S.397 IPC: Use Of The Weapon Does Not Require That The Offender Should Actually Fire Or Stab, Mere Exhibition Or Brandishing of the Same Is Sufficient: Supreme Court

The judgement authored by Justice Bopanna notes that in order to meet the ingredients of Section 397 of the IPC, first, it is not necessary for the offender to have literally used the weapon for the purpose it serves. Even showcasing the same to create fear in the mind of the victim would be sufficient. The Court held:

"It is clear that 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."

Secondly, Section 397 of the I does not automatically apply to all co-accused unless a charge under Section 34 of the IPC is specifically raised. Only the person who actually 'uses' a deadly weapon can be framed for the usage of the same. The Court notes:

"If the charge of 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."

Factual Background

The trial court convicted the appellant along with two co-accused under Sections 392 and 397 of the Indian Penal Code, 1860 read with Section 11/13 of the Madhya Pradesh Dakaiti Aur Vyapharan Pravbhavit Kshetra Adhiniyam 1981 Act. The Madhya Pradesh High Court reappreciated the manner in which evidence was raised against the accused and heard a common appeal from all the accused. The primary accused, Ram Ratan, appealed from the impugned judgement and order of the Madhya Pradesh High Court. 

Arguments by the Counsels

The counsel for the appellant contended the firearm even if was proved to be carried, had not been used and as such the charge under Section 397 IPC would not lie. Further, even if the incident of robbery is proved against the appellant there is no evidence which states that he used a deadly weapon. If the following is not satisfied, the counsel argued, the charge would fall under Section 392 of the IPC and the appellant having undergone nearly four years of imprisonment has already undergone a sufficient punishment under that provision.

The counsel for the State contended that the evidence against the appellant had been corroborated as the stolen motorcycle and the mobile phone were recovered and the gun used for the robbery had also been seized and examined by the expert who opined that it was in a working condition. Since the actual use of the firearm is not required, the exhibition of the same is enough to satisfy Section 397 of the IPC.

The Court while deciding this matter took into consideration the case of Shri Phool Kumar v. Delhi Administration n (1975) 1 SCC 797 where the Apex Court talked about the difficulty that arose in several High Courts for the meaning of the word "uses" in Section 397. Therein the Court had held that:

"The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon" 

The Court also took note of the 2007 Supreme Court ruling in the case of Dilawar Singh vs. State of Delhi (2007) 12 SCC 641 wherein it was held that: 

""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 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."

In this light, the Court come to the conclusion that: 

"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." (Para 17)

On the question of framing of charger against co-accused, the Courrt holds that: 

"If the charge of 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. The Court finally held that Section 397 of the IPC can be applied in cases where the accused has used a deadly weapon to commit robbery, to the extent of causing fear in the mind of the victim by showcasing the weapon, it is not necessary to cause grievous hurt with the said weapon. The Court also held that the "offender" is the accused who actually uses the weapon and the co-accused cannot be held liable if they are not proven to have used a deadly weapon." (Para 17)

On the question of vicariability of the offence, the Court notes:

"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, 149 IPC and such other provisions of law, which may become relevant, is also invoked along with Section 397 IPC." (Para 18)

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, 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.In light of the same, the Court decided that the punishment inflicted upon the appellant under Section 392 is sustainable to the extent of participating in the offence of committing robbery.

The Court set aside the sentence of 7 years rigorous imprisonment imposed on the accused and deemed a punishment of 3 years to be sufficient. As the appellant had already served 3 years, 5 months and 1 day in prison, the sentence is deemed as undergone.

Case Title: Ram Ratan v State of Madhya Pradesh

Citation : 2022 LiveLaw (SC) 14
Coram: Justices N.V.Ramana, A.S.Bopanna, HIma Kohli

Counsels: Mr. Shishir Kumar Saxena, for the appellant, Mr. Sunny Choudhary for the respondent

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