JUDGMENT
1. This is an appeal by the accused against conviction and sentence. The case of the prosecution was as follows :
On 25-6-1982 at about 8-30 p.m. near the bus stand at Jeeva Park, Madras, P.W. 1 found himself alone. The accused came near him, showed him a knife and asked him to part with money he had in his pocket. Before P.W. 1 did anything, the accused put his hand in the pocket and drew out P.W. 1’s money purse. Upon P.W. 1 shouting ‘thief, thief’, P.W. 2 came to his rescue. The accused was caught. His hands were tied with the help of a kerchief. He was taken to the police station.
2. Thereupon the accused was prosecuted for offences under sections 392 and 397, I.P.C. He was found guilty thereunder and sentenced concurrently to seven years of rigorous imprisonment. It is against that judgment that the present appeal has been preferred.
Learned counsel for the accused would fairly admit the facts of the case but would contend that they only amount to an offence under S. 392, I.P.C. He therefore does not attack the conviction under that section; but contends that there is no material whatsoever for convicting the accused for an offence under sections 397, I.P.C. This is the point to be decided in the appeal.
3. S. 397, I.P.C. reads as follows :
“397. Robbery or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”
For proving an offence under that section, two important ingredients have to be established; first that the accused was having a deadly weapon and secondly that he used it. As far as the weapon is concerned, the prosecution has produced a folding knife 20 cm. long. Many persons usually carry with this kind of knife used for daily purposes. Such a knife, by no stretch of imagination, can be considered as a deadly weapon though occasionally it may cause death. A ‘deadly weapon’ is a weapon which usually is employed to causing death.
4. In this case, even this pen knife, M.O. 3, was not proved to have been seized from the accused. In fact, in the complaint, Ex. P-1, filed immediately after the occurrence the complaint P.W. 1 stated only that he was handing over the person who robbed him along with the purse. He did not state that the knife was also handed over or was still in the possession of the accused. P.W. 3 who received the complaint categorically stated that when the accused was brought to the police station, he was not having any knife. Therefore, the recovery of M.O. 3 purported to have been made by the investigating officer, P.W. 4, from the accused is open to doubt and cannot be accepted. It is clear that in this case it has not been proved that the accused, while operating, was in possession of a deadly weapon.
5. As far as ‘use’ is concerned, its meaning has to be properly understood. This section lists four kinds of acts punishable thereunder and ‘using a deadly weapon’ being one of those acts, should have more or less the same gravity as the other acts mentioned in the section and still be different therefrom. Secondly ‘use’ connotes an active operation; mere possession for keeping of deadly weapon cannot be considered as constituting the offence. In order to have a more precise idea of what is meant by ‘using’ in the section, it would be expedient to refer to sections 390 to 398, I.P.C.S. 390 I.P.C. gives a comprehensive definition of ‘robbery’ and lists the various kinds of robbery. Each kind of robbery is dealt with in subsequent section according to the gravity of the circumstances accompanying the robbery. Robbery without any aggravating circumstances is punished under S. 392 and robbery with aggravating circumstances are punished under the subsequent sections. If ‘using a deadly weapon’ appearing in S. 397, I.P.C. is considered in that light, it would appear that it corresponds in S. 390 to robbery by causing fear of instant grievous hurt or death. It is thus clear that the use of the deadly weapon should be such as to cause such a fear, for instance the act of brandishing it in a frightful manner, or the act of raising it over the head, or the act of touching the body, etc. In the present case, P.W. 1 deposed that the accused showed him the pen knife and threatened him. He did not state how the accused showed, nor how he threatened. The evidence of P.W. 1 is not sufficiently detailed in order to enable the court to ascertain whether there were such acts by the accused as were susceptible of causing fear of instant grievous hurt or fear of instant death to him. It is, therefore, found that in the present case the prosecution has not proved that there was a deadly weapon in the hand of the accused and that such a weapon was used within the meaning of section 397, I.P.C.
6. In the result, the conviction under S. 397, I.P.C. is set aside. The conviction for an offence under S. 392, I.P.C. is confirmed. In lieu of the sentence imposed by the trial court, the accused is sentenced to rigorous imprisonment for a period of three years.
7. Appeal partly allowed.