TMI Blog1975 (3) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... tencing the appellant with the aid of section 397. - CRL.A. 62 OF 1971 - - - Dated:- 13-3-1975 - Untwalia, N. L., Alagiriswami, A.,JJ. JUDGMENT The Judgment of the Court was delivered by UNTWALIA, J.-In the night between the 8th and 9th September, 1966, to be precise, at about 1.45 A.M. on the 9th September, a daring robbery was committed at a petrol pump of the Gasolene Service Station on the Mall, Delhi. The robbers who are said to be four in number broke into the office of the Service Station and decamped with ₹ 585/- in cash after locking in the two attendants. After investi- gation three persons were put on trial in the Sessions Court. One of the culprits, named Sube Singh, absconded. The names of the three are (I.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of the petrol pump two persons who were identified as appellant Phool Kumar and Ram Kumar (since acquitted) came there. Phool Kumar was armed with a knife while Ram Kumar had a small gun in his hand. The former asked P.W. 13 to hand over the keys. On being told that the keys were with P.W. 16 the appellant asked him to hand over the keys. To terrorize P.Ws. 13 and 16 Ram Kumar fired three shots in the air one of which struck the window panes of the office while the other two hit the ground. The appellant and his associates thereafter opened the door of the office, ransacked the drawers of the table and decamped with the money lying in the cash box, after pushing P.Ws. 13 and 16 in the office and bolting its door from outside. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccurring on the kunda of the cash box. Soon after the occurrence during the course of the investigation photographs of the impressions on the kunda had been taken long before the appellant was apprehended for the participation in the crime. There was absolutely no scope, for any kind of manipulation in the matter as was argued on behalf of the appellant in desperation. We are, therefore, clearly of the opinion that the participation of the appellant in the commission of the robbery at the petrol pump was proved beyond any reasonable doubt; so also the charge under section 342 of the Penal Code. The last submission on behalf of the appellant was that sentencing him to undergo rigorous imprisonment for 7 years under section 397 of tit-- Penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter use of the gun by one of the culprits whether he was accused Ram Kumar or some body else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of P.W. 16 Phool Kumar had a knife in his hand . He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of section 397 of the Penal Code. Section 398 uses the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor(A.I.R. 1932, Oudh, 103); Nagar Singh v. Emperor(A.I.R. 1933, Lahore. 35. Emperor(A.I.R. 1934, Lahore, 522. ) some overt act such as brandishing the weapon against another person in order to over-awe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of section 397 of the Penal Code. J. C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State(A.I.R. 1956, Bombay, 353) that if the knife was used for the purpose of producing such an impression upon the mind o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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