State Of Nct Of Delhi vs Harishankar & Anr
2016 Latest Caselaw 2085 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : 10th February, 2016
                           DECIDED ON : 16th March, 2016

+                     CRL.A. 417/2014

       STATE OF NCT OF DELHI                     ..... Appellant
                     Through Mr. Vinod Diwakar, APP

                            VERSUS

       HARISHANKAR & ANR                        ..... Respondents
                   Through Ms. Pallavi Sharma, Advocate for R-1
                          Mr. V P Katiyar, Advocate for R-2

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

Crl. M.A.5297/2014 (Delay)

1. For the reasons mentioned in the application, the delay in filing the appeal is condoned.

2. Application is allowed and disposed of.

Crl.A.417/2014

3. The instant appeal has been preferred by the State to

challenge the legality and correctness of a judgment dated 03.10.2013 of

learned Additional Sessions Judge in Sessions Case No.26/12 arising out

of FIR No.177/2011 registered at Police Station Lahori Gate whereby

sentence of less than seven years as mandated under Section 397 IPC was

awarded to the respondents.

4. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 21.12.2011 at around 12.30 p.m.at House No.1219,

Baradari, behind Novelty Cinema, the respondents along with their

associates Raju @ Muzzamil and Gopalji Srivastava (since not arrested)

in an attempt to commit robbery, voluntarily inflicted injuries to the

complainant Sadiya. The assailants were armed with knives at the time of

attempt to commit robbery. Both the respondents were apprehended at the

spot and the crime weapons were recovered from their possession. The

Investigating Officer after recording victim's statement (Ex.PW-2/A)

lodged First Information Report. She was medically examined.

Statements of witnesses conversant with the facts were recorded. Upon

completion of investigation, a charge-sheet was filed against the

respondents in the court. In order to establish its case, the prosecution

examined five witnesses. Subsequently, the respondents made a joint

statement confessing the guilt voluntarily. They offered to deposit

`50,000/- as a gesture of remorse and sought leniency in the award of

sentence. After hearing the learned Additional Public Prosecutor for the

State and the defence counsel, by the impugned judgment dated

03.10.2013, both the respondents were held guilty for committing

offences under Sections 393/394/397/34 IPC and sentenced to undergo the

sentence already suffered by them in this case. They were further directed

to pay fine of `50,000/- jointly.

5. Learned Additional Public Prosecutor for the State urged that

considering the gravity of the offence whereby the respondents used

deadly weapons at the time of attempt to commit robbery, the Trial Court

was not justified to grant sentence less than seven years which is the

minimum sentence prescribed under Section 397 IPC. No adequate and

special reasons have been given by the Trial Court to take lenient view.

Learned counsel for the respondents urged that ingredients of Section 397

are not attracted in this case. PW-5 (Akif Amani) examined by the

prosecution did not identify the respondents to be the assailants. The

respondents had pleaded guilty with the hope that lenient view would be

taken and had offered to pay `50,000/- as fine.

6. On perusal of the Trial Court record, it reveals that the

prosecution produced and examined PW-2 (Sadia), the complainant and

victim; PW-3 (Madiha) and PW-4 (Hadia) her daughters to establish the

respondents' guilt. They all in their statements implicated the respondents

in the crime and identified them. They also spoke about the recovery of

the knives from their possession and held them responsible for inflicting

injuries on their person. PW-5 (Akif Amani) though deposed about the

apprehension of some individuals at the spot but expressed inability to

identify the respondents to be the assailants. Thereafter, in a joint

statement dated 03.10.2013, the respondents confessed the guilt and

prayed for leniency. The Trial Court by the impugned judgment dated

03.10.2013 convicted both the respondents primarily on their plea of guilt

for the offence punishable under Section 393/394/397/34 IPC.

7. In the impugned judgment on conviction, the Trial Court has

not dealt specifically as to under what particular sections of law, the

offence has been committed/proved by each of the respondents. It has

been merely recorded that the respondents were guilty for commission of

offences under Sections 393/394/397/34 IPC. Section 393 IPC is a

specific section for punishing attempt to commit robbery. Under Section

394 IPC, if any person, in committing or in attempting to commit robbery,

voluntarily causes hurt, he can be held liable for that. Section 397 IPC

does not create any new substantive offence but merely regulates

punishment in offences of robbery and decoity and the use of deadly

weapons at the time of committing the said offences. Section 398 IPC

deals with the cases where at the time of attempting to commit robbery or

decoity, the offender is armed with any deadly weapons. The Trial Court

has not given categorical and specific findings as to on the basis of

material on record including confession of the accused, they were liable

for committing specific offences. On the face of it, Section 397 IPC is

not attracted in this case as charge against the respondents was only for an

'attempt to commit robbery'. Section 398 IPC seems to be appropriate

Section to award sentence as at the time of attempting to commit robbery

the offenders were armed with 'deadly' weapons.

8. Since the Trial Court has not given any definite findings as to

what exact offence has been committed by the respondents, their

conviction under Sections 393/394/397/34 IPC being vague in nature

cannot be sustained. Sentence order also does not reflect as to under what

offence what particular sentence has been awarded to the respondents.

Sentence order records that the respondents were to undergo

imprisonment for the period already undergone by them with fine of

`50,000/- for the offences under Sections 393/394/397/34 IPC.

9. In the light of above discussion, the appeal is allowed. The

matter is remanded to the learned Trial Court to give specific findings on

the basis of evidence and confessional record as to what offence exactly

has been proved against the respondents to hold them guilty. The

respondents if found guilty shall be heard on the point of sentence and a

specific sentence order under the offence proved would be passed.

10. The parties are directed to appear before the Trial Court on

23.03.2016. Trial Court record be sent back forthwith along with the

copy of the order.

(S.P.GARG) JUDGE March 16, 2016 sa