Salim vs State (Delhi Administration)
1987 Latest Caselaw 511 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This is an appeal against the order dated 22-11-1985 of Mr. V.S. Aggarwal, Addl. Sessions Judge, Delhi, convicting the appellant under Sections 392 and 397 Indian Penal Code . and sentencing him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 200.00 for the offence under Section 392 Indian Penal Code . and in default of payment of fine to undergo further rigorous imprisonment for 3 months, and further sentencing him under Section 397 Indian Penal Code . to rigorous imprisonment for 7 years and to pay a fine Rs. 200.00 and again in default of payment of fine to undergo further rigorous imprison ment for 6 months. Both the substantive sentences of imprisonment were further ordered to run concurrently.

(2) The appellant, Salim, along with two others, namely, Satish Kumar and Avadh Kumar, was charged firstly for an offence under Sections 392/34 I.P.C. and secondly for an offence under Section 397 Indian Penal Code . read with Section 392 Indian Penal Code . The first charge against these three persons was that on 22-8-1984 at about 7.30 p.m at Pushta behind Adarsh Nagar near Nullah within the jurisdiction of Police Station Adarsh Nagar, they committed robbery by robbing Singh Ram of his diary and Rs. 200.00 and also a wrist watch and robbing Tejbir Singh of Rs. 20.00 , and the second charge was that at the said date, time and place while committing robbery aforesaid, they were armed with deadly weapons, to wit knives.

(3) The prosecution alleged that Singh Ram and Tejbir Singh were related to each other and that on 22-8-1984 they went to the house of one Narinder at Jehangirpuri in the evening and had their meals there. They left the house of Narinder at about 7.00 p.m. and as they were walking back when they reached near culvert, four persons surrounded them. Three of them were armed with knives. At the point of knife, one of the said persons took the watch of Singh Ram and also took Rs. 200.00 from his pocket. In that process that person inflicted a knife blow on the left forearm of Singh Ram. In the same very process Tejbir Singh was deprived of Rs. 20.00 . The four persons after committing robbery escaped.

(4) The police was informed and they started investigation. Singh Ram was removed to Hindu Rao Hospital. Dr. K.K. Gupta, who examined him, found one incised wound on left forearm, posterior aspect middle part 2 cm x " cm skin deep. The wound was bleeding at the time of his examination and it was opined that the injury was caused by a sharp weapon. Out of four persons involved in the robbery only three could be apprehended. First accused Avadh Kumar was arrested on 30-8-1984. On his making a disclosure statement, watch of Singh Ram was recovered and seized. Accused. Satish Kumar was also stated to have been arrested on the same day while he was coming to the court. The third accused Salim, the appellant, was arrested on 30-12-1984 under the Arms Act. He is also stated to have made a disclosure statement regarding the occurrence in question so as to connect him with the crime. Both Avadh Kumar and Satish Kumar refused to participate in the identification parade. Salim accused was identified in the identification parade held on 4-1-1985 by Singh Ram. When date was fixed for his identification again as Tejbir Singh was not present on the earlier date, Salim accused refused to join the identification parade. After the investigation was complete, the police sent in the challan and the accused were charged as above-mentioned.

(5) In support of its case the prosecution examined in all 9 witnesses and gave up the rest. Statements of the accused were recorded. They denied their involvement. Accused Salim stated that it was on 27-12-1984 that he was taken away from his house at about 8,30 p.m. and was kept in the police post Jehangirpuri for four days and thereafter falsely implicated in the case. In support of his plea, he examined his brother Nariruddin as Dw 1 who also brought on record a photo-copy of the telegram sent by him to the higher officials of the police when Salim accused was taken away from the house. There was, however, no follow up by him.

(6) By his judgment dated 22-11-1985, the learned Addl. Sessions Judge acquitted Satish Kumar. He, however, convicted accused Avadh Kumar for an offence under Section 411 Indian Penal Code . Avadh Kumar was already in custody since 30-8-1984 and by the date of the judgment, he had undergone more than one year of imprisonment while facing the trial. The learned Addl. Sessions Judge, therefore, sentenced him to imprisonment for the period already undergone by him. The accused Salim was convicted and sentenced as above-mentioned.

(7) The only evidence against the appellant Salim is the statement of Singh Ram, PW. Tejbir Singh, the other person, who was robbed, could not identify any of the accused persons. In his statement, Singh Ram said that out of the four persons three were armed with knives and that he could identify only one person who was Salim accused. The witness said that at the point of knife Salim accused took his watch (Ex. P-1) and also Rs. 200.00 cash and further that Salim accused inflicted knife blow on his left forearm. He also stated that Rs. 20.00 were snatched from Tejbir Singh. Singh Ram also stated that the watch Ex. P-l was recovered at the instance of Salim from his room in Jehangirpuri He said the watch so recovered was seized by memo Ex. P-1/A. Obviously, this could not be correct as the prosecution case itself was that the watch Ex. P-l was recovered at the instance of accused Avadh Kumar from his house, and, in fact, on that premise Avadh Kumar was convicted by the trial court for an offence under Section 411 Indian Penal Code . This led Mrs. Ahlawat, learned counsel for the appellant, to contend that no reliance could be placed on the statement of Singh Ram which was contradictory on material point. She said that the witness was mixing up Salim accused with Avadh Kumar accused and that benefit of this should go to the accused Salim. It was also her contention that the incident allegedly took place when there was darkness of night and it was not possible for Singh Ram to identify the accused Salim particularly when in the first information report no description of the accused had been given. She said once the statement of Singh Ram was not taken into consideration, there was no evidence whatsoever to convict the appellant. It is no doubt correct that the appellant has been convicted on the sole testimony of Singh Ram.

