Delhi High Court
Dharmender vs State (Govt Of Nct Of Delhi) on 5 June, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: June 05, 2017
+ CRL.A. 409/2015
DHARMENDER ..... Appellant
Through: Mr. Amar Nath, Amicus Curiae
with Mr. Love Deep Gaur,
Advocate and Mr. Animesh
Madhukar, DHCLSC Panel
Lawyer with Mr. Anshu Bhanot,
Advocate
Versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Ms. Meenakshi Chauhan, Addl.
Public Prosecutor for State with SI
Shri Gopal, Police Station Shakar
Pur
+ CRL.A. 480/2015
AJAY ..... Appellant
Through: Mr. Amar Nath, Amicus Curiae
with Mr. Vikas Padora, DHCLSC
Panel Advocate
Versus
STATE ..... Respondent
Crl.A.Nos.409 & 480 of 2015 Page 1 of 7
Through: Ms. Meenakshi Chauhan, Addl.
Public Prosecutor for State with SI
Shri Gopal, police station Shakar
Pur
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
%
1. Impugned judgment of 1st December, 2014 holds appellants
Dharmender and Ajay guilty of offence under Sections 392/34 of IPC r/w
Section 397 IPC and they have been also held guilty for the offence under
Section 411 IPC. In addition, appellant - Dharmender stands convicted
for offence under Section 25 of The Arms Act. Vide impugned order of 5th
December, 2014, both these appellants have been sentenced to rigorous
imprisonment for seven years with fine of `10,000/- each for the offence
under Sections 392/34 IPC r/w Section 397 IPC with default clause. Both
the appellants are also sentenced to rigorous imprisonment for two years
with fine of `5,000/- each for the offence under Section 411 IPC with
default clause. Appellant- Dharmender has been also sentenced to
rigorous imprisonment for three years with fine of `5,000/- with default
clause for the offence under Section 25 of The Arms Act.
2. Counsel for appellant- Ajay submits that in pursuance to bailable
warrants issued vide last order, appellant- Ajay is present in the Court.
Appellant- Dharmender is in custody.
3. Since both these appeals arise out of common impugned judgment,
therefore, with the consent of counsel for the parties, they have been
heard together and are being decided by this common judgment.
4. The facts as noticed in the impugned judgment are that on the
statement of complainant- Satish Sharma, FIR of this case was registered
and the version putforth by him is as under:-
"That on 01.03.2012 he was returning to his house
alongwith his wife in his Swift Dzire Car from Gurgaon
and that at about 11.20 p.m. he stopped his car at Vikas
Marg, about 100 meters from Geeta Colony cut to
urinate. Two boys aged about 23-24 years came out of
Yamuna Khadar jhuggies, one of them put pistol type
weapon at him and asked him to bring out whatever he
had and forcibly snatched his mobile phone make Nokia
bearing Sim No. 9810068785, a gold ring, a gold kara
and `35,000/- while the second boy robbed gold
mangalsutra, two gold bangles, two gold karas, three
gold rings, a gold chain from his wife after showing knife
to her. Thereafter both the boys ran away towards
Yamuna Khadar jhuggies. On his statement FIR was
registered under Section 392/34 IPC. On 18.03.12
accused Dharmender & Ajay were arrested."
5. While relying upon the evidence of complainant- Satish Sharma
(PW-4) and testimony of his wife Smt. Alka Sharma (PW-3) and evidence
of Investigating Officer (PW-9) and other police witnesses, appellants
have been convicted and sentenced by the trial court as has been noted
hereinabove. Pertinently, the stand of both the appellants before the trial
court was of denial and they had not led any evidence in defence.
6. The challenge to the impugned conviction and sentence awarded to
appellants by learned counsel for appellants is on the ground that the
recovered weapons of offence were not shown to the witnesses and so,
the recovery of weapons of offence does not stand proved and thus,
conviction of appellants for the offence under Section 397 IPC deserves
to be set aside. To submit so, reliance is placed upon decisions of
Coordinate Bench of this Court in Balak Ram Vs. State 24 (1983) DLT
142 and Sunil Vs. State (Govt. of NCT) 2010 (1) JCC 388. In addition, it
is submitted by learned counsel for appellant- Dharmender that there is
discrepancy regarding recovery of weapon of offence. It is pointed out
that as per evidence of complainant and his wife, accused Dharmender
was armed with a knife but as per evidence of Investigating Officer (PW-
9), recorded on 21st September, 2013, one country made pistol was
recovered from appellant-accused Dharmender. It is also pointed out
by learned counsel for appellant- Dharmender that Investigating Officer
in his evidence recorded on 19th November, 2013 had deposed that a
knife was recovered from the right side pocket of this appellant-accused.
