Delhi High Court
Gulab @Bablu vs The State (N.C.T.Of Delhi) on 16 July, 2012
Author: A. K. Pathak
$~26
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 515/2010
% Decided on: 16th July, 2012
GULAB @BABLU ..... Appellant
Through: Ms.Saahila Lamba, Adv.
versus
THE STATE (N.C.T.OF DELHI) ..... Respondent
Through: Mr. Mukesh Gupta, APP
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (Oral)
1. Appellant has been convicted under Section 394 read with
Section 397 of the Indian Penal Code, 1860 (for short "IPC");
sentenced to face rigorous imprisonment of 7 years with fine of
Rs.1,000/- and in default of payment of fine to undergo simple
imprisonment for 30 days, by the trial court.
2. Aggrieved by his conviction as also the quantum of sentence
as awarded by the trial court, appellant has preferred this appeal.
3. During the course of hearing, counsel for the appellant has
only canvassed a short point for consideration, that is, ingredients of
offence under Section 397 IPC are not disclosed in the facts of this
case, since the prosecution had failed to lead any evidence to show
that the knife, used in the commission of crime was a „deadly
weapon‟. Thus, it is contended that the conviction of appellant
under the said provision be set aside. As regards conviction of the
appellant under Section 394 IPC, challenge to the same has been
given up.
4. As per the prosecution, appellant along with his co-accused
Gautam Chand had robbed the victim Harjinder Singh of his purse
containing `1800/- together with certain documents and fled away.
Later on, appellant was arrested and pursuant to his disclosure
statement `160/- out of the robbed money as well as documents
which were there in the purse had been recovered. Knife, used in
the commission of crime, could not be recovered despite the best
efforts made by the Investigating Officer. Victim sustained simple
injuries on his thigh during the robbery.
5. PW-3 Harjinder Singh has supported the prosecution story.
He has deposed that the appellant took the knife from his co-
accused and attacked him as a result he had sustained injury on his
thigh. Appellant and co-accused took away his purse containing
`1800/- cash and some other documents. PW-3 has neither given
any dimension, shape and size of the knife nor has deposed that the
same was a "deadly weapon". PW-7 SI Umesh Kumar is the first
Investigating Officer. He had recorded the statement of Harjinder
Singh and got the FIR registered. He also prepared the site plan.
However, subsequently investigations were transferred to ASI
Dilbagh Singh, who has been examined as PW-6. He has deposed
about the arrest of appellant and proved the recovered items, that is
one red coloured purse, `160/- cash and certain other papers
including the visiting cards. PW-6 has not deposed about the
recovery of knife, inasmuch as, no other witness has been produced
to state that the knife used in the commission of crime was
recovered or that the same was a deadly one.
6. From the evidence adduced by the prosecution it is clear that
knife used in the commission of crime had not been recovered from
the appellant. Dimension, shape and size of the knife has also not
been given by any of the witnesses nor any one of them has deposed
that the same was a deadly one.
7. Section 397 IPC reads as under:-
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.
8. A perusal of the aforesaid provision makes it clear that if an
offender at the time of committing robbery or dacoity, uses any
deadly weapon or causes grievous hurt 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. This
provision prescribes minimum sentence which shall be handed
down to such an offender. In this case neither the victim has
sustained grievous hurt nor there is an evidence that attempt was
made to cause death or grievous hurt to the victim nor is there any
evidence to show that the knife used at the time of committing
robbery was a "deadly weapon". Simple injuries have been
sustained by the victim on his thigh.
9. In Charan Singh Vs. The State, 1988 Crl. L.J. NOC 28
(Delhi), Single Judge has held as under:-
"At the time of committing dacoity one of
the offenders caused injury by knife on the
hand of the victim but the said knife was not
recovered. In order to bring home a charge
under S.397, the prosecution must produce
convincing evidence that the knife used by
the accused was a deadly weapon. What
would make 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 to be proved by the
prosecution that the knife use by the accused
was a deadly weapon. In the absence of
such an evidence and particularly, the non-
recovery of the weapon would certainly
bring the case out of the ambit of S.397.
The accused could be convicted under
S.392."
10. In Samiuddin @ Chotu vs. State of NCT of Delhi 175 (2010)
Delhi Law Times 27, a Bench of co-ordinate jurisdiction has held
that when a knife used in the commission of crime is not recovered
the offence would not fall within the ambit of Section 397 IPC. In
Rakesh Kumar vs. The State of NCT of Delhi 2005(1) JCC 334
and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC
388, it was observed that in the absence of recovery of the knife
used by the appellant at the time of commission of robbery charge
under Section 397 IPC cannot be established.
11. In the present case, indubitably the knife used for
commission of crime was not recovered. Accordingly, in my view,
appellant could not have been sentenced under Section 397 IPC and
Trial Court has erred on this point.
12. For the foregoing reasons, while upholding the conviction of
the appellant under Section 394 IPC his conviction under Section
397 is set aside.
13. Appellant is in incarceration for about five years. As
appellant‟s conviction under Section 397 has already been set aside,
in the facts and circumstances of this case, the sentence of the
appellant is reduced to the period he has already undergone. He be
released forthwith if not wanted in any other case.
14. Copy of the order be sent to Superintend Jail for serving it on
the appellant as also for compliance.
A.K. PATHAK, J.
JULY 16, 2012
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