NDLI: Ganesan Vs. State Rep. By Station House Officer

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Penal Code
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Protection of Children from Sexual Offences Act, 2012 (32 of 2012)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 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. A 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 they are convicted – ‘B’ came to be tried after a period of 15 years as his trial was split as he absconded – From the acquittal order passed in the case of ‘B’, it appears that PW1 during the trial of ‘B’ turned hostile – In the case of ‘B’, only five witnesses came to be examined and for whatever reasons other witnesses were not examined – In this case, PW1 not only supported the case of prosecution but as many as 15 witnesses came to be examined – Therefore, merely because in the subsequent split trial, ‘B’ came to be acquitted, the benefit of such acquittal cannot be in favour of the appellants-accused as the prosecution was successful in proving the case against the accused.
Judge	Hon'ble Mr. Justice M.R. Shah
Neutral Citation	2021 INSC 698
Petitioner	Ganesan
Respondent	State Rep. By Station House Officer
SCR	[2021] 10 S.C.R. 514
Judgement Date	2021-10-26
Case Number	903

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