RAM RATANversusSTATE OF MADHYA PRADESH

866                       [2021]
               SUPREME COURT     9 S.C.R. 866
                              REPORTS                      [2021] 9 S.C.R.


A                               RAM RATAN
                                       v.
                      STATE OF MADHYA PRADESH
                       (Criminal Appeal No.1333 of 2018)
B                            DECEMBER 17, 2021
                   [N. V. RAMANA, CJI, A. S. BOPANNA
                          AND HIMA KOHLI, JJ.]
            Penal Code, 1860 – ss.392, 397 – Appellant along with other
      two accused was convicted u/ss.392, 397 r/w s.11/13, MPDVPK
C     Act, 1981 – On appeal, held: Complainant narrated in detail the
      manner in which he was woken up by the accused while he was
      sleeping in the hut and the demand for money that was made by
      brandishing the firearm – Motorcycle and mobile which was stolen
      were recovered – Appellant participated in the offence of committing
      robbery as the motorcycle was recovered at his instance – His
D     conviction u/s.392 by trial court which was upheld by High Court
      is sustained – Sentence modified to the period of imprisonment
      undergone – Further, though all the three accused had taken part
      in the offence of committing robbery, only one of the co-accused
      had used the firearm – There was no allegation apart from a stray
E     sentence nor was such charge of having used firearm proved against
      the appellant – Charge u/s.397 can be fastened on the offender
      who actually uses the firearm – In the instant case, the appellant
      was not an offender who used the firearm – Thus, the judgment
      convicting the appellant u/s.397 r/w s.11/13, MPDVPK, 1981,
      upheld by the High Court is set aside to that extent – Sentence of 7
F     years rigorous imprisonment set aside – Madhya Pradesh Dakaiti
      Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act – ss.11,
      13 – Arms Act – s.25(1-B) (a).
             Penal Code, 1860 – s.397 – Use of weapon – What is – Held:
      Use of the weapon to constitute offence u/s.397 does not require
G     that the offender should actually fire from the firearm or actually
      stab if it is a knife or a dagger – Mere exhibition of the same,
      brandishing or holding it openly to threaten and create fear or
      apprehension in the mind of the victim is sufficient.
            Penal Code, 1860 – s.397 and ss.34, 149 – Vicariability of
H     offence u/s.397, if charges u/ss.34, 149 are invoked – Discussed.
                                      866
        RAM RATAN v. STATE OF MADHYA PRADESH                             867


      Partly allowing the appeal, the Court                              A
       HELD : 1.1 The complainant (PW-1) has spoken in detail
with regard to the manner in which he was woken up by the
accused and the demand for money that was made by brandishing
the firearm. The identification of the persons which was possible
due to the light which was on, is also stated. The incident relating     B
to which PW1 had given the detailed account, has remained intact
and has not been discredited. The evidence is sufficient and
convincing to arrive at the conclusion that the incident as narrated
by PW1 had occurred and the appellant and his co-accused had
committed robbery. [Paras 10, 11][873-E-F; 874-C-D]
                                                                         C
      1.2 The use of the weapon to constitute the offence under
Section 397 IPC does not require that the ‘offender’ should
actually fire from the firearm or actually stab if it is a knife or a
dagger but the mere exhibition of the same, brandishing or holding
it openly to threaten and create fear or apprehension in the mind
of the victim is sufficient. The other aspect is that if the charge of   D
committing the offence is alleged against all the accused and only
one among the ‘offenders’ had used the firearm or deadly weapon,
only such of the ‘offender’ who has used the firearm or deadly
weapon alone would be liable to be charged under Section 397
IPC. Though this would be the effect and scope of Section 397            E
IPC as a standalone provision, the application of the same will
arise in the totality of the allegation and the consequent charge
that will be framed and the accused would be tried for such charge.
