Delhi High Court
Vijay vs State on 19 January, 2010
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A. No. 600/2004
Date of Order: 19th January 2010
# VIJAY ..... Appellant
! Through: Mr. Sumeet Verma, Adv.
versus
$ STATE ..... Respondent
^ Through: Jaideep Malik, APP.
+ Crl.A. No. 781/2004
# DEEPAK ..... Appellant
! Through: Mr. Sumeet Verma, Adv.
versus
$ STATE ..... Respondent
^ Through: Jaideep Malik, APP.
And
+ Crl.A. No. 117/2005
# AJAY ..... Appellant
! Through: Mr. Ranjeet Kr. Jha, Adv.
versus
$ STATE ..... Respondent
^ Through: Jaideep Malik, APP.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
Crl.A.Nos. 600/2004, 781/2004 & 117/2005 Page 1 of 7
2. To be referred to the Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
: V.K. JAIN, J. (Oral)
1. These three appeals arise from a common judgment dated
7th April 2004 and Order on Sentence dated 8th April 2004
whereby the appellants were convicted under Section 397/34 of
IPC and were sentenced to undergo R.I. for 10 years, each and
to pay fine of Rs.500/- or to undergo S.I. for one month, each in
default. Manoj, the appellant in Criminal Appeal 513/2004, who
was also tried along with these appellants was sentenced to
undergo R.I. for 7 years and to pay fine of Rs.500/- or to undergo
S.I. for one month, in default.
2. The case of the prosecution, in nutshell, is that PW-2
Bijender Singh, who is an Ortho Surgeon, was going to New
Delhi Railway Station by foot on 8th August 2003. When he
reached Outer Circle, Connaught Place, opposite Petrol Pump of
H Block at about 9.40 PM, all the four accused accosted him
near the Petrol Pump. One of them caught hold of his shirt,
whereas remaining three gave him fist blows and abused him.
The appellant Deepak used a razor in commission of robbery.
One mobile phone, wrist watch, purse containing some cash and
identity card, etc. of complainant were removed from his
possession. The appellants Ajay and Deepak were apprehended
on the spot. The stolen purse was recovered from the
possession of Ajay, whereas the razor used in the robbery was
recovered from the possession of Deepak. The appellant Vijay
was arrested from Panchkuian Road and the stolen mobile phone
was recovered from his possession.
3. The complainant came in the witness box as PW-2 and
supported the case set up by him in the FIR. He stated that on
8th August 2003, when he was going to Railway Station via Outer
Circle of Connaught Place and reached near Petrol Pump at
about 9.40 PM, all the four accused persons in the Court
pounced upon him, all of a sudden. The appellant Ajay caught
hold of him by collar and rest of the accused gave him fist blows
and thrashed him down. The appellant Vijay snatched away his
mobile and ran away. The appellant Ajay snatched away his
wrist watch, whereas Manoj removed the purse from his pocket.
He further stated that the appellant Deepak brought out a razor
and threatened to thrash it in his belly. When he raised alarm,
the accused persons started running away towards Inner Circle
of Connaught Place. He caught hold of Manoj, whereas two
other were caught hold by police. The appellant Vijay ran away
from the spot. Manoj had handed over the watch to Vijay before
he could run away. According to him, his purse Ex.P-1 was
recovered from the possession of Ajay, whereas his mobile Ex.P-
2 was recovered subsequently. He further stated that razor was
recovered from the possession of Deepak. The complainant also
stated that the police took him to Punchkuian Road, where the
appellant Vijay was arrested and his mobile phone was
recovered from his possession.
4. PW-5 SI Rakesh Chand has corroborated the deposition of
the complainant as regards arrest of the appellant Vijay from
Punchkuian Road and recovery of the stolen mobile phone from
his possession. PW-4 Const. S.N. Ingle has corroborated the
deposition of the complainant and has stated that he himself had
chased and apprehended the appellant Vijay, whereas Const.
Arun, who accompanied him, had apprehended another boy.
5. The learned counsels for the appellants stated that
considering the evidence produced against the appellants during
trial, they do not challenge their conviction on merits, as far as
commission of robbery is concerned. The learned counsel for
the appellant Deepak only requests for taking a lenient view in
the case of sentence awarded to him, whereas the learned
counsel representing the appellants Ajay and Vijay state that
Section 397 of the Indian Penal Code cannot be applied against
them as neither of them was armed with a deadly weapon at the
time of common of robbery nor any grievous hurt was caused to
any person or any attempt was made to cause death or to cause
grievous hurt to any person.
6. It is by now settled proposition of law that Section 397 of
IPC, which by itself does not create an offence and only
prescribes a minimum punishment, can be applied, while
awarding sentence, only in respect of that person, who uses a
deadly weapon at the time of commission of the offence or who
causes grievous hurt or attempts to cause death or grievous hurt
to any person. This very view was taken by the Hon‟ble
Supreme Court in „Phool Kumar vs. Delhi Administration‟,
AIR 1975 SC 905 and in „Ashfaq vs. State‟ 2003 (10) 732. The
Hon‟ble Supreme Court inter alia observed as under:
"For that reason, no doubt the provision
postulates only the individual act of the
accused to be relevant to attract Section
397 IPC and thereby inevitably negates the
use of the principle of constructive or
vicarious liability engrafted in Section 34
IPC."
The proposition of law, which one gathers from the
decision in the case of Ashfaq (supra), is the same as was laid
down in the case of Phool Kumar (supra) that Section 397 of IPC
can be applied only in case of a person, who himself had used a
deadly weapon at the time of commission of the robbery.
7. In the present case, admittedly neither the appellant Ajay
nor the appellant Vijay was armed with any weapon at the time
of commission of the robbery. There is no allegation of either of
them having attempted to cause death of anyone or of having
attempted to cause grievous hurt to the complainant. The
injuries caused to the complainant were simple as only fist blows
were given to him and no grievous hurt, as defined in Section
321 of IPC was caused to him. Therefore, Section 397 of IPC
could not have been applied either against the appellant Ajay or
against the appellant Vijay. However, since hurt was caused to
the complainant in commission of robbery, Section 394 of IPC
comes into play and, therefore, the offence under Section 394 of
IPC read with Section 34 thereof has been proved against the
appellants Ajay and Vijay.
8. Taking into consideration all the facts and circumstances of
the case, the appellant Deepak is convicted under Section 394 of
IPC read with Section 397 thereof and is sentenced to undergo
R.I. for 7 years and to pay fine of Rs.1,000/- or to undergo S.I.
for 15 days, in default. The appellants Ajay and Vijay, who have
been in custody for more than six years each, are sentenced to
undergo R.I. for 5 years, each and to pay fine of Rs.1,000/- each
or to undergo S.I. for 15 days, each in default.
Crl.A. No. 600/2004, 781/2004 and 117/2005 stand dispose of.
V.K. JAIN
(JUDGE)
JANUARY 19, 2010
Ag
