CRL.A./1141/2017 of SONU @ SHAHNAWAJ Vs STATE (NCT GOVT OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 19.11.2019

CRL.A. 1141/2017SONU @ SHAHNAWAZ

..... Appellant

versus

STATE (NCT GOVT OF DELHI)

..... Respondent

Advocates who appeared in this case:

For the Appellant: Mr Suhil Kumar Jain with Ms KrishnashreeDevi, Advocate.

For the Respondent : Mr Amit Gupta, APP for State.

SI Rahul, PS Bhajanpura.

CORAMHON’BLE MR JUSTICE VIBHU BAKHRUJUDGMENT

VIBHU BAKHRU, J

1.The present appeal arises out of judgement dated 31.05.2017passed by the Learned ASJ, (North-East), Karkardooma Courts,whereby the Appellant has been convicted for the offences underSections 397/392/411/34 of the Indian Penal Code, 1860 (hereafter‘IPC’). By an order dated 08.06.2017, the appellant has beensentenced to seven years of rigorous imprisonment for the offenceunder Section 397 IPC; three years of rigorous imprisonment and fineof ₹1000/- for the offence under Section 392 IPC and in default, simple imprisonment for one month; and simple imprisonment for six

months for the offence under Section 411 IPC and fine of ₹500/- and in case of default, to undergo simple imprisonment for fifteen days.All the sentences are directed to run concurrently.

2.The case set up by the prosecution is that on 04.06.2014, ataround 3-3:30 AM, two persons (including the appellant) hadsurrounded the Complainant (Mr Rohit) near Tikona Park, while hewas on his way to the dairy of his employer and had started to take outcurrency notes out of his pocket. The complainant resisted and as aresult, one of the said persons put knife on the complainant’s backand the other person took two currency notes of ₹500/- from the pocket of the complainant and ran away. It is stated that in themeanwhile, the owner of the dairy, one Sh Praveen, reached the spotof the incident and both of them – the complainant and Praveen –apprehended one of the said persons near the place of incident.Thereafter, Praveen dialed 100 and informed the police about theincident. Consequently, Ct. Sanjeev and Ct. Ram Kishan reached atthe spot while on beat duty. The apprehended person was thensearched by Ct. Sanjeev and currency note of ₹500/- and knife was found in his possession. The apprehended person was identified as oneMr Sonu (the appellant) and he disclosed that the other assailant, whohad managed to escape from the spot of the incident, was namedAkbar.

3.Pursuant to the aforesaid events, an FIR was lodged underSections 392/397/34 IPC. Subsequently, final report under Section

173 of the CrPC was filed, and the offence under Section 411 of theIPC was also added to the offences alleged against the accused.

4.During the trial, the prosecution examined the followingwitnesses: PW-1 (the complainant), PW-2 (Sh Praveen – the owner ofthe Dairy), PW-3 (HC Brigender Singh, no.812 RB, Security, Delhi),PW-4 (Ct. Sanjeev Kumar, Beat Constable), PW-5 (HC Dhanraj, DutyOfficer at the concerned Police Station), PW-6 (SI Yogesh) and PW-7(Ct. Ajay Singh). The statement of the accused Sonu was alsorecorded under Section 313 of the Cr.P.C., wherein he denied all theallegations levelled against him.

5.The Trial Court, after perusing the evidence, held the appellantguilty under Sections 392/397/411 of the IPC. The Trial Courtobserved that the testimony of the witnesses was consistent with theprosecution’s version and it was sufficient to prove that the appellanthad put kitchen knife on his back while robbing ₹1000/- from his pocket. The Trial Court further held that nothing could be noted downfrom the cross examination of the said witnesses, which would createan iota of suspicion against the prosecution’s version of the incident.The Trial Court further observed that in his cross examination, theaccused (appellant) did not dispute that he, along with his accomplice(the co-accused), was present at the incident spot and that the co-accused had managed to escape therefrom.The Trial Court furtherheld that the accused had also failed to establish any doubt as to hisinvolvement in the incident by his statement under Section 313 of theCr.P.C., wherein he had stated that he was falsely implicated in the

case at the instance of PW-2. The Trial Court further held that the useof knife during the commission of the robbery amounts to the use ofa “deadly weapon” within the meaning under Section 397 of the IPCand thus, the accused was also guilty of an offence under Section 397of the IPC.

