RAKESH CHAUHAN Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 28th February, 2005 passed by Additional Sessions Judge, Delhi whereby appellant along with co-accused Samiuddin @ Chotu has been convicted under Section 397 read with Section 392 IPC and under Section 457 IPC; sentenced to undergo rigorous imprisonment for seven years with fine of Rs.500/- for the offence under Section 397 IPC; sentenced to undergo rigorous imprisonment for three years with fine of Rs.500/- for the offence under Section 457 IPC and in default of payment of fine to undergo rigorous imprisonment for three months. Both the sentences have been directed to run concurrently.

(2.) PROSECUTION case as unfolded is that appellant and co-convict Samiuddin @ Chotu along with Mohd. Arif and Nazim forcibly entered in the second floor of premises bearing No.1669, Kucha Dhakni Rai, Daryaganj, Delhi on 15.03.2001 at about 10.30 p.m. and committed robbery at the point of knife. Jafar Hussain was present in the house at that time along with his daughter-in-law Shehnaaz and other family members. Appellant and his accomplices intimidated the family members and forced the women to hand over their ornaments to them. They also opened almirah and removed valuable articles. While appellant and his accomplices were committing robbery, Jafar Hussains son, namely, Waseem Ahmed arrived there. He rang up the door bell at which door was opened by one of the assailants. He was also surrounded by appellant and his accomplices and cash, which he was carrying, was robbed. Thereafter, appellant and his accomplices locked up the family in the bathroom and decamped with the robbed articles. On 24th May, 2001 appellant and his accomplices were arrested. After investigation was completed charge sheet was filed against the appellant and his co-accused. During trial Smt. Shehnaaz, Jafar Hussain, and Waseem Ahmed were examined as PW3, PW4 and PW10 respectively. They have identified the appellant. Trial court found their testimonies trustworthy, credible and reliable so as to conclude that appellant and Samiuddin @ Chotu had committed robbery. However, Mohd. Arif and Nazim were acquitted by giving benefit of doubt to them.

(3.) THE short question which needs to be addressed in this appeal is whether the offence under Section 397 IPC is made out against the appellant or not in the facts of this case. Admittedly, the knife allegedly used by appellant while committing robbery had not been recovered. No evidence has been led before the Trial Court to show that the knife used by the appellant was a deadly weapon. Even otherwise, in absence of recovery of knife it cannot be said that the same would fall within the meaning of deadly weapon as envisaged under Section 397 IPC. In Bishan Vs. State 1984 (6) DRJ 78, it has been held that in the absence of recovery of knife, allegedly used by appellant at the time of commission of robbery/dacoity, it cannot be presumed that the knife used was a deadly weapon and in such circumstances, charge under Section 397 IPC cannot be established. Similar is the view in Rakesh Kumar Vs. THE State (Govt. of NCT) 2005 (1) JCC 334 and Sunil @ Munna Vs. THE State (Govt. of NCT) 2010 (1) JCC 388.