Delhi High Court

Sandeep @ Sanjeev vs State on 28 November, 2013

Author: Siddharth Mridul

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Judgment reserved on: 25.11.2013
                                       Judgment pronounced on: 28.11.2013

CRIMINAL APPEAL No.396/2012

SANDEEP @ SANJEEV                                  ..... Appellant
                Through:                Mr. Arnayak Pathak, Advocate

                   versus

STATE                                              ..... Respondent
                            Through:    Mr. Manoj Ohri, APP

       CORAM:
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                               JUDGMENT

SIDDHARTH MRIDUL, J.

1. Appellant Sandeep @ Sanjeev, by way of the present appeal, has

assailed the judgement and order on sentence dated 29.04.2011 and

13.05.2011 respectively whereby the appellant has been convicted under

Section 397 of the Indian Penal Code, 1860 (IPC) and Section 25 of the

Arms Act, 1959. The appellant has been sentenced to Rigorous

Imprisonment for seven years under Section 397 IPC and for the offence

under Section 25 of the Arms Act, he has been sentenced to undergo RI for

one year and fine of `1000/-. In default of payment of fine, he has to further

undergo Simple Imprisonment for a period of 10 days. Both the sentences

have been directed to run concurrently and benefit of Section 428 of the

Criminal Procedure Code, 1973 („Cr.P.C.‟) has been granted to the appellant.

2. The prosecution case in brief is under:-

(i) On 22.10.2010, a PCR information was received and recorded

vide DD No. 30A. On receipt of DD No. 30A, Sub Inspector

Gaje Singh (PW-5) along with Ct. Satish (PW-4) proceeded to

Pankha Road flyover, Delhi Cantt, where complainant

Raghunath Giri (PW-2) and his associate namely Ram Pravesh

Mehto (PW-3) were present. PW-5 SI Gaje Singh recorded the

statement (Ex PW-2/A) of the complainant Raghunath Giri

(PW-2) to the effect that he and his associate Ram Pravesh

Mehto were returning to their house after delivering goods at

Sangam Vihar, Delhi. At about 11:00 PM when they reached

the middle of Pankha Road Flyover, a young boy sitting on the

slab of the flyover immediately came in front of him. The said

boy was holding a churra (knife) in his right hand and on the

point of the churra asked the complainant to part with his

belongings and removed the purse containing Rs 550/- and one

diary from the pocket of the pant of the complainant. On seeing

this, complainant‟s associate Ram Pravesh, raised alarm and

consequently the young boy along with stolen articles tried to

flee from the spot but fell on the stairs of the flyover.

Thereafter, some public persons detained the young boy at the

stairs of the flyover along with stolen belongings. The name of

the boy on enquiry was revealed as Sandeep @ Sanjiv, the

appellant herein. Complainant further stated that appellant along

with churra and purse containing `550/- and diary was handed

over to the police on their arrival at the spot.

(ii) On the basis of the statement made by Complainant Raghunath

Giri, PW-5 SI Gaje Singh prepared the rukka, proved as Ex

PW-5/A, and despatched the same through PW-4 Ct. Satish

Kumar. Thereafter, FIR No.165/2010, marked as Ex PW-1/A,

was registered with PS Delhi Cantt under Section 392 IPC.

(iii) The appellant was arrested by PW-5 SI Gaje Singh vide arrest

memo Ex PW-2/E and personal search of the appellant carried

out vide Ex PW-2/F. The churra was seized vide ExPW-2/D and

the sketch of the churra (Ex PW-4/A) was prepared at the spot.

The currency notes worth `550/- and one diary allegedly stolen

by the appellant were seized vide Ex PW-2/C.

(iv) On completion of the investigation, the appellant was charged

and sent for trial under Sections 392/397/411 IPC. The

prosecution in order to prove its case examined five witnesses.

None appeared in defence. The statement of the appellant was

recorded under Section 313 Cr.P.C. in which he pleaded false

implication and innocence.

(v) After appreciating the evidence on record, the trial court

convicted the appellant as mentioned above.

3. In the present appeal, the learned counsel for the appellant has

challenged the impugned judgments on three counts. Firstly, it has been

urged that there are material contradictions in testimonies of the two eye

witnesses namely Raghunath Giri (PW-2), the complainant himself and Ram

Pravesh Mehto (PW-3) which the Trial Court has failed to appreciate. The

Learned Counsel pointed out that PW-3 Ram Pravesh in his testimony has

stated that after being attacked with the knife by the appellant PW-2

Raghunath Giri fell unconscious. However, at a later stage in his deposition

PW-3 states that PW-2 only got frightened but was not unconscious.

Accordingly, the testimony of PW-3 deserves to be disbelieved and ignored.

Secondly, it is submitted that no public witness have been joined in

investigation or produced during the trial as witnesses to the incident. Lastly,

Counsel for the appellant has urged that charge under Section 397 IPC

cannot be sustained as the prosecution has failed to prove that the weapon

(churra) allegedly used by the appellant was a deadly weapon. In this behalf,

it is further submitted that no injuries have been caused with the said churra

and therefore, the offence would not fall within the ambit of Section 397

IPC.