It is submitted that recovery of weapon of offence from appellant-accused
Dharmender is suspected and so, benefit of doubt ought to be given to
this appellant. Lastly, it is submitted on behalf of appellants that the
alleged recovery was not in pursuance to the disclosure statement made
by appellants but was in response to their casual search. So, acquittal of
appellants is sought in these appeals.
7. On the contrary, learned Additional Public Prosecutor for
respondent-State supports the impugned judgment and order on sentence
and submits that there is no illegality in it. She relies upon a judgment of
this Court in Sheetal Vs. State (NCT of Delhi) (2014) 215 DLT 60 to
submit that once it is shown that weapon was used in the commission of
offence to frighten the witnesses to facilitate the offence of robbery/
dacoity, appellants' conviction under Section 397 of IPC is well deserved
and need not be interfered with, even if weapon of offence is not there. It
is pointed out by learned Additional Public Prosecutor for respondent-
State that in the instant case, weapon of offence i.e. pistol and knife have
been recovered and from the sketch of knife, it is evident that it is a
deadly weapon. Thus, dismissal of these two appeals is sought by learned
Additional Public Prosecutor for respondent-State.
8. Upon hearing and on perusal of impugned judgment and order on
sentence, evidence on record and decisions cited, I find that complainant
(PW-4) and his wife (PW-3) are forthright in their deposition regarding
the manner in which both the appellants have used the weapon of offence
i.e. pistol and a knife, having blade of length of more than 12 cm and
width of 4 cm and so, it cannot be said that the country made pistol or the
knife is not a deadly weapon. Merely because the weapon of offence i.e.
the pistol and knife in question have not been identified by the
complainant and his wife, it would not justify their acquittal for the
offence under Section 397 IPC because it is evident from the evidence of
complainant and his wife that without use of pistol and knife in question,
offence of robbery could not have been committed by appellants.
9. After going through the decisions cited, I find that a pedantic view,
as has been taken in Balak Ram (supra) and Sunil (supra), is not required
to be adopted in view the ground realities and the fact situation of the
instant case. A pragmatic view has been taken by this Court in a later
decision in Sheetal (supra) regarding the weapon of offence being not
identified by the witnesses during the course of evidence, is not fatal for
conviction under Section 397 of IPC. Taking into consideration the
ground realities, this Court is of the considered opinion that even if the
weapon of offence is not recovered, still the conviction of accused for the
offence under Section 397 IPC cannot be set aside if the version of
complainant regarding the use of weapon is convincing and reliable. In
the instant case while relying upon the ratio of decision of this Court in
Sheetal (supra) and in view of evidence on record, I find no hesitation to
conclude that the version of complainant and his wife clearly proves that
both the appellants had used the deadly weapons in commission of
offence and so, their conviction under Section 397 IPC cannot be faulted
with, merely because the recovered weapons i.e. the knife and pistol are
not identified by the witnesses.
10. As regards the discrepancy in evidence regarding the recovery of
weapon in question is concerned, I find that due to the time gap in
recording of evidence of witnesses, discrepancy regarding recovery of
which weapon is from which accused, is likely to arise and thus, the so
called discrepancy in the evidence of Investigating Officer (PW-9) and
another police official (PW-10) is not material and is not sufficient to
cause any dent in the prosecution case. Pertinently, recovered knife and
pistol have been identified by the Investigating Officer in his evidence as
the ones which were recovered from appellants/ accused herein. Nothing
substantial turns on the fact as to whether recovery of weapon of offence
from appellant/accused was on a casual search or was in pursuance to
their disclosure statement as the factum of recovery of weapon of offence
from both the appellants/ accused remains unassailable.
11. In view of afore-going narration, the above captioned two appeals
are dismissed, as I find no substance in them. Thus, the conviction of
appellants and sentence awarded to them is maintained.
Appellant/accused-Ajay is present in the Court. His bail bond(s) are
forfeited and he directed to be taken into custody to serve out the
remainder of sentence awarded to him. Appellant-accused Dharmender is
already in custody and he shall serve the remainder of sentence as
awarded to him by the trial court.
12. With aforesaid directions, these appeals are disposed of.
13. A copy of this order be sent to the concerned Jail Superintendent
for compliance.
14. A copy of this order be given dasti under the signatures of Court
Master to respondent-State.
(SUNIL GAUR)
JUDGE
June 05, 2017
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