In such circumstance, in the teeth of the offence under Section
397 IPC being applicable to the offender alone, the vicariability
of the same will also have to be noted if the charge against the         F
accused under Sections 34, 149 IPC and such other provisions
of law, which may become relevant, is also invoked along with
Section 397 IPC. In such event, it will have to be looked at
differently in the totality of the facts, evidence and circumstances
involved in that case and the provisions invoked in that particular      G
case to frame a charge against the accused. In the instant case,
the charge under Section 34 IPC was not framed against the
appellant nor was such an allegation raised and proved against
the appellant. Hence, benefit of the interpretation raised on the
scope of Section 397 IPC to hold the aggressor alone as being
                                                                         H
868            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A     guilty, will be available to the appellant if there is no specific
      allegation against him. [Paras 17, 18][877-C-H]
            1.3 From the evidence tendered by PW1, his account is
      specific to the fact that it was ‘R’ (co-accused) who had pointed
      out the firearm to his chest and indulged in the act of robbing him
B     of his possession namely, the mobile. It is no doubt true that in
      the further portion of the evidence tendered by PW1 he had
      referred to all the three accused having forced him to sit on the
      motorcycle and had taken him away. It is further stated that after
      they reached Nanawat village and the tyre of the motorcycle got
      punctured, he was made to get down from the motorcycle. At this
C     point, it has been stated that the appellant pointed his ‘gun rifle’
      at him and made him to step down from the motorcycle and by
      threatening him, had taken him in the direction of Amalada village.
      Though, he has deposed to that extent, the fact of the appellant
      having used another country made rifle other than the one which
D     was being used by Raju alias Rajendra has not been established.
      The appellant had participated in the offence of committing
      robbery since ultimately the motorcycle was hidden at a place
      which was known to the appellant and the property seizure memo
      indicates that the motorcycle was recovered at the instance of
      the appellant that certainly constitutes an offender under Section
E     392 IPC. Though all the three accused had taken part in the
      offence of committing robbery, only one of the accused namely
      Raju alias Rajendra had used the firearm. The said firearm was
      seized from the possession of ‘R’. It is established and proved
      beyond doubt that only one of the accused ‘R’ had used the firearm
F     and there was neither any allegation apart from a stray sentence
      nor was such charge of having used firearm proved against the
      appellant. The charge under Section 397 IPC can be fastened on
      the ‘offender’ who actually uses the firearm. In the instant case,
      since the facts and the evidence does not indicate that the
      appellant could be construed as an ‘offender’ who used the firearm,
G     the charge alleged against him and held to be proved by the trial
      Court as also the High Court under Section 397 IPC and Section
      11/13 of MPDVPK Act, 1981 cannot be sustained. However, the
      appellant having participated in the offence of committing robbery
      which stands established with sufficient evidence, the conviction
H
        RAM RATAN v. STATE OF MADHYA PRADESH                           869


handed down by the trial court and upheld by the High Court            A
under Section 392 IPC is sustainable to that extent. The charge
under Section 397 and Section 11/13 of MPDVPK, Act, 1981 are
not proved against the appellant, the sentence of 7 years rigorous
imprisonment imposed by the trial Court and upheld by the High
Court is set aside. Insofar as, the offence proved under Section
                                                                       B
392 IPC, the same provides for the punishment of rigorous
imprisonment for a term which may extend to 10 years and also
to fine. The motorcycle and the mobile which was stolen have
been recovered. However, the appellant having indulged in the
offence of robbery, imprisonment of around 3 years would be
sufficient punishment. In instant case, it is noticed that the         C
appellant has undergone imprisonment for a period of 3 years 5
months and 1 day. The judgment passed by the Special Judge,
(MPDVPK Act) in Special Case No.13/2013 (Old Case No.26/
2012) insofar it has convicted the appellant under Section 397 IPC
read with Sections 11/13 of MPDVPK Act, 1981 and upheld by
                                                                       D
the High Court of Madhya Pradesh in Criminal Appeal No.691/
2013 are set aside to that extent. The conviction of the appellant
under Section 392 IPC by the trial court and upheld by the High
Court, is sustained. The sentence imposed on the appellant is
modified to that of the period of imprisonment undergone by him
till this day. The fine imposed and default sentence thereof is        E
retained. [Paras 21, 23-26][878-G-H; 879-A-C, H; 880-A, D-F,
G-H; 881-A, C-E]
      Ganesan vs. State Rep. by Station House Officer
      Decision of Supreme Court dtd.29.10.21 in Crl. Appeal
      No.903 of 2021; Shri Phool Kumar vs. Delhi                       F
      Administration (1975) 1 SCC 797 : [1975] 3 SCR 917;
      Dilawar Singh vs. State of Delhi (2007) 12 SCC 641
      : [2007] 10 SCALE 556 – relied on.