(8) But then there is no rule of law that a person cannot be convicted on the testimony of a single witness. I find that Singh Ram is a reliable witness. He clearly identified the accused Salim as the person who inflicted knife blow on his arm and also robbed him. He, however, was unable to identify the other two accused. It cannot be said that it is not possible for anyone to identify a person immediately after night-fall when he has seen him from a clos.e quarter. In the present case, the incident took place at about 7.30 p.m. on 22-8-1984. It cannot, therefore, be said that there was darkness at that time. Mrs. Ahlawat also submitted that before the identification parade was held wherein Singh Ram identified accused Salim, the accused had already been shown to the witness in the police station. The fact, however, remains that irrespective of this flaw, if any, witness Singh Ram was able to identify accused Salim. No enmity or other motive is alleged against the witness for him to involve the accused. The wrist watch of which the witness Singh Ram was robbed was ultimately recovered though from the accused Avadh Kumar, who, as noted above, has been convicted for an offence under Section 411 Indian Penal Code . In my view, therefore, the learned Addl. Sessions Judge did not commit any error in accepting the statement of the witness Singh Ram to come to the conclusion that accused Salim committed the offences charged against him.

(9) Then Mrs. Ahlawat submitted that in any case no offence under Section 397 Indian Penal Code . could be said to have been committed inasmuch as it was stated that the accused was armed with a knife only and that the knife had also not been recovered. She said a knife could not be a deadly weapon and in support of her contention she referred to two decisions of this court both rendered by M.L. Jain, J In Balik Ram v. State (1983 Rlr 395), the learned Judge observed as under : "Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result in death by their use. What would make a knife deadly is its design or the manner of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly one." In Murari Lal v. State , it was submitted on behalf of the accused that the knife had not been recovered and no one knew the size of its blade and unless the size was known, a knife could not ordinarily be classified as a deadly weapon within the meaning of Section 397 Indian Penal Code . There is no discussion in the judgment on this submission except that the learned Judge observed that he was in agreement with the counsel for the accused that the case did not fall within Section 397 Indian Penal Code . In Phool Kumar v. Delhi Administration the accused was carrying knife in his hand at the time the robbery was committed. There were other accused as well one of whom was armed with a small gun and in fact had fired 3 shots in the air. The Supreme Court held that in order to attract the provisions of Section 397 Indian Penal Code . it was not necessary that the accused should have been brandishing the knife or causing grievous hurt with it. It observed as under:- "So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence 89 of Public Witness . 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims. sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code." (This decision of the Supreme Court wherein it is held that knife is a deadly weapon was not referred to in the aforesaid two decisions of this court and the same are not, therefore, a binding precedent. Under Section 397 Indian Penal Code .- an offender is guilty if he uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. The words 'deadly weapon' are of common use and do not need any definition or interpretation. The words 'deadly weapon' have also been used in Section 148 Indian Penal Code. Section 324 Indian Penal Code . uses the words 'dangerous weapons' in its heading. It says whoever voluntarily causes hurt by any instrument for shooting, stabbing or cutting, or any instrument which used as a weapon of offence is likely to cause death, etc., is liable to punishment. In Lakshmiammal v. Samiappa , the accused were armed with weapons like knife, hammer, crowbar and spades. It was held that these were undoubtedly deadly weapons. The Concise Oxford Dictionary defines the word 'weapon' as 'material thing designed or used or usable as an instrument for inflicting-bodily harm, e.g. gun, bomb, rifle, sword, spear, stick hammer, poker, horn, claw'. The word 'deadly', according to this Dictionary, means 'causing fatal injury'. Also, according to this Dictionary, 'knife' means 'blade with sharpened longitudinal edge fixed in handle either rigidly or with hinge used as cutting instrument or as weapon'. As per Webster's Third New International Dictionary a 'knife" is 'a simple instrument used for cutting consisting of a sharp-edged usually steel blade provided with a handle'. Longman Dictionary of Contemporary English defines 'knife' as 'a blade fixed in a handle used for cutting as a tool or weapon'. These definitions in various dictionaries can be multiplied. We all understand what a knife means and to categorise it or to fix its size for it to be a deadly weapon may not be appropriate. A knife has also been' described as a pocket knife, pen knife, table knife, kitchen knife, etc. It cannot be denied that a knife can be used as a weapon of offence. It can cut, it can pierce, it can be deadly. To say that a knife to be a deadly weapon should be of a particular size would perhaps be not a correct statement. In the present case, the evidence shows that the injury was caused to Singh Ram witness by a sharp-edged weapon and there is a statement that the accused Salim was carrying a knife and it was with that knife that the injury was caused to the witness. It would not be necessary for the witness to further state as to that was the size of the knife to attract the provisions of Section 397 Indian Penal Code as was contended by Mrs. Ahlawat. This contention that case under Section 397 Indian Penal Code . is not made out fails.

(10) Section 397 Indian Penal Code . prescribes a minimum sentence of imprisonment for 7 years. The appellant has been rightly convicted and sentenced under the section.

(11) This appeal, therefore, fails and is dismissed.