Kalu @ Saleem vs State
2012 Latest Caselaw 7178 Del

$~17/18
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 1431/2011
                                     Decided on 14th December, 2012
       KALU @ SALEEM                                   ..... Appellant
                         Through     :Mr. K. Singhal and Mr. Siddharth
                                     Mittal, Advs.
                         Versus
       STATE                                           ..... Respondent
                         Through     : Mr. Mukesh Gupta, APP


                                  AND
+      CRL.A. 1306/2010
       SONU                                            ..... Appellant
                         Through     :Mr. A.J. Bhambhani and Ms.
                                     Lakshita Sethi, Advs.
                         Versus
       STATE                                           ..... Respondent
                         Through     : Mr. Mukesh Gupta, APP
       CORAM:
       HON'BLE MR. JUSTICE A.K. PATHAK

       A.K.PATHAK, J. (ORAL)

1. Arguments heard. Trial court record perused.

2. The only point canvassed during the course of hearing is that the

ingredients of offence under Section 397 IPC are not attracted against the

appellants, who have been convicted under Sections 120-B, 395 and 397

IPC. During the course of hearing, conviction of the appellants under

Sections 120-B and 395 IPC has not been assailed on merits.

3. In brief, prosecution case, as set out in the charge-sheet, is that

victim Ashok Kumar was going with his servant Raj Kumar in a Santro

car driven by his driver Mahender (co-accused) on 25th July, 2007 at

about 7:50 PM. He was returning home from his shop. Car was stopped

at Malka Ganj Petrol Pump for fuelling. Thereafter Mahender started the

vehicle but again stopped it after about 4/5 steps on the pretext of

wearing the seat belt. In the meanwhile, appellants alongwith their co-

accused forcibly gained entry through the rear doors. Kalu was having a

knife in his hand; while appellant Sonu and his co-accused were having

country made pistols. They asked the driver to take the vehicle to Alipur

bypass, where the vehicle was stopped and `20,000/- to `25,000/- and

other articles were robbed from the victim. Thereafter victim and his

servant Raj Kumar were forced to get down from the vehicle. Battery of

the mobile phone (number 9810212250) of the victim was removed to

see that same is not used by the victim. Thereafter, appellants and their

co-accused took Mahender with them along with the vehicle. During the

investigation, co-accused Hari Om was apprehended, who disclosed the

names of appellants and other co-accused. It was further revealed that

Mahender had also conspired with other co-accused to rob the victim

which plan was executed on 25th July, 2007.

4. Appellants surrendered in Court on 25th August, 2007.

Subsequently their police custody was obtained. Nothing was recovered

from Sonu. However, Kalu got recovered a knife and one television,

which he had allegedly purchased from the robbed money.

5. I need not to discuss the evidence adduced by the prosecution with

regard to the offences under Sections 120-B and 395 IPC, since challenge

to the conviction of the appellants under the said provisions has been

given up during the hearing. Only question which needs to be considered

is whether the ingredients of offence under Section 397 IPC have been

made out in this case or not.

6. Section 397 IPC provides that 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. Meaning thereby Section 397 IPC envisages

minimum sentence to be awarded to an offender who uses „deadly

weapon‟ while committing robbery. It is only such offender, who uses

the deadly weapon can be handed down the minimum sentence as

envisaged under Section 397 IPC and not the other accused

accompanying such accused.

7. In respect of knives a Single Judge of this Court in Mohan Singh

vs. State 1987 (13) DRJ 176 has held thus, "In order to bring home a

charge under Section 397 the prosecution is duty bound to produce

convincing evidence that the knife used by the accused in this case was a

deadly weapon, it is no doubt true that knives are deadly weapons

available in various sizes and may just cause little hurt or maybe the

deadliest. There are deadly weapons per se such as would ordinarily

result in death by their use. M.L. Jain, J. in the case of Balak Ram v.

State 1983 DLT 142 on this aspect observed that what would make a

knife deadly is its design and method of its use such as is calculated to or

is likely to produce death. It is, therefore, a question of fact to be proved

and prosecution should prove that the knife used the accused was a

deadly weapon. Applying the said principle in the facts of the present

case I find that there is not an iota of evidence on record to suggest that

the knife used by the accused was a deadly weapon. Even Sham Lata

Goel has not given its description. We are probably in the dark to

conclude if the knife was buttondar knife, a kitchen knife or a pen knife

or the knife used could possibly cause the death of the victim, in the

absence of such an evidence and particularly the non-recovery of the

weapon will certainly bring the case of the accused out of the ambit of

Section 397 Indian Penal Code." Similar is the view expressed in Shri

Bishan vs. State (Delhi) 1984 (1) Crimes 883." It may also be noted that

whether a knife is „deadly‟ or not is a matter of fact which requires to be

proved by leading positive evidence and in this case no such evidence has

been led.

8. As regards appellant Sonu, no knife has been recovered at his

instance nor was the same put on the person of victim by this appellant.

Accordingly, it cannot be said that appellant Sonu had used any knife or

that the same was a „deadly weapon‟. Admittedly, no injury was caused

to the victim nor in his statement he has stated that an attempt was made

to cause grievous injury to him by using „deadly weapon‟. In the FIR,

PW1 has not even stated that any knife or country made pistol was used.

According to him only one chain, which is used for tying the dog, was

used to threaten him. Be that as it may, since nothing has been recovered

from the appellant Sonu, it cannot be said that he had used a „deadly

weapon‟ in commission of offence.

9. As regards appellant Kalu, PW1 while deposing in the witness box

has categorically stated that he had entered through the right door of the

car. PW1 has further stated that two persons, who had entered from left

door of the car, had used katta, knife and chain, though there is no

mention about the katta and knife in the FIR. As regards Kalu, he has not

even whispered a single word that he used either a knife or a katta.

Accordingly, alleged recovery of knife after one month of the incident

will not be enough to show that he had used the knife while committing

dacoity along with his co-accused.

10. Accordingly, I acquit both the appellants under Section 397 IPC.

Conviction of appellant Kalu under Sections 25/27 of the Arms Act, 1959

is also set aside, since evidence in this regard is suspicious and

insufficient to conclude beyond the shadow of reasonable doubt that he

got recovered the knife after his police custody was obtained, in the

manner as it has been projected. As regards their conviction under

other provisions is concerned, same is affirmed.

11. As regards sentences of the appellants are concerned, they have

already remained in jail for about six years. Kalu has a family, which is

dependent upon him, inasmuch as his father is handicapped and has

children of tender age. Jail conduct of the appellants is also satisfactory.

Keeping in mind totality of the circumstances, sentences of the appellants

under Section 120-B IPC as well as Section 395 IPC are reduced to the

period already undergone by them.

12. Appellants be released from jail forthwith unless required in any

other case.

13 Copy of the order be sent to the Jail Superintendent for serving it

upon the appellants as also for compliance.

14. Both the appeals are disposed of in the above terms.

A.K. PATHAK, J.

DECEMBER 14, 2012 rb