                      Case Law Reference
[1975] 3 SCR 917              relied on                Para 14         G
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1333 of 2018.
      From the Judgment and Order dated 23.02.2017 of the High Court
of Madhya Pradesh Bench at Gwalior in Criminal Revision No.691 of
2013.
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870            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A          Shishir Kumar Saxena, R. N. Pareek, Praveen Swarup, Ms. Payal
      Swarup, Ms. Archna Sharma, Ms. Pooja Sharma, Advs. for the Appellant.
            Sunny Choudhary, Abhinav Shrivastava, Advs. for the Respondent.
            The Judgment of the Court was delivered by
B           A. S. BOPANNA, J.
             1. The appellant is before this Court in this appeal assailing the
      judgment dated 23.02.2017 passed by the High Court of Madhya Pradesh
      in Criminal Appeal No.691/2013 titled Ram Ratan vs. State of Madhya
      Pradesh. Though the said appeal was disposed of by the High Court
C     along with the companion appeal, the consideration herein is limited to
      the case against the appellant herein i.e. Ram Ratan who was arrayed
      as the first accused before the trial court.
             2. The appeal before the High Court was filed by the appellant,
      being aggrieved by the judgment dated 31.07.2013 passed by the Special
D     Judge (MPDVPK Act) 1981, Sheopur in Special Case No.13/2013 (old
      case No.26/2012). Through the said judgment, the trial court has convicted
      the appellant along with the other two accused namely, Chotu and Raju
      alias Rajendra under Section 392 and 397 of Indian Penal Code (“IPC”
      for short) read with Section 11/13 of Madhya Pradesh Dakaiti Aur
      Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act (“MPDVPK Act,
E     1981” for short) and sentenced the appellant and other accused to rigorous
      imprisonment of 7 years with fine of Rs.1000/-, in default of the same, to
      undergo imprisonment for a further period of 4 months. The co-accused
      Raju alias Rajendra was further convicted and sentenced under Section
      25 (1-B) (a) of Arms Act to one-year rigorous imprisonment with fine of
F     Rs.500/-, in default of the same, to further undergo 2 months rigorous
      imprisonment. Though all the three accused had filed the respective
      appeals before the High Court against the said conviction and sentence,
      the co-accused Chotu died during the pendency of his appeal, due to
      which the said appeal abated. As noted above, though the appeal of
      Raju alias Rajendra was also considered by the High Court through the
G     common judgment, the present appeal is filed by the appellant alone and
      as such the conviction and sentence of the appellant based on the
      contentions put-forth on his behalf only are adverted to in this judgment.
            3. The brief facts are that one, Rajesh Meena lodged a complaint
      on 27.06.2012, alleging that on the intervening night of 26-27/6/2012,
H     while he was sleeping in the hut constructed in the field to guard the
         RAM RATAN v. STATE OF MADHYA PRADESH                                 871
                   [A. S. BOPANNA, J.]

