The judgment emphasizes the need for convincing evidence to prove the use of deadly weapons in cases of robbery under Section 397 IPC.

A.K.PATHAK, J. (ORAL)

1. Arguments heard. Trial court record perused.

2. The only point canvassed during the course of hearing is that the ingredients of offence under Section 397 IPC are not attracted against the appellants, who have been convicted under Sections 120-B, 395 and 397 IPC. During the course of hearing, conviction of the appellants under Sections 120-B and 395 IPC has not been assailed on merits.

3. In brief, prosecution case, as set out in the charge-sheet, is that victim Ashok Kumar was going with his servant Raj Kumar in a Santro car driven by his driver Mahender (co-accused) on 25th July, 2007 at about 7:50 PM. He was returning home from his shop. Car was stopped at Malka Ganj Petrol Pump for fuelling. Thereafter Mahender started the vehicle but again stopped it after about 4/5 steps on the pretext of wearing the seat belt. In the meanwhile, appellants alongwith their co-accused forcibly gained entry through the rear doors. Kalu was having a knife in his hand; while appellant Sonu and his co-accused were having country made pistols. They asked the driver to take the vehicle to Alipur bypass, where the vehicle was stopped and `20,000/-to `25,000/-and other articles were robbed from the victim. Thereafter victim and his servant Raj Kumar were forced to get down from the vehicle. Battery of the mobile phone (number 9810212250) of the victim was removed to see that same is not used by the victim. Thereafter, appellants and their co-accused took Mahender with them along with the vehicle. During the investigation, co-accused Hari Om was apprehended, who disclosed the names of appellants and other co-accused. It was further revealed that Mahender had also conspired with other co-accused to rob the victim which plan was executed on 25th July, 2007.

4. Appellants surrendered in Court on 25th August, 2007. Subsequently their police custody was obtained. Nothing was recovered from Sonu. However, Kalu got recovered a knife and one television, which he had allegedly purchased from the robbed money.

5. I need not to discuss the evidence adduced by the prosecution with regard to the offences under Sections 120-B and 395 IPC, since challenge to the conviction of the appellants under the said provisions has been given up during the hearing. Only question which needs to be considered is whether the ingredients of offence under Section 397 IPC have been made out in this case or not.

6. Section 397 IPC provides that 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. Meaning thereby Section 397 IPC envisages minimum sentence to be awarded to an offender who uses deadly weapon while committing robbery. It is only such offender, who uses the deadly weapon can be handed down the minimum sentence as envisaged under Section 397 IPC and not the other accused accompanying such accused.

7. In respect of knives a Single Judge of this Court in Mohan Singh vs. State 1987 (13) DRJ 176 has held thus.

“In order to bring home a charge under Section 397 the prosecution is duty bound to produce convincing evidence that the knife used by the accused in this case was a deadly weapon, it is no doubt true that knives are deadly weapons available in various sizes and may just cause little hurt or maybe the deadliest. There are deadly weapons per se such as would ordinarily result in death by their use. M.L. Jain, J. in the case of Balak Ram v. State 1983 DLT 142 on this aspect observed that what would make a knife deadly is its design and 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 and prosecution should prove that the knife used the accused was a deadly weapon. Applying the said principle in the facts of the present case I find that ther