Delhi High Court
Md.Naeem vs State on 2 June, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: June 02, 2017
+ CRL.A. 548/2015 & Crl.M(B) 887/2017
MD. NAEEM ..... Appellant
Through: Mr. Amar Nath, Amicus
Curiae Counsel with Mr.
Sumer Kumar Sethi, DHCLSC
with Ms. Dolly Sharma,
Advocate
versus
STATE ..... Respondent
Through: Ms. Meenakshi Chauhan,
Additional Public Prosecutor with
ASI Vinod Kumar
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned judgment of 23rd December, 2014 holds appellant guilty
for the offence under Sections 392/34 of IPC and also under Section 411
of IPC. In addition, appellant has been held guilty for the offence under
Section 397 of IPC on account of using knife in the incident in question.
Vide impugned order on sentence of 24th December, 2014, appellant has
been sentenced to rigorous imprisonment for seven years with fine of
`1,000/- for the offence in question under Section 397 of IPC and for the
remaining offences, he has been sentenced to rigorous imprisonment for
two years each with fine of `1,000/- each and with default clause. All
these sentences have been directed to run concurrently.
At the outset, learned counsel for appellant submits that the offence
under Section 397 of IPC is not made out against appellant and that as per
Nominal Roll of appellant, he has already undergone the sentence of 4½
years and since the offence under Section 397 of IPC is not made out,
therefore, the sentence awarded deserves to be reduced to the period
already undergone by him.
On the afore-noted limited aspect, the impugned judgment and
order on sentence as well as trial court record have been perused. During
the course of hearing, learned counsel for appellant has drawn the
attention of this Court to the deposition of ASI Pratap Singh (PW-3), who
had recovered the knife in question from appellant. It is pointed out that
as per seizure memo of knife in question, it was a small knife and that it
has come in the evidence of this material witness (PW-3) that the
recovered knife was a dummy knife, which is also used as a cigarette
lighter and is easily available in weekly markets. So, it is submitted on
behalf of appellant that recovered knife cannot be labelled as a deadly
weapon and so, appellant deserves to be acquitted of the offence under
Section 397 of IPC. To submit so, reliance is placed upon decisions of
Co-ordinate Bench of this Court in [email protected] Jeetu v. State (NCT of
Delhi), 2015 SCC OnLine Del 6594; Deepak v. State (GNCT of Delhi),
2017 SCC OnLine Del 6918 and Rahul v. State, 2014 SCC OnLine Del
2216.
Learned Additional Public Prosecutor for respondent-State does
not dispute that as per recovery memo of knife in question, it was a small
knife and the dimensions of the knife are not given in the recovery memo
and that the sketch of recovered knife was not prepared by the police.
Upon hearing and on perusal of impugned judgment and order on
sentence, trial court record and the decisions cited, I find that evidence of
ASI Pratap Singh (PW-3) regarding the recovery of knife being a dummy
knife is unassailable. Even from the evidence of complainant, it does not
appear that after appellant-accused had shown dummy knife to him, he
was alarmed. It is a matter of record that soon after this incident,
appellant was apprehended from the spot by the train passengers, which
by itself indicates that weapon shown by appellant at the time of this
incident was not deadly enough, so as to create a scare at the spot.
It needs no reiteration that 'deadly weapon' is the one which is
capable of causing death or serious bodily injury and no prudent person
would consider the dummy knife as a 'deadly weapon'. By no stretch of
imagination, a dummy knife can be said to be a 'deadly weapon'. The
necessary ingredient of Section 397 of IPC is that the weapon used, is a
deadly one. In view of the evidence of the complainant and aforesaid
witness (PW-3), I find that the conviction of appellant for the offence
under Section 397 of IPC is unwarranted. Accordingly, the conviction of
appellant under Section 397 of IPC is set aside. However, the conviction
of appellant for the remaining offence is well deserved and is maintained.
It is noticed that the sentence awarded to appellant for the allied offences
has been already undergone by him. So, it is directed that appellant, who
is in custody, be released forthwith if not warranted in any other case.
So far as the imposition of fine of `1,000/- each for the allied two
offences is concerned, learned counsel for appellant submits that
appellant is a poor person and so, this jail appeal was filed and he has no
means to pay the fine and thus, fine imposed deserves to be suitably
reduced. In pursuance to the production warrants issued vide last order,
appellant is present in the Court and he submits that he was a labourer
prior to this incident and has no means to pay the fine and that he has a
family to support and so, the fine imposed upon him be waived.
In the facts and circumstances of this case, the quantum of fine is
reduced from `1,000/- to `500/- each and the period of default is also
reduced from simple imprisonment for two months each to simple
imprisonment for ten days each. In the event of appellant depositing the
modified fine, appellant be released from jail forthwith as he has already
undergone the substantive sentence for the allied offences.
With aforesaid modification, this appeal and the pending
application are disposed of. The concerned Jail Superintendent be
apprised of this judgment forthwith to ensure its compliance. Before
parting with this judgment, this Court would like to place on record its
appreciation for the able assistance rendered by Mr. Amar Nath, learned
Amicus Curiae and Mr. Sumer Kumar Sethi, DHCLSC Panel Lawyer in
disposal of this appeal.
(SUNIL GAUR)
JUDGE
JUNE 02, 2017
s
