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JUDGMENT 2003 Supp(6) SCR 619 The following Order of the Court was delivered :

Leave granted in SLP (CRL.) No. 1676/2003.
Criminal appeal No. 1296/2002 has been filed by A-4 (Asfaq) and Criminal Appeal arising out of SLP (Crl.) No. 1676/2003 has been filed by A-3 (Haroon) who stood charged along with two others in Sessions Case No. 274/96 on the file of the Additional Sessions Judge, Shahdara.
The above appellants were tried before the learned Additional Sessions Judge along with two others by name Ikrar (A-l) and Shahid (A-2) for charges under Section 452 IPC, Section 392 IPC and Section 397 IPC read with Section 34 IPC. A-3 (Haroon) was also charged for an offence under section 25 of the Arms Act. The sum and substance of the prosecution case was that on 9.11.1991 at about 7.15 p.m. when PW-3 (Bal Kishan) was witnessing a TV programme in the inner room of his house in the company of his wife, PW-10 (Smt. Raj Rani), the accused persons entered their house and when PW-3 (Bal Kishan) came out of the room and was told by one of the four persons that they were sent by one Mahabir Thekedar for white washing of their house, PW-3 (Bal Kishan) was said to have told one of them that he only had already white washed the house and enquired about the need for it again. As the conversation was said to be going on like that the accused closed the door and one of the boys took out a country-made pistol and other took out their knives and by using such threat with such weapons they pushed PW-3 (Bal Kishan) and PW-10 (Smt. Raj Rani) inside and demanded the keys of the almirah. PW-10 (Smt. Raj Rani) the wife seems to have told them that the keys were with her daughter who resides at a different place. But she was not believed and they started searching all around inside for the keys and as this was in progress, PW-

So far as the contention urged as to the applicability of Section 397 IPC and the alleged lack of proof of the necessary ingredients therefor, is concerned it proceeds, in our view, upon a misconception that unless the deadly weapon has been actually used to inflict any injury in the commission of the offence as such, the essential ingredient to attract the said provision could not be held to have been proved and substantiated. We are of the view that the said claim on behalf of the appellants proceeds upon a too narrow construction of the provision and meaning of the words "Uses" found in Section 397 IPC. As a matter of fact, this Court had an occasion to deal with the question is the decision reported in AIR 1975 SC 905 (Phool Kumar v. Delhi Administratiori) and it was observed as follows :

* Thus, what is essential to satisfy the word "Uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.
The further plea that one accused alone, was in any event in possession of the country-made pistol and the others could not have been vicariously held liable under Section 397 IPC with the assistance of section 34 IPC over- looks the other vital facts on record found by the Courts below that the others were also armed with and used their knives and that knife is equally a deadly weapon, for purposes of section 397 IPC. The decision of the Division Bench of the Bombay High Court relied upon turned on the peculiar facts found as to the nature of the weapon held by the accused therein and the nature of injuries caused and the same does not support the stand taken on behalf of the appellants in this case. The provisions of Section 397, does not create any new substantive offence as such but merely serves as complementary to Sections 392 and 395 by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34 IPC. Consequently, the challenge made to convic-tion under Section 397 even after excluding the applicability of Section 34 IPC does not merit countenance, for the reason that each one of the accused in this case were said to have been wielding a deadly weapon of their own, and thereby squarely fulfilled the ingredients of Section 397 IPC, de hors any reference to Section 34 IPC.
So far as the other charges are concerned, though an attempt has been made to challenge those findings, we are of the view that the concurrent findings, as rightly contended for the respondent, are not only well merited but are found sufficiently based on and supported by overwhelming materials on record and no patent illegality or infirmity as to warrant our interference have been shown to vitiate in any manner those concurrent findings recorded by the Courts below in this case. The conviction under Section 397 IPC made read with Section 34 IPC alone is consequently altered and sustained under Section 397 IPC itself and the sentence imposed by the Courts below on this count would stand.