KAILASH MAHANTA Vs. STATE

JUDGEMENT

(1.) THE appellant stood charged along with two other co -accused persons under Section 392 of the Indian Penal Code ( for short, 'the Code' ) with having committed robbery in respect of cash belonging to Nandalal Bagudia (P. W. 1) being carried by Bhagwan Jee Pawari (P. W. 2) after nightfall on September 14, 1982, at Bhadrak and he stood separately charged under Section 397 of the Code for having used a deadly weapon, such as, a knife and for having caused grievous hurt to P. W. 2 during the commission of the offence of robbery. The appellant had denied the charges. On a consideration of the prosecution evidence, the appellant has been found to be guilty of the charge of robbery and convicted under Section 397 of the Code. He has been sentenced thereunder to undergo rigorous imprisonment for a period of seven years.

(2.) MR . S. C. Sahu, appearing for the appellant, has not challenged the finding recorded by the trial Court that the appellant had committed robbery in view of the evidence adduced by the prosecution at the trial against him. He has urged that in the absence of acceptable evidence that the appellant had used a knife or had caused grievous hurt to P. W. 2, he could not be convicted by the application of Section 397 of the Code.

(3.) THERE were more than one culprits. If the evidence of P. W. 2 with regard to the identification of the appellant is discarded, as has been done by this Court, it cannot be said on the basis of the other evidence that the appellant, at the time of committing robbery, had used any deadly weapon or had caused grievous hurt to P. W. 2. To attract Section 397 of the Code, it is necessary to establish that at the time of committing robbery or dacoity, the offender has used any deadly weapon or has caused grievous hurt to any person or has attempted to cause death or grievous hurt to any person. For the foregoing reasons, it would be reasonable to hold that the evidence did not warrant the application of Section 397 of the Code. The result would be that the order of conviction of this appellant by the application of Section 397 of the Code is to be set aside while upholding his conviction for the commission of robbery.