Rakesh Chauhan vs The State (Nct Of Delhi)
2011 Latest Caselaw 1518 Del

          IN THE HIGH COURT OF DELHI: NEW DELHI

+            CRL. APPEAL NO. 255/2005

%            Judgment decided on: 16th March, 2011

RAKESH CHAUHAN                                   .....APPELLANT

                       Through:   Mr. Riaz Mohd., Adv.

                       Versus

THE STATE (NCT OF DELHI)                      .......RESPONDENT

                       Through:   Mr. M.P. Singh, APP for the
                                  State.

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
         reported in the Digest?                               Yes


A.K. PATHAK, J. (Oral)

1. This appeal is directed against the judgment dated 28 th

February, 2005 passed by Additional Sessions Judge, Delhi

whereby appellant along with co-accused Samiuddin @ Chotu

has been convicted under Section 397 read with Section 392

IPC and under Section 457 IPC; sentenced to undergo rigorous

imprisonment for seven years with fine of Rs.500/- for the

offence under Section 397 IPC; sentenced to undergo rigorous

imprisonment for three years with fine of Rs.500/- for the

offence under Section 457 IPC and in default of payment of fine

to undergo rigorous imprisonment for three months. Both the

sentences have been directed to run concurrently.

2. Prosecution case as unfolded is that appellant and co-

convict Samiuddin @ Chotu along with Mohd. Arif and Nazim

forcibly entered in the second floor of premises bearing

No.1669, Kucha Dhakni Rai, Daryaganj, Delhi on 15.03.2001 at

about 10.30 p.m. and committed robbery at the point of knife.

Jafar Hussain was present in the house at that time along with

his daughter-in-law Shehnaaz and other family members.

Appellant and his accomplices intimidated the family members

and forced the women to hand over their ornaments to them.

They also opened almirah and removed valuable articles. While

appellant and his accomplices were committing robbery, Jafar

Hussain's son, namely, Waseem Ahmed arrived there. He rang

up the door bell at which door was opened by one of the

assailants. He was also surrounded by appellant and his

accomplices and cash, which he was carrying, was robbed.

Thereafter, appellant and his accomplices locked up the family

in the bathroom and decamped with the robbed articles. On

24th May, 2001 appellant and his accomplices were arrested.

After investigation was completed charge sheet was filed against

the appellant and his co-accused. During trial Smt. Shehnaaz,

Jafar Hussain, and Waseem Ahmed were examined as PW3,

PW4 and PW10 respectively. They have identified the appellant.

Trial court found their testimonies trustworthy, credible and

reliable so as to conclude that appellant and Samiuddin @

Chotu had committed robbery. However, Mohd. Arif and Nazim

were acquitted by giving benefit of doubt to them.

3. It may be noted here that co-convict Samiuddin @ Chotu

had filed Criminal Appeal No. 461/2006 against the judgment

impugned in this appeal thereby challenging his conviction.

The said appeal has been disposed of by a Single Judge of this

Court vide order dated 9th November, 2010. Conviction of

Samiuddin @ Chotu under Section 397 IPC has been modified

to one under Section 392 IPC. Consequently, his sentence has

also been reduced to rigorous imprisonment for a period of four

years in view of alteration of his conviction to Section 392 IPC.

Conviction under Section 397 IPC was modified to Section 392

IPC in absence of recovery of knife allegedly used at the time of

robbery. It was held that prosecution had failed to prove that

Samiuddin @ Chotu was armed with a knife which could have

been termed as 'deadly weapon'.

4. Learned counsel for the appellant has not pressed this

appeal against the conviction of appellant under Section 457

IPC. He has pressed this appeal against the conviction of

appellant under Section 397 IPC.

5. The short question which needs to be addressed in this

appeal is whether the offence under Section 397 IPC is made

out against the appellant or not in the facts of this case.

Admittedly, the knife allegedly used by appellant while

committing robbery had not been recovered. No evidence has

been led before the Trial Court to show that the knife used by

the appellant was a 'deadly weapon'. Even otherwise, in

absence of recovery of knife it cannot be said that the same

would fall within the meaning of 'deadly weapon' as envisaged

under Section 397 IPC. In Bishan Vs. State 1984 (6) DRJ 78,

it has been held that in the absence of recovery of knife,

allegedly used by appellant at the time of commission of

robbery/dacoity, it cannot be presumed that the knife used was

a 'deadly weapon' and in such circumstances, charge under

Section 397 IPC cannot be established. Similar is the view in

Rakesh Kumar Vs. The State (Govt. of NCT) 2005 (1) JCC

334 and Sunil @ Munna Vs. The State (Govt. of NCT) 2010

(1) JCC 388.

6. In Balik Ram Vs. The State 1983 Crl. L.J. 1438, a

Single Judge of this Court has held that though the knife that

was recovered from the accused a few hours of the occurrence

was no doubt a deadly one on account of its size and design but

it was not shown to the victim when he came to depose nor has

he given any description of the knife so that it could be held

that the knife alleged to have been placed by the accused on his

abdomen was the one recovered or the one similar to that one.

The accused can, therefore, legitimately claim that the weapon

used by him has not been proved to be deadly one. In Charan

Singh Vs. The State 1988 Crl. L.J. NOC 28 (Delhi) also, 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'. What would

make a knife deadly is its design or the method of its use such

as is calculated to or is likely to produce death. It is, therefore,

a question of fact which is required to be proved by the

prosecution that the knife used by the appellant was a 'deadly

weapon' and in absence of such evidence and particularly non-

recovery of the weapon, would certainly bring the case out of

the ambit of Section 397.

7. In the present case, it is an undisputed fact that knife

used in the crime was not recovered. Prosecution has not led

any evidence to show that the knife used by the appellant was a

'deadly weapon'. In absence of evidence to this effect, in my

view, Trial Court was not right in convicting the appellant

under Section 397 IPC and his conviction under this provision

is altered to Section 392 IPC, which is a lesser offence than

Section 397 IPC.

8. The result of the above discussion is that appellant stands

convicted under Sections 392 and 457 IPC. Perusal of nominal

roll shows that appellant has remained in incarceration for

about four and a half years. Accordingly, he is awarded

sentence under both the provisions equivalent to the period he

has already remained in jail. Personal bond of the appellant is

cancelled and bail bond discharged.

9. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

MARCH 16, 2011 ga