Delhi High Court

Vikram @ Ganja vs State on 17 February, 2014

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                RESERVED ON : January 29, 2014
                                DECIDED ON : February 17, 2014

+      CRL.A. 623/2012
       VIKRAM @ GANJA                          ..... Appellant
                   Through : Mr.V.K.Shukla, Advocate.
                          versus
       STATE                                          ..... Respondent
                          Through : Mr.Lovkesh Sawhney, APP for the
                                   State.
        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. This appeal has been preferred by Vikram @ Ganja to

challenge the legality of a judgment dated 30.03.2012 in Sessions Case

No.122/11 arising out of FIR No.158/07 registered at Police Station Civil

Lines by which he and his associates were held perpetrators of the crime

under Section 395/397 IPC. By an order dated 03.04.2012, he was

awarded RI for seven years with fine ` 5,000/- under Section 395 read

with Section 397 IPC and in default of payment of fine to further undergo

SI for five months.

2. The prosecution case, in brief, as projected in the charge-

sheet is that on 26.06.2007 at about 3.15 a.m., at outer ring road, near

CNG Pump, Chandgiram Akhara, Delhi, the appellant and his associates

Sameer @ Sonu, Raj Kumar, Ashok Kumar and Amit @ Bouncer in

furtherance of common intention committed decoity of 28 bags of plastic

raw material loaded in a Tempo No.DL-1LH-4864 from the possession of

its driver Jahangir Ali. It was further alleged that Vikram @ Ganja used a

knife while committing decoity. Saleem @ Khan was found in

possession of 28 bags filled with plastic raw material which he received or

retained knowing or having reasons to believe to be robbed / stolen

property. During the course of investigation, statements of witnesses

conversant with the facts were recorded. After completion of

investigation a charge-sheet was filed against all of them except Amit @

Bouncer who faced proceedings before Juvenile Justice Board. The

accused persons were duly charged and brought to trial. The prosecution

examined fourteen witnesses. In 313 statement, the accused persons

pleaded false implication and denied their complicity in the crime. The

trial resulted in their conviction under Section 395/397 IPC. It is pertinent

to mention that Saleem and Ashok in Crl.A.Nos.481/2012 and 480/2012

respectively confessed their guilt and their appeals were disposed of by

this Court vide order dated 25.07.2013.

3. Conviction of the appellant is based upon the sole testimony

of PW-3 (Jahangir Ali) who lodged First Information Report, soon after

the incident. In his statement (Ex.PW-3/A) recorded at the earliest point of

time, the complainant gave detailed account of the occurrence and

narrated as to how and under what circumstances, he was robbed of 28

bags of plastic raw material by the assailants. He claimed to identify

them. In his deposition in the Court, he supported the version given to the

police without variation and deposed that he used to drive Tempo No.DL-

1LC-4864 and on 25.06.2007 he loaded 28 bags of plastic raw material

from 1665 Industrial Area, Narela, to unload at Okhla. When he reached

at bye-pass, near Majnu Tilla, Red Light at about 09.00 p.m., one of the

tyres got punctured; he replaced the stepney and proceeded further. When

he reached near Chandgi Akhara, CNG petrol pump at outer road at 12

night, one of the tyres again punctured and he sided the tempo by the road.

Having no means to go ahead, he went to sleep in the tempo. At around

03.00 a.m., an individual came and asked for a screw driver. When he

(the complainant) told its non-availability, he went away. After about 15

minutes, he was caught hold of his legs and hairs by the assailants and a

knife was put on his neck. They robbed 28 bags containing raw plastic

material in the tempo; put these in a RTV and fled towards ISBT. He

made telephone call to police at 100. In Court statement, he identified the

assailants facing trial before the Court and attributed specific role to

Vikram who had put knife on his neck. The appellant did not cross-

examine the witness despite availing an opportunity. The facts narrated

by the complainant remained unchallenged and unrebutted in the cross-

examination. No motive was assigned to the complainant to falsely

implicate the appellant with whom he had no prior acquaintance or

animosity. PW-4 (Neeraj Jain) claimed ownership of the 28 bags and

took these on superdari, vide superdaginama (Ex.PW-4/A). PW-5 (Anil

Kumar) produced RTV bearing No.DL-1VA-1402 used to carry away the

robbed bags. On 01.07.2007, all the accused persons were apprehended in

case FIR No.161/07 under Section 399/402/34 IPC registered at Police

Station Civil Lines. Pursuant to disclosure statements recorded in the

said proceedings, their involvement in the present case emerged. Saleem

pursuant to his disclosure statement (Ex.PW-12/D) recovered four bags of

plastic raw material which were seized by seizure memo (Ex.PW-12/G).

During police remand, he got 24 bags recovered from house No.E-3/27

seized vide seizure memo (Ex.PW-7/A). PW-7 (SI Manish Kumar)

proved the recovery of 24 bags on his instance and his testimony remained

unshattered despite cross-examination. PW-8 (Insp.Raj Kumar) also

deposed on similar lines and the accused did not opt to cross-examine to

challenge his version. PW-11 (Lal Chand) deposed that tempo in question

was in possession of Jahangir (the complainant) on the relevant date and

time. The accused did not give plausible explanation to the incriminating

circumstances appearing against him. They declined to join the Test

Identification Proceedings without cogent reasons. The prosecution was

able to establish beyond doubt that the appellant was one of the assailants

who committed decoity and deprived the complainant of 28 bags of

plastic raw material on the day of occurrence.

4. Section 397 fixes a minimum term of imprisonment. It is

imperative for the Trial Court to return specific findings that the

'assailants' were armed with 'deadly' weapons and it were used by them

before convicting them with the aid of Section 397. In the instant case, the

evidence is lacking on this aspect and benefit of doubt is to be given to the

appellant.

5. In 'Crl.A.515/2010 „Gulab @ Bablu vs. The State (NCT of

Delhi)', this court held:

"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 Section 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 Section 397. The accused could be convicted under Section 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."

6. In the instant case, admittedly no injuries, whatsoever, were

inflicted to the complainant by any weapon. The weapon used in the

crime was not recovered from the appellant or at his instance. The

complainant did not give description, size or dimension of the knife used

in the crime. In his deposition he did not described the broad feature of

the weapon used at the time of occurrence. Thus, the conviction of the

appellant with the aid of Section 397 was not permissible and is set aside.

For sentence under Section 395 IPC, the appellant is to be treated at par

with the convict Ashok who was awarded rigorous imprisonment for four

years vide order dated 25.07.2013. Accordingly, the sentence qua the

present appellant is modified and reduced to rigorous imprisonment for

four years. Other terms and conditions of the sentence order are left