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TMI Blog2003 (12) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to have been recovered, charges were laid against the accused as noticed above. A-2 (Shahid), absconded and was also declared as Proclaimed offender, after following procedure under Sections 82 & 83 of the Cr. P.C. The accused denied the charges and thereupon the trial was con-ducted. Apart from the prosecution witnesses examined and the exhibits marked one Shahid Raza was examined as Defence-witness. After consid-ering the materials on record, the learned trial Judge came to the conclusion that the charges against the accused stood sufficiently proved and estab-lished and convicted them under Sections 452, 392 and 397 read with Section 34 IPC. A-3 (Haroon) was further convicted under Section 25 of the Arms Act. Thereunder, seven year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the PWs it was only one person who was said to be in possession of the country-made pistol and in the absence of any recovery of the same or proof by concrete materials of the role of other individually as against each one of the accused, no conviction under Section 307 with the aid of Section 34 of the Penal Code was permissible and that the necessary ingredient, to attract Section 397 of the Penal Code was also said to be conspicuous by their absence in this case. It was also contended that on the facts and circumstances of the case, when it was not shown by any evidence that the deadly weapon was actually used or put into any use as such, Section 397 IPC cannot at all be resorted to. Reliance has been placed on some of the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aranbhai Patel & Ors. v. State of Gujarat) relied upon for the appellants, after dealing with the principles in general, adverts to the facts for the case and in so doing the learned Judges have categorically observed that since two eyewitnesses in the said case were assaulted an seriously injured in broad daylight, they could have easily seen the faces of the assailants and their appearance and identity would well remain imprinted in their minds and the third witness who was said to have seen the fatal assault on her husband could also be easily considered to have got imprinted in her mind the faces of the accused and that, therefore, the omission to hold the test Identification parade did not affect the credibility or truthfulness of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also 7 years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. this has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 beha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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