an offence of a less grave nature and content.
*** *** ***
43. Having stated the above, let us now examine what kind of
offences may fall in the same category except to the extent of E
“grave or less grave”. We have already noticed that a person
charged with a heinous or grave offence can be punished for a
less grave offence of cognate nature whose essentials are satisfied
with the evidence on record. Examples of this kind have already
been noticed by us like a charge being framed under Section 302
IPC and the accused being punished under Section 304 Part I or F
II, as the circumstances and facts of the case may demand.
Furthermore, a person who is charged with an offence under
Section 326 IPC can be finally convicted for an offence of lesser
gravity under Section 325 or 323 IPC, if the facts of the case so
establish.” G
15 Even otherwise there is no difference between Section 391/
395 and Section 397 IPC so far as sentence/punishment except the
difference in case of Section 397 IPC the punishment shall not be less
than seven years. Otherwise, the ‘robbery’ and ‘dacoity’ are sine qua
non. ‘Dacoity’ is nothing but an exaggerated version of ‘robbery’ with a H
542 SUPREME COURT REPORTS [2021] 10 S.C.R.

A difference in number of accused. Therefore, also even in a case where
the accused is not convicted for the offence under Section 397 IPC, still
he can be punished under Section 395 IPC and no prejudice shall be
caused to him as ultimately the prosecution has to prove the ‘robbery’
and ‘dacoity’ either for the offence punishable under Section 395 IPC or
under Section 397 IPC. However, to bring the case against the accused
B
under Section 397 IPC, the prosecution has to prove one additional fact
that the offender has used any deadly weapon or has caused grievous
hurt to any person, or has attempted to cause death or grievous hurt to
any person. Therefore, the case is made out under Section 391 IPC
read with Section 395 IPC. Despite the fact that the courts below
C convicted the accused under Section 397 IPC which is held to be
unsustainable, in that case also if the case is made out under Section 391
IPC read with Section 395 IPC, still they can be convicted for the offence
punishable under Section 391 read with Section 395 IPC even without
even altering the charge. As observed hereinabove in the present case,
the learned trial court framed the charge against the accused for the
D
offence under Sections 395 and 397 IPC both.
16. Now so far as the submission on behalf of the appellants –
accused that even no case is made out for the offence under Section
391 IPC and they cannot be punished under Section 395 IPC as what is
required to be proved is involvement of five or more persons conjointly
E in committing the robbery and in the present case only four persons are
tried and the prosecution has failed to prove the involvement of five or
more persons. However, it is required to be noted that as such in the FIR
there was a reference to five persons involved in committing the robbery.
Even the charge-sheet was filed against five persons. However, as two
F accused absconded, the trial was split and three accused came to be
tried. One accused Benny came to be tried subsequently and one person
is still absconding. Even there are concurrent findings recorded by all
the courts below that five persons were involved in committing the offence
of robbery. Merely because some of the accused absconded and less
than five persons came to be tried in the trial, it cannot be said that the
G offence under Section 391 IPC punishable under Section 395 IPC is not
made out. What is required to be considered is the involvement and
commission of the offence of robbery by five persons or more and not
whether five or more persons were tried. Once it is found on evidence
that five or more persons conjointly committed the offence of robbery or
H attempted to commit the robbery a case would fall under Section 391
GANESAN v. STATE REP. BY STATION HOUSE OFFICER 543
[M. R. SHAH, J.]

IPC and would fall within the definition of ‘dacoity’. Therefore, in the A
facts and circumstances, the accused can be convicted for the offence
under Section 391 IPC punishable under Section 395 IPC.
17. Now so far as the submission on behalf of the accused that in
the subsequent trial one of the accused – Benny came to be acquitted
and therefore the benefit of acquittal of Benny must be given to the B
present accused and thereafter they may be acquitted is concerned the
same has no substance. At the outset, it is required to be noted that the
accused are to be tried and convicted on the basis of evidence made in
the trial in which they are convicted. It is also required to be noted that
Benny came to be tried after a period of 15 years as his trial was split as
C
he absconded. From the judgment and order of acquittal passed in the
case of Benny, it appears that PW1 during the trial in case of Benny
turned hostile. In the case of Benny only five witnesses came to be
examined and for whatever reasons other witnesses have not been
examined. In the present case PW1 not only supported the case of
prosecution but as many as 15 witnesses came to be examined. Therefore, D
merely because in the subsequent split trial the Benny came to be
acquitted the benefit of such acquittal cannot be in favour of the present
appellants – accused as the prosecution has been successful in proving
the case against the present accused. At this stage, the decision of this
Court in the case of Amrita vs. State of M.P., (2004) 12 SCC 224;
E
Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381 and Raja
vs. State, (2013) 12 SCC 674 are required to be referred to. In the case
of Amrita (Supra), it is observed and held that 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 F
of the accused. Similar view has been expressed in case of Raja (Supra)
and Gangadhar (Supra). Therefore, on considering the facts narrated
hereinabove which led to acquittal in case of Benny, the present accused
against whom the prosecution has been successful in proving the case
by leading the evidence, the appellants – accused are not to be acquitted.
G
18. In view of the above and for the reasons stated above, both
these appeals are partly allowed so far as quashed and set aside the
conviction of the appellants – accused for the offence under Section
397 IPC. The conviction of the accused for the offence punishable under
Section 397 IPC is hereby set aside and the appellants – accused are
H
544 SUPREME COURT REPORTS [2021] 10 S.C.R.

A convicted for the offences under Section 391 IPC punishable under
Section 395 IPC and sentenced to undergo seven years RI and a fine of
Rs.2,000/- and in default to undergo further six months RI.
Present appeals are partly allowed to the aforesaid extent only.

B
Devika Gujral Appeals partly allowed.

C

D

E

F

G

H