Delhi High Court
Chattar Pal vs State Nct Of Delhi on 30 April, 2015
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 723/2011
Decided on 30th April, 2015
CHATTAR PAL Appellant
Through: Mr. Imran Khan, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Yogesh Verma, APP for State with
ASI Devender Kumar, P.S. Uttam
Nagar.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. Appellant has been convicted under Sections 392/394/397/34 IPC by the
trial court and sentenced to undergo rigorous imprisonment for a period of 7
years with fine of `5,000/- and in default of payment of fine to undergo simple
imprisonment for a period of six months under Section 394/34 IPC read with
Section 397 IPC. Benefit of Section 428 Cr.P.C. has been given to the
appellant.
2. Aggrieved by his conviction and also the sentence awarded to him,
appellant has preferred this appeal.
3. During the course of hearing, learned counsel for the appellant has given
up challenge to the conviction under Sections 392/394 IPC. However, he has
challenged the conviction of appellant under Section 397 IPC. It is contended
that prosecution has failed to prove that appellant had used any 'deadly
weapon' while committing the robbery, inasmuch as, alleged iron rod was not
recovered from him, thus, ingredients of offence under Section 397 IPC are
not attracted in this case.
4. Prosecution case, in brief, is that on 8th January, 2005 at about 03:00 am,
appellant along with his accomplices entered in the house of complainant-
Satender Kumar Rai (PW8) situated at B-61, Vikas Nagar, Hastsal Vihar,
Uttam Nagar, Delhi and robbed four suitcases, three mobile phones, two Titan
wrist watches, three gold chains, ear tops and `35,000/- after assaulting his
mother Smt. Rajwati Devi (PW4) and brother-Nagender Kumar Rai (PW7) by
iron rods. Appellant and his accomplices had removed the jewellery from the
person of wife of Nagender Kumar Rai, namely, Smt. Sangeeta Devi (PW5)
and Smt.Rajwati Devi. Nagender Kumar Rai and Smt. Rajwati Devi were
medically examined in DDU Hosptial by Dr. Anju Jain (PW6) vide MLCs Ex.
PW-1/B and Ex. PW-1/A respectively and their injuries were opined grievous
in nature.
5. Material witnesses in this case are PW4-Smt. Rajwati Devi, PW5-Smt.
Sangeeta Devi, PW7-Nagendr Kumar Rai and PW8 Satender Kumar Rai. All
other witnesses are formal in nature being police officials, who had joined the
investigation conducted by Investigation Officer SI Basti Ram (PW16) at one
stage or the other.
6. It may be noted that appellant was arrested on 31 st January, 2005 in
another FIR 20/05 under Sections 399/402 IPC by the Special Cell of Delhi
Police wherein he allegedly made a statement about his involvement in the
present case, consequently, he was arrested in the present case as well. He was
not arrested immediately after the incident. He was put to TIP wherein he was
identified by the PW7 and PW8. They have also correctly identified the
appellant in Court. Trial court has concluded that appellant along with his co-
convict had committed robbery in the house of PW4-Rajwati Devi, PW5-Smt.
Sangeeta Devi, PW7-Nagender Kumar Rai and PW8-Satender Kumar Rai on
the fateful day of 8th January, 2005 at about 03:00 am. As regards injuries
sustained by PW4 and PW7 are concerned, the same have been proved by PW6
Dr. Anju Jain. Accordingly, offences under Sections 392/394 IPC have been
duly established from the statements of the aforesaid witnesses.
7. Section 394 IPC stipulates that if any person, in committing or in
attempting to commit robbery, voluntarily causes hurt, such person, and any
other person jointly concerned in committing or attempting to commit such
robbery, shall be punished with imprisonment of life or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable
to fine. Section 394 IPC does not stipulate use of any 'deadly weapon' and it
simply provides that if any person voluntarily causes hurt not only the person
who actually causes hurt but other persons, involved in the commission of
robbery, would be equally liable to be punished with the imprisonment as
envisaged under Section 394 IPC. Accordingly, offence under Sections 394/34
IPC is duly established against the appellant, inasmuch as, challenge to the
conviction of appellant under this provision has been given up.
8. The moot question which arises for consideration is whether ingredients
of Section 397 IPC are attracted in this case. Section 397 IPC envisages that if,
at the time of committing robbery or dacoity, the offender uses any deadly
weapon, or causes grievous hurt to any person, 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 envisages
minimum sentence which has to be awarded to an offender who at the time of
committing robbery or dacoity uses 'deadly weapon' or caused grievous hurt to
any person or attempt to cause death or grievous hurt to any person. It is only
such person who uses 'deadly weapon' or causes grievous hurt or attempt to
cause death would be liable for the punishment as envisaged under Section 397
IPC. Other persons accompanying such person cannot be held vicariously
liable under this provision. The word 'offender' used in Section 397 IPC refers
to only culprit who actually used 'deadly weapon' or causes grievous hurt.
9. In this case, prosecution has failed to prove that appellant had used any
'deadly weapon' at the time of commission of robbery or had caused 'grievous
hurt'. Role of causing grievous hurt has also not been singularly assigned to
the appellant. Statement of witnesses are that appellant along with accomplices
had entered in the house and committed robbery and while committing robbery,
grievous hurt was caused on the persons of Rajwati Devi and Nagendr Kumar
Rai by iron rods. No specific role has been assigned to the appellant either of
using a 'deadly weapon' or causing grievous hurt, inasmuch as, who caused
grievous hurt is also not clear as only a general statement has been made in this
regard. Accordingly, though ingredients of offence under Section 394 IPC are
attracted since while committing robbery, grievous hurt was caused to the
above named two victims, however, ingredients of offence under Section 397
IPC are not attracted since no evidence has come on record that the appellant
had caused grievous hurt or used deadly weapon, inasmuch as weapon of
offence was not recovered from him. Accordingly, conviction of appellant
under Section 397 IPC is set aside.
10 Appellant is a married person and has a family comprising of his wife
and three minor children. Appellant belongs to poor strata of society. Post this
offence appellant has not indulged himself in any other offence while he was
on bail. Keeping in mind totality of the circumstances, sentence of the
appellant under Sections 392/394 is reduced to 5 years from 7 years, as
awarded by the trial court. Sentence of fine of `5,000/- is maintained.
Appellant will be entitled to benefit of Section 428 Cr.P.C.
11. Appeal is disposed of in the above terms.
12. Copy of the order be sent to the Superintendent Jail for serving it on the
appellant and also for compliance.
A.K. PATHAK, J.
APRIL 30, 2015
ga
