Delhi High Court
Mohd. Rafiq vs State (Govt Of Nct) Delhi on 19 February, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 19th February, 2014
+ CRL.A. 360/2012 & CRL.M.B.268/2014
MOHD. RAFIQ
..... Appellant
Through : Mr.Siddharth Aggarwal with
Mr.Feroj, Advocates.
versus
STATE (GOVT OF NCT) DELHI
..... Respondent
Through : Mr.M.N.Dudeja, APP for the State.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)
1. Mohd.Rafiq (the appellant) was convicted by a judgment
dated 17.12.2011 in Sessions Case No.21/11 arising out of FIR No.11/11
registered at Police Station NDRS for committing offence under Section
392/397 IPC and was awarded rigorous imprisonment for seven years
with fine `10,000/-.
2. Allegations against the appellant were that on 16.01.2011 at
around 10.00 a.m. at NDRS, he robbed the complainant- Naushad Ali of
his mobile using a sharp weapon. After the complainant raised an alarm,
'Chor Chor', the appellant was apprehended by police officials on
patrolling duty. The mobile phone and the sharp weapon was recovered
from the accused. The Investigating Officer lodged First Information
Report after recording complainant's statement (Ex.PW-2/A). After
completion of investigation, a charge-sheet was submitted in the court, the
accused was duly charged and brought to trial. The trial resulted in his
conviction as aforesaid.
3. During the course of arguments, appellant's counsel confined
his arguments to challenge conviction under Section 392 with the aid of
Section 397 IPC. It was argued that the prosecution was unable to
establish beyond doubt that the complainant was robbed by using a
'deadly' weapon. The learned Additional Public Prosecutor agrees that
the prosecution was unable to establish use of 'deadly' weapon in the
occurrence. No injuries were inflicted to the complainant with any
weapon. So called weapon recovered from the possession of the accused
was a 'blade' whose dimension, size and description do not find mention
in the statements of the witnesses. No sketch of the said article was
prepared to ascertain its nature and size. It was also not revealed if it was
a surgical blade. The trial court was not sure about the exact nature of the
weapon used and merely described it as knife/blade.
4. Section 397 fixes a minimum term of imprisonment. It is
imperative for the Trial Court to return specific findings that the
'assailant' was armed with 'deadly' weapon and it was used by him before
convicting 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.
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 view of the above discussion conviction with the aid of
Section 397 IPC cannot be sustained and is set aside while upholding the
conviction under Section 392 IPC which has not been challenged.
7. Nominal roll dated 24.01.2014 reveals that the appellant has
undergone sentence for two years, one month and five days besides
remission for eight months and six days. He is not a previous convict and
has clean antecedents. He was not found to be in possession of any
deadly weapon. Considering these circumstances the sentence order is
modified and substantive sentence is reduced to rigorous imprisonment
for three years with fine `10,000/- and in default of payment of fine to
undergo SI for 15 days.
8. The appeal stands disposed of in the above terms. Pending
application also stands disposed of. The trial court record be sent back
forthwith. Copy of the order be sent to Superintendent Jail for
information.
(S.P.GARG)
JUDGE
FEBRUARY 19, 2014
sa
