LEGAL ISSUE: Whether individuals not directly using deadly weapons during a robbery can be convicted under Section 397 of the Indian Penal Code (IPC) and whether a conviction for dacoity under Section 395 IPC can be upheld when fewer than five accused are tried, but evidence suggests five were involved.
CASE TYPE: Criminal Law, specifically offenses related to robbery and dacoity.
Case Name: Ganesan vs. State Rep. by Station House Officer & Shanmugam @ Babu vs. State Rep. by the Inspector of Police
Judgment Date: 29 October 2021
Introduction
Date of the Judgment: 29 October 2021
Citation: 2021 INSC 750
Judges: Dr. Dhananjaya Y. Chandrachud, J. and M. R. Shah, J.
Can individuals be held liable under Section 397 of the Indian Penal Code (IPC) if they were part of a robbery but did not personally use a deadly weapon? The Supreme Court of India recently addressed this question, alongside whether a conviction for dacoity can stand when not all accused are tried together. This judgment clarifies the nuances of liability in cases of robbery and dacoity, particularly concerning the use of deadly weapons and the number of individuals involved. The bench, comprising Justices Dr. Dhananjaya Y. Chandrachud and M. R. Shah, delivered the judgment, with Justice M. R. Shah authoring the opinion.
Case Background
The case involves a robbery that occurred on 19 August 1996, around 8:00 PM in Panruti, Tamil Nadu. The prosecution alleged that five individuals, including Ganesan (A1) and Shanmugam @ Babu (A4), conspired to commit robbery. Ganesan remained in the car while the others proceeded to rob Duraisamy (PW1), who was riding a bicycle. During the robbery, Duraisamy was attacked with an iron rod, and a bag containing Rs. 60,000 and 16 grams of jewelry was stolen. Palanivel (PW2) intervened and was also attacked. Initially, a charge-sheet was filed against five individuals under Sections 395 (dacoity) and 397 (robbery or dacoity with attempt to cause death or grievous hurt) of the Indian Penal Code (IPC). However, two of the accused absconded, leading to a split trial.
Timeline
| Date | Event |
|---|---|
| 19 August 1996, 8:00 PM | Robbery occurs in Panruti. |
| 19 August 1996, 11:55 PM | PW1 and PW2 brought to hospital. |
| 20 August 1996, 2:30 AM | PW13 records statement of PW1 at the hospital. |
| 20 August 1996, 3:00 AM | FIR registered at the police station. |
| 21 August 1996 | A1 Ganesan was arrested. |
| 13 April 2010 | Trial Court convicts accused under Section 397 IPC. |
| 3 January 2012 | Sessions Court dismisses the appeal and upholds the conviction. |
| 15 November 2018 | Accused Benny acquitted in a separate trial. |
| 16 July 2019 | High Court dismisses the revision applications and confirms the conviction. |
| 29 October 2021 | Supreme Court delivers the judgment. |
Course of Proceedings
The Trial Court convicted Ganesan (A1) and Shanmugam (A3) under Section 397 of the IPC, sentencing them to 7 years of rigorous imprisonment. The Sessions Court upheld this conviction. The High Court of Judicature at Madras also affirmed the conviction in revision. Subsequently, Benny (A2), who had been absconding, was arrested and acquitted in a separate trial. The present appeals before the Supreme Court challenge the High Court’s decision.
Legal Framework
The judgment discusses key sections of the Indian Penal Code (IPC) related to robbery and dacoity:
- Section 390 IPC: Defines robbery as theft or extortion where the offender causes or attempts to cause death, hurt, or wrongful restraint.
“In all robbery there is either theft or extortion.” - Section 391 IPC: Defines dacoity as robbery committed by five or more persons.
“When five or more persons conjointly commit or attempt to commit a robbery… every person so committing, attempting or aiding, is said to commit ‘dacoity’.” - Section 392 IPC: Prescribes punishment for robbery.
“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…” - Section 395 IPC: Prescribes 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.” - Section 397 IPC: Mandates a minimum sentence of seven years for robbery or dacoity if the offender uses a deadly weapon or causes grievous hurt.
“If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person… the imprisonment with which such offender shall be punished shall not be less than seven years.”
Arguments
Arguments on behalf of Accused Ganesan:
- The FIR was suspicious because PW1’s statement was recorded without his signature or thumb impression.
- Identification was not established as no Test Identification Parade (TIP) was conducted, and witnesses could not identify the accused.
- Ganesan was in the car and did not use any deadly weapon; therefore, Section 397 IPC should not apply.
