JITENDER Vs. STATE

JUDGEMENT

(1.) VIDE judgment dated 8th July, 2009 passed by the Trial Court appellants have been convicted under Section 392 read with Section 34 of the Indian Penal Code, 1860 ("IPC" for short). Appellant no. 1 has also been convicted under Section 397 IPC and 25/27 of the Arms Act, 1959. Appellant no. 1 has been sentenced to undergo rigorous imprisonment for seven years with fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Sections 392/397/34 IPC. He has been further sentenced to undergo rigorous imprisonment for a period of three years along with fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month under the Arms Act, 1959. Both the sentences have been directed to run concurrently. Appellant no. 2 has been sentenced to undergo rigorous imprisonment for three years with fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 392/34 IPC. Co- accused of the appellants, namely, Ashok @ Chap has also been convicted under Section 392/34 IPC and sentenced to rigorous imprisonment for a period of three years along with fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for one month. However, he has not joined the appellants to prefer the present appeal and no discussion about his role is made in this appeal.

(2.) IN brief, prosecution case as unfolded is that on 12th February, 2004 at about 11 p.m. victim Shankar Lal was returning home from his factory on his bicycle and when he reached near DDA park, Sector 20, Rohini, four boys surrounded him out of whom one boy gagged his mouth while another kept a knife on his neck. Thereafter, they snatched Rs.1250/- from his shirt pocket. They threatened him that in case he raised any alarm he would be killed. Thereafter, they ran towards the Masjid. Shankar Lal raised alarm. One PCR Van was passing through the area wherein HC Satpal and HC Chand Singh were present. On hearing the alarm raised by the victim they chased those four boys and apprehended two out of them, who disclosed their names as Jitender (appellant no.1) and Jagdish (appellant no.2). From the pocket of appellant no.1, that is, Jitender one buttondar knife was recovered. Investigating Officer SI Jagdish completed the investigation. He prepared a sketch plan of knife and sealed the same in a pulanda. Appellants were arrested. Site plan was prepared. On the disclosure of appellants Ashok @ Chap was arrested. The fourth boy could not be apprehended.

(3.) AS regards offence under Section 397 IPC against the appellant no. 1 is concerned, in my view, same is not made out. Prosecution has failed to prove that a deadly weapon was used by the appellant no.1, at the time of commission of crime. A perusal of Section 397 IPC makes it clear that this section can be invoked if at the time of committing robbery or dacoity the offender (a) uses any deadly weapon; or (b) causes grievous hurt to any person; or (c) attempts to cause death or grievous hurt to any person. In the present case, victim has not suffered any injury what to say of grievous injury. PW4 has not deposed about injury inasmuch as, no medical evidence has been led in this regard. None of the witnesses have deposed that knife recovered from appellant no.1 was a ,,deadly weapon and this fact infact has remained unproved. In Balak Ram vs. State 1983 Crimes 1037, it has been held that "knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result in death by their use. What would make a knife deadly is its design or the manner of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly one." Similar is the view expressed in Shri Bishan vs. State (Delhi) 1984 (1) Crimes 883. Onus to prove that knife was deadly one lies on the prosecution which, in my view, prosecution has failed to discharge in this case. Accordingly, Section 397 IPC cannot be invoked in this case against the appellant no. 1, consequently, conviction under Section 397 IPC is set aside.