Reliability of identification, interpretation of Section 397 IPC, use of deadly weapons in the commission of robbery.

1. Surender @ Sonu and Nisar @ Pahari @ Shamshad Ahmed challenge the impugned judgment dated 1st February, 2016 convicting them for offences punishable under Sections 392/394/397/307/34 and Section 25/27 Arms Act and the order on sentence dated 4th February, 2016 directing them to undergo rigorous imprisonment for a period of seven years each and to pay a fine of Rs. 5,000/- each, in default whereof to undergo rigorous imprisonment for a period of six months each, for offence punishable under Section 392/34 IPC read with Section 397 IPC, rigorous imprisonment for a period of seven years each and to pay a fine of Rs. 5,000/- each, in default whereof to undergo rigorous imprisonment for a period of six months each, for offence punishable under Section 394/34 IPC, rigorous imprisonment for a period of seven years each and to pay a fine of Rs. 10,000/- each, in default whereof to undergo rigorous imprisonment for a period of one month each, for offence punishable under Section 307/34 IPC, rigorous imprisonment for a period of three years each and to pay a fine of Rs. 5,000/- each, in default whereof to undergo rigorous imprisonment for a period of six months each, for offence punishable under Section 25 Arms Act and rigorous imprisonment for a period of three years each and to pay a fine of Rs. 5,000/- each, in default whereof to undergo rigorous imprisonment for a period of six months each, for offence punishable under Section 27 Arms Act.

2. Assailing the conviction, Learned Counsel for Surender @ Sonu submitted that the appellant was not named in the FIR. No description of the appellant was mentioned in the rukka even though the complainant Renu Tayal knew him from before since he had worked in her house. The appellant refused for TIP since he was already shown to the witness. It was urged that first time identification in court is not sufficient to arrive at the conclusion beyond reasonable doubt that the appellant was actual offender. Reliance is placed on the decisions of the Supreme Court reported as 1997 (11) SCC 565 Ganpat Singh v. State of Rajasthan, 2009 (13) SCC 417 State of Andhra Pradesh v. Sayyad Siraj Mohammad & Ors. and decision of this Court in Crl.LP. 400 of 2010 titled as GNCTD v. Rama Shankar Pandey & Anr. No CCTV footage of the area/locality was produced. Even if the case of the prosecution is accepted, the present case falls under Section 307/34 IPC and not under 392/397 IPC as child who received injury was not aimed at and allegations of robbery have not been proved since there was no recovery of the currency or the looted gold bangles. Children of the complainant Renu Tayal who were present in the house at the time of the incident have not been examined as witnesses. The knife could not be connected with the crime. The pistol was neither recovered at the instance of the appellant nor from his possession.

3. Learned Counsel for Nisar @ Pahari, adopting arguments of learned counsel for Surender, further submits that the fine amount imposed on the appellant should be waived.

4. Learned APP for the State on the other hand submits that the complainant Renu Tayal in her examination reiterated the facts stated by her in the complaint and Kushwant (PW-2) proved the fact of making the call to the police. Both the appellants were identified by her in the court and Nisar @ Pahari was also identified by her in TIP. Sonu @ Surender refused to take part in TIP and failed to give any just explanation for his refusal, hence adverse inference be drawn against him. Clothes, knife and Rs. 4,600/- were recovered at the instance of Sonu @ Surender from his house. It is further submitted that the case falls under Section 397 IPC even though the knife was not used but mere showing of the deadly weapon that is the knife was sufficient to constitute an offence punishable under Section 397 IPC. To buttress this argument, reliance was placed on the decision of this Court reported as 215 (2014) DLT 60 Sheetal & Ors. v. State (