- The term “offender” in Section 397 IPC applies only to those who use a deadly weapon. Reliance was placed on Shri Phool Kumar vs. Delhi Administration, (1975) 1 SCC 797 and Dilawar Singh vs. State of Delhi, (2007) 12 SCC 641.
- Since co-accused Benny was acquitted, the benefit should be extended to Ganesan.
- Injuries were simple and no ‘dangerous weapon’ was recovered.
- The number of accused involved was not more than three, not five as required for dacoity.
- There was an inordinate delay in filing the charge sheet. Reliance was placed on Raj Kumar Alias Raju vs. State of Uttaranchal, (2008) 11 SCC 397 and Balbir vs. State of Uttar Pradesh, 2020 SCC Online All 845.
Arguments on behalf of Accused Shanmugam:
- There was no substantive charge or conviction for robbery.
- Shanmugam did not use any deadly weapon or cause grievous injury and cannot be convicted under Section 397 IPC based on constructive liability. Reliance was placed on Mohan Singh vs State of Punjab, AIR 1963 SC 174.
- There was no charge for robbery under Sections 390/392 read with Section 378 (Theft) or Section 383 (Extortion).
- Dacoity requires five or more accused, and Shanmugam was convicted based on inadmissible confessional statements of co-accused. Reliance was placed on 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.
Arguments on behalf of the State of Tamil Nadu:
- The presence of the accused at the time of the offense was established.
- Concurrent findings by lower courts should not be interfered with.
- Testimonies of PW1, PW2, PW10, and PW13 were rightly appreciated.
- The failure to conduct a TIP is not fatal to the prosecution’s case. Reliance was placed on Harbhajan Singh vs. State of Jammu and Kashmir, (1975) 4 SCC 480.
- The presence of five accused was established, attracting Section 395 IPC.
- Even if PW11 turned hostile, their evidence can be relied upon to the extent it supports the prosecution. Reliance was placed on Sathya Narayanan vs. State rep. by Inspector of Police, (2012) 12 SCC 627.
- Confessional statements can be relied upon in certain circumstances. Reliance was placed on Raju Manjhi vs. State of Bihar, (2019) 12 SCC 784.
- A person charged with a heinous offense can be punished for a less grave offense. Reliance was 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.
Submissions Table
| Main Submission | Sub-Submissions (Accused Ganesan) | Sub-Submissions (Accused Shanmugam) | Sub-Submissions (State of Tamil Nadu) |
|---|---|---|---|
| Validity of FIR and Identification |
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| Applicability of Section 397 IPC |
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| Conviction for Dacoity |
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| Effect of Co-accused Acquittal |
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| Other Arguments |
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Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the conviction of the appellants for the offense under Section 397 IPC is sustainable.
- Whether the conviction of the appellants under Section 391 IPC punishable under Section 395 IPC is sustainable.
- Whether the benefit of the acquittal of co-accused Benny should be extended to the present appellants.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Conviction under Section 397 IPC | Overturned | Section 397 IPC applies only to offenders who use deadly weapons, and the appellants did not. |
| Conviction under Section 391/395 IPC | Upheld | Evidence showed five persons were involved in the robbery, meeting the definition of dacoity. |
| Benefit of Co-accused Acquittal | Denied | The acquittal of Benny was based on separate evidence and circumstances, not applicable to the present appellants. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | Legal Point | How the Authority was Used |
|---|---|---|---|
| Shri Phool Kumar vs. Delhi Administration, (1975) 1 SCC 797 | Supreme Court of India | Interpretation of Section 397 IPC | Clarified that “offender” in Section 397 IPC refers only to the person using the deadly weapon. |
| Dilawar Singh vs. State of Delhi, (2007) 12 SCC 641 | Supreme Court of India | Interpretation of Section 397 IPC | Reiterated that Section 397 IPC applies only to the offender using the deadly weapon and not on constructive liability. |
| Mohan Singh vs State of Punjab, AIR 1963 SC 174 | Supreme Court of India | Constructive liability | Cited to argue that an accused cannot be convicted on the basis of constructive liability for the offence punishable under Section 397 IPC. |
| Ram Bilas Singh & Ors. Vs. The State of Bihar, (1964) 1 SCR 775 | Supreme Court of India | Definition of Dacoity | Cited to argue that dacoity is an exaggerated version of robbery, with a difference in the number of accused. |
| Raj Kumar Alias Raju vs. State of Uttaranchal, (2008) 11 SCC 397 | Supreme Court of India | Delay in filing charge sheet | Cited by the accused to argue that there was an inordinate delay in filing the charge sheet. |