crops, at about 02:30 a.m, the appellant along with Raju alias Rajendra       A
and Chotu came to him and woke him up. The said Raju alias Rajendra
was having a gun with him and on pointing the same towards the chest
of the complainant, demanded to part with the money. The complainant
informed that he did not have any money, due to which the key of his
motorcycle was snatched and the said Raju alias Rajendra also took out
                                                                              B
the mobile phone from the pocket of his shirt. Thereafter, all the three
accused persons forced the complainant to sit on the motorcycle along
with them. When they reached the village Nanawat, the motorcycle got
punctured and therefore all the persons compelled the complainant to
get down from the motorcycle and the motorcycle was taken away. By
the said time since it was dawn, his uncle named Tulsiram was passing         C
by to milk the buffaloes. The complainant narrated the incident, following
which, steps were taken to lodge the complaint. The police having taken
action, recovered the motorcycle as also the mobile phone and
apprehended the accused. The police on completing the investigation
filed the chargesheet against the appellant for the offences under Sections
                                                                              D
392/397 of IPC and under Sections 11/13 of MPDVPK Act, 1981.
       4. The trial court framed charges through the order dated
26.02.2013 under Sections 392/397 of IPC and Sections 11/13 of
MPDVPK Act, 1981 against the appellant and Chotu, while an additional
charge under Section 25 (1-B) (a)/27 of the Arms Act was framed against
the other co-accused namely, Raju alias Rajendra. The appellant and his       E
co-accused having pleaded not guilty, stood trial in the matter.
       5. The trial court having noted the evidence tendered through
PW1 to PW12, the documents which were marked and the material
objects identified, arrived at its ultimate conclusion. While doing so, the
trial court has referred in detail to the evidence tendered by the            F
complainant Rajesh (PW1) who narrated the entire incident from the
time he was woken up in the midnight and stated about having identified
the accused as there was a light burning in the hut. Tulsiram (PW2),
uncle of the complainant and Mukesh (PW3), brother of the complainant
corroborated the version stated by the complainant. Dhanpal (PW5),            G
father of the complainant had also stated with regard to the sequence in
which he had come to know about the incident in the same sequence as
had been stated by PW3. Mahavir (PW4), Ramjilal (PW6) and Dhanjeet
(PW7) are the witnesses to the seizure of motorcycle and the gun
respectively. However, PW6 and PW7 had turned hostile. Chandrabhan
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872             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     Singh (PW8) is the witness who examined the 12-bore gun. A.L. Azad
      (PW11) is the police officer who arrested the accused and the other
      witnesses are the procedural official witnesses.
             6. The trial court on analysing the said evidence returned the finding
      that the appellant and his co-accused had indulged in the incident
B     complained of and therefore held the charge to be proved. The conviction
      and the sentence were accordingly handed down. The appellant and his
      co-accused while assailing the judgment of the trial court, apart from
      contending that the case has been falsely alleged against them, had also
      contended that the charge under Section 397 of IPC cannot be sustained.
      It was their case that the firearm even if was proved to be carried, had
C     not been used and as such the charge under Section 397 IPC would not
      lie. The High Court having adverted to the matter in detail has
      reappreciated the evidence with regard to the incident and accordingly
      upheld the judgment passed by the trial court convicting the appellant
      and sentencing him in the manner as has been done. The appellant
D     therefore claiming to be aggrieved by the judgment passed by the trial
      court and upheld by the High Court, is assailing the same in this appeal.
            7. Heard Mr. Shishir Kumar Saxena, learned counsel for the
      appellant, Mr. Sunny Choudhary, learned counsel for the respondent and
      perused the appeal papers.
E            8. The learned counsel for the appellant while assailing the
      judgments would at the outset contend that the complaint lodged by PW1
      and the evidence tendered by him are not sufficient to indicate that the
      appellant is guilty of the charge alleged against him. It is contended that
      the appellant has been implicated due to political rivalry, though no such
F     incident as alleged had taken place. In addition to the judgments cited
      before the High Court and the contentions put-forth therein, learned
      counsel has also relied on the decision of this Court dated 29.10.2021 in
      Crl.Appeal No. 903 of 2021 titled Ganesan vs. State Rep. by Station
      House Officer and connected appeal i.e Crl. Appeal No. 904 of 2021.