6.In this view, the Trial Court held that the charges levelledagainst the accused (appellant) were proved against him beyondreasonable doubt. The Trial Court held that “there is unbreakablechain of the entire narration since the very starting point, i.e robbingof the complainant uptil the conclusion of the entire exercise there atthe spot and afterwards.” and thus, the prosecution had successfullyestablished its case against the accused. Consequently, the accused(appellant herein) was found guilty of the offences under Sections392/397/411/34 of the IPC and was sentenced accordingly.

7.The learned counsel appearing for the appellant has assailed theimpugned judgment on the ground that the Trial Court erred inholding that knife falls under the definition of “deadly weapon” underSection 397 of the IPC. The appellant submits that the Trial Courtfound that the knife used by the appellant was kitchen knife andthus, it could not be construed as deadly weapon. It is furthersubmitted by the learned counsel for the appellant that there is an errorin the Trial Court’s judgment, inasmuch as, it failed to appreciate thatfrom the two currency notes that had been looted from thecomplainant as per the FIR, only one was revered from his pocket. Itis submitted that as per the prosecution’s version of the incident, the

appellant was apprehended by PW-1 and PW-2 at distance of 100yardswhiletheappellantwasrunningandintherelevantcircumstances, the appellant could not have shared the currency notewith the other accused.

Evidence

8.Before proceeding further, it is important to examine all thewitnesses. Seven witnesses in total were examined by the Trial Court.

9.Rohit was examined as PW-1. He deposed that he had beenworking at the dairy for while. On 04.06.2014, at about 3:30 AM,PW-1 while on his way to the dairy, met Sonu and Akbar (theaccused) near Tikona Park. It was deposed that the said accused put aknife at his back and took out two notes of ₹500/- each from the pocket of shirt which PW-1 was wearing. Thereafter, the accused triedto run away from the spot. At the same time, Praveen, the owner of thedairy reached at the spot and he alongwith PW-1, chased the accusedand caught hold of Sonu in the process. Thereafter, the police wereinformed about the incident. The police reached on the spot, whereaccused Sonu was handed over to them. Search of the accused wasconducted by the police and consequently, currency note of ₹500/- and one knife was recovered from the possession of Sonu. The knifeand the currency note were sealed and they were taken into possessionby seizure memos (Ex. PW-1/B and Ex.PW-1/C respectively). In hisdisclosure statement, Sonu revealed the name of the co-accused asAkbar. Accused Sonu was also identified by PW-1 in the court.

10.Praveen, the owner of the dairy, was examined as PW-2. Hedeposed that on 14.06.2014, at around 3:45 PM, he reached TikonaPark where he found his employee Rohit. Rohit informed him aboutthe incident that he was robbed of two currency notes at the knifepoint, by two boys (the accused). The accused were then chased byPraveen and PW-1 and they apprehended the accused Sonu. Hedeposed that in the meantime, police also reached at the spot andconducted search of the accused. currency note of ₹500/- and knife was recovered from the possession of the accused Sonu. Thesaid objects were seized in two separate cloth parcels. Thereafter, theaccused was arrested and taken to the police station.

11.Ct. Sanjeev Kumar, who was on patrolling duty on the night ofincident, was examined as PW-4. He deposed that on the interveningnight between 03.06.2014 to 04.06.2014, at around 2-2:30 AM, he waspatrolling in the area Main Bazar, Bhajanpura. He stated that the areain which he was patrolling was around 3-4 kms away from theincident spot. After hearing some noise, they reached the incident spotwhere they found PW-1 and PW-2. The accused was under thecustody of PW-1 and PW-2, however, the other co-accused hadalready escaped from the said place.

