As can be seen, the section prescribes a minimum mandatory sentence of imprisonment for seven years. No upper limit of sentence has been provided in the section which is quite exceptional. The section is attracted both at the time of commission of robbery as well as at the commission of dacoity. The offender must use a deadly weapon, or must cause grievous hurt to any person, not necessarily the person against whose property robbery or dacoity is being committed, or must attempt to cause either death or grievous hurt to any person, not necessarily the person against whose property robbery or dacoity is being committed. Any of these must be done at the time of committing robbery or dacoity. The use of the word ‘shall’ has given the section the mandatory character. This section is not a substantive section in itself but is complementary to sections 392 and 395.
It only emphasizes that where the circumstances at the time of committing robbery or dacoity are as indicated in this section, the court has no option but to pass at least the minimum mandatory sentence provided in this section. In Phool Kumar v. Delhi Administration, interpretation of the word ‘uses’ in section 397 was involved. One of the accused, armed with a knife, and another, armed with a small gun, terrorised the employees of a service station to hand over the keys to them. They opened the office and took away the cash from there.
The Supreme Court held them guilty under section 397 because carrying a knife open to the view of the victims is sufficient to frighten them and any other overt act such as brandishing the knife or causing grievous hurt is not necessary. The word ‘uses’ in section 397 and the words ‘is armed’ in section 398 have almost identical meaning. Where an offender armed with a deadly weapon within the vision of the victim commits robbery, it creates terror in the mind of the victim and the offender has thus ‘used’ the deadly weapon within the meaning of section 397. But if an armed offender only attempted to commit robbery his weapon was not put to any fruitful use as the weapon could be used only when the offender succeeded in his attempt and committed robbery, and hence the words ‘is armed’ with deadly weapon have been used. It is surprising to note, however, that the Rajasthan High Court has gone against this view and held that mere display of a deadly weapon against another person with a view to overawe him while committing dacoity attracts this section but it is not sufficient to allege that the dacoits were armed with deadly weapons. Same has been the case with the Patna High Court which has held that the words ‘uses any deadly weapon’ means something more than being merely armed with deadly weapon.
Thus, where there was no evidence that the accused had pointed out the revolver towards the victim, and also the fact that the revolver was not in working condition, the Patna High Court said, section 397 would not be attracted. The Supreme Court in the Phool Kumar’s case has also endorsed the view that punishment under section 397 could be meted out to those persons only who, at the time of committing robbery or dacoity, themselves used deadly weapons or who themselves caused grievous hurt. This, the Supreme Court believes, is clear from the language of the section. The term ‘offender’ in section 397 is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum punishment on another offender who had not used deadly weapon.
In Ashfaq v. State (Government of NCT of Delhi) the Supreme Court, while once again explaining meaning of the word ‘uses’ in section 397, stated that use of weapon by the offender for creating terror in the mind of the victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be.
The provision under section 397 postulates only individual act of the accused to be relevant. This inevitably negates the use of principle of constructive or vicarious liability engrafted in section 34. Since all the accused persons were shown to be wielding deadly weapon of their own, this fulfils the essential ingredients of section 397 and consequently the conviction of the accused under sections 397/34 was altered to that under section 397 of the Code. Where the accused persons brandished deadly weapons and threatened persons with dire consequences if they tried to interfere with them while they were taking away fish from the tank of the complainants, it was held that they were guilty under sections 395 and 397 of the Code.
Even though the expression ‘deadly weapon’ has not been defined under the Indian Penal Code, its usual meaning is ‘any weapon which is capable of inflicting death’. Naturally, the nature of the weapon and the manner of its use are important considerations. No accused could be convicted on the basis of recovery of empty cartridges from a place six days after the incident on the ground that these cartridges may have been fired by the accused’s gun. The Supreme Court has ruled in Ram Shankar v. State, that even though the courts are bound to pass a sentence of minimum seven years’ imprisonment under this section, they could always recommend to the government for clemency under section 432, Code of Criminal Procedure, 1973 which possesses the power to remit or reduce the sentence. The victim was robbed of money, injured and confined to a room.
The evidence established that a robbery had taken place. There was no reason to implicate the accused, a gun man in a corporation, falsely. The accused had been absconding for about two and a half months after the incident. The Supreme Court held that sections 390 and 397 were attracted.
The Bombay High Court has held that for conviction under sections 397 and 398 of the Code the weapon used has to be a ‘deadly weapon’ and not assumed or mistaken to be a deadly weapon. Thus, a toy pistol could not be held to be a ‘deadly weapon’ whatever be its impact on the frightened victim. In Niranjan Singh v. State of Madhya Pradesh, the accused had caused knife injury on the chest of a person. The Supreme Court held that actual causing of grievous hurt is not essential for attracting section 397; even attempt to cause grievous hurt is sufficient. The offence under section 397 is cognizable, non-bailable and non-compoundable, and is triable by court of session.