Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 1666 (DEL)

AJAY ALIAS AJJU v. STATE OF DELHI

2006-09-18

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) ISSUE notice. Mr Pawan Sharma accepts notice on behalf of the state. Both the counsel appearing for the petitioner as well as the State submit that this Revision Petition can be disposed of at the first hearing itself. ( 2 ) THE petitioner is aggrieved by the order on charge dated 8. 8. 2006 as well as the formal charge framed on 10. 8. 2006 by the learned Additional sessions Judge. ( 3 ) THE charge framed, inter alia, against the present petitioner by the learned Additional Sessions Judge reads as under:-"charge i, Narottam Kaushal, Addl. Sessions Judge, Rohini Courts, Delhi charge you: 1. Ajaya @ Ajju s/o Raaju, 2. Santosh Kumar s/o Ram Sarup 3. Naved khan s/o Liyakat Ali as under:-That on 5. 4. 06 at 11. 30 p. m. at N. Block at Panchvir Park Vishnu garden, within the jurisdiction of P. S. Tilak Nagar, you all alongwith a sardar boy (not arrested so far) in furtherance of your common intention committed robbery while stopping the scooter of the complainant on the point of knife and snatched gold chain, cash Rs 25,000/- one gold kadda which was worn by the complainant; and you all committed offence punishable under Sec. 394 r/w Sec. 34 ipc and within my cognizance. Secondly, on the aforesaid date, time and place during the abovesaid robbery, you co-accused sardar boy (not arrested so far) used knife for committing abovesaid offence of robbery and thereby you are liable to be punished U/s 397 IPC and within my cognizance. " ( 4 ) THE operative portion of the order on charge also needs to be looked at. The same reads as under:-"i am thus, of the opinion that a charge under section 394 read with section 34 ipc and 397 read with section 34 IPC is made out against the accused persons. Let the charge be accordingly framed. " ( 5 ) THE learned counsel for the petitioner pointed out straightway that the case for the prosecution even if taken to be correct does not disclose a charge under Section 397 IPC insofar as the present petitioner is concerned. Let the charge be accordingly framed. " ( 5 ) THE learned counsel for the petitioner pointed out straightway that the case for the prosecution even if taken to be correct does not disclose a charge under Section 397 IPC insofar as the present petitioner is concerned. In this Revision Petition, the learned counsel for the petitioner submitted that he is only agitating the question of a charge under Section 397 IPC having been framed against the present petitioner on the basis of the material available on record. ( 6 ) AS per the prosecution case four persons including the present petitioner are alleged to have stopped the complainant when he was going home in his scooter. One of the four persons was a "sardar Boy" whose name in the charge-sheet has been shown as Amarjit. He was said to be holding a knife in his hand and the others including the present petitioner were unarmed. The complainant was allegedly removed from the scooter and taken to a nearby park where the said Amarjit, at knife point, directed the complainant to hand over his valuables. The complainant allegedly handed over Rs 25,000/- to the said amarjit. Another boy who was described as being tall snatched the gold chain which the complainant was wearing. The gold Kara (bracelet) was also removed by amarjit. And, another boy removed the purse from the complainant's pocket. The complainant gave the description of all the four accused and stated that he could identify them. ( 7 ) THE learned counsel for the petitioner submitted, as he did before the learned Additional Sessions Judge, that insofar as the charge under Section 397 IPC is concerned, it is, inter alia, the co-accused Amarjit who could be charged with the same inasmuch as he is the only person who is alleged to have used the knife. The other co-accused who, include the present petitioner, even as per the prosecution case were unarmed. Therefore, the charge under Section 397 cannot be made out against the present petitioner. The other co-accused who, include the present petitioner, even as per the prosecution case were unarmed. Therefore, the charge under Section 397 cannot be made out against the present petitioner. ( 8 ) THE learned Additional Sessions Judge, however, was of the view that since the said Amarjit (Sardar boy) did not act independently from others and it is the complainant's version that all the four accused had acted in furtherance of the common intention, therefore, a charge under Section 397 read with Section 34 IPC was also made out against the accused persons who were not armed. ( 9 ) THE learned counsel for the petitioner pointed out that this is clearly is an error inasmuch as Section 397 has reference only to the persons who use a deadly weapon. In the present case, it is only Amarjit who has used a deadly weapon and it is only Amarjit who can be charged under Section 397 and not the present petitioner. Section 397 of the Indian Penal Code reads as under:-"397, Robbery, or dacoity, with attempt to cause death or grievous hurt.- If at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. "a plain reading of the above provision makes it clear that it has reference only to "the offender" who uses a deadly weapon and to none of the other offenders who participate in the robbery or dacoity. Section 397 does not by itself create any new offence. It only provides for a minimum term of imprisonment for such an offender who uses a deadly weapon during the course of committing robbery or dacoity. The position is very clear particularly, in view of the decision of the Supreme Court in the case of Phool Kumar v. Delhi administration: AIR 1975 SC 905 , wherein the Court at Page 907 held as under:-"the term 'offender' in that section as rightly held by several High courts, is confined to the offender who uses any deadly weapon. The position is very clear particularly, in view of the decision of the Supreme Court in the case of Phool Kumar v. Delhi administration: AIR 1975 SC 905 , wherein the Court at Page 907 held as under:-"the term 'offender' in that section as rightly held by several High courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. " ( 10 ) FROM this discussion, it is absolutely clear that the present petitioner who was unarmed could not be charged under Section 397 and the learned Additional Sessions Judge has clearly committed an error which needs to be corrected in revision. The impugned order on charge as well as the former charge framed are, therefore, modified to the extent that as against the present petitioner, the charge under Section 397 IPC shall stand deleted and he shall only stand charged for the offence under Section 394/34 IPC. This revision petition is partly allowed.