Ramu @ Raju vs State
2010 Latest Caselaw 5510 Del

           IN THE HIGH COURT OF DELHI: NEW DELHI

+ CRL. A. 874/2009

%              Judgment decided on: 3rd December, 2010

RAMU @ RAJU                                       .....APPELLANT

                         Through:    Ms. Rakhi and Mr. Hem C.
                                     Vashisht, Advs.
                         Versus

STATE                                          .....RESPONDENT

                         Through:    Mr. Arvind Gupta, APP for
                                     the State

                               AND
CRL. A. 4/2010

VIJAY                                             .....APPELLANT

                         Through:    Mr. Madhu Sudan Bhayana,
                                     Adv.

                         Versus

STATE                                          ....RESPONDENT

                         Through:    Mr. Arvind Gupta, APP for
                                     the State

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers
          may be allowed to see the judgment?              No

       2. To be referred to Reporter or not?               No

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

A.K. PATHAK, J. (Oral)

1. Both the above noted appeals are being disposed of

together as these germinate from the same incident, FIR and

judgment of the Trial Court.

2. Both the appellants have been convicted under Sections

392/397 IPC. Appellant Vijay has also been convicted under

Section 27 of the Arms Act. Appellants have been sentenced

to undergo rigorous imprisonment for seven years each and

to pay fine of ` 3,000/- ; in default of payment of fine to

undergo simple imprisonment for three months each.

Appellant Vijay has also been sentenced to undergo rigorous

imprisonment for three years and to pay fine of ` 2,000/- ; in

default of payment of fine to undergo simple imprisonment

for two months under Section 27 of the Arms Act. Benefit of

Section 428 Cr.P.C. has also been given to the appellants.

3. It is this judgment which is under challenge in these

appeals.

4. In brief, prosecution case is that complainant Brij

Mohan Rathi (PW-2) was travelling in a bus, plying on route

no. 971, on 22nd October, 2005 at about 10 am. On the way,

appellants boarded the bus and when the bus reached at

Wazirpur Flyover appellants came near the complainant and

snatched his bag. At that time appellant Ramu @ Raju was

armed with katta while appellant Vijay was armed with a

knife. When the bus stopped at Netaji Subhash Palace both

of them de-boarded the bus and started running.

Complainant also got down from the bus and chased them by

raising alarm "pakro-pakro". In front of Wazirpur Depot one

PCR Van was parked. ASI Uttam Chand (PW3) and Const.

Birpal Singh (PW6), who were present in the said PCR Van,

apprehended both the appellants. On their search, one desi

katta was recovered from Ramu @ Raju and one button

actuated knife from Vijay. Appellants had thrown the bag

somewhere on the way which they later on got recovered from

the bushes.

5. PW 3 ASI Uttam Chand sent wireless message about the

incident to Police Station Saraswati Vihar pursuant whereof,

DD No. 42 B was recorded and handed over to SI Ram

Sharan (PW9) who along with Const. Balwan Singh (PW1)

reached at the spot. PW 9 SI Ram Sharan recorded

statement of PW2 Brij Mohan Rathi, wherein, he narrated the

incident in the manner as has been described in para 4

hereinabove. Katta and knife were measured and their

sketches were prepared. Thereafter, both the weapons were

sealed in separate pulandas and taken in possession vide

seizure memos Ex. PW1/A and PW1/B respectively and later

on deposited in Malkhana. Both the appellants were

arrested. Site plan (PW2/F) was prepared. Statements of

other witnesses were also recorded. Later on katta was sent

to Forensic Science Laboratory (FSL) and its report was

obtained.

6. After completion of investigation appellants were sent up

to face trial for having committed offences under Sections

392/397/34 IPC and 27 of the Arms Act by filing a charge-

sheet in the court of Metropolitan Magistrate, on 16th

February, 2005 who after completing the formalities under

Section 207 Cr.P.C., committed the case to the Sessions

Court, since offence under Section 397 IPC is exclusively

triable by the Sessions Court.

7. Charges under Sections 392/397 IPC were framed

against both the appellants. Separate charge under Section

27 of the Arms Act was also framed against the appellant

Vijay. Appellants pleaded not guilty and claimed trial.

8. Prosecution examined twelve witnesses in all. Material

witnesses in this case are PW2 Brij Mohan Rathi, PW3 ASI

Uttam Chand, PW6 Const. Birpal Singh and PW9 SI Ram

Sharan. All other witnesses are formal in nature having been

joined in the investigation at one or the other stage. After

prosecution concluded its evidence entire incriminating

material, which had come on record, was put to the

appellants in their statements under Section 313 Cr.P.C.

recorded separately on 5th June, 2009. Appellants denied

their complicity in the crime and claimed themselves to be

innocent. They stated that they had been falsely implicated.

However, they did not lead any evidence in their defense.

9. As regards the incident, PW2 has fully corroborated the

same as he has deposed that on 22 nd October, 2005 at about

10 am he was travelling in a bus plying on route no. 971. On

the way, appellants boarded the bus. Appellant Ramu @

Raju was having a katta in his hand, while appellant Vijay

was having a knife. They snatched his bag and alighted the

bus at Netaji Subhash Palace and started running. He also

got down from the bus and chased them. He also raised

alarm. His this statement has remained unshattered in his

cross-examination. With regard to bag snatching incident

PW2 has fully supported the prosecution story. From the

testimony of PW2 it is evident that it is the appellants who

had robbed his bag on the fateful day. Both the appellants

had been correctly identified by the PW2 in court. From his

testimony it has been proved that appellants had robbed the

complainant PW2, thus, had committed offence under

Section 392 IPC. Trial court has, thus, rightly convicted them

under this provision.

