GANESAN versus STATE REP. BY STATION HOUSE OFFICER

Citation: [2021] 10 S.C.R. 514 · Decided: 29-10-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Case Partly allowed

cites 7 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
514
SUPREME COURT REPORTS
[2021] 10 S.C.R.
[2021] 10 S.C.R. 514
514
GANESAN
v.
STATE REP. BY STATION HOUSE OFFICER
(Criminal Appeal No. 903 of 2021)
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,
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
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
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
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
– 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
A
B
C
D
E
F
G
H
515
as what is required to be proved is involvement of five or more
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 –
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
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
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 –
‘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
‘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.
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
GAN

Excerpt shown. Read the full judgment & AI analysis in Lexace.