Delhi High Court
Om Prakash vs The State (Nct Of Delhi) on 22 May, 2014
Author: S. P. Garg
$-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 22nd MAY, 2014
+ CRL.A.No. 794/2012
OM PRAKASH ..... Appellant
Through : Ms.Rakhi Dubey, Advocate.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
1. The appellant - Om Prakash questions the legality of a
judgment dated 05.02.2011 of learned Additional Sessions Judge in
Sessions Case No. 11/10 arising out of FIR No. 84/09 PS Mahendra Park
by which he was convicted under Section 392/34 IPC read with Section
397 IPC and sentenced to undergo RI for seven years with fine ` 5,000/-.
2. Briefly stated, prosecution case as projected in the charge-
sheet was that on 11.12.2009 at about 6.45 pm, the appellant and his
associates Sachin and Vijay (not arrested) in furtherance of common
intention robbed Monu of his three mobile phones and cash ` 514/- at
knife / blade point. Thereafter, at 7.40 pm they robbed complainant, Gyan
Chand, of a mobile phone, cash `240/- and one pocket diary. Vijay could
not be arrested. Charge-sheet was submitted against Sachin and Om
Prakash for committing offence under Sections 392/397/411/34 IPC. The
trial resulted in the appellant's conviction under Sections 392/34 IPC read
with Section 397 IPC whereas Sachin was held guilty under Sections
392/34 IPC.
3. During the course of arguments, appellant's counsel stated
that the appellant has opted not to challenge the findings of the Trial Court
on conviction under Section 392/34 IPC. She restricted her arguments to
challenge conviction with the aid of Sections 397 IPC as the appellant did
not use any 'deadly' weapon at the time of crime. Learned Addl. Public
Prosecutor agrees to it. On perusal of the file, it reveals that the appellant
used only blade (Ex.P2) at the time of commission of robbery. No injuries
were inflicted to the complainant. 'Blade' per se cannot be considered a
'deadly' weapon under Section 397 IPC as it is not so designed to be used
as a weapon to cause bodily injury. The Trial Court did not deal with this
aspect. Conviction with the aid of Section 397 IPC is set aside while
maintaining conviction under Sections 392/34 IPC.
4. Nominal roll dated 23.04.2013 reveals that the appellant has
undergone three years, four months and eighteen days incarceration
besides remission for eight months and twenty-six days as on 30.04.2013.
It further reveals that he has no criminal antecedents and is a first time
offender. His overall jail conduct is satisfactory. Considering all these
circumstances, the period already undergone by the appellant in custody is
taken as substantive sentence under Section 392 IPC. The appellant shall
be released forthwith if not required to be detained in any other case.
5. The appeal stands disposed of in the above terms. Trial Court
record be sent back forthwith with the copy of the order. Superintendent
jail be informed accordingly.
(S.P.GARG)
JUDGE
MAY 22, 2014 / tr
