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2012 DIGILAW 2395 (DEL)

Pramod Kumar v. State of NCT of Delhi

2012-08-01

A.K.PATHAK

body2012
JUDGMENT : A.K. Pathak, J. 1. Appellant has been convicted under Section 393 IPC read with Section 398 Indian Penal Code, 1880 (“IPC”, for short) as also under Section 25 of the Arms Act, 1959 (for short hereinafter referred to as ‘the Act’) by the trial court and has been sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 500/- and in default of payment of fine, to undergo simple imprisonment of two months under Section 393 IPC read with Section 398 IPC; Sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 300/- and default of payment of fine to undergo simple imprisonment for one month under Section 25 of the Act. All the sentences have been directed to run concurrently. Benefit of Section 428 Cr.P.C. has also been given to the appellant. 2. Aggrieved by his conviction as also the quantum of sentence handed down to him by the trial court, appellant has preferred this Appeal. 3. In brief, prosecution case as unfolded is that on 5th September, 2008 at about 9.30 a.m., appellant took out mobile phone from the pocket of PW-2, Radhey Shyam, while travelling in a DTC bus near C-Lal Chowk, PW-2 caught hold of the hand of appellant when appellant took out a knife his pant’s pocket from his right hand. At that stage, with the help of a co-passenger PW-3 Rajesh Maurya, knife was snatched and appellant was apprehended by the public persons who also gave beatings to him. On search of the appellant one Giraridar knife was also recovered. Police was informed and the appellant was handed over to police. Thereafter, Investigating Officer prepared the sketch of knives and sealed them in a pullanda. 4. Learned counsel for the appellant has not pressed this appeal against the conviction of appellant under Section 393 IPC and Section 25 of the Act. His only contention is that the offence under Section 398 IPC is not made out in the facts of this case since knife was not used in the commission of crime. He has contended that neither the PW-2 nor PW-3 have deposed that appellant had used the knife and attempted to cause injury on their person in order to make good his escape. He has contended that neither the PW-2 nor PW-3 have deposed that appellant had used the knife and attempted to cause injury on their person in order to make good his escape. Though language used in Section 398 is “armed with any deadly weapon” but the use of expression “armed” has to be read in relation to the use of a ‘deadly weapon’ in connection with commission of an offence of robbery and docoity. Reliance has been placed on Phool Kumar vs. Delhi Administration, AIR 1975 Supreme Court 905, Ashfaq vs. State 2003 (Supp.6) SCC 619 and Madan Lal vs. State (Delhi Administration) 1997 (70) DLT 595 . 5. I have perused the statements of PW-2 and PW-3 carefully and find that neither PW-2 nor PW-3 has made any reference with regard to the use of knife by the appellant either for snatching the mobile phone or for making good his escape. PW-2 has deposed that the appellant took out his mobile phone from the pocket of his shirt by left hand; he immediately caught hold of his hand on which accused/appellant took out a knife from the pocket of his pant by his right hand at which he shouted and two persons, out of which one was Rajesh Maurya held him and snatched the knife from his hand and thereafter public persons apprehended him. PW-3 has also deposed that the accused took out mobile phone from the shirt pocket of PW-2 Radhey Shyam at which Radhey Shyam caught hold of the hand of accused and thereafter accused tried to take out something from his pocket by his right hand which was a buttondar knife but Radhey Shyam apprehended the accused. From the hand of accused mobile phone belonging to Radhey Shyam was recovered and on checking of accused one another knife was also recovered from the back pocket of his pant. Statements of PW-2 and PW-3 clearly indicates that the appellant had neither opened the knife nor tried to use the same either for taking out the mobile phone or making good his escape. From the statements of PW-2 and PW-3 it appears that the appellant was armed with two knives. He tried to take out one knife but did not open it nor he attempted to injure anyone. 6. From the statements of PW-2 and PW-3 it appears that the appellant was armed with two knives. He tried to take out one knife but did not open it nor he attempted to injure anyone. 6. Section 398 IPC prescribes minimum sentence with which an offender has to be punished if he is armed with any deadly weapon at the time of attempting to commit robbery or dacoity. Punishment so prescribed is not less than seven years. The expression used in Section 398 is “armed with any deadly weapon”. In Phool Kumar’s (supra) Supreme Court has held thus “Section 398 uses the expression “armed with any deadly weapon” and the minimum punishment provided therein is also 7 years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of 7 years under Section 398, if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections, viz, “uses” in Section 397 and “is armed” in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery”. In Ashfaq (supra) principles laid down in Phool Kumar’s case have been followed with approval. 7. On the other hand, if an offender was armed with a deadly weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery”. In Ashfaq (supra) principles laid down in Phool Kumar’s case have been followed with approval. 7. In Madan Lal (supra) a Single Judge of this Court in relation to Section 397 has held that in case knife is not used for the purpose of commission of offence ingredients of Section 397 IPC are not attracted. 8. In this case, since prosecution has failed to prove beyond the shadow of reasonable doubt that the appellant had used the knife for the purpose of commission of offence, therefore, it cannot be said that offence under Section 398 IPC is made out. Accordingly, conviction of appellant under Section 398 IPC is set aside while upholding his conviction under Section 393 IPC. Conviction of appellant under Section 25 of the Arms Act is also upheld since knives were recovered from his possession. 9. A perusal of nominal roll indicates that the appellant has been in jail for the last about five years which includes period of remission. In the above facts and circumstances, sentence of the appellant under Section 393 IPC is reduced to the period already undergone, with the result that appellant is entitled to be released forthwith. Thus, it is ordered that the appellant be released forthwith in case he is not wanted in any other case. 10. Appeal is disposed of in the above terms.