4. Per contra, the Mr. Manoj Ohri, learned Additional Public Prosecutor

has submitted that there are no material discrepancies in versions deposed by

the two eye witnesses. Furthermore, the appellant was apprehended at the

spot itself and the same is proved beyond doubt by depositions of police

witnesses as well as the eye witnesses. The recovery of the churra from the

appellant has also been proved. The sketch of the churra proved as Ex PW-

4/A reveals that the length and breadth of the churra is 34cm and 5 cm

respectively. Therefore, the size of the churra as indicated by Ex PW-4/A is

sufficient to bring the said weapon within the purview of deadly weapon. As

regards charge under Section 397 IPC, the learned APP submitted that from

the language of Section 397 IPC, it is manifest that mere use of deadly

weapon is sufficient to attract a charge/conviction under Section 397 IPC and

it is not necessary for the prosecution to establish that injury was inflicted on

the victim. In this behalf, he has placed reliance on the decision of the

Supreme Court in Ashfaq vs. State (Govt. of NCT of Delhi) reported as

(2004) 3 SCC 116. The learned APP has further invited my attention to the

statement made by the appellant under Section 313 Cr.P.C. to contend that

contradictory answers have been furnished by the appellant to the questions

suggesting his presence at the spot.

5. I have heard the rival contentions and perused the record.

6. The complainant Raghunath Giri was examined before Court as PW-2.

In examination-in-chief, PW-2 supported the statement Ex PW-2/A made

before the police officials. PW-2 categorically identified the appellant as the

person who robbed him on the point of a churra. In cross examination, PW-2

stated that Ram Pravesh (PW-3) was 10-15 paces behind him when he

reached the flyover of Pankha Road. There was sufficient electricity on the

flyover. He first saw the appellant at a distance of 10 ft. The appellant after

snatching his purse stopped for two minutes and when Ram Pravesh reached

near him, the appellant was still standing by his side. The appellant was

apprehended by public. The appellant had shown churra to Ram Pravesh as

well when he reached near the spot. Ram Pravesh ran away from the spot

and raised the alarm at which public persons gathered. PW-2 categorically

denied the suggestion that the appellant was not present at the flyover and he

had not robbed his purse on the point of churra.

7. The other eye witness who deposed about the incident is PW-3 Ram

Pravesh Mehto. In examination in chief, PW-3 stated that on 22.10.2010, at

about 11:00 PM, he along with PW-2 Raghunath Giri was returning from

Sangam Vihar after delivery of goods. PW-3 stated that PW-2 was at some

distance from him as they were on two separate rickshaws. On reaching

middle of Pankha Road flyover, one boy sitting on the flyover jumped in

front of the rickshaw of PW-2. The said boy was holding a big knife which

he kept on the chest of PW-2 and asked him to take out the money. PW-3

further stated the boy took away the purse of PW-2 from back pocket of his

pant. Thereafter, PW-2 fell unconscious and when PW-3 reached near PW-2,

the boy threatened him with knife and asked him to run away. On this PW-3

raised alarm, on which some motor cyclist and car drivers stopped. 10-20

persons collected at the spot. The boy fell down on the stairs of the flyover

and was apprehended by the public and knife from the hand of the boy was

snatched. The knife was handed over to PW-3. On seeing public, PW-2

mustered courage who was earlier frightened but not unconscious. When the

police arrived at the spot, the boy along with the knife was handed over to

the police. At the instance of PW-2, the purse was recovered from the boy.

PW-3 identified the appellant as the culprit of the crime. PW-3 identified the

knife as well.

8. On being cross examined, PW-3 stated that he was seven paces behind

PW-2 and when he reached near PW-2, he saw churra in the hand of the

appellant. The appellant threatened him to run away from the spot otherwise

he would kill him. On raising alarm public gathered there and nabbed the

appellant who was in the process of fleeing away from the spot. There was

no one else beside the appellant on the flyover. The appellant along with

churra was handed over to the police officials on their arrival.

9. I have gone through the testimony of PW-2 Raghunath Giri and PW-3

Ram Pravesh. In my opinion PW-2 and PW-3 have given a graphic

description about the manner in which the incident took place. Their

testimonies are credible and trustworthy as no significant contradiction has

emerged in their cross-examination either. The ocular testimonies of the both

witnesses unerringly point towards the fact that the appellant robbed PW-2

by using a churra on the 22.10.2010. Thus, testimonies of both the eye

witnesses establish beyond reasonable doubt that the appellant is the

perpetrator of the crime in question. The contention raised by the Counsel

appearing on behalf of the appellant regarding material discrepancies in

statements of PW-2 and PW-3 deserves to be rejected. There are no material

contradictions or inconsistencies in their testimonies. Minor discrepancies

are bound to occur. The Supreme Court in Sunil Kumar Sambhudayal

Gupta (Dr.) vs. State of Maharashtra, (2010) 13 SCC 657 while dealing

with the issue of minor inconsistencies in testimonies of witnesses held as

under:-

"Material contradictions:-

30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan [(2008) 17 SCC 587: (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] .)"

