Delhi High Court
Ajay @ Munna vs State on 16 June, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: June 16, 2017
+ CRL.A. 14/2016
AJAY @ MUNNA ..... Appellant
Through: Mr. Amar Nath, Amicus Curiae
with Mr. Sitab Ali Chaudhary,
Delhi High Court Legal Services
Committee's Panel Advocate
versus
STATE .....Respondent
Through: Mr. Mukesh Kumar, Additional
Public Prosecutor with SI Nanag
Ram
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
The challenge in this appeal is to impugned judgment of 30 th
September, 2015 vide which appellant has been convicted for the offence
under Section 392 of IPC read with Section 397 of IPC and to order of
20th November, 2015 vide which appellant has been sentenced to rigorous
imprisonment for seven years with fine of `5,000/- and in default of
payment of fine, trial court has directed that appellant shall undergo
simple imprisonment for 15 days for the aforesaid offences. The facts
emerging from impugned judgment are as under: -
"The prosecution case is that ASI Ramvir lodged DD
no.5 with PS-Dwarka South, to the effect that at Power
House, Red Light, the auto driver informed that someone
tried to snatch his mobile phone and on his identification,
the culprit was apprehended and the mobile phone and knife
was recovered from his possession. The said DD was
marked to HC Rajesh, who alongwith Ct. Satish Kumar
reached the spot where complainant was present who
informed that one boy at the point of knife had snatched his
mobile phone and was apprehended by him with the help of
other auto drivers and that PCR officials had taken that boy
to the police post. Thereafter, the complainant was taken to
the police station by HC Rajesh Kumar and his statement
was recorded to the effect that on that day i.e. 10.02.2014 at
about 6.30am , he was present alongwith his auto bearing
registration no. DL-1RL-9358, opposite Power House,
Sector 2, Dwarka, New Delhi, one boy came to him and
asked for his mobile phone to make a call. When
complainant told him that there was no balance in his
phone, the boy pulled him outside from the auto and took
him near the tree behind the auto and then took out a long
knife from his waist and threatened to kill him. He snatched
his mobile phone bearing no. 9718899021. Complainant
raised alarm. The other auto drivers of nearby reached the
spot and apprehended the boy namely Ajay @ Munna. He
was handed over alongwith knife and mobile phone to the
officials of PCR who passed through that place. On the
basis of the aforesaid statement of Rahul, case FIR no.
65/14 was registered under Section 394/411 IPC with PS
Dwarka South."
Apart from evidence of complainant (PW-1) and public witness
(PW-5), there is other evidence on record on which trial court has relied
upon to convict appellant-accused while discarding his version of false
implication.
Learned counsel for appellant submits that in pursuance to issuance
of production warrants, appellant was produced in custody before the
Court and he had interacted with appellant.
At the outset, learned counsel for appellant submits that public
witness (PW-5) is not an eye-witness and neither from his evidence nor
from the evidence of complainant (PW-1), ingredients of Section 397 of
IPC are attracted as it is not in complainant's evidence that the „knife‟
was shown to complainant prior to robbing him of his mobile phone. To
submit so, attention of this Court is drawn to deposition of complainant
(PW-1) and that of public witness (PW-5). It is pointed out by appellant's
counsel that in the cross-examination, complainant (PW-1) has admitted
that the public witness had not witnessed the incident in question and so,
it is submitted that the evidence of said public witness (PW-5) is of
hearsay.
Learned counsel for appellant submits that at best the offence
committed by appellant comes within the ambit of Section 392 of IPC
only, which does not carry any minimum sentence and that as per the
Nominal Roll of appellant, he has already undergone sentence of 3 years
and 9 months and that he is not involved in any other case. Lastly, it is
submitted that appellant is a poor labourer, who was aged 22 years at the
time of this incident and so, sentence awarded to appellant deserves to be
reduced to the period already undergone by him.
Learned Additional Public Prosecutor supports impugned judgment
and submits that appellant, who was arrested at the spot, had used the
recovered „knife‟ and so, the sentence awarded to appellant is just and
proper.
Upon hearing and on perusal of impugned judgment, order on
sentence, appellant's Nominal Roll and the evidence on record, I find that
the pre-requisite to attract Section 397 of IPC is that a weapon has to be
used to facilitate the commission of offence of robbery or dacoity. It is
amply clear from the evidence of complainant (PW-1) and that of public
witness (PW-5) that appellant had not shown the „knife‟ to complainant
prior to robbing him of his mobile phone. Strangely, after appellant had
robbed complainant of his mobile phone, he had shown „knife‟ to
complainant. It has come in the evidence of complainant that such a
course was adopted by appellant to facilitate his escape from the spot and
this endeavour proved unsuccessful as appellant was apprehended at the
spot. There is no doubt that the offence of robbery has been committed by
appellant and so, his conviction for the offence under Section 392 of IPC
is well deserved. However, the evidence on record does not reveal that
appellant had shown or used the „knife‟ before robbing complainant and
so, provision of Section 397 of IPC is not attracted to the instant case.
Quite evidently, in the evidence of public witness or complainant's
evidence, it has not come that appellant had shown the „knife‟ prior to
robbing complainant of his mobile phone. So, trial court has erred in
convicting appellant with the aid of Section 397 of IPC.
Resultantly, appellant's conviction under Section 397 of IPC is set
aside. As per Nominal Roll of appellant, he has undergone sentence of 3
years and 9 months. Since offence under Section 392 of IPC does not
carry any minimum sentence, therefore, in the facts and circumstances of
this case, appellant is sentenced to rigorous imprisonment for 3 years and
6 months for the offence under Section 392 of IPC and remaining period
of 3 months already undergone by appellant shall be the sentence in
default of payment of fine.
With aforesaid modification, this appeal is disposed of. Appellant
is in custody. He be released forthwith, if he has already undergone the
modified sentence and is not wanted in any other case. The concerned Jail
Superintendent be apprised of this judgment forthwith to ensure its
compliance and to intimate appellant about the fate of this appeal.
(SUNIL GAUR)
JUDGE
JUNE 16, 2017
s
