HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (Oral)
1. Appellant has been convicted under Section 394 read with Section 397 of the Indian Penal Code, 1860 (for short “IPC”); sentenced to face rigorous imprisonment of 7 years with fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for 30 days, by the trial court.
2. Aggrieved by his conviction as also the quantum of sentence as awarded by the trial court, appellant has preferred this appeal.
3. During the course of hearing, counsel for the appellant has only canvassed a short point for consideration, that is, ingredients of offence under Section 397 IPC are not disclosed in the facts of this case, since the prosecution had failed to lead any evidence to show that the knife, used in the commission of crime was a „deadly weapon‟. Thus, it is contended that the conviction of appellant under the said provision be set aside. As regards conviction of the appellant under Section 394 IPC, challenge to the same has been given up.
4. As per the prosecution, appellant along with his co-accused Gautam Chand had robbed the victim Harjinder Singh of his purse containing `1800/- together with certain documents and fled away. Later on, appellant was arrested and pursuant to his disclosure statement `160/- out of the robbed money as well as documents which were there in the purse had been recovered. Knife, used in the commission of crime, could not be recovered despite the best efforts made by the Investigating Officer. Victim sustained simple injuries on his thigh during the robbery.
5. PW-3 Harjinder Singh has supported the prosecution story.
He has deposed that the appellant took the knife from his co- accused and attacked him as a result he had sustained injury on his thigh. Appellant and co-accused took away his purse containing `1800/- cash and some other documents. PW-3 has neither given any dimension, shape and size of the knife nor has deposed that the same was a “deadly weapon”. PW-7 SI Umesh Kumar is the first Investigating Officer. He had recorded the statement of Harjinder Singh and got the FIR registered. He also prepared the site plan. However, subsequently investigations were transferred to ASI Dilbagh Singh, who has been examined as PW-6. He has deposed about the arrest of appellant and proved the recovered items, that is one red coloured purse, `160/- cash and certain other papers including the visiting cards. PW-6 has not deposed about the recovery of knife, inasmuch as, no other witness has been produced to state that the knife used in the commission of crime was recovered or that the same was a deadly one.
6. From the evidence adduced by the prosecution it is clear that knife used in the commission of crime had not been recovered from the appellant. Dimension, shape and size of the knife has also not been given by any of the witnesses nor any one of them has deposed that the same was a deadly one.
7. Section 397 IPC reads as under:-
If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
8. A perusal of the aforesaid provision makes it clear that if an offender at the time of committing robbery or dacoity, uses any deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. This provision prescribes minimum sentence which shall be handed down to such an offender. In this case neither the victim has sustained grievous hurt nor there is an evidence that attempt was made to cause death or grievous hurt to the victim nor is there any evidence to show that the knife used at the time of committing robbery was a “deadly weapon”. Simple injuries have been sustained by the victim on his thigh.
9. In Charan Singh Vs. The State, 1988 Crl. L.J. NOC 28 (Delhi), Single Judge has held as under:-
“At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under S.397, the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife use by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non- recovery of the weapon would certainly bring the case out of the ambit of S.397. The accused could be convicted under S.392.”
10. In Samiuddin @ Chotu vs. State of NCT of Delhi 175 (2010) Delhi Law Times 27, a Bench of co-ordinate jurisdiction has held that when a knife used in the commission of crime is not recovered the offence would not fall within the ambit of Section 397 IPC. In Rakesh Kumar vs. The State of NCT of Delhi 2005(1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC 388, it was observed that in the absence of recovery of the knife used by the appellant at the time of commission of robbery charge under Section 397 IPC cannot be established.
11. In the present case, indubitably the knife used for commission of crime was not recovered. Accordingly, in my view, appellant could not have been sentenced under Section 397 IPC and Trial Court has erred on this point.
12. For the foregoing reasons, while upholding the conviction of the appellant under Section 394 IPC his conviction under Section 397 is set aside.
13. Appellant is in incarceration for about five years. As appellant‟s conviction under Section 397 has already been set aside, in the facts and circumstances of this case, the sentence of the appellant is reduced to the period he has already undergone. He be released forthwith if not wanted in any other case.
14. Copy of the order be sent to Superintend Jail for serving it on the appellant as also for compliance.
A.K. PATHAK, J.
JULY 16, 2012 ps