1. In this case the accused are charged under two heads, viz,, (1) that they committed the offence of robbery and aided and abetted each other in that offence, and (2) that they committed the offence of robbery and at the time of committing such offence were armed with a deadly weapon, to wit, a loaded revolver, and aided and abetted each other in the commission of the said offence.
2. The learned Counsel for the prosecution has argued that Section 398 of the Indian Penal Code relates to a substantive offence and any person aiding or abetting such offence would be liable under Section 114 for the same offence if he were present at the time the offence took place.
3. I am unable to agree with the argument that Section 398 creates any offence. In my opinion it only regulates the measure of punishment when certain facts are found to exist in the commission of the substantive offence which is robbery. The word 'offender' appearing in the section can refer only to the person who is proved to have been armed with any deadly weapon and not to any other who in combination with such person may have committed robbery. Section 34 of the Indian Penal Code has no application, in my opinion, in the construction of Section 398, I agree with the judgment of the Calcutta High Court in Emperor v. Ali Mirza I.L.R (1923) Cal. 265, which, in my opinion, should be followed in this case.
4. I would, therefore, withdraw from the jury that part of the second charge which falls under Section 114 of the Indian Penal Code read with Section 398.