12.HC Dhanraj was posted as Duty Officer at PS Bhajanpura onthe intervening night and he was examined as PW-5. It was deposedby him that on 03/04.06.2014, at around 4 AM, he received PCR callinforming that “tikona park Gamri gali no. 14 do teen ladko ne ekladke se paise cheen liye unme se ek ladka pakad rakha hai”. The said

information was reduced to writing and was communicated to HCBrigender (PW-3) through phone. At about 6:50 AM, PW-5 receivedrukka through Ct. Ajay (PW-7) sent by HC Brigender (PW-3).Thereafter, case was registered (FIR No. 684/2014 under Sections392/397/34 IPC.

13.Ct. Ajay Singh was posted on emergency duty at PS Bhajanpuraon the intervening night of 03/04.06.2014 and he was examined asPW-7. He deposed that he along with HC Brigender, after receivingDD No. 8A, reached Tikona Park, Gamri, Gali no.14. On reachingthere, they met PW-1 and PW-2 and accused Sonu was in the custodyof Ct. Sanjeev and Ct. Ram Kishan. knife and currency note of₹500/- was handed over to HC Brigender by Ct. Sanjeev, which were recovered from the accused. sketch of the knife was prepared by theIO (Ex.PW-1/A) and it was sealed in cloth parcel. The said parceland the currency note were taken into possession (Ex.PW-1/B andEx.PW-1/C, respectively). The said currency note was also taken intopossession. Thereafter, the IO recorded the statement of Rohit (PW-1)and on the basis of the said statement, rukka was prepared (Ex.PW-3/A). The said rukka was taken to the Police Station for registration ofthe case.

Reasons and Conclusion

14.A plain reading of the testimonies of PW-1 and PW-2 clearlyestablished that the appellant had been pursued and caught. Theirtestimonies leave no room for any doubt that the appellant wasinvolved in the commission of the offence as described.

15.The learned counsel appearing for the appellant had advancedcontentions to assail the impugned order on two fronts.First, hecontended that only ₹500/- had been recovered from the appellant. He stated that although PW-1 had deposed that two currency notes of₹500/- each had been removed by the appellant, however, only one currency note of ₹500/- had been recovered from him. He submitted that this inconsistency raises serious doubt as to the involvement ofthe appellant in the offence. Second, he submitted that the kniferecovered from the appellant was kitchen knife and the same did notqualify to be considered as deadly weapon.He submitted that inview of the above, the appellant could not be convicted for an offenceunder Section 397 of the IPC.

16.The contention that recovery of only one currency note of₹500/- raises any doubt as to the testimony of PW-1, is unmerited. It is relevant to note that PW-1 had deposed that there were two personsinvolved in the crime and one of the persons was not apprehended.Therefore, it is not essential that both the currency notes should havebeen found in possession of the appellant.

17.Insofar as the issue whether kitchen knife is deadly weaponis concerned; the learned counsel had relied upon the decisions of theCoordinate Bench of this Court in Rahul v. State: 2014 (9) AD(Delhi) 497; Jagdish and etc. v. State: 1985 Cri.L.J. 1621; andRajender Yadav v. The State (NCT of Delhi): 2013 (7) AD (Delhi)359 in support of his contention.

18.In Rahul v. State: 2015 (1) JCC 228 (supra), the knife wasdescribed as “one knife of vegetable”. The Court referred to the earlierdecisions in Sukhvinder Singh v. State (Govt. of NCT of Delhi):Crl.A. No. 1358/2012 and held that the knife recovered could not beconsidered as deadly weapon. The Court found that such knifewas not capable of producing death or serious bodily injury andtherefore, set aside the conviction under Section 398 of the IPC. InSukhvinder Singh v. State (supra), this Court had referred to variousearlier decisions wherein the issue whether knife could beconsidered as deadly weapon had been examined. One of the earlierdecisions in this regard was the case of Balik Ram v. State: 1983Crl.L.J. 1438 Del, wherein the Court had held that “What would makea knife deadly is its design or the method of its use such as iscalculated to or is likely to produce death. It is, therefore, questionof fact to be proved and the prosecution should prove that the knifeused by the accused was deadly one.”