      With reference to the said judgment, it is contended that firstly, the charge
G     under Section 397 of the IPC would not be sustainable since the gun has
      not been used and the convictioncan be sustained only if the ‘offender’
      uses any deadly weapon while committing robbery. It is contended that
      even otherwise, the charge under Section 397 IPC would not be
      sustainable against the appellant herein since there is no serious allegation
H     or proof of the appellant having used any weapon much less deadly
         RAM RATAN v. STATE OF MADHYA PRADESH                                    873
                   [A. S. BOPANNA, J.]

weapon even if the incident of robbery which occurred is held to be              A
proved against the appellant. In that view, it is contended that the appellant
is liable to be acquitted or in the alternative, even if it is held that the
charge under Section 392 IPC is proved, the appellant has undergone
sentence of nearly 4 years which is sufficient punishment, which aspect
be considered by this Court.
                                                                                 B
       9. The learned counsel for the State would refer to the evidence
tenderedbefore the trial court in detail and has pointed out that the trial
court as also the High Court has taken note of the said evidence. The
charge having been proved, both the Courts have arrived at the conclusion
that the contention as put-forth by the appellant or his co-accused was
not acceptable. It is contended that the motorcycle and the mobile phone         C
which had been stolen by the accused had been recovered and the gun
which was used was also seizedand examined by the expert. In that
circumstance, it is contended that when the expert has opined that the
gun was in working condition, the actual use of the firearm by firing
from it is not required but the exposure of the weapon so as to create           D
fear in the mind of the victim is sufficient to prove the charge under
Section 397 IPC. It is, therefore, contended that the judgment passed by
the trial court and confirmed by the High Court does not call for
interference.
       10. From the evidence as noted by the trial court and the High            E
Court, it is seen at the outset that the complainant Rajesh (PW-1) has
spoken in detail with regard to the incident which occurred on the
intervening night of 26-27/6/2012. The manner in which he was woken
up by the accused and the demand for money that was made by
brandishing the firearm has been narrated in detail. The identification of
the persons which was possible due to the light which was on, is also            F
stated. Though lengthy cross-examination has been made, in so far as
the incident relating to which PW1 had given the detailed account, has
remained intact and has not been discredited. Insofar as the contention
put-forth by the learned counsel for the appellant that he has been
implicated due to political reasons, there is no material on record. It is no    G
doubt true that as pointed out from the cross-examination contained in
paras 27, 28 and 29 of the cross-examination, PW1 has stated that his
cousin Ramcharan is a political leader. Further, in the same paragraph,
though he has stated that all the members of his family advised him that
he should file a report against the accused persons and that he had filed
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874             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     the report after getting the said suggestion, it does not indicate that there
      was any incident of political rivalry due to which the story was created
      and the complaint was filed. It is only an attempt by the learned counsel
      to try and connect the unconnected matters.The cousin being a political
      leader may be a fact but with regard to the complaint, all that PW1 has
      mentioned is the manner in which the complaint was lodged relating to
B     the incident which had taken place after the suggestion given by the
      family members that the law should be set in motion. The same does not
      take away the gravity of the situation or alter the truth of the matter.
              11. Having taken note of the manner in which the trial court has
      referred to the evidence and the same has been reappreciated by the
C     High Court, we do not deem it necessary to once again go into the
      evidence of the other witnesses, having noted the detailed account given
      by PW1 which would be of substance in this proceeding to answer the
      relevant contention. Therefore, the evidence is sufficient and convincing
      to arrive at the conclusion that the incident as narrated by PW1 had
      occurred and the appellant and his co-accused had committed robbery.
D             12. Though, this remains the position, the question which needs
      consideration is with regard to the contention that the firearm had not
      been put to use and therefore the charge under Section 397 IPC is not
      sustainable and also the further contention that the charge under Section
      397 even otherwise would not be sustainable against the appellant since
E     there is no material or evidence to indicate that the appellant had used
      the firearm, even if it is held that the incident had occurred as alleged.
              13. For better understanding, it would be appropriate to take note
      of the provisions contained in Sections 392 and 397 of IPC which read
      as hereunder:
              “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.
              397. Robbery, or dacoity, with attempt to cause death or
G             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.”

