USE OF DEADLY WEAPON BY OFFENDER DURING ROBBERY/DACOITY AND SECTION 397 OF IPC

Introduction

According to Section 397 of the Indian legal Penal Code, if, at the time of committing robbery or dacoity, the wrongdoer uses any lethal weapon, or causes grievous hurt to any individual, so makes an attempt to cause death or grievous hurt to any individual, the imprisonment with that such wrongdoer shall be punished shall not be less than seven years.[1] The penalization for the aforementioned offence is Rigorous Imprisonment for not less than seven years. The offence of dacoity with murder is a cognizable offence, i.e., a crime within which a policeman has the authority to form an arrest without a warrant and to start an investigation with or without the permission of a court.

In contrast, within the case of a non-cognizable offence, a policeman doesn’t have the authority to arrest without a warrant and an investigation cannot be initiated without a writ. It’s a non-bailable (Non-bailable offences are serious crimes where bail is a privilege and it only depends on the courts whether the court will grant it or not. On being lethargic and brought into custody for a serious or non-bailable offences, an individual cannot raise to be discharged on bail as a matter of his right.) And non-compoundable offence (the more serious offences within which the parties cannot compromise). The case robbery, or dacoity, with an effort to cause death or grievous hurt is tried within the Court of Session.

Interpreting Section 397

In a recent judgment, the Honorable Supreme Court has ruled that if a wrongdoer who committed robbery/dacoity by not using a deadly weapon cannot be condemned under section 397 of the Indian penal code (IPC). The use of a deadly weapon by one wrongdoer throughout a robbery/dacoity cannot be put under Section 397 IPC, which allows for the imposition of a minimum sentence of 7 years on another wrongdoer who didn’t use a deadly weapon. 

A Bench of Justice D.Y. Chandrachud and M.R. Shah was interpreting Section 197 of the IPC. In this case, the appellants-accused were condemned under Section 397 of the Indian penal code, which states that if an offender uses a deadly weapon, causes grievous hurt to any individual, or attempts to cause death or grievous hurt to any individual while committing theft or robbery, the wrongdoer shall be jailed for not less than 7 years.

It was argued before the Supreme Court that the charge of use of any weapon was directed solely against the other suspect who is in the absence of any allegation of use of any weapon directed solely against the other suspect, and then Section 397 IPC isn’t applicable. The bench expressed that the word ‘dacoity’ can be described as an extreme kind of robbery. The Court agrees with the argument that, to bring the case under Section 397 of IPC, the culprit should use a deadly weapon or cause grievous bodily hurt to another person. The court noted that there’s no allegation against the appellant suspect of victimization dangerous weapons during this case.

Phool Kumar v. Delhi Administration,[2] and Dilawar Singh v. the State of Delhi,[3] were cited by the Supreme Court. According to the law established by this Court within the said 2 case law, the term “offender” under Section 397 IPC is prescribed to “offenders” who use any deadly weapon, and use of a deadly weapon by suspect throughout the commission of theft cannot trigger Section 397 IPC for the imposition of minimum punishment on another suspect who has not used any deadly weapon during that incident. These areas unit the observations created by the court.

Another question, during this case, was whether or not, although the defendant couldn’t be condemned under Section 397 IPC, their conviction and sentence might still be upheld under Section 391 of IPC. The Supreme Court has mentioned that the trial court had charged all of the defendants during this instance with violating Sections 395 and 397 of the IPC. As a result, once a case under Section 391 of IPC punishable under Section 395 of IPC has been established, they will be found guilty are acquitted of the offence under Section 391 of IPC. The court conjointly rejected the argument that as a result of one of the co-accused was not guilty in a sequent trial, the advantage of final judgment ought to be extended to the present defendant.

It aforesaid dacoity is an ‘exaggerated’ robbery. To form a robbery a dacoity, the number of persons committing the crime ought to be 5 or more than 5. “Only in a very case where 5 or more than 5 persons commit or plan to commit a robbery, it might be dacoity. It is submitted that a more of an aggravated style of robbery and customarily the thief is armed with deadly weapons,” the judgment aforementioned.

Conclusion

Given the said, it becomes clear that Section-397 is neither a substantive offence nor provides for any independent penalty in itself. As such, there cannot be a separate charge for this section and even there cannot be a separate conviction/sentence for this section. The main point which the Court found in the case is that it is wrong to make a person guilty which he or she has not done but he or she has only taken part in.

In a case of robbery or Dacoity, if a person is arrested then he will only be convicted for the common intention read with that of Dacoity but if during that Dacoity, a person got grievous bodily hurt or murdered with using a Deadly weapon then only the person using that deadly weapon will be held guilty and convicted under Section 397 of IPC. It might be a possibility that the person who participated in that Robbery or Dacoity may not use any lethal weapons. So, it is on the fact and circumstance of the case that whether that person can be convicted under section 397 of IPC or not.

Author(s) Name: Harshit Kumar (Central University of South Bihar)

References:

[1] Section 397, Indian Penal Code, 1860.

[2] (1975) 1 SCC 797.

[3] (2007) 12 SCC 641.

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