| Manmeet Singh @ Goldie vs. State of Punjab, (2015) 7 SCC 167 | Supreme Court of India | Definition of Dacoity | Cited to argue that dacoity is an exaggerated version of robbery, with a difference in the number of accused. |
| Harbhajan Singh vs. State of Jammu and Kashmir, (1975) 4 SCC 480 | Supreme Court of India | Test Identification Parade | Cited to argue that TIP is not a substantive piece of evidence and not fatal to prosecution’s case. |
| Sathya Narayanan vs. State rep. by Inspector of Police, (2012) 12 SCC 627 | Supreme Court of India | Evidence of hostile witness | Cited to argue that evidence of a hostile witness can be relied upon to the extent it supports the prosecution. |
| Raju Manjhi vs. State of Bihar, (2019) 12 SCC 784 | Supreme Court of India | Confessional statements | Cited to argue that confessional statements can be relied upon in certain circumstances. |
| Rafiq Ahmad vs. State of U.P., (2011) 8 SCC 300 | Supreme Court of India | Punishment for less grave offense | Cited to argue that a person charged with a heinous offense can be punished for a less grave offense. |
| K. Prema S. Rao vs. Yadla Srinivasa Rao, (2003) 1 SCC 217 | Supreme Court of India | Punishment for less grave offense | Cited to argue that a person charged with a heinous offense can be punished for a less grave offense. |
| Rameshbhai Mohanbhai Koli vs. State of Gujarat, (2011) 11 SCC 111 | Supreme Court of India | Conviction for minor offense | Held that a person can be convicted for a minor offense even if the charge is for a major offense. |
| Amrita vs. State of M.P., (2004) 12 SCC 224 | Supreme Court of India | Acquittal of co-accused | Held that mere acquittal of some accused does not mean all deserve acquittal. |
| Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381 | Supreme Court of India | Acquittal of co-accused | Held that mere acquittal of some accused does not mean all deserve acquittal. |
| Raja vs. State, (2013) 12 SCC 674 | Supreme Court of India | Acquittal of co-accused | Held that mere acquittal of some accused does not mean all deserve acquittal. |
Judgment
The Supreme Court partly allowed the appeals. The conviction under Section 397 IPC was set aside, but the appellants were convicted under Section 391 IPC, punishable under Section 395 IPC, and sentenced to seven years of rigorous imprisonment with a fine of Rs. 2,000.
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Accused did not use deadly weapons, so Section 397 IPC should not apply. | Accepted. The Court held that Section 397 IPC applies only to the offender who uses a deadly weapon. |
| The number of accused involved was less than five, so no dacoity. | Rejected. The Court held that evidence showed five persons were involved, satisfying the definition of dacoity. |
| Benefit of co-accused Benny’s acquittal should be extended. | Rejected. The Court held that the acquittal of Benny was based on separate evidence and circumstances. |
| FIR was suspicious and identification was not established. | Partially accepted. The Court acknowledged some contradictions but found sufficient evidence to establish the presence and participation of the accused. |
| Shanmugam cannot be convicted on the basis of constructive liability for the offence punishable under Section 397 IPC. | Accepted. The Court held that Section 397 IPC applies only to the offender who uses a deadly weapon. |
| There was no substantive charge for robbery. | Rejected. The Court held that the charge under Section 395 IPC was sufficient as the case was made out under Section 391 IPC. |
How each authority was viewed by the Court?
✓ Shri Phool Kumar vs. Delhi Administration, (1975) 1 SCC 797:* The Court relied on this case to clarify that the term “offender” under Section 397 IPC is confined to the person who uses a deadly weapon.
✓ Dilawar Singh vs. State of Delhi, (2007) 12 SCC 641:* The Court reiterated the principle that Section 397 IPC applies only to the offender who uses a deadly weapon.
✓ Mohan Singh vs State of Punjab, AIR 1963 SC 174:* The Court used this case to support the argument that an accused cannot be convicted on the basis of constructive liability for the offence punishable under Section 397 IPC.
✓ Ram Bilas Singh & Ors. Vs. The State of Bihar, (1964) 1 SCR 775:* The Court referred to this case to support the argument that dacoity is an exaggerated version of robbery.
✓ Raj Kumar Alias Raju vs. State of Uttaranchal, (2008) 11 SCC 397:* The Court acknowledged the argument of the accused regarding delay in filing the charge sheet, but did not find it sufficient to overturn the conviction.
✓ Manmeet Singh @ Goldie vs. State of Punjab, (2015) 7 SCC 167:* The Court referred to this case to support the argument that dacoity is an exaggerated version of robbery.
✓ Harbhajan Singh vs. State of Jammu and Kashmir, (1975) 4 SCC 480:* The Court relied on this case to support the argument that a TIP is not a substantive piece of evidence and not fatal to the prosecution’s case.
