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IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Asif – Appellant
Versus
State (NCT of Delhi) – Respondent
Crl. Appeal No. 290 of 2021
Decided On : 28-01-2022
Indian Penal Code, 1860 - Sections 392/397/34 - Criminal Procedure Code, 1973 - Section 390 - Offence of Robbery, or dacoity, with attempt to cause death or grievous hurt - Deadly weapon - Whether knife is a deadly weapon or not - Appeal against conviction - Alleged that both the SIM cards were taken out by accused from his mobile phone and returned back to him, however, in his testimony before Court, he is silent about removal and handing over of SIM cards - Appellant assailing the conviction contends that the learned Trial Court failed to notice glaring contradictions in testimonies of PW-1, PW-2 and PW-4 who gave altogether different versions in respect of manner of commission of alleged robbery and investigation carried out by police qua the three witnesses.
Finding of the Court:
Section 390 Cr.P.C. provides that in a robbery, there is either theft or extortion. It is further provided that theft is ‘robbery’ if in order to committing of the theft or in committing the theft, or in carrying away or attempting to carry away property obtained by offence of robbery which in turn is a necessary ingredient of an offence - Evidence of the prosecution is that the appellant took out a blade and kicked the complainant - In the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable under Section 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC. A perusal of the nominal roll of the appellant would reveal that the appellant has undergone approximately 3 years and 9 months of sentence including remissions and the appellant is involved in four other FIR including three FIR relating to similar offences - conviction of the appellant is altered to for an offence punishable under Section 392 IPC and the sentence of the appellant is modified to rigorous imprisonment for a period of five years.
Result: Appeal is disposed of.
JUDGMENT :
MUKTA GUPTA, J.
1. By this appeal, the appellant challenges the judgment dated 5th July, 2019 convicting the appellant for offence punishable under Section 397 IPC and the order on sentence dated 17th July, 2019 directing him to undergo sentence of seven years imprisonment.
2. Learned counsel for the appellant assailing the conviction contends that the learned Trial Court failed to notice glaring contradictions in the testimonies of PW-1, PW-2 and PW-4 who gave altogether different versions in respect of the manner of commission of alleged robbery and the investigation carried out by the police qua the three witnesses. Admittedly, Mohd. Ibrahim (PW-1) is not an eye-witness as he himself admitted in his testimony that he was walking ahead of PW-2 and PW-4. He further stated that his statement was never recorded by the police during the investigation either at the spot or thereafter. Testimony of PW-2 does not inspire confidence and his version is not corroborated by PW-1, PW-4 and PW-8. As per rukka, PW-2 alleged that both the SIM cards were taken out by the accused from his mobile phone and returned back to him, however, in his testimony before the Court, he is silent about the removal and handing over of the SIM cards. Further, PW-2 stated that he never visited the place of occurrence after the incident and all the written work was done at the Police Station. PW-8 stated that he went to the spot with PW-2 and prepared the site plan. PW-4 altogether contradicted the version of PW-2 as he deposed that the appellant took out the blade and took Sonu (PW-2) with him, whereas PW-2 stated that the appellant took out the blade, kicked him and PW-4 tried to stop him, when co-accused helped the appellant, the appellant hit PW-2 and ran away. The alleged weapon of offence i.e. the blade has not been recovered and in the absence thereof, it cannot be said that it was a deadly weapon. No injury has been caused to the victim. Even as per the prosecution, the weapon was used after the alleged snatching, hence the appellant cannot be convicted for the offence punishable under Section 397 IPC. Reliance in this regard is placed on the decisions of this Court in Samiuddin @ Chotu vs. State of NCT of Delhi, Criminal Appeal No. 461/2016, decided on 9th November, 2010, Bishan vs. State, 1984 (6) DRJ 78, Rakesh Kumar vs. State of NCT of Delhi, 2005 (1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC 388.
3. Countering the contentions of the learned counsel for the appellant, Mr. Amit Gupta, learned APP for the State submitted that the version of the complainant Sonu (PW-2) is duly corroborated by PW-1 and PW-4. Even if PW-1 stated that he was walking a few steps ahead, the same does not mean that he did not witness the incident, when the complainant was waylaid by the appellant and his associate, who snatched the mobile phone and fled away from the scene. Call to the PCR was made by PW-1 from the spot and hence his presence at the spot, thereby witnessing the incident stands proved. Version of the complainant is also corroborated by PW-4. A mere detail testimony of one of the witnesses would not go to show that the complainant’s version is not corroborated. Once the deadly weapon is shown, which in the present case was a blade, offence under Section 397 IPC is made out. Ingredients of the offence punishable under Section 397 IPC are satisfied once the weapon of offence is used and infliction of injury or that the weapon of offence should be recovered is not essential to prove the offence under Section 397 IPC. Since the blade causes serious incised wound injury, it falls within the category of deadly weapon. As per the nominal roll, the appellant is involved in four other cases of similar nature. Hence, there is no error in the impugned judgment of conviction and order on sentence, the appeal be dismissed.
4. FIR No. 21/2015 was registered at Police Station Ranjit Nagar for offence punishable under Sections 392/397/34 IPC
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