AIR 1920 LOWER BURMA 116

Lower Burma High Court

Hon'ble Judge(s): Maung Kin , J

* Penal Code (45 of 1860) , S.34, S.392, S.395, S.397— There can be no charge or conviction under S. 397 as it creates no substantive charge - Charge and conviction must be under S. 392 or S. 395 and S. 34 has no application to other offenders. Section 397, I. P. C., does not create any distinct substantive offence. It is merely a supplement to Ss. 392 and 395, which create the substantive offences for which S. 397 provides a minimum punishment. There can be no charge or conviction under S. 397 standing by itself, as that section creates no separate offence. The charge as well as conviction should be under S. 392 or S. 395, as the case may be read with S. 397. The higher punishment provided by S. 397 can be inflicted only on the offender who actually uses a deadly weapon, or causes or attempts to cause death or grievous hurt, and S, 34 of the Code cannot be applied to the other offenders to make them liable to enhanced punishment under S. 397. The charge and conviction as against them should be one under S. 392 or S. 395, as the case may be. .....