LexPHOOL KUMAR versus DELHI ADMINISTRATION
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A B .. c D E F G H ' PHOOL KUMAR v. DELHI ADMINISTRATION March 13, 1975 IA. ALAGIRISWAMI AND N. L. UNTWALIA, JJ.] 917 Penal Code-Ss. 397 and 398-Scope of-Meaning of the words 'uses' in s. 397 and 'is armed with any deadly weapon' in s. 398. The appellant, alongwith two others, was alleged to have raided a petrol pump sometime after midnight and decamped with the cash. At the time of the raid he was armed with a knife to frighten and terrorise the attendants. One of his associates fired three shots. His associates were acquitted but the appellant was convicted of an offence under ss. 397 read with 342 J.P.C. and sentenced to. undergo imorisonment for seven years, which was the minimum sentence. The High Court dismissed his appeal. · On further appeal it was contended that the appellant ought to have been convicted under s. 392 sinmliciter in which case he would have been awarded a lesser sent~nc.e. Dismissing the appeal, HELD : ( 1) When an offence of robbery is committed by an offender. being armed with a deadly weapon, which was within the vision of the ' victim so. as to be rnpable of creating a terror in his mind, the offender must be deemed to have used the deadly weapon in the commission of the robbery. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offence within the ambit of s. 397. On the other hand if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put tci any fruitful use because it would have bten of use when the offender succeeded in committing the robbery. [920 F-G; CJ (2) The le.rm 'offender' in s. 397 is confined to the offender who uses. any deadly weai1on. The use of a deadly weapon by one offender at the time of committing robbery cannot attract s. 397 for the im!losition on another offender who had not used any deadly weapon. l n that view of the m~tter use of the gun by one of the culprits whether he was one of the accused or somebody else could not be and has not been the basis of sentencing the appellant with the ;1id of s. 397. [920 A] . (3) It appears unreasonable to think that if the offender who merely attempted to commit ro\Jbery but did not succeed in committing it attracts the ·minimum punishment of seven years under s. 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under s. 397 if he succeeds in committing the robbery. But the anomaly created by the use of word 'uses' in s. 397 and 'is armed' in s. 398 will disappear if the two terms are given identical meaning. [920 El Gol'ind Dipali More v. State A.I.R. 1956 i3ombay, 353, approved. Chandra Natl1 v. Emperor A.I.R. 1932 Oudh, 103; Nagar Singh v. Emprror A.LR. 1933 Lahore, 35 and Inder Singh v. Emperor A.l.R. 1934 Lahore 522, referred to. The view taken in Stale v. Chand Singh and another I.LR. [1970] 2 Punjab & Har\'ana. 108. is incorrect. CRIMINAL APPELLATE JURISDICTION: Cr!. Appeal No. 62 of 1971. Appeal by special leave from the judgment and order dated the '.?3rd October, 1969 of the Delhi High Court in Criminal Appeal No. 87 of 1969. • 918 SUPREME COURT REPORTS [19751 3 s.,c.R. R. Bana, for the appellant. A V. C. Mahajan and M .. N. Shroff, for the respondent. The Judgment of the Court was delivered by UNTWALIA, J.-lrf the night between the 8th and 9th September, 1966, to be pn:cise, at about 1.45 A.M. on the 9th September, a daring B robbery was committed at a petrol pump of the Gasolene Service Station ctn the Ma!l, Delhi:. The robbers who are said to be four in number broke into the office of the Service Station and decamped with Rs. 585/- in cash after locking in the two attendants. After investi- gation three pe:rsons were put on trial in the Sessions Court. On.e of · the culprits, ~amed Sube Singh,. abs·conded. The names of the three . are (1) Phool Kumar, (2) Ram Kumar and (3) Dharampal. The c latter two were acquitted by the learned Assistant Sessions Judge, · Delhi for want of sufficient evidel!lce against them. The only person convicted at the said trial was appellant Phool Kumar. He has been convicted under s. 397 of the Penal Code and sentenced to undergo rigorous imprisonment for 7 years. A concurrent sentence olC 6 months was also imposed for his conviction under section 342 of tl'ie Penal Code. The
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