Delhi High Court
Rajeev Chawla vs State on 13 July, 2015
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment :13.7.2015
Crl. Appeal No.1243/2012
RAJEEV CHAWLA ......Appellant
Through: Mr.V.K.Shukla, Advocate.
Versus
STATE
.......Respondent
Through: Ms.Kusum Dhalla, APP for the State.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
1 This appeal is directed against the impugned judgment and order
of sentence dated 26.9.2012 and 29.9.2012 respectively wherein the
appellant stands convicted under Section 397 read with Section 392 of
the IPC. Vide order of sentence dated 29.92.2012 he had been
sentenced to undergo RI for 7 years and to pay a fine of Rs.2000/-, in
default, to undergo SI for 15 days.
2 The version of the prosecution as has been unfolded in the
testimony of PW-1 (complainant) is that on the intervening night of
25-26.1.2009 a PCR call of having apprehended a thief was recorded.
This was in DD no.47A at about 11.55 p.m. The local police station
was Vikaspuri. Investigation was marked to H.C. Naresh Kumar
(PW-7) who along with Contable Raj Lal (PW-8) reached the spot.
Statement of the complainant (PW-1) was recorded. As per his version
the accused (apprehended at the spot) had robbed the complainant of
Rs.2000/-, a NOKIA mobile phone and a driving licence on the point of
a screw driver. Statement of complainant Ex.PW-1/A was recorded
pursuant to which the present FIR was registered.
3 The prosecution in support of its case examined eight witnesses of
whom PW-1 was the only public witness who was the complainant.
MLC of the complainant was recorded by Dr.Shoeb. Dr.Rishi (PW-5)
proved the MLC of the complainant as Ex.PW-5/A. Simple injuries
were noted on the person of the complainant.
4 In the statement of the accused recorded under Section 313
Cr.P.C. he pleaded innocence stating that he had been falsely implicated.
5 No evidence was led in defence.
6 The foremost argument propounded by the learned counsel for the
appellant is that a screw driver is not a "deadly weapon" within the
meaning of Section 397 of the IPC and as such the conviction of the
appellant under Section 397 of the IPC is uncalled for and he is entitled
to a benefit on this score. At best his conviction could have been under
Section 392 of the IPC. To support his stand, reliance has been placed
upon a judgment of this Court of Court in Crl.A 623/2012 titled as
Vikram @ Ganja Vs. State wherein where the dimensions and the size
of the knife had not been disclosed, the Court had held that it could not
qualify as a "deadly weapon" under Section 397 of the IPC and benefit
had been granted to the appellant in that case.
7 In a judgment of the Apex Court in Criminal Appeal
No.2016/2009 title Hem Raj Vs. State of H.P. delivered on 23.5.2014
the Apex Court had upheld the contention noted by the High Court that
a screw driver cannot be terms as a lethal weapon. To this limited
extent ratio of the aforenoted judgment is applicable. This is otherwise
a judgment dealing with an offence under Section 302 of the IPC.
8 This Court notes that PW-1 had not given any details of the screw
driver. He had merely stated that he was robbed at the point of a screw
driver. Investigating Officer (PW-7) had proved the screw driver as
Ex.P-4. PW-8 who was present along with PW-7 had got the FIR
registered. The rukka had been handed over to him. The screw driver
had been seized vide memo Ex. PW-1/B but there were no dimension or
size mentioned in Ex.PW-1/B. In fact, 4 articles had been seized vide
this memo and the item at serial no.4 was screw driver which merely
describes it as made of steel with a yellow/green plastic cover upon it.
There was also no sketch of the screw driver which could give its
dimensions and depict its size.
9 In this background it can in no manner be said that this screw
driver was a "deadly weapon". There is no gain saying to the settled
legal proposition that the words "uses any deadly weapon" as appearing
in Section 397 of the IPC include not only an actual user but even a
threat to the victim which creates a fear in his mind and even in such a
case Section 397 of the IPC may be applicable. However, the essential
ingredients of Section 397 of the IPC are the "use of a deadly weapon"
The screw driver in this case does not fall within this category.
10 The conviction of the appellant under Section 397 of the IPC is
accordingly converted to a conviction Section 392 of the IPC.
11 Nominal roll of the appellant reflects that as on 11.7.2015 he has
undergone incarceration of 2 years 10 months and 2 days besides
remission earned of 11 months and 20 days meaning thereby that he has
completed almost 4 years of incarceration. Learned counsel for the
appellant submits that in view of the conviction of the appellant having
been modified from Section 397 of the IPC to one under Section 392 of
the IPC, the period of incarceration already suffered by him be treated as
the sentenced imposed upon him. Additional submission of the learned
counsel for the appellant in this score is that the appellant is young in
years (aged 32 as on date) and he has a family comprising of his wife
and a three year old child. The wife of the appellant is also present in
Court.
12 Noting the period of incarceration already suffered by him, this
would be a fit case, in its factual matrix; that the period of incarceration
(almost 4 years) already suffered by the appellant be the sentence
imposed upon him.
13 Appellant be released forthwith if not required in any other case.
14 Copy of this order be sent to Jail Superintendant for intimation to
the appellant and compliance.
INDERMEET KAUR, J
JULY 13, 2015/ndn
