Kalu @ Saleem vs State

A.K. Pathak, J.—Arguments heard. Trial court record perused. The only point canvassed during the course of hearing is that the ingredients

of offence u/s 397 IPC are not attracted against the appellants, who have been convicted under Sections 120B, 395 and 397 IPC. During the

course of hearing, conviction of the appellants under Sections 120B and 395 IPC has not been assailed on merits.

In brief, prosecution case, as set out in the charge-sheet, is that victim Ashok Kumar was going with his servant Raj Kumar in a Santro car

driven by his driver Mahender (co-accused) on 25th July, 2007 at about 7:50 PM. He was returning home from his shop. Car was stopped at

Malka Ganj Petrol Pump for fuelling. Thereafter Mahender started the vehicle but again stopped it after about 4/5 steps on the pretext of wearing

the seat belt. In the meanwhile, appellants alongwith their co-accused forcibly gained entry through the rear doors. Kalu was having a knife in his

hand; while appellant Sonu and his co-accused were having country made pistols. They asked the driver to take the vehicle to Alipur bypass,

where the vehicle was stopped and Rs. 20,000/- to Rs. 25,000/- and other articles were robbed from the victim. Thereafter victim and his servant

Raj Kumar were forced to get down from the vehicle. Battery of the mobile phone (number 9810212250) of the victim was removed to see that

same is not used by the victim. Thereafter, appellants and their co-accused took Mahender with them along with the vehicle. During the

investigation, co-accused Hari Om was apprehended, who disclosed the names of appellants and other co-accused. It was further revealed that

Mahender had also conspired with other co-accused to rob the victim which plan was executed on 25th July, 2007.

Appellants surrendered in Court on 25th August, 2007. Subsequently their police custody was obtained. Nothing was recovered from Sonu.

However, Kalu got recovered a knife and one television, which he had allegedly purchased from the robbed money.

I need not to discuss the evidence adduced by the prosecution with regard to the offences under Sections 120B and 395 IPC, since challenge

to the conviction of the appellants under the said provisions has been given up during the hearing. Only question which needs to be considered is

whether the ingredients of offence u/s 397 IPC have been made out in this case or not.

Section 397 IPC provides that 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. Meaning thereby Section 397 IPC envisages minimum sentence to be awarded to an offender who uses ''deadly weapon''

while committing robbery. It is only such offender, who uses the deadly weapon can be handed down the minimum sentence as envisaged u/s 397

IPC and not the other accused accompanying such accused.

In respect of knives a Single Judge of this Court in Mohan Singh Vs. State, has held thus, ""In order to bring home a charge u/s 397 the

prosecution is duty bound to produce convincing evidence that the knife used by the accused in this case was a deadly weapon, it is no doubt true

that knives are deadly weapons available in various sizes and may just cause little hurt or maybe the deadliest. There are deadly weapons per se

such as would ordinarily result in death by their use. M.L. Jain, J. in the case of Balik Ram Vs. The State, on this aspect observed that what would

make a knife deadly is its design and method 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 the accused was a deadly weapon. Applying the said principle in the facts of the present

case I find that there is not an iota of evidence on record to suggest that the knife used by the accused was a deadly weapon. Even Sham Lata

Goel has not given its description. We are probably in the dark to conclude if the knife was buttondar knife, a kitchen knife or a pen knife or the

knife used could possibly cause the death of the victim, in the absence of such an evidence and particularly the non-recovery of the weapon will

certainly bring the case of the accused out of the ambit of Section 397 Indian Penal Code."" Similar is the view expressed in Bishan Vs. The State,

."" It may also be noted that whether a knife is ''deadly'' or not is a matter of fact which requires to be proved by leading positive evidence and in

this case no such evidence has been led.

As regards appellant Sonu, no knife has been recovered at his instance nor was the same put on the person of victim by this appellant.

Accordingly, it cannot be said that appellant Sonu had used any knife or that the same was a ''deadly weapon''. Admittedly, no injury was caused

to the victim nor in his statement he has stated that an attempt was made to cause grievous injury to him by using ''deadly weapon''. In the FIR,

PW1 has not even stated that any knife or country made pistol was used. According to him only one chain, which is used for tying the dog, was

used to threaten him. Be that as it may, since nothing has been recovered from the appellant Sonu, it cannot be said that he had used a ''deadly

weapon'' in commission of offence.

As regards appellant Kalu, PW1 while deposing in the witness box has categorically stated that he had entered through the right door of the car.

PW1 has further stated that two persons, who had entered from left door of the car, had used katta, knife and chain, though there is no mention

about the katta and knife in the FIR. As regards Kalu, he has not even whispered a single word that he used either a knife or a katta. Accordingly,

alleged recovery of knife after one month of the incident will not be enough to show that he had used the knife while committing dacoity along with

his co-accused.

Accordingly, I acquit both the appellants u/s 397 IPC. Conviction of appellant Kalu under Sections 25/ 27 of the Arms Act, 1959 is also set

aside, since evidence in this regard is suspicious and insufficient to conclude beyond the shadow of reasonable doubt that he got recovered the

knife after his police custody was obtained, in the manner as it has been projected. As regards their conviction under other provisions is

concerned, same is affirmed.

As regards sentences of the appellants are concerned, they have already remained in jail for about six years. Kalu has a family, which is

dependent upon him, inasmuch as his father is handicapped and has children of tender age. Jail conduct of the appellants is also satisfactory.

Keeping in mind totality of the circumstances, sentences of the appellants u/s 120B IPC as well as Section 395 IPC are reduced to the period

already undergone by them.

Appellants be released from jail forthwith unless required in any other case.

Copy of the order be sent to the Jail Superintendent for serving it upon the appellants as also for compliance. Both the appeals are disposed of

in the above terms.