9. In view of the evidence adduced by the prosecution

before the trial court, I am of the view that the conviction of

the Appellants under Section 397 IPC cannot be sustained as

recovery of katta and knife is under the cloud of suspicion.

PW2 has deposed that appellant Ramu @ Raju was having a

katta in his hand while appellant Vijay was having button

actuated knife in his hand. In the FIR, PW2 had stated that

both the appellants were apprehended by the PCR Van

immediately after the incident in his presence and on their

search knife and katta were recovered. However, while

deposing in court he has not corroborated this fact,

inasmuch as, in his cross-examination he has deposed that

officials of PCR Van had already apprehended the appellants

and had recovered katta and knife by the time he reached

there. His this testimony in the court shows that while giving

chase to the appellants he lagged behind and appellants had

gone out of his sight and were apprehended by the PCR Van.

Later when he reached at the place where the PCR Van was

parked, appellants had already been apprehended by ASI

Uttam Chand and Const. Birpal. Testimony of PW3 ASI

Uttam Chand and PW6 Const. Birpal Singh is also to this

effect. Deposition of PW3 also suggests that katta and knife

had already been recovered from the appellants before

complainant reached there. Version regarding recovery of

weapons of offence, which had surfaced during the trial, is

not in consonance with the prosecution case as set out in the

charge-sheet. In my view, appellants are entitled to benefit of

doubt on this point of recovery of weapons from them more

so, when the same is not in line with the prosecution story.

10. There is yet another reason for which appellant Ramu @

Raju is entitled to be acquitted under Section 397 IPC. I have

perused the statement of appellant Ramu @ Raju recorded

under Section 313 Cr.P.C. and I find that the incriminating

circumstance of recovery of katta from him had not been put

in his statement. If that is so, then this incriminating

circumstance of recovery of katta from him cannot be used

against him. In absence of any question being put to him in

this regard, he had no opportunity to say whatever he could

possibly have said in respect of this part of the evidence

appearing against him. Purpose of recording of statement

under Section 313 Cr.P.C is to enable him to say whatever he

may have to say in respect of material circumstance

appearing in evidence against him. Appellant being in

possession of katta at the time of commission of robbery was

definitely a material circumstance appearing in evidence

against the appellant. Since appellant had been apprehended

immediately after the incident, recovery of katta from him

was a material circumstance against him to show that he had

used the same at the time of commission of offence. Since

this material circumstance was not put to him same cannot

be read and used against him and this fact also goes in his

favour as regard his conviction under Section 397 IPC is

concerned. In Raju Vs. State 2010 II AD (DELHI) 674,

recovery of knife from the accused was not put to him in his

statement under Section 313 Cr.P.C. Benefit of this fact was

given to said accused and he was acquitted of the offence

under Section 397 IPC. Since recovery of katta from this

appellant is shrouded with suspicion in view of inconsistent

stand taken by the prosecution, inasmuch as, this material

circumstance of recovery of katta having not been put to him

in his statement under Section 313 Cr.P.C., Appellant Ramu

@ Raju is acquitted of the charge under Section 397 IPC.

12. Similarly, recovery of knife from Appellant Vijay also

fails. That apart, no evidence has been led by the

prosecution to show that the knife which this appellant

possessed at the time of incident was a "deadly weapon".

Section 397 IPC envisages that if, at the time of robbery, the

offender uses any deadly weapon, the imprisonment with

which such offender shall be punished shall not be less than

seven years. Thus, what is essential to satisfy the word

"uses" for the purpose of this Section is that the robbery

being committed by an offender, who was armed with a

deadly weapon, which was within the vision of the victim, so

as to be capable of creating terror in the mind of the victim.

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 to 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. Thus, it is a question of fact to be proved by

the prosecution that the knife used by the offender was a

deadly one. In this case, recovery of knife has failed. Only

statement of PW-2 is available to show that this accused was

armed with a knife. None of the witness has deposed that

knife in possession of the appellant was a deadly one. This

fact has remained unproved. Thus, the ingredients of Section

397 are not attracted so as to convict the appellant Vijay

under this provision. Appellant Vijay is acquitted of the

charge under Section 397 IPC. Since recovery of knife has

also failed he is also acquitted under Section 27 of the Arms

Act.

13. Result of above discussion is that conviction of

appellants under Section 392 IPC is maintained.

14. Appellant Ramu @ Raju is a married man having two

children. His aged parents are also dependent upon him.

Appellant Vijay is aged about thirty five years and his aged

parents are dependent upon him. In the facts and

circumstances of this case, sentences of the appellants are

reduced to five years from seven years. Sentence of fine is

maintained. However, in case of default in depositing the fine,

appellants shall undergo simple imprisonment for 15 days.

They shall also be entitled to the benefit of Section 428

Cr.P.C.

15. Both the appeals are disposed of in the above terms.

Copy of the order be sent to Superintendent Jail to serve it on

the appellants.

A.K. PATHAK, J.

DECEMBER 03, 2010 ga