Sanjay vs The State Of Nct Delhi
2009 Latest Caselaw 5324 Del

*IN   THE     HIGH    COURT         OF    DELHI     AT   NEW     DELHI

                           RESERVED ON:              DECEMBER 18, 2009
                        PRONOUNCED ON:               DECEMBER 21, 2009

+                 CRL.A. 406/2006 & CRL.A. 591/2006

      CRL.A. 406/2006


#     SANJAY                                             ..... Appellant
!                        Through:        Ms.Anita Abraham, Adv.

                  versus

$     THE STATE OF NCT DELHI                ..... Respondent
^                   Through: Mr. Amit Sharma, APP.

                                    And
+     CRL.A. 591/2006

#     VICKY                                                 ..... Appellant
!                      Through:          Mr. R.S. Gupta, Adv.
                  versus

$     STATE                                               ..... Respondent
^                        Through:        Mr. Amit Sharma, APP.
*     CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?            Yes

      2.    To be referred to the Reporter or not?         Yes

      3.    Whether the judgment should be
            reported in the Digest?                        Yes

: V.K. JAIN, J.

1. These are two appeals against a common judgment dated

13th December, 2005 and Order on Sentence dated 17 th

December, 2005, whereby the appellants were convicted under

section 393 & 394 of IPC read with section 34 thereof and the

appellant Sanjay was additionally convicted under section

398/393 of IPC and both of them were sentenced for varying

periods. The appellant Sanjay was sentenced to undergo RI for 4

years each and to pay fine of Rs.2,000/- each or to undergo SI for

6 months each in default under section 393/34 and 394/34 of

IPC. He was separately sentenced to undergo RI for 7 years

under section 398 of IPC. The appellant Vicky was sentenced to

undergo RI for 4 years each and to pay fine of Rs.2000/- each or to

undergo SI for 6 months each in default under section 393/34 and

section 394/34 of IPC. The sentences were directed to run

concurrently.

2. The case of the prosecution in brief is that on 23rd October,

2004, at about 5.15 P.M. the complainant Ajay Kumar was going

to New Delhi Railway Station on foot. When he reached CF

Road, two young boys caught hold of him and asked him to hand

over his mobile phone to them. The complainant, however, did

not oblige them, whereupon they threatened him with dire

consequences and gave fists and slap blows to him and one of

them attacked him with a blade. Injuries from blade were

caused on his cheeks as well as on the left side of his chest. Two

policemen who were going on a motorcycle reached there on

hearing the alarm raised by the complainant and apprehended

the culprits after a short chase. The case of the prosecution is

that the appellant Sanjay is the person who had used the blade for

causing the injuries to the complainant, whereas the appellant

Vicky is the other person who had accompanied Sanjay and had

held the complainant when injuries were caused to him by Sanjay.

3. The complainant came in the witness box as PW 1 and stated

that on 23.10.2004, when he reached CF Road at about 5.15 P.M.

the appellants suddenly came there and asked him to hand over

his mobile to them. When he held on to his mobile they started

beating him and one of them caused injuries to him on his face as

well as on his chest, with a blade. The other person was holding

him at that time. When he raised alarm, police officials, who are

passing from there on a motor cycle, overpowered the appellants

and arrested them. He identified the appellants as the persons

involved in the incident.

4. PW5 Constable Naveen has stated that on 23.10.2004 he,

while on patrol, reached police picket at CF Road where

Constable Daya Nand and Rohtash Kumar were found sitting and

he joined them. On hearing commotion from the side of

Connaught Place, they reached near the public lavatories where

they saw the appellants Sanjay and Vicky having caught hold of

Ajay Kumar. On seeing the police they left him and starting

fleeing away. They, however, managed to apprehend both the

appellants. At that time Sanjay was holding a surgical blade with

some blood stains. Both the appellants were handed over to the

Investigating Officer alng with the surgical blade recovered from

Sanjay.

5. PW 8 ASI S.P. Singh is the Investigating Officer of the case

who went to the spot, arrested the appellants and seized the blade

produced by Constable Navin.

6. In their statement under section 313 the appellants denied

the allegations against them. The appellant Sanjay stated that

he was picked up from Rohini about 15 days before he was

implicated in this case as he was previously involved in a theft

case. The appellant claimed that he was picked up from his

house at Sadar Bazar at about 3.00 A.M.

7. The appellant Vicky examined his wife Rekha, as DW1. She

stated that her husband was taken from her house at 3.00 A.M.

but later on he was not released.

8. I see no reason to disbelieve the testimony of the

complainant Ajay Kumar. There is no enmity or ill-will between

him and either of the appellants and, therefore, he had noi reason

to depose falsely against either of them. The testimony of Ajay

Kumar finds corroboration from the statement of PW5 Constable

Navin who chased the appellants and apprehended them with the

help of Constable Daya Nand and Constable Rohtas Kumar. The

recovery of blade from the possession of the appellant Sanjay is

yet another corroboration of the testimony of the complainant.

