Whether court can convict an accused for an offence U/S 397 of IPC if he has not used weapon during Robbery?

 12.7. Thus, as per the law laid down by this Court in the aforesaid two decisions the term ‘offender’ under Section 397 IPC is confined to the ‘offender’ who uses any deadly weapon and use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is ‘uses’ any deadly weapon and the word used in Section 398 IPC is ‘offender is armed with any

deadly weapon’. Therefore, for the purpose of attracting Section 397 IPC the ‘offender’ who ‘uses’ any deadly weapon Section 397 IPC shall be attracted.

In light of the above observations and the law laid down by this

Court in the aforesaid two decisions the case on behalf of the

accused in the present appeals is required to be considered. Even

as per the case of the prosecution and even considering the evidence on record it can be seen that the present accused A1 and A3 are not alleged to have used any weapon. The allegation of use of any weapon was against Benny and Prabhakaran. Therefore, in absence of any allegations of use of any deadly weapon by the appellants herein – Accused Nos.1 and 3 Section 397 IPC shall not be attracted and to that extent the Learned Counsel appearing on behalf of the appellants – accused are right in submitting that they ought not to have been convicted for the offence punishable under Section 397 IPC.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

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Whether court can try three accused of dacoity if two accused are absconding?

  Now so far as the submission on behalf of the appellants –

accused that even no case is made out for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery.

Merely because some of the accused absconded and less than five

persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’. Therefore, in the facts and circumstances, the accused can be convicted for the offence under Section 391 IPC punishable under

Section 395 IPC. {Para 16}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

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Whether convicted accused can claim acquittal if absconding accused is acquitted in a separate trial?

 Now so far as the submission on behalf of the accused that in

the subsequent trial one of the accused – Benny came to be

acquitted and therefore the benefit of acquittal of Benny must be

given to the present accused and thereafter they may be acquitted is concerned the same has no substance. At the outset, it is required to be noted that the accused are to be tried and convicted on the basis of evidence made in the trial in which they are convicted. It is also required to be noted that Benny came to be tried after a period of 15 years as his trial was split as he absconded. From the judgment and order of acquittal passed in the case of Benny, it appears that PW1 during the trial in case of Benny turned hostile. In the case of Benny only five witnesses came to be examined and for whatever reasons other witnesses have not been examined. In the present case PW1 not only supported the case of prosecution but as many as 15

witnesses came to be examined. Therefore, merely because in the

subsequent split trial the Benny came to be acquitted the benefit of such acquittal cannot be in favour of the present appellants –

accused as the prosecution has been successful in proving the case against the present accused. At this stage, the decision of this Court in the case of Amrita vs. State of M.P., (2004) 12 SCC 224;

Gangadhar Behera vs. State of Orissa, (2002) 8 SCC 381 and

Raja vs. State, (2013) 12 SCC 674 are required to be referred to. In the case of Amrita (Supra), it is observed and held that mere

acquittal of some of the accused on the same evidence by itself does not lead to a conclusion that all deserve to be acquitted in case appropriate reasons have been given on appreciation of evidence both in regard to acquittal and conviction of the accused. Similar view has been expressed in case of Raja (Supra) and Gangadhar (Supra). Therefore, on considering the facts narrated hereinabove which led to acquittal in case of Benny, the present accused against whom the prosecution has been successful in proving the case by leading the evidence, the appellants – accused are not to be acquitted. {Para 17}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.903 OF 2021

GANESAN Vs STATE 

Author: M. R. Shah, J.

Dated: October 29, 2021

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Whether court can separate trial of accused on the basis of caste and religion in the case of communal riot?

 To revert back to the facts of the case, one finds that for whatever reasons, the request of the State for separation of trial was accepted by the previous judicial officer presiding on the trial. Such order was not challenged by the accused even if they were aggrieved. The order thus, becomes final. Such an order having attained finality, it was necessary that both trials be separated and proceeded further in accordance with law. The third question referred is whether the trial of the accused persons can be separated on the basis of caste or religion, is thus directly opposed to the judicial order previously passed by the Presiding Officer. In face of order dated 27.4.2009 no such question would arise. While deciding the reference, High Court cannot judge the validity of the previous order passed by the Sessions Court separating the trials. In a properly instituted proceedings, if the order was challenged, Court would have gone into legality thereof. No challenge was however made.{Para 8}

9. With respect to the other two questions referred also I find that in the order dated 27.4.2009, there was sufficient safeguard provided. For example it is provided that after separation of trial the charge Exh.4 will be amended as per requirement. This would clearly take care of the anxiety of learned Additional Sessions Judge, expressed in terms of first question referred. With respect to the sole surviving question No. 2 also I am of the opinion that the same is not arising out of any interpretation of legal provision. In my opinion, the reference itself was not necessary. The trial shall have to be proceeded in accordance with law on the basis of order of separation of trial ordered vide order dated 27.4.2009. While answering the questions referred, the High Court cannot entertain a challenge in disguise to the earlier order of separation of trials. All questions are essentially but indirectly questioning validity of order dated 27.4.2009 which has attained finality.

Gujarat high court

 (Before Akil Kureshi, J.)

Additional Sessions Judge  v. State of Gujarat 

Criminal Reference No. 1 of 2010

Decided on February 7, 2011

Citation: 2011 SCC OnLine Guj 951

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When trial of accused can be separated from trial of absconding accused?

Citation: 2013(3)KLJ726,2014 CR l J 1157 kerala

IN THE HIGH COURT OF KERALA

O.P. (Crl.) No. 1025 of 2013

Decided On: 18.06.2013

Appellants: P.A. Sidhartha Menon
Vs.
Respondent: The Deputy Superintendent of Police

Hon'ble Judges/Coram:C.T. Ravikumar, J.

A. Constitution of India, 1950 - Article 21 - Speedy trial - Speedy trial is an integral part of fair trial. It is a human right and society cannot deny it to an accused. 

B. Constitution of India, 1950 - Article 21 - Speedy trial - Courts have a duty to proceed with the criminal cases at a reasonable pace. Court has to weigh several factors and perform a balancing process and determine whether the right of speedy trial has been denied. 

C. Criminal Rules of Practice - Rule 16 - Application for splitting up of a case in which some accused have not appeared, despite the passage of reasonable time, cannot be declined on the ground that the process have not been served on them and hence they cannot be considered absconding. When the denial of the right to speedy trial is established, it is inevitable to invoke the powers under R. 16.

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