Therefore, it is settled law that witnesses are not required to depose in

a parrot-like manner and minor variations in testimonies of eye witnesses

which do not go to the root of the prosecution version cannot be a ground to

throw out the entire prosecution case. Furthermore, there is no evidence to

suggest that the two witnesses bore any ill-will or spite towards the appellant

so as to falsely implicate him in a criminal offence. It may be true that PW-3

Ram Pravesh has in early part of his statement stated that PW-2 fell

unconscious after the incident from which he retracted later on. But

according to me this is not a material contradiction which shakes the core

prosecution case. The deposition of PW-3 was recorded nearly six months

after the incident. Human memory is not infallible and it tends to fade away

with time. In any case it is a minor inconsistency which cannot be made the

ground to reject the entire prosecution version. It is also relevant to note that

the appellant was arrested at the spot along with the knife and stolen articles.

The same is proved beyond reasonable doubt by testimonies of police

officials namely PW-5 SI Gaje Singh and PW-4 Ct. Satish. I have gone

through their depositions and find the same to be reliable. No material

contradictions have been cited in this behalf. Therefore, in view of above, it

can be concluded without reasonable doubt that the appellant was the author

of the crime alleged.

9. As regards the contention of non-joining of public witnesses during

investigation, it is noted that the Supreme Court in a number of decisions has

held that members of public do not want to be dragged into criminal trials

because of the protracted nature of such trials and undue harassment and

therefore, non joining of public witnesses would not be fatal to the

prosecution case in case testimonies of police witnesses/eye witnesses

otherwise inspire confidence and are worthy of credence.

10. Now adverting to the contention regarding use of deadly weapon, it is

pertinent to note that in Charan Singh vs. The State 1988, Crl. L.J. NOC

28 (Delhi) it was held that in order to bring home a charge under Section 397

IPC, the prosecution must produce convincing evidence that the knife used

by the accused was 'deadly weapon'. What would make a 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 which is required to be proved by the

prosecution that the knife used by the appellant was a 'deadly weapon' and in

absence of such evidence and particularly non- recovery of the weapon,

would certainly bring the case out of the ambit of Section 397. In the case at

hand there is ample evidence of the fact that knife alleged to be used by the

appellant was not a small pen knife. In fact, PW-3 Ram Pravesh has testified

to the effect that the appellant was holding a „big‟ knife. The sketch of the

knife Ex PW-4/A shows its length as 34 cm and it has got a blade of 5cm.

Thus, from the size of the knife it is apparent that if such a knife is used to

cause injuries on vital parts of the body, it can definitely produce injuries

sufficient to cause death. In view of above discussion, the prosecution has

successfully established that the weapon of offence recovered from the

appellant would fall within the ambit of a deadly weapon.

11. The last contention that the knife in question was not used by the

appellant as no injuries have been caused to the complainant victim cannot

be sustained. In Ashfaq vs. State (Govt. of NCT of Delhi), (2004) 3 SCC

116, the Supreme Court while interpreting the word „uses‟ employed in

Section 397 IPC has held as under:-

7. So far as the contention urged as to the applicability of Section 397 IPC and the alleged lack of proof of the necessary ingredients therefor is concerned, it proceeds, in our view, upon a misconception that unless the deadly weapon has been actually used to inflict any injury in the commission of the offence as such, the essential ingredient to attract the said provision could not be held to have been proved and substantiated. We are of the view that the said claim on behalf of the appellants proceeds upon too narrow a construction of the provision and meaning of the word "uses" found in Section 397 IPC. As a matter of fact, this Court had occasion to deal with the question in the decision reported in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] and it was observed as follows: (SCC p. 800, para 6)

"6. Section 398 uses the expression „armed with any deadly weapon‟ and the minimum punishment provided therein is also seven 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 seven 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 at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery."

8. Thus, what is essential to satisfy the word "uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.

(Underlining added)

Thus, from the ratio in Ashfaq (supra), it is clear that for the purpose

of attracting Section 397 IPC actual use of the deadly weapon is not

required. Even brandishing and showing the deadly weapon so as to instil

fear and threat in the mind of the victim so that he does not resist, fearing

danger, is sufficient. In the present appeal, both the eyewitnesses have stated

with conviction that the appellant threatened PW-2 Raghunath Giri to part

with his belongings at knife point which frightened and terrorised him.

Therefore, from the ocular evidence of PW-2 Raghunath Giri and PW-3 Ram

Pravesh it is established beyond any doubt that the appellant in committing

robbery used a knife which was a deadly weapon in the instant case.

Therefore, the appellant has been rightly convicted and sentenced under