During the course of arguments, no material discrepancy in the

testimony of the complainant has been pointed out and no reason

could be assigned by the learned counsel for the appellants to

disbelieve this witness.

9. The testimony of the complainant shows that both the

appellants shared a common intention to commit robbery of

mobile phone from his person and in fact both of them made

attempt to forcibly take the mobile phone which the complainant

was carrying in his pocket. Therefore, both of them are guilty of

the offence punishable under section 393 of IPC.

10. The complainant was held by the appellant Vicky when

injuries using a blade, were caused to him by the appellant

Sanjay. It is, thus, obvious that both of them shared a common

intention to cause hurt to the complainant in attempting to

commit robbery. Hence, both of them are also liable to be

punished under section 394 IPC read with section 34 thereof.

11. As regards applicability of section 398 of IPC which by itself

does not create an offence but only makes attempt to commit

robbery punishable with a minimum imprisonment of 7 years in

case the offender was armed with a deadly weapon at the time of

attempting to commit robbery, in order to succeed, the

prosecution was required to prove that the appellant Sanjay was

armed with a deadly weapon. The term 'deadly weapon' has not

been defined anywhere in IPC but would ordinarily mean an

instrument which, if used as a weapon of offence, is likely to cause

death.

12. The Investigating Officer has not prepared any sketch of the

surgical blade alleged to have been recovered from the

possession of the appellant Sanjay. The seizure memo of the

blade does not show what its size or shape was. Though the

police officials have described the instrument recovered from the

possession of the appellant as a surgical blade, none of the

witness has given any description of the blade which has been

referred by them as a surgical blade. The trial court has also not

made any observation as regards the size, shape or design of the

blade produced during trial. Unless size and shape etc. of the

blade recovered from the appellant is given or a sketch is

prepared from which these particulars may be ascertained, or a

photograph of the weapon is produced, it is not possible for this

court to ascertain whether the blade recovered from the

possession of the appellant was actually a surgical blade or not

and whether it was a deadly weapon or not. There is no evidence

or opinion on record to show that the blade recovered from the

appellant was such, as would ordinarily result in death by its use.

What would make a blade deadly is its size, design and shape etc.

and a weapon cannot be said to be a deadly weapon merely

because the witnesses described it as a surgical blade. This is

more so when neither any sketch or photograph is produced nor

any particulars of the instrument are given during evidence and

the trial court also does not make a note as regards the size,

shape and design etc. of the blade produced before it.

13. The MLC of the complainant has not been proved during

trial, though it is available on record. If this document is taken

into consideration it would show that the wounds caused to the

complainant were simple and only skin deep. Had the blade used

by the appellant been a deadly weapon, ordinarily the wounds

would have been deeper and would have resulted in serious

injuries being caused to the complainant. It has been alleged in

the FIR that when the boy who was holding the complainant

asked the other boy to cause injury with force, the boy using the

blade forcibly moved the blade on the left side of the chest of the

complainant, thereby causing injury to him. Had the instrument

used by the appellant Sanjay been a deadly weapon, it would have

caused deep and serious injuries to the complainant when it was

used with force on the left side of his chest. Therefore, the

nature of the injuries sustained by the complainant indicates that

the blade used by him was not a deadly weapon. In any case, in

the facts and circumstances of the case, there is a resaonble

doubt as to whether the blade used by the appellant Sanjay was a

deadly weapon or not and benefit of doubt will have to go to the

appellant - Sanjay.

14. For the reasons given in the preceding paragraphs, the

conviction of both the appellants is maintained only under section

393 and 394 of IPC read with section 34 thereof without applying

the provision contained in Section 398 of IPC. The appellant

Vicky is sentenced to undergo RI for 3 years and to pay fine of

Rs.1,000/- or to undergo SI for 15 days in default under section

393/34 of IPC. Similar sentence is awarded to him under section

394 of IPC read with section 34 thereof. The appellant Sanjay is

sentenced to undergo RI for 3 years and to pay fine of Rs.1,000/-

or to undergo SI for 15 days in default under section 393 of IPC

read with section 34 thereof. He is sentenced to undergo RI for 5

years and to pay fine of Rs.1000/- or to undergo SI for 15 days in

default under section 394 of IPC read with section 34 thereof. The

sentences shall run concurrently. One copy of this order be sent

to the appellant Sanjay, who is in Jail, through the concerned Jail

Superintendent.

15. Trial court record be sent back along with a copy of this

judgment. The appellant Vicky is directed to surrender forthwith

to undergo the remaining part of the sentence imposed upon him.

                                                      V.K. JAIN, J
DECEMBER       21, 2009
RS