Pramod Kumar vs State Of Nct Of Delhi
2012 Latest Caselaw 4559 Del

$~20
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. A. No. 391/2010

%                               Decided on: 1st August, 2012

       PRAMOD KUMAR                                ..... Appellant
                  Through              : Mr.Sumeet Verma, Adv.

                      versus

       STATE OF NCT OF DELHI                       ... Respondent
                     Through           :Mr. Mukesh Gupta, APP

A.K. PATHAK, J. (Oral)

1. Appellant has been convicted under Section 393 IPC read

with Section 398 Indian Penal Code, 1880 ("IPC", for short) as also

under Section 25 of the Arms Act, 1959 (for short hereinafter

referred to as „the Act‟) by the trial court and has been sentenced to

undergo rigorous imprisonment for 7 years with fine of `500/- and

in default of payment of fine, to undergo simple imprisonment of

two months under Section 393 IPC read with Section 398 IPC;

Sentenced to undergo rigorous imprisonment for 3 years with a fine

of `300/- and default of payment of fine to undergo simple

imprisonment for one month under Section 25 of the Act. All the

sentences have been directed to run concurrently. Benefit of

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

2. Aggrieved by his conviction as also the quantum of sentence

handed down to him by the trial court, appellant has preferred this

Appeal.

3. In brief, prosecution case as unfolded is that on 5th

September, 2008 at about 9.30 a.m., appellant took out mobile

phone from the pocket of PW-2, Radhey Shyam, while travelling in

a DTC bus near C-Lal Chowk, PW-2 caught hold of the hand of

appellant when appellant took out a knife his pant‟s pocket from

his right hand. At that stage, with the help of a co-passenger PW-3

Rajesh Maurya, knife was snatched and appellant was apprehended

by the public persons who also gave beatings to him. On search of

the appellant one Giraridar knife was also recovered. Police was

informed and the appellant was handed over to police. Thereafter,

Investigating Officer prepared the sketch of knives and sealed them

in a pullanda.

4. Learned counsel for the appellant has not pressed this appeal

against the conviction of appellant under Section 393 IPC and

Section 25 of the Act. His only contention is that the offence under

Section 398 IPC is not made out in the facts of this case since knife

was not used in the commission of crime. He has contended that

neither the PW-2 nor PW-3 have deposed that appellant had used

the knife and attempted to cause injury on their person in order to

make good his escape. Though language used in Section 398 is

"armed with any deadly weapon" but the use of expression "armed"

has to be read in relation to the use of a „deadly weapon‟ in

connection with commission of an offence of robbery and docoity.

Reliance has been placed on Phool Kumar vs. Delhi

Administration, AIR 1975 Supreme Court 905, Ashfaq vs. State

2003 (Supp.6) SCC 619 and Madan Lal vs. State (Delhi

Administration) 1997 (70) DLT 595.

5. I have perused the statements of PW-2 and PW-3 carefully

and find that neither PW-2 nor PW-3 has made any reference with

regard to the use of knife by the appellant either for snatching the

mobile phone or for making good his escape. PW-2 has deposed

that the appellant took out his mobile phone from the pocket of his

shirt by left hand; he immediately caught hold of his hand on which

accused/appellant took out a knife from the pocket of his pant by

his right hand at which he shouted and two persons, out of which

one was Rajesh Maurya held him and snatched the knife from his

hand and thereafter public persons apprehended him. PW-3 has

also deposed that the accused took out mobile phone from the shirt

pocket of PW-2 Radhey Shyam at which Radhey Shyam caught

hold of the hand of accused and thereafter accused tried to take out

something from his pocket by his right hand which was a buttondar

knife but Radhey Shyam apprehended the accused. From the hand

of accused mobile phone belonging to Radhey Shyam was

recovered and on checking of accused one another knife was also

recovered from the back pocket of his pant. Statements of PW-2

and PW-3 clearly indicates that the appellant had neither opened the

knife nor tried to use the same either for taking out the mobile

phone or making good his escape. From the statements of PW-2

and PW-3 it appears that the appellant was armed with two knives.

He tried to take out one knife but did not open it nor he attempted to

injure anyone.

6. Section 398 IPC prescribes minimum sentence with which an

offender has to be punished if he is armed with any deadly weapon

at the time of attempting to commit robbery or dacoity.

Punishment so prescribed is not less than seven years. The

expression used in Section 398 is "armed with any deadly weapon".

In Phool Kumar‟s (supra) Supreme Court has held thus "Section

398 uses the expression "armed with any deadly weapon" and the

minimum punishment provided therein is also 7 years if at the time

of attempting to commit robbery the offender is armed with any

deadly weapon. This has created an anomaly. It is unreasonable to

think that if the offender who merely attempted to commit robbery

but did not succeed in committing it attracts the minimum

punishment of 7 years under Section 398, if he is merely armed

with any deadly weapon, while an offender so armed will not incur

the liability of the minimum punishment under Section 397 if he

succeeded in committing the robbery. But then, what was the

purport behind the use of the different words by the Legislature in

the two sections, viz, "uses" in Section 397 and "is armed" in

Section 398. In our judgment the anomaly is resolved if the two

terms are given the identical meaning. There seems to be a

reasonable explanation for the use of the two different expressions

in the sections. When the offence of robbery is committed by an

offender being armed with a deadly weapon which was within the

vision of the victim so as to be capable of creating a terror in his

mind, the offender must be deemed to have used that deadly

weapon in the commission of the robbery. On the other hand, if an

offender was armed with a deadly weapon was not put to any

fruitful use because it would have been of use only when the

offender succeeded in committing the robbery". In Ashfaq (supra)

principles laid down in Phool Kumar‟s case have been followed

with approval.

7. In Madan Lal (supra) a Single Judge of this Court in relation

to Section 397 has held that in case knife is not used for the purpose

of commission of offence ingredients of Section 397 IPC are not

attracted.

8. In this case, since prosecution has failed to prove beyond the

shadow of reasonable doubt that the appellant had used the knife for

the purpose of commission of offence, therefore, it cannot be said

that offence under Section 398 IPC is made out. Accordingly,

conviction of appellant under Section 398 IPC is set aside while

upholding his conviction under Section 393 IPC. Conviction of

appellant under Section 25 of the Arms Act is also upheld since

knives were recovered from his possession.

9. A perusal of nominal roll indicates that the appellant has been

in jail for the last about five years which includes period of

remission. In the above facts and circumstances, sentence of the

appellant under Section 393 IPC is reduced to the period already

undergone, with the result that appellant is entitled to be released

forthwith. Thus, it is ordered that the appellant be released

forthwith in case he is not wanted in any other case.

10. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

AUGUST 01, 2012 ps