DIG BAHADUR @ RAHUL @ VINOD Vs. STATE

JUDGEMENT

(1.) The appellant has preferred this appeal assailing the judgment dated 8th February, 2011 and order on sentence dated 14th February, 2011 passed in Session Case No.44/2008 (in FIR No.822/2007 under Sections 342/381/397/395/412/34 IPC, PS Prashant Vihar) whereby he has been convicted for committing the offence punishable under Section 392 read with Section 397 IPC and sentenced to undergo RI for seven years with fine of Rs. 5,000/- and in default of payment of fine to undergo SI for five months.

(2.) Ms.Saahila Lamba, learned counsel for the appellant has submitted that this appeal is being pressed to the extent of challenging his conviction under Section 397 IPC as the ingredients of Section 397 IPC are not satisfied. Learned counsel for the appellant submits that as neither the knife, allegedly used at the time of commission of robbery, has been recovered nor the description of the knife has been given by PW-2 Smt.Kavita the complainant, to prove that the appellant had used deadly weapon at the time of commission of robbery, the conviction of the appellant under Section 397 IPC is not justified. The defence counsel has relied upon decision of this Court in Gulab @ Bablu vs. The State (N.C.T. of Delhi) in Crl.A.515/2010 wherein it was held as under:

(3.) Mr.Kewal Singh Ahuja, learned APP for the State has submitted that to convict a person for the offence punishable under Section 397 IPC, the requirement is about the use of deadly weapon in commission of robbery/dacoity. Hence merely because the knife has not been recovered, it cannot be made a ground to acquit the appellant for the offence punishable under Section 397 IPC. It has been further submitted that since the knife has been used at the time of commission of robbery and the complainant has nowhere stated that it was a vegetable cutting knife, and the purpose of the appellant was to create a fear in the mind of PW-2 Smt.Kavita the complainant and it amounts to use of deadly weapon while committing the robbery. Thus the appellant has been rightly convicted for committing the offence punishable under Section 392 IPC read with Section 397 IPC.