Pappu vs State
2011 Latest Caselaw 66 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      CRL.A. 170/2001

%                                            Reserved on: 23rd November, 2010

                                             Decided on: 7th January, 2011

PAPPU                                                           ..... Appellant
                              Through:   Mr. S.D.S Rathore, Advocate.

                     versus

STATE                                                     ..... Respondent
                              Through:   Mr. Pawan Bahl, APP.


Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                            Not necessary

2. To be referred to Reporter or not?                         Yes

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



MUKTA GUPTA, J.

1. The facts leading to the filing of the present appeal are that on 16th June,

1999, the Complainant PW1 Raj Kumar boarded the bus from Nand Nagri for

Seelampur and as the bus reached Durgapuri Chowk at 4.00 P.M., two or

three persons in the bus started fighting with him and tried to snatch his

briefcase. One of them was carrying a sword like weapon which he aimed at

the Complainant but the Complainant warded off the attack with the help of

the briefcase. One other person who had the revolver or country made pistol,

forced the driver of the bus to stop, on which all of them got down and ran

away after some scuffle. The Complainant and the public ran after the

culprits and one of them, identified as Pappu the Appellant herein, was

apprehended whereas the others managed to escape. The Appellant was

carrying sword in his hand which was seized by SI Satya Prakash. On the

statement of the Complainant FIR No. 279/1999 under Sections 393/397/34

IPC was got registered at PS Shahdara. The Appellant was sent to GTB

hospital for his medical examination as when he was being apprehended, he

was beaten by the public. On the disclosure statement of the Appellant herein,

co-accused Jagdish was arrested. After completion of investigation the charge

sheet was filed.

2. The Appellant and the co-accused were charged for commission of

offences punishable under Section 393/34 and 397 IPC. The Appellant was

additionally charged for offence punishable under Sec. 27 Arms Act. During

the trial, the Complainant PW1 Rajkumar though supported the prosecution

case, turned partially hostile and deposed that he could not identify the

Appellant Pappu. However PW8 Ram Kumar identified the Appellant. Since

no prosecution witness identified co-accused Jagdish, he was acquitted when

the case was taken up for recording of statements under Sec. 313 CrPC. The

statement of the Appellant was recorded under Section 313 Cr.P.C. and

thereafter the Appellant was convicted for offences punishable under Sections

392/34 and 397 IPC and was awarded a sentence of rigorous imprisonment for

a period of seven years and a fine of `2,000/-, and in default of payment of the

fine to undergo simple imprisonment for a period of three months. Since the

Appellant was convicted for the offence under Section 397 IPC, which was

more serious in nature, the Appellant was not separately convicted for offence

under Section 27 Arms Act.

3. Learned counsel for the Appellant contends that there is no evidence

against the Appellant and the learned trial court erred in imposing the

conviction and sentence on the Appellant. The Complainant, PW1 has not

identified the Appellant in the Court. PW3 Sudhir Kumar and PW2 Om

Singh, the conductor and the driver of the Bus, have also not identified the

Appellant in the Court. Thus, it is a case of no evidence against the

Appellant. There is contradiction in the testimony of the witnesses in regard to

the arrest of the Appellant. Moreover, even as per the charge against the

Appellant he along with the co-accused has attempted to rob and thus, he

cannot be convicted for offence punishable under Section 392 IPC. As regards

the conviction for offence punishable under Section 397 IPC, the Appellant is

not alleged to have used the sword to commit robbery, hence no case for

commission of offence of robbery with attempt to cause death or grievous hurt

under Section 397 IPC is made out. Even if the use of weapon stands proved,

it is only a case of attempt to robbery and hence the Appellant cannot be

convicted for the offence punishable under Section 397 IPC.

4. Learned APP for the State contends that because of lapse of time the

Complainant, the bus driver and the conductor have not been able to identify

the Appellant. However, the public witness PW8 Ram Kumar who was

present at the place where the Appellant was apprehended by the public has

duly identified him. PW3 Sudhir Kumar has identified the sword in the Court,

which was seized from the Appellant by the police and thus, there is sufficient

evidence adduced on record against the Appellant.

5. It is further contended relying on Sanjay @ Ravindra N. Gaikwad and

Anr. vs. State of Mahrasthra, 1996 Crl. Law Journal 2172 that conviction

under Section 393 and 397 IPC can be sustained. Learned APP states that

though the Appellant has been wrongly convicted for offence under Section

392 IPC however, this Court in the present appeal can convert the conviction

for offence under Section 392 IPC to one under Section 393 IPC as both the

charge and the finding are that of attempt of robbery. Referring to Section

464 Cr. PC, it is urged that the judgment rendered cannot be set aside merely

due to an error or omission in the framing of a charge. By altering the

conviction to one for an offence punishable under Section 393 IPC, no

prejudice would be caused to the Appellant.

6. I have given my anxious consideration to the facts of the case and

perused the evidence on record. The Complainant PW1 Raj Kumar, the driver

PW2 Om Singh and the conductor of the bus PW3 Sudhir Kumar have

deposed about the incident, however, they have failed to identify the

Appellant. PW1 has stated that a person with a sword in the hand tried to

snatch the briefcase from the Complainant which he warded off by his

briefcase. He stated that one of the culprits was apprehended by the police at

the spot who had disclosed his name as Pappu but he cannot identify him.

