The word ‘offender’ in Section 397 IPC envisages individual liability and not constructive liability

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J., allowed a criminal petition filed against the judgment of the trial court wherein the appellant was convicted under Sections 392 and 397 IPC along with Section 27 of Arms Act.

The appellant was alleged to have robbed the house of the victim (complainant), and in the act, it was alleged, he used a deadly weapon (knife) that terrorized the victim. The appellant was booked under the above-mentioned sections. He was tried and convicted by the trial court. In the instant appeal, the appellant confined his challenge to the conviction under Section 397. It was contended that there were no allegations against the appellant that he used any deadly weapon in the course of committing the robbery, and as such, he could not be convicted under the said section.

The High Court perused the record and found that in his statement, the victim clearly stated that the co-accused in the case had a knife. But as to the appellant, the victim stated that he did not remember what weapon the appellant was holding. The Court referred to a Supreme Court decision in Dilawar Singh v. State of (NCT of Delhi),(2007) 12 SCC 641: (2008) 3 SCC (Cri) 330, wherein it was held, the word ‘offender’ (as used in Section 397 IPC) envisages individual liability and not any constructive liability. In the instant case, though recovery of the knife was made on the statement of the appellant, however, no specific attributions were made to the appellant carrying a knife at the day of the incident. Noting such facts and circumstances, the High Court held that no culpability could be fixed against the appellant under Section 397, for which the use of a knife is a sine qua non. Accordingly, while upholding his conviction under Section 392 IPC along with Section 27 of Arms Act, the High Court set aside the appellant’s conviction and sentence under Section 397 IPC. [Mumtaz v. State,2018 SCC OnLine Del 9534, decided on 13-06-2018]

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