SANTOSH AND ORS. Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) THESE appeals filed by appellant Santosh and Lucky are directed against the impugned judgment and order on sentence dated 23.04.2012 wherein the appellants have been convicted under Section 397/392/34 of the IPC and each of them has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs. 20,000/ - each and in default of payment of line to undergo SI for a period of 2 months. Nominal roll of appellant Santosh reflects that as on 06.04.2015, he has undergone incarceration of 3 years, 9 months and 25 days besides remission earned of 1 year meaning thereby that as on date, he has completed incarceration of about 5 years and 2 months. Nominal roll of appellant Lucky reflects that as on the date when he was granted bail i.e. in January, 2014 (having availed of by the appellant only in March, 2014 after his bond amount had been reduced) he has undergone incarceration of almost about 4 years which includes his period of remission.

(2.) LEARNED counsel for the appellant has made a twofold submission. First submission is that the ingredients of Section 397 of the IPC are not made out as there is no 'use' of deadly weapon as is clear from the deposition of the complainant who has been examined as PW -1. The second submission is that the blade which was admittedly the weapon of offence was found in a wrapper and even otherwise does not qualifies as a 'deadly weapon'. On both these counts, the conviction of the appellants under Section 397 of the IPC is ill -founded.

(3.) THE second submission of the learned counsel for the appellants that the blade was found in a wrapper and this is clear from the testimony of PW -6 (recovery witness) also stands substantiated. PW -6 in his testimony clearly stated that on opening the second pulanada duly sealed with the seal of the Court, it was found to contain one match box containing shaving blade 'mark 365' was written on it which was wrapped in a wrapper. This has been elicited in his cross -examination. PW -6 lias categorically stated that the blades were in a paper wrapper when they were seized from the accused and they have not taken out of the paper wrapper before sealing them again. Apart from this, the Court notes that a shaving blade would not qualify as a 'deadly weapon'.