Delhi High Court

Ashraf @ Arfi vs State(Govt. Of Nct) Of Delhi on 4 September, 2014

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Date of Decision:     4th September, 2014
+     CRL.A. 1454/2011

      ASHRAF @ ARFI                                    ..... Appellant
                         Through:     Mr. M.L. Yadav and Mr. Lokesh
                                      Chandra, Advocates

                         versus

      STATE(GOVT. OF NCT) OF DELHI        ..... Respondent
                    Through: Ms. Ritu Gauba, APP for the State
                              with SI Afaque Ahmed, Police
                              Station Adarsh Nagar.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. The short point for consideration in the present appeal is whether

offence u/s 397 IPC is made out or not, in as much as learned counsel for

the appellant has not challenged the conviction of the appellant for offence

u/s 392/394 IPC.

2. The prosecution case emanates from the fact that on 06.12.2008 at

about 05.45 p.m at Gidwani Road, behind Moolchand Park, Adarsh Nagar,

three boys armed with knives came and met the complainant Dhananjay.

One of them inflicted knife injury on his right hand while two other boys

snatched away Rs.10,000/- from his pocket and fled away. On 31.12.2008,

accused [email protected] was arrested in case FIR No.323/08 u/s 25/54/59

Arms Act and made a disclosure statement pertaining to this case. He was

arrested. He pointed out the place of occurrence but refused to take part in

Test Identification Proceedings (TIP). During investigation, complainant

identified the accused in Court. Co-accused could not be arrested. On

completion of investigation, charge sheet u/s 392/394/397/34 IPC was

submitted in the Court. The accused pleaded not guilty to the charge and

claimed trial.

3. In order to substantiate its case, prosecution examined ten witnesses.

The case of accused was one of denial simplicitor. He pleaded his

innocence and alleged false implication in this case. He did not prefer to

lead any evidence in defence.

4. Learned Additional Sessions Judge scrutinised the testimony of

complainant Dhananjay who had substantiated the case of prosecution by

deposing that on 06.12.2008, at about 5.45 a.m, he was going to Subji

Mandi and when he reached near Moolchand Park, three boys, aged about

20-22 years came; one of them who was having knife hit him on his right

hand while the other two boys snatched Rs.10,000/- from his pocket. He

informed police at 100 number. PCR van came to the spot. He was taken

to hospital, where his statement Ex. PW 1/A was recorded. He further

deposed that he had gone to Tihar jail for identification of the assailant but

assailant refused to take part in TIP. Subsequently on 16.01.2009, he

identified the accused in Rohini Court. He also identified the accused

during his deposition in Court by deposing that he was the same person

who had caused injuries at his right hand with knife and his two assailants

had robbed him of Rs.10,000/-. On the basis of testimony of complainant

which could not be assailed in cross examination, coupled with the fact

that accused has refused to take part in TIP and he was duly identified by

the complainant in Court, learned Trial Court came to the conclusion that

the prosecution had succeeded in establishing its case and as such

convicted him for offence u/s 392/394/34 IPC read with Section 397 IPC.

He was sentenced to undergo rigorous imprisonment for seven years u/s

392 IPC read with Section 397 IPC with fine of Rs.3,000/-, in default to

undergo six months rigorous imprisonment. He was also sentenced to

seven years rigorous imprisonment u/s 394/34 IPC with fine of Rs.5000/-,

in default to undergo six months rigorous imprisonment.

5. Feeling aggrieved, the present appeal has been preferred by the

appellant. However as stated above, the appellant did not challenge his

conviction for offence u/s 392/34 IPC. The only submission of learned

counsel for the appellant is that the weapon of offence has not been

recovered in the instant case. The injuries were opined to be simple and

the complainant was discharged from the hospital on the same day, as such

offence u/s 397 IPC is not made out. Reliance was placed on a judgment

of a single Judge in Crl.A.238/06 and Crl.A.240/06, Asif Vs. State and

Nadeem Vs. State. It was also submitted that the appellant has remained in

jail for a period of almost three years, as such he be released on the period

already undergone. It was further submitted that the accused has been

acquitted in the case under Arms Act.

6. On the other hand, it was submitted by learned APP for the State

that offence u/s 397 IPC is made out as knife was used and injuries were

inflicted on the wrist of the complainant on the right hand. Big blood

vessels which if slitted may lead to huge quantity of blood loss and can

cause death. Even vegetable or kitchen knife, if used in a particular

manner on a particular portion may cause death and it depends on the

severity of the blow. Reliance was placed on Balik Ram vs. State, 1983

Crl.L.J 1438. It was further submitted that accused was arrested under

Arms Act with a big knife which shows that accused was in the habit of

carrying big knife and non-recovery of the weapon of offence is

inconsequential. Rs.10,000/- was robbed from the complainant, who was a

tomato seller and injury with knife and loss of blood in huge amount has

also been caused, as such injured is liable to be compensated u/s 357(3)

Cr.P.C. It was further submitted that the antecedents of the appellant also

do not deserve any leniency as he was arrested in a case under Arms Act.

As per the status report, the appellant was involved in 5 cases, out of which

he was convicted in 3 cases including this case. One FIR was quashed

while in one case he was acquitted. It is further reported that he is a bad

character of P.S. Jahangirpuri, Delhi.

7. Section 397 fixes the 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.

8. 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."

9. In Arif & Nadeem (supra) also robbery was alleged to have been

committed by causing injuries on thighs by knife. Recovery of weapon of

offence was disbelieved. Therefore, while maintaining the conviction u/s

394 & 412 IPC, conviction u/s 397 IPC was set aside.

10. Balik Ram(supra) relied upon by learned APP for the State, instead

of helping the State favours the appellant. In that case, the weapon of

offence, being knife was recovered. Despite that, the Court considered the

question whether the knife so used was a "deadly weapon" within the

meaning of Section 397 IPC and it was observed as under:-

"5. ............What is a deadly weapon is not defined in the Code. It must, I think, therefore, be a weapon which if used was likely to cause death. In Lakshmiammal v. Saniappa Gounder and Anrs, AIR1968Mad310 , weapons like knife, hammer, crowbar and spades were held undoubtedly to be deadly weapons, but in Mir Bayyan Khan v. Emperor, AIR 1935 Pesh 65, it was said that a crowbar or spade may well be a deadly weapon if used as a weapon of offence, but not if used for destroying a bridge (that is, I think, for peaceful purposes). Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result in death by their use. What

would make a knife deadly is its design or the manner of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly one.........."

11. In the instant case, the weapon of offence has not been recovered,

therefore, from the mere fact that simple hurt was caused on the person of

the complainant, no inference can be drawn that the knife so used was a

deadly weapon. The submission of learned APP that the injury was caused

on the wrist of the complainant, which, if slitted may lead to loss of huge

quantity of blood and can cause death may be true but there is no such

evidence on record. Similarly the submission that the injuries resulted in

loss of blood in huge quantity is not fortified by any evidence on record.

Since the knife was not recovered, prosecution has failed to produce

convincing evidence that the knife used by the accused was a deadly

weapon. In the absence of such an evidence, conviction of the appellant

with the aid of Section 397 IPC cannot be sustained and is set aside while