H                                                         (Emphasis supplied)
        RAM RATAN v. STATE OF MADHYA PRADESH                                 875
                  [A. S. BOPANNA, J.]

      14. On the said aspect, it would be appropriate to take note of the    A
decision in the case of Shri Phool Kumar vs. Delhi Administration
(1975) 1 SCC 797 wherein it is observed as hereunder: -
      “5. 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;       B
      and, if the robbery be committed on the 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
      any person or attempts to cause death or grievous hurt to any          C
      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                   D
      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      E
      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         F
      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.”
                                                  (Emphasis supplied)        G
       15. Further, in Dilawar Singh vs. State of Delhi (2007) 12 SCC
641, it is held as hereunder: -
      “19. The essential ingredients of Section 397 IPC are as follows:
      1. the accused committed robbery.
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876            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           2. while committing robbery or dacoity (i) the accused used deadly
            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
B           weapon. When only one has used the deadly weapon, others
            cannot be awarded the minimum punishment. It only
            envisages 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
C           of the acts mentioned in the provision. But the other
            accused are not vicariously liable under that section for
            acts of the co-accused.
            21. In the instant case admittedly no injury has been inflicted. The
            use of weapon by offender for creating terror in mind of victim is
D           sufficient. It need not be further shown to have been actually
            used for cutting, stabbing or shooting, as the case may be.”
                                                        (Emphasis supplied)
            16. In the decision of Ganesan (supra) referred to by the learned
      counsel for the appellant, the above noted decisions of this Court has
E     been referred and this Court has held as hereunder: -
             “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
F           robbery cannot 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,
G
            for the purpose of attracting Section 397 IPC the ‘offender’ who
            ‘uses’ any deadly weapon Section 397 IPC shall be attracted.
            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
H
         RAM RATAN v. STATE OF MADHYA PRADESH                                  877
                   [A. S. BOPANNA, J.]

      as per the case of the prosecution and even considering the              A
      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 and Prabhakaran.
      Therefore, in absence of any allegations of use of any deadly
      weapon by the appellants herein- Accused Nos.1 and 3 Section
                                                                               B
      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 under Section 397 IPC.”
       17. From the position of law as enunciated by this Court and noted
above, firstly, it is clear that the use of the weapon to constitute the       C
offence under Section 397 IPC does not require that the ‘offender’ should
actually fire from the firearm or actually stab if it is a knife or a dagger
but the mere exhibition of the same, brandishing or holding it openly to
threaten and create fear or apprehension in the mind of the victim is
sufficient. The other aspect is that if the charge of committing the offence   D
is alleged against all the accused and only one among the ‘offenders’
had used the firearm or deadly weapon, only such of the ‘offender’ who
has used the firearm or deadly weapon alone would be liable to be charged
under Section 397 IPC.
       18. Though the above would be the effect and scope of Section           E
397 IPC as a standalone provision, the application of the same will arise
in the totality of the allegation and the consequent charge that will be
framed and the accused would be tried for such charge. In such
circumstance, in the teeth of the offence under Section 397 IPC being
applicable to the offender alone, the vicariability of the same will also
have to be noted if the charge against the accused under Sections 34,          F
149 IPC and such other provisions of law, which may become relevant,
is also invoked along with Section 397 IPC. In such event, it will have to
be looked at differently in the totality of the facts, evidence and
circumstances involved in that case and the provisions invoked in that
particular case to frame a charge against the accused. In the instant          G
case, the charge under Section 34 IPC was not framed against the
appellant nor was such an allegation raised and proved against the
appellant. Hence, benefit of the interpretation raised on the scope of
Section 397 IPC to hold the aggressor alone as being guilty, will be
available to the appellant if there is no specific allegation against him.
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878            SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A            19. Keeping this aspect in view, it is necessary to examine the
      manner in which PW1 has alleged against the appellant so as to consider
      whether the appellant is also an ‘offender’ who used the firearm so as
      to be charged under both, Section 392 and 397 IPC even if he is complicit
      to the incident, more particularly when Section 34 IPC has not been
      invoked in the instant case.
