The main legal point established in the judgment is the requirement of proving the knife used as a deadly weapon and the impact of non-recovery of the weapon of offence on the application of Section 397 IPC.

Sunita Gupta, J.

1. The short point for consideration in the present appeal is whether offence u/s 397 IPC is made out or not, in as much as learned counsel for the appellant has not challenged the conviction of the appellant for offence u/s 392/394 IPC.

2. The prosecution case emanates from the fact that on 06.12.2008 at about 05.45 p.m at Gidwani Road, behind Moolchand Park, Adarsh Nagar, three boys armed with knives came and met the complainant Dhananjay. One of them inflicted knife injury on his right hand while two other boys snatched away Rs.10,000/- from his pocket and fled away. On 31.12.2008, accused Ashraf @ Arif was arrested in case FIR No.323/08 u/s 25/54/59 Arms Act and made a disclosure statement pertaining to this case. He was arrested. He pointed out the place of occurrence but refused to take part in Test Identification Proceedings (TIP). During investigation, complainant identified the accused in Court. Co-accused could not be arrested. On completion of investigation, charge sheet u/s 392/394/397/34 IPC was submitted in the Court. The accused pleaded not guilty to the charge and claimed trial.

3. In order to substantiate its case, prosecution examined ten witnesses. The case of accused was one of denial simplicitor. He pleaded his innocence and alleged false implication in this case. He did not prefer to lead any evidence in defence.

4. Learned Additional Sessions Judge scrutinised the testimony of complainant Dhananjay who had substantiated the case of prosecution by deposing that on 06.12.2008, at about 5.45 a.m, he was going to Subji Mandi and when he reached near Moolchand Park, three boys, aged about 20 22 years came; one of them who was having knife hit him on his right hand while the other two boys snatched Rs.10,000/- from his pocket. He informed police at 100 number. PCR van came to the spot. He was taken to hospital, where his statement Ex. PW 1/A was recorded. He further deposed that he had gone to Tihar jail for identification of the assailant but assailant refused to take part in TIP. Subsequently on 16.01.2009, he identified the accused in Rohini Court. He also identified the accused during his deposition in Court by deposing that he was the same person who had caused injuries at his right hand with knife and his two assailants had robbed him of Rs.10,000/-. On the basis of testimony of complainant which could not be assailed in cross examination, coupled with the fact that accused has refused to take part in TIP and he was duly identified by the complainant in Court, learned Trial Court came to the conclusion that the prosecution had succeeded in establishing its case and as such convicted him for offence u/s 392/394/34 IPC read with Section 397 IPC. He was sentenced to undergo rigorous imprisonment for seven years u/s 392 IPC read with Section 397 IPC with fine of Rs.3,000/-, in default to undergo six months rigorous imprisonment. He was also sentenced to seven years rigorous imprisonment u/s 394/34 IPC with fine of Rs.5000/-, in default to undergo six months rigorous imprisonment.

5. Feeling aggrieved, the present appeal has been preferred by the appellant. However as stated above, the appellant did not challenge his conviction for offence u/s 392/34 IPC. The only submission of learned counsel for the appellant is that the weapon of offence has not been recovered in the instant case. The injuries were opined to be simple and the complainant was discharged from the hospital on the same day, as such offence u/s 397 IPC is not made out. Reliance was placed on a judgment of a single Judge in Crl.A.238/06 and Crl.A.240/06, Asif Vs. State and Nadeem Vs. State. It was also submitted that the appellant has remained in jail for a period of almost three years, as such he be released on the period already undergone. It was further submitted that the accused has been acquitted in the case under Arms Act.

6. On the other hand, it was submitted by learned APP for the State that offence u/s 397 IPC