Delhi High Court
Ravinder Kumar Thakur vs State on 30 January, 2013
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 30th January, 2013
+ CRL.A.377/2007
RAVINDER KUMAR THAKUR ....Appellant
Through: Mr.Bhupesh Narula, Advocate.
versus
STATE ...Respondent.
Through: Mr.M.N.Dudeja, APP for the State.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)
1. The present appeal has been filed by the appellant-Ravinder
Kumar Thakur against the judgment dated 19.12.2006 and order on
sentence dated 21.12.2006 of learned Sessions Judge by which he was
convicted for committing offence punishable under Section 392/394/34
IPC read with Section 397 IPC and sentenced to undergo rigorous
imprisonment for five years each under Section 392/394 IPC and rigorous
imprisonment for seven years under Section 397 IPC.
2. Allegations against the appellant were that on 17.09.2004 at
about 11:50 P.M. at House No.1-E, Northern Road, Civil Lines, Delhi, he
along with co-convict Arjun Mandal committed robbery and caused
injuries to Smt.Anita Mukeem and fled away with robbed jewellery. The
prosecution examined 14 witnesses. Statement of the accused was
recorded under Section 313 Cr.P.C. and he pleaded false implication.
After appreciating the evidence and rival contentions of the parties the
appellant and co-convict Arjun Mandal were sentenced as mentioned
previously.
3. During the course of arguments, the learned counsel for the
appellant, on instructions, stated that the appellant was not challenging the
findings of the Trial Court on conviction under Section 392/394 IPC. He,
however, argued that no offence under Section 397 IPC was proved
against the appellant as he was not armed with any deadly weapon.
4. I have considered the submissions of the learned Additional
Public Prosecutor and the counsel for the appellant. Since the appellant
has not opted conviction under Section 392/394/34 IPC, the findings of
the Trial Court on conviction are affirmed.
5. Regarding conviction under Section 397 IPC, there is force in
the plea of the counsel for the appellant. Admittedly, the appellant was
not armed with any weapon at the time of occurrence. He did not use any
arms to cause injuries to the victim. From the very inception the
prosecution case was that knife was used by co-convict-Arjun Mandal and
he inflicted injuries to the complainant during the process of committing
robbery. Charge under Section 397 IPC was framed only against co-
convict-Arjun Mandal. The complainant and other witnesses in the court
did not state if the appellant caused injuries with knife. In the statement
under Section 313 Cr.P.C. nothing was put to him that the knife was used
by him to commit robbery.
6. Since the appellant did not 'use' any deadly weapon his
conviction under Section 392/394 read with Section 397 cannot be
sustained. Section 397 IPC does not create any substantive offence. It
merely prescribes a minimum sentence of seven years if any deadly
weapon is used during the commission of robbery or dacoity. Minimum
sentence of seven years is to be awarded to the person who uses the
deadly weapon. The appellant was sentenced to undergo rigorous
imprisonment for five years each for committing offence under Section
392/394 IPC. He was also sentenced under Section 397/34 IPC to
undergo RI for seven years. Since the appellant did not 'use' the deadly
weapon, separate conviction/sentence under Section 397/34 IPC to
undergo RI for seven years cannot be sustained. Nominal roll dated
10.02.2011 reveals that the appellant has already undergone the sentence
awarded to him. The fine has already been deposited and he has since
been released on 19.06.2010 on completion of his sentence. The appeal
though filed in the year 2007 could not be taken up for disposal earlier.
7. In the light of the above, the conviction and sentence of the
appellant under Section 392/394/34 IPC is maintained. However,
conviction and sentence under Section 397 IPC is set aside.
8. The appeal is disposed of in the above terms.
(S.P.GARG)
JUDGE
January 30, 2013
sa