19.ThedecisioninthecaseofBalikRam(supra)wassubsequently followed in the case of Bishan v. The State: 1983 (1)Crimes 155 and Mohan Singh v. State: 1987 (13) DRJ 176. similarview was expressed by this Court in Jagdish and etc. v. The State:1985 Cri.L.J. 1621. In that case, the Court had observed that “It wouldbe question of fact in each case whether the particular weaponwhich may even be knife can be said to be deadly weapon. In theinstant case, there is evidence to the effect that the knives which theaccused were having were small in size.They were ordinary

vegetable cutting knives. This renders the possibility of those knivesbeing deadly weapons highly doubtful and as such the appellants shallbe entitled to benefit thereof.”

20.There is also line of decisions wherein this Court had held thatit is essential to produce convincing evidence that the knife used in theoffence is deadly weapon to attract the provisions of Section 397 ofthe IPC. In those cases, the court had held that in absence of non-recovery of the weapon, the conviction under Section 397 of the IPCwould not be sustainable (See: Charan Singh v. State: 1988 Crl.L.J.NOC 28 (Del); Gulab @ Bablu v. The State (N.C.T. of Delhi): 2013(3) JCC 2213; and Rajender Yadav v. The State (NCT of Delhi):2013 (7) AD (Delhi) 359).

21.However, it is noticed that these decisions did not take note ofthe earlier decision of this Court in Salim v. State (Delhi Admn.):(1988) 14 DRJ 85. In that case, this Court had referred to the decisionof the Supreme Court in Phool Kumar v. Delhi Administration: 1975(1) SCC 797, wherein the Supreme Court had observed that knife isalso deadly weapon. This Court had further noticed that the saiddecision in Phool Kumar v. Delhi Administration (supra) had notbeen noticed by the Court in Balik Ram v. State (supra). The relevantextract of the said decision is set out below:-

“This decision of the Supreme Court wherein it isheld that knife is deadly weapon was not referred to inthe aforesaid two decisions of this court and the same arenot, therefore, binding precedent. Under Section 397I.P.C. an offender is guilty if he uses any deadly weapon

or causes grievous hurt to any person or attempts tocause death or grievous hurt to any person. The words‘deadly weapon’ are of common use and do not need anydefinition or interpretation. The words ‘deadly weapon’have also been used in Section 148 Penal Code, 1860.Section 324 I.P.C. uses the words ‘dangerous weapons’in its heading. It says whoever voluntarily causes hurt byany instrument for shooting, stabbing or cutting, or anyinstrument which used as weapon of offence is likelytocausedeath,etc.,isliabletopunishment.In Lakshmiammal v. Samiappa (AIR 1968 Madras 310),the accused were armed with weapons like knife,hammer, crowbar and spades. It was held that these wereundoubtedly deadly weapons. The Concise OxfordDictionary defines the word ‘weapon’ as ‘material thingdesigned or used or usable as an instrument for inflictingbodily harm, e.g. gun, bomb, rifle, sword, spear, stickhammer,poker,horn,claw’.Theword‘deadly’,according to this Dictionary, means ‘causing fatalinjury’. Also, according to this Dictionary, ‘knife’ means‘blade with sharpened longitudinal edge fixed in handleeither rigidly ……..or with hinge used as cuttinginstrument or as weapon’. As per Webster's Third NewInternational Dictionary ‘knife” is ‘a simple instrumentused for cutting consisting of sharp-edged usually steelblade provided with handle’. Longman Dictionary ofContemporary English defines ‘knife’ as ‘a blade fixedin handle used for cutting as tool or weapon’. Thesedefinitions in various dictionaries can be multiplied. Weall understand what knife means and to categorise it orto fix its size for it to be deadly weapon may not beappropriate. knife has also been described as pocketknife, pen knife, table knife, kitchen knife, etc. It cannotbe denied that knife can be used as weapon ofoffence. It can cut, it can pierce, it can be deadly. To saythat knife to be deadly weapon should be of aparticular size would perhaps be not correct statement.In the present case, the evidence shows that the injury

