Sonu @ Chhotu vs The State (Govt Of Nct0 Of Delhi
2012 Latest Caselaw 6564 Del

$~5 & 6
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 1089/2010
                                      Decided on 16th November, 2012
      SONU @ CHHOTU                                     ..... Appellant
                  Through:            Mr. Ajay Verma, Adv.

                         versus

      THE STATE (GOVT OF NCT0 OF DELHI            ..... Respondent
                       Through: Ms. Fizani Hussain, APP
                               AND
      CRL.A. 1508/2011

      HORI LAL                                         ..... Appellant
                         Through:     Mr. A.J. Bhambhani and Ms. Nisha
                                      Bhambhani, Advs.
                         versus

      THE STATE (GOVT OF NCT0 OF DELHI         ..... Respondent
                    Through: Ms. Fizani Hussain, APP

      CORAM:
      HON'BLE MR. JUSTICE A.K. PATHAK


% A.K.PATHAK, J. (ORAL)

1. Both the above noted appeals arise out of the same incident, FIR and

judgment, thus, are being disposed of together.

2. Trial court has convicted the appellants under Sections 392/394 read

with Section 34 IPC. Appellant Hori Lal has been convicted under Section

397 IPC also. Appellants have been sentenced to undergo rigorous

imprisonment for seven years with fine of Rs.2,000/- each and in default of

payment of fine to undergo rigorous imprisonment for six months for the

offence under Section 392 IPC read with Section 34 IPC. Appellant Hori

Lal has further been sentenced to undergo rigorous imprisonment for seven

years for the offence under Section 397 IPC.

3. Aggrieved by their conviction as also the sentences, as awarded by the

trial court, appellants have preferred above said appeals.

4. Prosecution story, as emerges from the record, is that on 12th October,

2008 complainant Babu Lal Mishra S/o Radhy Shyam (PW4) alongwith eye

witness Babu Lal Pal S/o Beche Lal Pal (PW8) was carrying on three

bundles of jeans on a cycle rickshaw from Shastri Park to the factory of their

owner, in the evening. At about 8.30 pm when they reached near Shahdara

Flyover, G.T. Road in front of Mansarovar Park one auto rickshaw

intercepted them. Three boys got down from the said auto rickshaw and

asked PW4 Babu Lal Mishra and PW8 Babu Lal Pal to run away after

leaving their cycle rickshaw loaded with bundle of jeans. When PW4 and

PW8 refused to obey their command Hori Lal, whose name was disclosed

after he was apprehended, showed a knife to PW8 Babu Lal Pal and

threatened to stab on his abdomen in case he offered any resistance.

Appellant-Hori Lal also snatched mobile phone of PW4 and handed over the

same to his accomplices. Thereafter, PW8 Babu Lal Pal along with one

bundle of jeans was dumped in the auto rickshaw and taken away by Kamal

and Mobin, whose names were disclosed after they were apprehended. As

regards cycle rickshaw, Hori Lal and Sonu @ Chhotu took away with them.

PW4 Babu Lal Mishra raised alarm "bachao bachao" at which PW2 HC

Ram Pal and PW3 Const. Virender Singh, who were on patrolling duty,

came there and apprehended Hori Lal and Sonu @ Chhotu. Cycle rickshaw

and two bundles of jeans were also recovered. Knife was recovered from

Hori Lal.

5. As regards Kamal he has been acquitted by the trial court since he

was not identified by PW4 Babu Lal Mishra and PW8 Babu Lal Pal. Trial

court did not find enough evidence on record regarding complicity of

Mobin in the offence of robbery. However, he has been convicted under

Section 411 IPC and it appears that he has not filed appeal against his

conviction. Thus, their roles are not discussed in these appeals.

6. In my view, prosecution has succeeded in proving its case against the

appellants Hori Lal and Sonu @ Chhotu as regards offence of robbery is

concerned, thus, their conviction under Sections 392/34 IPC cannot be found

faulted with. PW4 Babu Lal Mishra and PW8 Babu Lal Pal have fully

corroborated the prosecution story as regards robbery is concerned, they

have deposed in unison that they were carrying three bundles of jeans from

Shastri Park to Shaheed Nagar, Dharamshala Building, UP in a cycle

rickshaw. PW8 Babu Lal Pal was pulling the cycle rickshaw while PW4

Babu Lal Mishra was sitting on the bundles of jeans loaded thereon and

when they reached near Shahdara Flyover on G.T. Road, one auto rickshaw

intercepted them. Hori Lal, Sonu @ Chhotu and their accomplices got down

from the said auto rickshaw and asked them to run away after leaving their

rickshaw loaded with jeans. Their third accomplice lifted one bundle of

jeans from the cycle rickshaw and kept it in the auto rickshaw; PW8 was

also forced to sit in the auto rickshaw and thereafter they went away from

there while Hori Lal and Sonu snatched the cycle rickshaw loaded with

remaining two bundles of jeans and tried to escape. On PW4 raising alarm,

HC Ram Pal and Cont. Virender Singh, who happened to be present in the

area, apprehended Hori Lal and Sonu along with bundles of jeans and cycle

rickshaw. Statements of PW4 and 8 have remained unshattered on the

material points with regard to the incident is concerned. Accordingly,

conviction of appellants under Section 392 read with Section 34 IPC is

upheld.