B
             20. Apart from the narration of the incident contained in the FIR,
      the evidence tendered by the victim Rajesh (PW1) about the incident is
      as hereunder: -
             “02. On the same night, at the aforesaid time of 2:30 AM, all
             these three accused persons who are present before me in this
C            Court by names Raju, Chotu and Gujar approached me at which
             time I was sitting on a temporary watch tower put by me near to
             the tube well for guarding my cultivation field and a bulb was
             glowing there. In the illumination of said bulb, I could see and
             identify them. At that relevant time, I was sleeping there. Among
D            them Raju Gujar woke up me from my sleep and pointed
             the nozzle of the country rifle on my chest and demanded
             with me to handover whatever money I had in my possession
             at that relevant moment. I informed Raju Gujar that I do
             not have any money with me. Still, he continued to keep
             the said weapon on my chest itself and again asked me to
E            hand over the keys of my motor cycle. At that relevant time,
             I was having my Splendour Honda Motor Cycle.On being scared
             by the fear of said Raju as well as apprehending danger from his
             arm, I politely handed over the key of the Motorcycle to said Raju
             Gujar by putting those keys in his hand.
F            03. At that time in my pocket, my mobile was kept. It was a
             Spice-42 Model branded company phone. By again putting the
             firearm - Rifle on my chest he took my mobile by himself
             by inserting his hands in my pocket and taking out the
             mobile set from the pocket out.”
G                                                       (Emphasis supplied)
             21. From the extracted portion and more particularly the emphasized
      portion of the evidence tendered by PW1, his account is specific to the
      fact that it was Raju Gujar alias Rajendra who had pointed out the firearm
      to his chest and indulged in the act of robbing him of his possession
H     namely, the mobile. It is no doubt true that in the further portion of the
         RAM RATAN v. STATE OF MADHYA PRADESH                                  879
                   [A. S. BOPANNA, J.]

evidence tendered by PW1 he had referred to all the three accused              A
having forced him to sit on the motorcycle and had taken him away. It is
further stated that after they reached Nanawat village and the tyre of
the motorcycle got punctured, he was made to get down from the
motorcycle. At this point, it has been stated that the appellant pointed his
‘gun rifle’ at him and made him to step down from the motorcycle and
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by threatening him, had taken him in the direction of Amalada village.
Though, he has deposed to that extent, the fact of the appellant having
used another country made rifle other than the one which was being
used by Raju alias Rajendra has not been established. It is no doubt true,
that the appellant had participated in the offence of committing robbery
since ultimately the motorcycle was hidden at a place which was known          C
to the appellant and the property seizure memo indicates that the
motorcycle was recovered at the instance of the appellant that certainly
constitutes an offender under Section 392 IPC.
      22. Further, the relevant contents in the FIR reads as hereunder:-
      “At about 2:30 in the morning the accused Raju, Co-accused Chotu         D
      and Ramratan came to him. The Raju was having a gun with
      him and forced him to wake up and demanded money when
      the complainant inform that he does not have any money,
      therefore the Raju pointed out his gun towards the chest of
      the complainant and the complainant in its turn handed over              E
      the key of the motorcycle the Raju has also took out the
      mobile from the pocket of the shirt of the complainant,
      thereafter all three accused person who is the complainant to sit
      on the motorcycle along with them, when they reached near the
      village Nanawat the motorcycle got punctured and therefore all
      the three person compelled to complainant to get down from the           F
      motorcycle and thereafter they took his motorcycle and went away
      toward Aamlda and Morkhudana, then I reached at Aamlda, and
      all happening narrated to his maternal uncle Tulsiram, and then
      his father also came there, thereafter I searched the motorcycle
      but it is not searched out therefore came to local police station for    G
      lodging the report, and he wants to take necessary action.”
                                                   (Emphasis supplied)
     23. Therefore, if the contents of the FIR and the evidence tendered
by PW1 are taken note of, it would stand established that though all the
                                                                               H
880            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     three accused had taken part in the offence of committing robbery, only
      one of the accused namely Raju alias Rajendra had used the firearm.
