JUDGMENT :

VIBHU BAKHRU, J.

1. The appellant has filed the present appeal impugning a judgment dated 07.05.2016 passed by the Ld. ASJ, Karkardooma Courts (hereafter 'the impugned judgment'), whereby the appellant was convicted for committing offences under Sections 392/397 of the Indian Penal Code, 1860 (IPC) for stealing a mobile phone while using a deadly weapon, i.e. knife. The appellant also impugns an order on sentence dated 12.05.2016, whereby the appellant was sentenced to seven years of rigorous imprisonment under Section 397 of the IPC. The appellant was also sentenced to seven years of rigorous imprisonment under Section 392 of the IPC. The appellant was sentenced further with a fine of Rs. 1,000/- under Section 392 of the IPC, and in default of the same, six months of simple imprisonment. Both sentences were to run concurrently.

2. The appellant has challenged the judgment, inter alia, on the ground that the knife found in the possession of the appellant is not a 'deadly weapon', since it was not intended to be used by the appellant as a deadly weapon. Merely possessing a knife was not enough to attract the offence under Section 397 of the IPC. In the present case, the prosecution had failed to prove that the appellant had used the knife in his possession as a 'deadly weapon'.

3. The present case arises from FIR bearing no. 536/2015, under Sections 392/397/379/506/411 of the IPC, registered with PS Bhajanpura. The case of the prosecution is that on 21.04.2015, at about 12:20 pm, at Shop No. A-131, Main Yamuna Vihar Road, near Bada School Delhi, the appellant had committed theft of one black mobile phone (make QMI Model M7) belonging to one Suhaib. Suhaib had put his phone on charging inside the said shop. The appellant tried to escape along with the phone from the spot. When Suhaib tried to stop him, the appellant pointed a knife at him. Thereafter, Suhaib raised an alarm and public persons tried stopping the appellant. The appellant waved his knife/churri towards the public persons also. The public chased him and managed to apprehend him. The stolen mobile phone and the knife were recovered from the possession of the appellant. The appellant was thereafter arrested by the police and a chargesheet was filed under Sections 392/397/411 of the IPC.

4. On 19.08.2015, the Court framed charges under Sections 392/397/411 of the IPC, to which the appellant pleaded not guilty. The prosecution examined six witnesses to prove its case. The appellant did not prefer to lead any evidence in defence.

5. The Trial Court held that that the testimonies of PW3, PW4 and PW5 were consistent and corroborated the fact that the appellant had committed the theft of a mobile phone belonging to Suhaib and had used a weapon i.e. knife/churri while attempting to carry away the property obtained by theft. The court accepted the prosecution's case that the appellant had put the complainant and other persons in instant fear of hurt or death, as provided under Section 390 of the IPC. On the basis of the said finding, the Trial Court had held that the accused had committed the offence of robbery as defined and convicted the appellant under Section 397 of the IPC.

Evidence

6. Before proceeding further, it is relevant to briefly examine the evidence led by various witnesses.

7. Ct Pradeep Gaur was examined as PW1 and he stated that on 21.04.2015, DD No. 27A was assigned to SI Pramod. PW1 and SI Pramod reached the aforesaid spot and met the complainant Aslam (PW3). The complainant produced one boy (appellant herein) and stated that he had snatched the mobile phone. A dagger and a mobile phone were in his possession and he was apprehended with the help of public persons. The statement of Aslam was recorded and a rukka was prepared. PW1 took the same and went to the Police Station for the registration of the FIR.

8. The complainant, Aslam, was examined as PW3 and he stated that he and his brother Amir, used to work at his father's shop (Shop No. A-131, Main Yamuna