was caused to Singh Ram witness by sharp-edgedweapon and there is statement that the accused Salimwas carrying knife and it was with that knife that theinjury was caused to the witness. It would not benecessary for the witness to further state as to what wasthe size of the knife to attract the provisions of Section397 I.P.C, as was contended by Mrs. Ahlawat. Thiscontention that case under Section 397 I.P.C. is not madeout fails.

22.In Ashfaq v. State (Govt. of NCT of Delhi): (2004) 3 SCC 166,the Supreme Court had noticed with approval the findings of theCourts below that “knife is equally deadly weapon, for purposes ofSection 394 IPC”.

23.In recent decision, titled Ikram Ansari v. State (NCT ofDelhi) and Other Connected Matters: (2014) 8 High Court CasesDel 277, this Court had followed the decision in Salim v. State (DelhiAdmn) (supra) and had sustained the conviction under Section 397 ofthe IPC, since the appellant (Mahfooz Islam) was “carrying knifewhich is deadly weapon at the time he participated in the dacoity.”

24.It is also relevant to note that in Ikram Ansari v. State (supra),the Court had also noticed several other decisions of this Court wherethis Court had expressed the view that whether knife was deadlyweapon would depend on the kind and dimensions of the knife.However, the Court held that the said view was not in conformity withthe observations made by the Supreme Court in Phool Kumar v. DelhiAdministration (supra), as also noticed by this Court in Salim v. State(Delhi Admn.) (supra).

25.It is also relevant to refer to later decision of this Court inSanjay Kumar v. State: 2014 SCC OnLine Del 4846, wherein thisCourt referred to the decision of the Supreme Court in Phool Kumarv. Delhi Administration (supra); Ashfaq v. State (Govt. of NCT ofDelhi) (supra); and Salim v. State (Delhi Admn.) (supra) andsustained the conviction under Section 397 of the IPC, even thoughthe weapon (knife) had not been recovered in that case.

26.In State of Maharashtra v. Vinayak Tukaram Utekar andAnr.: 1997 (2) Mh.L.J. 527, the Court observed that “there can be noquarrel that knife is deadly weapon within the ambit of expression“deadly weapon” as used in section 397, Indian Penal Code.”

27.It is apparent from the above that the issue with respect to thedivergent views in regard to whether knife ought to be categorized asa “deadly weapon” depending on its dimensions or other features,stands resolved. The decisions rendered by this Court holding that thequestion whether knife is deadly weapon would depend on thefacts of the case, are not good law as none of the decisions hadreferred to the observations made by the Supreme Court in PhoolKumar v. Delhi Administration (supra) and Ashfaq v. State (Govt. ofNCT of Delhi) (supra). The said decisions had also not noticed theearlier decision of this Court in Salim v. State (Delhi Admn.) (supra).

28.In view of the observations made by the Supreme Court inPhool Kumar v. Delhi Administration (supra); and Ashfaq v. State(Govt. of NCT of Delhi) (supra) and decisions of this Court in Salim

v. State (Delhi Admn.) (supra), Ikram Ansari v. State (supra) andSanjay Kumar v. State (supra), it is not essential to categorize theknife in order to determine whether it is deadly weapon. Thus,irrespective of whether knife is kitchen knife, or butcher knife, itwould qualify as deadly weapon for the purposes of Section 397 ofthe IPC.

29.In view of the above, this Court finds no merit in the contentionthat since the knife used by the appellant in committing the offencewas kitchen knife, the same was not punishable under Section 397 ofthe IPC.

30.This Court finds no reason to interfere with the impugnedjudgment convicting the appellant for the offence under Section 397 ofthe IPC.

31.The appeal is, accordingly, dismissed.

NOVEMBER 19, 2019RK

VIBHU BAKHRU, J