Guchchi vs Santosh Kumar Kaurav and Others

S.K. Kulshrestha, J.—This revision seeks enhancement of punishment to the respondent Nos. 1 and 2 on the ground that though the respondents have been convicted u/s 393 read with Sections 397 and 304 read with Section 34 of IPC and sentenced u/s 393, IPC to R.I. for three years and fine of Rs. 200/-, u/s 397, IPC to R.I. for five years and fine of Rs. 200/- and u/s 304 read with Section 34, IPC to R.I. for five years and fine of Rs. 200/-respectively, the sentences directed to run concurrently, the minimum sentence prescribed in Section 397 of IPC, has not been awarded.

The grievance of the complainant is that sentence of five years awarded u/s 397 of IPC is below the minimum sentence of seven years prescribed and therefore, it deserves to be enhanced.

The case of the prosecution against the respondents was that on 2-9-1998 at about 8.00 P.M. in Village Gardha in the farm-house of contractor Chhotelal, the accused persons accosted complainant-Ramesh Kumar, Kashiram, Ajab Singh and Munnalal and asked for money and when Munnalal refused to give them any amount, they assaulted him with sword and lathi causing injuries on his back, neck, right hand and head. Munnalal was taken by his companions to a factory where they narrated the incident to Har Prasad. He was thereafter rushed to the Police Station where report was made which was recorded at Serial No. 110 of the Rojnamcha from where he was forwarded for medical examination. Upon trial, the learned Judge found that the offences alleged against the respondents were proved and convicted and sentenced them as stated hereinabove.

The short controversy, the learned Counsel for the applicant has raised is that upon conviction of the respondents for offence u/s 393 read with Section 397 of IPC, the Court erred in awarding sentence below the minimum sentence prescribed. We have heard the learned Counsel and gone through the judgment of the Trial Court.

It is not disputed that the respondents were found guilty for offence u/s 393 of IPC, as according to the prosecution the offence of robbery was merely attempted and not committed. Section 397 of IPC, provides for a situation where offence of robbery or dacoity is committed and while committing the offence, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. It is not in dispute that in case of attempt to commit robbery or dacoity when the offender is armed with deadly weapon, the Section enabling higher punishment is Section 398 of IPC. Section 398 reads as under :-

Attempt to commit robbery or dacoity when armed with deadly weapon.- It, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than 7 years.

There is basic distinction between Sections 397 and 398 of the IPC. While the former also gets attracted if grievous hurt is caused to a person or it is attempted or death is attempted, in Section 398 of IPC, it is upon mere wielding of the deadly weapon that liability is attracted to be punished with a minimum sentence of seven years. In the case in hand, it is not disputed that in so far as the respondent No. 2 Guddu was concerned, he was merely armed with a lathi (stick) which is not a deadly weapon and Section 398 of IPC, was thus, not attracted. Though it was alleged against respondent Santosh Kumar Kaurav that he was armed with a sword, we have examined the injuries of injured Munnalal as described in Paragraph 10 of the impugned judgment. We find that not a single injury can be ascribed to assault by any hard and sharp weapon. Under these circumstances, firstly sentence could not have been awarded on the basis of Section 397 of IPC and assuming that Section 398 of IPC, was applicable as it was a case of attempt to commit robbery, the ingredients of Section 398 of IPC, were not satisfied and therefore, the said provision was also not applicable.

We have been informed by the learned Govt. Advocate that accused Santosh Kumar Kaurav has already served out his sentence and he has been released from jail on 30-3-2002 while accused Guddu has been released on 6-7-2002. In view of the fact that Section 397 of IPC, is not attracted, we feel that no useful purpose would be served in pursuing this revision for enhancement of the sentence u/s 397 of IPC. As a matter of fact, there should have been a single sentence u/s 393 of IPC and the enabling section providing for minimum sentence.

We, therefore, do not find any substance in this revision. The revision is, accordingly, dismissed.