Delhi High Court
Syam Sunder & Ors. vs State on 10 December, 2010
Author: A. K. Pathak
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. A. No. 233/2008
% Judgment decided on: 10th December, 2010
SYAM SUNDER & ORS. .....APPELLANTS
Through: Mr. Sarvesh Bisari and Ms. Anita
Abraham, Advs.
Versus
STATE .....RESPONDENT
Through: Mr. Arvind Gupta, APP for the
State along with ASI Charan Das,
P.S. Mandir Marg.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be Yes
reported in the Digest?
A.K. PATHAK, J. (Oral)
1. This appeal is directed against the judgment dated 18th
February, 2008 of the Trial Court, whereby appellant no.1 has
been convicted under Section 392 IPC read with Section 397 IPC;
sentenced to undergo rigorous imprisonment for seven years and
fine of `5,000/-; in default of payment of fine to undergo simple
imprisonment for three months. Appellant nos. 2 and 3 have
been convicted under Section 392 IPC and sentenced to undergo
rigorous imprisonment for five years and fine of `5,000/-; in
default of payment of fine to undergo simple imprisonment for
three months.
2. It is this judgment which is under challenge in this appeal.
3. As per the prosecution, complainant Vikas Gulati (PW3) was
going on his motorcycle, along with his friend Santosh Kumar
Pandey (PW4) from Noida to Paschimpuri on 10th January, 2003.
At about 9:30 pm when they reached at Shankar Road,
complainant stopped his motorcycle in order to ease himself. In
the meanwhile, appellants came there. Appellant no. 1 was
armed with a knife. He commanded the complainant to hand over
to them whatever he was having in his possession. While
appellant nos. 2 and 3 surrounded the complainant, appellant no.
1 forcibly took out the purse of complainant from his pocket,
which contained `3800/- in cash besides his driving license.
Complainant had a scuffle with appellants and in the process his
ring fell down on the road. While the incident was going on, a
PCR Van was noticed coming towards them. On seeing the police
appellant nos. 2 and 3 ran away. Appellant no. 1 tried to escape
on the motorcycle of complainant, however, complainant pushed
the motorcycle as a consequence whereof appellant no.1 fell down
and his leg came under the motorcycle. By that time police van
had arrived there and appellant no.1 was apprehended. Appellant
nos. 2 and 3 were arrested on the next day of incident. Appellant
no. 1 got recovered a knife from the bushes on the next day of
incident, pursuant to his disclosure statement.
4. Complainant has been examined as PW3. He has fully
supported the prosecution story. PW4 has fully corroborated the
version of PW 3. Their testimony had been found trustworthy and
reliable by the Trial Court, consequently, appellant no.1 has been
convicted under Section 392 IPC read with Section 397 and
appellant nos. 2 and 3 under Sections 392 IPC.
5. I have carefully perused the statements of PW3 and PW4 and
find them to be trustworthy and reliable witnesses. From their
testimony it is proved beyond the shadow of reasonable doubt
that incident did happen in which appellants had robbed the
complainant. No material discrepancy could be pointed out by the
learned counsel, in their statements so as to discard their version
with regard to the incident of robbery. In my view, offence under
Section 392 IPC is made out against all the appellants and they
had been rightly convicted by the Trial Court under this provision
of law.
6. The next question which needs consideration is as to
whether ingredients of offence under Section 397 IPC are
attracted in this case qua the appellant no. 1. Admittedly, no
knife was recovered from him immediately after the incident even
though he had been apprehended at the spot. From the
statement of PW 3, it is clear that while appellant nos. 2 and 3
managed to escape, appellant no. 1 could not do so since his leg
was stuck under the motorcycle and he was apprehended at the
spot itself. He neither had any occasion to run away nor throw
the knife as PW 3 had remained present there all along. In his
statement, complainant had not whispered a single word that
appellant no.1 had thrown the knife in the bushes before sitting
on the motorcycle in a bid to escape. Thus, recovery of knife on
the next day becomes suspicious. For this reason, appellant no.1
is entitled to benefit of doubt on this count.
7. 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. 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. Whether a knife is a "deadly weapon" is a question
of fact which is required to be proved by the prosecution and in
absence of any such evidence particularly, non-recovery of
weapon, would certainly bring the case out of the ambit of Section
397 IPC.
8. In Rakesh Kumar Vs. State of NCT of Delhi 2005 (1) JCC
334, a Single Judge of this Court has held that there are knives of
hundreds of type available in different length and width. All the
knives cannot be graded as "deadly weapon" within the meaning of
Section 397 IPC. It is the length, shape and the manner of use
which makes a knife "deadly weapon". In Sunil @ Munna Vs. The
State 2010 (1) JCC 388, this Court has held that in the event of
recovery of knife being doubtful accused is entitled to benefit of
doubt with regard to offence under Section 397. In Charan Singh
Vs. State 1998 Crl. L.J. NOC 28 (Delhi), it was held that in order to
bring home a charge under Section 397, the prosecution must
produce convincing evidence that the knife used by the accused
was deadly weapon.
9. In order to prove the offence under Section 397 IPC the
prosecution must establish:-
i) commission of robbery or dacoity;
ii) that the accused used the deadly weapon; or caused grievous
hurt; or attempted to cause death or grievous hurt and
iii) the above acts were done during the commission of robbery or
dacoity.
10. In this case, prosecution has failed to lead any evidence to
show that appellant no. 1 had used the "deadly weapon" while
committing robbery, thus, in my view, ingredients of offence
under Section 397 IPC are not attracted in this case. In the
absence of necessary ingredients that have not been established
by the prosecution, conviction of appellant no. 1 under Section
397 IPC cannot be sustained. Accordingly, conviction of appellant
no. 1 is altered from Section 392 IPC read with 397 IPC to 392
IPC.
11. Learned counsel for the appellants next contended that in
the facts and circumstances of this case, leniency be shown while
awarding the sentence and the same be reduced to the period
already undergone by them. Appellant no. 1 is a married man
having two children, who are dependent upon him; his widowed
mother and unmarried handicapped sister are also dependent
upon him; appellant no. 1 is in incarceration for about four years.
As regards appellant no.2, it is contended that he has three
children aged between 11 years to 15 years; his ailing widowed
mother is also dependent upon him. As regards appellant no. 3,
learned APP for the State, on instruction of Investigating Officer,
submits that he has already completed his sentence and has been
released.
12. Keeping in mind the above contentions of learned counsel,
sentences of appellant nos. 1 and 2 are reduced to the period
already undergone by them. As regards the sentence in default of
payment of fine is concerned, same shall form part of the sentence
already undergone by them. Appellant nos. 1 and 2 be released
forthwith, if not wanted in any other case.
13. Appeal is disposed of in the above terms. Copy of this order
be sent to Superintendent Jail for serving it on the appellant nos.
1 and 2 as also for compliance.
A.K. PATHAK, J.
DECEMBER 10, 2010
ga