PW1 further stated that he i.e. Pappu was badly beaten up by the public. PW3

has stated that he heard the noise from the front side and saw that a brief case

was being pulled by some persons on their respective sides in the bus. After

the bus stopped some boys ran after alighting followed by the person whose

bag was being snatched. One boy who was having a sword in his hand

apprehended with the help of other public persons at some distance from the

bus stop. His name was Pappu but he could not identify that Pappu due to

lapse of time. The police seized the sword which was in the hand of that

accused Pappu and prepared a sketch and parcel of the sword. He identified

the sword Ex. P-1 to be the same sword recovered from the accused Pappu.

PW8 Ram Kumar is an independent public witness, who was standing on the

road near Shivam Saree Centre, waiting for the bus to go to Koria Bridge. He

had witnessed the entire incident after the Appellant and his co-accused

alighted from the bus and ran away. The Appellant was chased by the public,

apprehended and beaten, which he witnessed and deposed. The Appellant

was armed with a sword which was seized on the spot and the same has been

identified by PW8, Ram Kumar also. PW-6, SI Satish Kumar reached the spot

just in front of Shivam Saree Centre on receiving the information, where PW1

met him and produced the accused Pappu, present in Court and gave his

statement Ex.PW1/A. He stated that since the incident had taken place within

the jurisdiction of PS Shahdra, SI Sat Prakash PW7 of PS Shahdra was

handed over the statement of PW1 and the Appellant along with the sword.

PW7 has also deposed about the Appellant being handed over on the spot

along with the sword and the statement of PW1. Thus, as far as the Appellant

is concerned, the fact that by trying to snatch the brief case by showing the

sword to the Complainant he attempted to commit robbery and thereafter ran

away and was apprehended at the spot near the bus stop, is proved beyond

reasonable doubt.

7. The issues which now arise for determination are whether the Appellant

can be convicted for an offence under Section 392 IPC, though charged for

offence under Sec. 393 and 397 IPC and secondly, once it is a case of attempt

of robbery, whether the Appellant is liable to be convicted for offences

punishable under Sections 393/398 IPC or under Sections 393/397 IPC.

The relevant provisions of the Penal Code are:

"392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.

393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

397. Robbery or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."

8. In the present case the Appellant had tried to snatch the briefcase from

PW1 by using the sword, which he aimed at PW1, however, he did not

succeed in snatching the brief case. Thus, this is a case of attempt of robbery.

Hence, the appropriate section under which the Appellant can be convicted is

Section 393 IPC and not Section 392 IPC. Once the Appellant was charged

for offence under Section 393 IPC the Appellant could not be convicted for

offence punishable under Section 392 IPC but because the Appellant was also

charged for offence under Section 397 IPC, which is a major offence, the

Appellant could be convicted for an offence under Section 392 IPC.

However, in the present case the offence committed by the Appellant is not

punishable under Section 392 IPC as the offence of robbery had not been

completed but one punishable under Section 393 IPC being only an attempt to

commit robbery. The learned Trial Court thus erred in convicting the

Appellant for offence punishable under Section 392 IPC. The conviction of

the Appellant is altered to one under Section 393 IPC.

9. The Appellant has also been convicted for offence punishable under

Sec. 397 IPC. Both the provisions 397 and 398 IPC contemplate the accused

being armed with weapon while committing robbery/dacoity or attempting to

commit robbery/dacoity. Section 397 IPC applies when offence of

dacoity/robbery has finally been committed. Section 398 IPC on the other

hand, applies to cases of attempt to commit robbery or dacoity. Section 393

IPC corresponds to Section 398 IPC whereas Section 392 IPC corresponds to

Section 397 IPC in case of attempt to robbery/dacoity and robbery/dacoity

respectively coupled with user of deadly weapon. Thus, Section 398 IPC

regulates the punishment in a case of attempt to commit robbery being armed

with deadly weapon as distinguished from the case in which the offender has

already accomplished his purpose and robbery has been actually committed

with the use of deadly weapon under Section 397 IPC. Since from the facts

proved by the prosecution, only a case of an attempt to commit robbery with

use of deadly weapon is made out, the offence committed by the Appellant is

one punishable under Section 398 IPC. Since Section 398 IPC is a minor

offence of Section 397 IPC, no prejudice will be caused to the Appellant and

thus, the conviction of the Appellant is altered from Section 397 to one for

offence punishable under Section 398 IPC.

10. As far as the sentence is concerned, both under Sections 397 and 398

IPC the minimum sentence which can be awarded to the accused is Rigorous

Imprisonment for a period of seven years, which has been awarded by the

learned Trial Court. Thus, the sentence awarded by the learned Trial Court is

maintained.

11. The present appeal is partially allowed modifying the conviction of the

Appellant to one for offences punishable under Sections 393/398 IPC. The

sentence awarded by the learned Trial Court i.e., Rigorous Imprisonment for a

period of seven years with a fine of `2,000/- and in default of payment of fine,

to further undergo a period of simple imprisonment for three months, is

maintained. The Appellant be taken into custody for undergoing the remaining

sentence. The bail bond and the surety bond stand cancelled.

(MUKTA GUPTA) JUDGE

JANUARY 7th, 2011/vn