      The said firearm was seized from the possession of Raju alias Rajendra
      and from the evidence of A.L. Azad (PW11) it is clear that the accused
      Raju alias Rajendra had disclosed that the firearm was kept in his house
      and it was recovered in the presence of the witnesses. In addition, Pritam
B
      Singh (PW9) has stated that permission had been sought for prosecuting
      Raju alias Rajendra with regard to seizure of the 12-bore gun and
      permission had been granted. Chandrabhan Singh (PW8) in his evidence
      had stated that he had examined the gun and the same was capable of
      being fired. His evidence would disclose that only one gun had been
C     seized and examined by him. Further, based on the said evidence it is
      Raju alias Rajendra alone who has been convicted under the provisions
      of the Arms Act.
             24. If that be the position, it would stand established and proved
      beyond doubt that only one of the accused namely Raju alias Rajendra
D     had used the firearm and there was neither any allegation apart from a
      stray sentence nor was such charge of having used firearm proved
      against the appellant. In that light, if the position of law enunciated by
      this Court as noticed above is kept in view, the charge under Section 397
      IPC can be fastened on the ‘offender’ who actually uses the firearm. In
      the instant case, since the facts and the evidence does not indicate that
E     the appellant could be construed as an ‘offender’ who used the firearm,
      the charge alleged against him and held to be proved by the trial Court
      as also the High Court under Section 397 IPC and Section 11/13 of
      MPDVPK Act, 1981 cannot be sustained. However, the appellant having
      participated in the offence of committing robbery which stands
F     established with sufficient evidence, the conviction handed down by the
      trial court and upheld by the High Court under Section 392 IPC is
      sustainable to that extent.
             25. In view of the above conclusion, the sentence imposed on the
      appellant needs consideration. Since, we have arrived at the conclusion
G     that the charge under Section 397 and Section 11/13 of MPDVPK, Act,
      1981 are not proved against the appellant, the sentence of 7 years rigorous
      imprisonment imposed by the trial Court and upheld by the High Court is
      liable to be set aside, which is accordingly done. Insofar as, the offence
      proved under Section 392 IPC, the same provides for the punishment of
      rigorous imprisonment for a term which may extend to 10 years and also
H
            RAM RATAN v. STATE OF MADHYA PRADESH                                   881
                      [A. S. BOPANNA, J.]

to fine. As noted, the motorcycle and the mobile which was stolen have             A
been recovered. However, the appellant having indulged in the offence
of robbery, in our opinion, imprisonment of around 3 years would be
sufficient punishment. In instant case, it is noticed that the appellant has
undergone imprisonment for a period of 3 years 5 months and 1 day as
on 10.11.2021, as per the statement filed before this Court. Hence, if the
                                                                                   B
sentence undergone by the appellant is treated as the punishment, it
would meet the ends of justice.
      26. In the result, we pass the following order: -
      i)       The judgment dated 19.10.2012 passed by the Special Judge,
               (MPDVPK Act) in Special Case No.13/2013 (Old Case                   C
               No.26/2012) insofar it has convicted the appellant under
               Section 397 IPC read with Sections 11/13 of MPDVPK
               Act, 1981 and upheld by the High Court of Madhya Pradesh
               in Criminal Appeal No.691/2013 are set aside to that extent.
      ii)      The conviction of the appellant under Section 392 IPC by            D
               the trial court and upheld by the High Court, is sustained.
      iii)     The sentence imposed on the appellant is modified to that
               of the period of imprisonment undergone by the him till this
               day. The fine imposed and default sentence thereof is
               retained.                                                           E
      (iv)     The appellant is ordered to be set at liberty forthwith if the
               fine is paid and he is not required to be detained in any
               other case.
      (v)      The appeal is allowed in part to the extent indicated above.
                                                                                   F
      (vi)     All pending applications, if any, shall stand disposed of.


Divya Pandey                                              Appeal partly allowed.


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