Document Fragment View

Matching Fragments

1. Having been convicted in S.T. No. 311/91 appellants Deshraj, Rajdhar and Buddha have by means of present appeal approached this Court for setting aside their conviction and sentence. Accused Deshraj and Rajdhar were convicted under Sections 394/397/34 and 450/34, Indian Penal Code and accused Buddha was convicted under Sections 394/397 and 450, Indian Penal Code.

2. Appellants Deshraj and Rajdhar were sentenced to 7 years R. I. under Sections 394/397/34 and 3 years R.I. under Sections 450/34, Indian Penal Code and appellant Buddha was sentenced to 7 years R. I. under Sections 394/397, Indian Penal Code and 3 years R. I. under Section 450, Indian Penal Code.

iv. (a) As far as appellant No. 1 Deshraj is concerned, Section 397, Indian Penal Code would not apply in his case as be was alleged to have been armed with Lathi which was not a deadly weapon.
(b) That the offence under Section 397, Indian Penal Code is an individual liability and no aid of Section 34, Indian Penal Code can be taken for fastening guilt on the appellants.

v. Appellant No. 3 Buddha not having been identified in the test identification parade but only identified by the witnesses in the Court, could at the most be fastened with the guilt under Section 411, Indian Penal Code as he has been found in possession of the stolen property and his conviction under Section 394/397, Indian Penal Code is not in accordance with the law.

20. In support of submission iv (a), learned counsel for the appellants placed before the Court the following statement of Param (P.W. 1) :

^^2- muesa ,d vkneh cYye] ,d vkneh ykBh vkSj ,d vkneh Qjlk j[ks FkkA** and according to him this witness does not say as to who was armed with what. The only statement is that one of the accused persons was carrying Lathi. Pyaribai (P.W. 2) and Sonabai (P.W 3) have stated that appellant No. 1 was armed with Lathi. According to the learned counsel for the appellants, Section 397, Indian Penal Code would not be attracted in the case of appellant No. 1 as Lathi is not a deadly weapon and the requirement of Section 397, Indian Penal Code is the user of the deadly weapon. In this connection he placed reliance on the case of this Court reported in Jagdish and Ors. v. State of M. P., (1974) JLJ-SN 46 where the Court held that Section 397, Indian Penal Code covers a case of a person who displays deadly weapons to frighten his victims or to make use of any deadly weapon for similar purpose. This section is merely a rider to Section 394, Indian Penal Code and complementary to Section 392 thereof, but does not create any substantive offence. It merely regulates the punishment. Where the accused had only a Lathi and there is nothing to indicate that the Lathi had iron covering over it, and also there is no proof of its size, the offence is under Section 394 and Section 397 is not attracted. In the present case it is not disputed that appellant No. 1 was not equipped with Lathi but there is nothing to indicate that the Lathi had iron covering over it so as to make it a deadly weapon. Apart from this size of the Lathi has also not been established by the prosecution. According to him case may not be under Section 397, Indian Penal Code but may be under Section 394, Indian Penal Code.

In the present case, the appellant No. 1 was armed with Lathi, which was not a deadly weapon, and as such he cannot be fastened with the liability under Section 397, Indian Penal Code in view of the aforesaid case of the Supreme Court.

22. The 5th submission as advanced by the learned counsel for the appellants that appellant No. 3 Buddha even otherwise not having been identified in the test identification parade but was only identified by the prosecution witnesses in the Court, could at the most, in the event of any liability of guilt is found, be said to be in possession of stolen property and a presumption could only be that of committing offence under Section 411, Indian Penal Code and not under Sections 394/397, Indian Penal Code. In this connection, learned counsel for the appellants placed reliance on the case of Surjit Singh v. State of Punjab, AIR 1994 SC 110. The facts of that case were different. That was a case of murder and not of dacoity. In a murder case, the presumption regarding possession of stolen property does not come. The case relied on is on different footing and is of no avail so far as the present appeal is concerned.