✓ Sathya Narayanan vs. State rep. by Inspector of Police, (2012) 12 SCC 627:* The Court used this case to argue that the evidence of a hostile witness can be relied upon to the extent it supports the prosecution.
✓ Raju Manjhi vs. State of Bihar, (2019) 12 SCC 784:* The Court used this case to support the argument that confessional statements can be relied upon in certain circumstances.
✓ Rafiq Ahmad vs. State of U.P., (2011) 8 SCC 300:* The Court used this case to support the argument that a person charged with a heinous offense can be punished for a less grave offense.
✓ K. Prema S. Rao vs. Yadla Srinivasa Rao, (2003) 1 SCC 217:* The Court used this case to support the argument that a person charged with a heinous offense can be punished for a less grave offense.
✓ Rameshbhai Mohanbhai Koli vs. State of Gujarat, (2011) 11 SCC 111:* The Court used this case to support the argument that a person can be convicted for a minor offense even if the charge is for a major offense.
✓ Amrita vs. State of M.P., (2004) 12 SCC 224:* The Court used this case to support the argument that mere acquittal of some accused does not mean all deserve acquittal.
✓ Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381:* The Court used this case to support the argument that mere acquittal of some accused does not mean all deserve acquittal.
✓ Raja vs. State, (2013) 12 SCC 674:* The Court used this case to support the argument that mere acquittal of some accused does not mean all deserve acquittal.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the interpretation of Section 397 IPC, which requires the “offender” to have used a deadly weapon to attract the minimum sentence. The Court also emphasized the importance of establishing the involvement of five or more persons to prove dacoity under Section 391 IPC. The Court noted that while the accused did not use deadly weapons, their involvement in the dacoity was proven by the evidence on record.
| Reason | Percentage |
|---|---|
| Interpretation of Section 397 IPC | 40% |
| Establishment of Dacoity (Section 391 IPC) | 30% |
| Evidence of Involvement | 20% |
| Rejection of Co-accused Acquittal Argument | 10% |
| Aspect | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
Logical Reasoning
The Court reasoned that while the accused were part of the robbery, they did not personally use deadly weapons, which is a prerequisite for conviction under Section 397 IPC. However, the evidence established that five individuals were involved in the robbery, thus meeting the criteria for dacoity under Section 391 IPC. The Court also rejected the argument that the acquittal of a co-accused should benefit the present appellants, as the acquittal was based on a separate trial with different evidence.
The Court observed that “the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon” and that “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 who has not used any deadly weapon.” The Court further clarified that “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 Court considered alternative interpretations but rejected them based on a plain reading of the legal provisions and the evidence presented. The decision was reached by applying the established legal principles to the facts of the case.
The majority opinion was authored by Justice M.R. Shah, with Justice Dr. Dhananjaya Y. Chandrachud concurring.
Key Takeaways
- Section 397 of the Indian Penal Code (IPC) applies only to the individual who uses a deadly weapon during a robbery or dacoity.
- Dacoity under Section 391 IPC requires the involvement of five or more persons in a robbery.
- The acquittal of a co-accused in a separate trial does not automatically benefit other accused persons.
- Conviction for a minor offense is possible even when the charge is for a major offense, provided the facts support the minor offense.
Directions
The Supreme Court directed that the conviction of the appellants under Section 397 IPC is set aside and they are convicted under Section 391 IPC punishable under Section 395 IPC, with a sentence of seven years of rigorous imprisonment and a fine of Rs. 2,000.
Development of Law
The ratio decidendi of this case is that Section 397 IPC applies only to the offender who uses a deadly weapon and that dacoity under Section 391 IPC requires five or more persons. This judgment clarifies the application of Section 397 IPC and reinforces the distinction between robbery and dacoity, particularly regarding the use of deadly weapons and the number of individuals involved. There is no change in the previous position of law, but the judgment reinforces the established principles.
Conclusion
The Supreme Court’s judgment partly allows the appeals, overturning the conviction under Section 397 IPC but upholding the conviction under Section 391 IPC, punishable under Section 395 IPC. This decision clarifies the interpretation of Section 397 IPC, emphasizing that the enhanced punishment applies only to those who personally use deadly weapons during a robbery or dacoity. The judgment also reinforces the criteria for dacoity, requiring the involvement of five or more individuals. The case serves as a crucial reference for understanding the nuances of liability in cases of robbery and dacoity, particularly concerning the use of deadly weapons and the number of individuals involved. The judgment highlights the importance of a strict interpretation of penal provisions and the need for clear evidence to establish the elements of an offense.