7. As regards offence under Section 394/34 IPC is concerned, the same

is not attracted in this case. It is not the prosecution case that the appellants

or their accomplices had caused any hurt to the complainant and eye witness

in any manner whatsoever. PW4 and PW8 have also not deposed in this

regard. Neither PW4 nor PW8 have disposed that the appellants or their

accomplices had caused any injuries on their person, inasmuch as, neither

MLC has been placed on record nor has been proved. Section 394 IPC

envisages that if any person, in committing or in attempting to commit

robbery, voluntarily causes hurt, such person, and any other person jointly

concerned in committing or attempting to commit such robbery, shall be

punished with imprisonment for life, or with rigorous imprisonment for a

term which may extend to ten years, and shall also be liable to fine. Section

394 IPC is attracted against an accused or his co-accused only if hurt is

caused while committing robbery or in attempting to commit robbery and

not otherwise. In this case, prosecution has failed to prove that any hurt was

caused to the victims, thus, ingredients of offence under Section 394 IPC are

not attracted in this case. Accordingly, conviction of the appellants under

Sections 394/34 is set aside.

8. The next question which needs attention is as to whether ingredients

of offence under Section 397 IPC are attracted against Hori Lal. 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. Section 397 IPC prescribes minimum sentence of seven years only to

such accused who uses "deadly weapon" in committing robbery or docoity

or attempting to commit robbery or causes or attempts to cause grievous

hurt. It is only against such person who uses the "deadly weapon"

ingredients of Section 397 IPC gets attracted. In the peculiar facts of this

case ingredients of Section 397 IPC are not attracted against Hori Lal firstly

for the reason that the recovery of knife from Hori Lal is doubtful as in his

personal search memo Ex. PW3/A there is no mention of any knife having

been recovered from him. As per the prosecution, PW2 HC Ram Pal had

taken search of Hori Lal and the knife was recovered from his belt.

However, Jamatalashi mentions only about recovery of mobile phone and

purse. Secondly, none of the witness has deposed that the knife allegedly

recovered from Hori Lal was a "deadly weapon". Whether a knife is a

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

prosecution and in absence of any such evidence particularly, non-recovery

of weapon, would certainly bring the case out of the ambit of Section 397

IPC.

9. In Rakesh Kumar Vs. State of NCT of Delhi 2005 (1) JCC 334, a

Single Judge of this Court has held that there are knives of hundreds of type

available in different length and width. All the knives cannot be graded as

"deadly weapon" within the meaning of Section 397 IPC. It is the length,

shape and the manner of use which makes a knife "deadly weapon". In

Sunil @ Munna Vs. The State 2010 (1) JCC 388, this Court has held that in

the event of recovery of knife being doubtful accused is entitled to benefit of

doubt with regard to offence under Section 397. In Charan Singh Vs. State

1998 Crl. L.J. NOC 28 (Delhi), 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. In order to

prove the offence under Section 397 IPC the prosecution must establish:- i)

commission of robbery or dacoity; ii) that the accused used the deadly

weapon; or caused grievous hurt; or attempted to cause death or grievous

hurt and iii) the above acts were done during the commission of robbery or

dacoity. In this case, prosecution has failed to lead any evidence to show

that Hori Lal had used the "deadly weapon" while committing robbery, thus,

in my view, ingredients of offence under Section 397 IPC are not attracted

in this case. In the absence of necessary ingredients that have not been

established by the prosecution, conviction of Hori Lal under Section 397

IPC cannot be sustained and is set aside.

10. Now, coming back to the sentences awarded to the appellants under

Section 392 IPC is concerned, a perusal of their nominal roll shows that they

are in jail for over four years and their conduct in jail is fairly good.

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

are reduced from seven years to the period already undergone by them.

Appellants be released from jail forthwith if not wanted in any other case.

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

upon the appellants as also for compliance.

12. Both the abovereferred appeals are disposed of in the above terms.

A.K. PATHAK, J.

NOVEMBER 16, 2012 ga