CRL.A./391/2016 of GULFAM @ ZAHOOR Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI%Judgment delivered on: 03.02.2020

+CRL.A. 391/2016

GULFAM @ ZAHOOR

..... Appellant

STATE

versus

..... Respondent

Advocates who appeared in this case:

For the Appellant: Mr Sunil Kumar (DHCLSC) and Mr Harsh: Prabhakar (amicus curiae).For the Respondent: Ms Meenakshi Chauhan, APP for State.: ASI Krishan Pal, PS Seelam Pur.

CORAM

HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1.The appellant has filed the present appeal impugning judgmentdated 16.12.2015, whereby he was convicted for the offencespunishable under Sections 392/397 of the Indian Penal Code, 1860(IPC). The appellant also impugns an order on sentence dated23.12.2015,wherebyhewassentencedtoundergorigorousimprisonment for period of seven years for the offence punishableunder Section 397 of the IPC; rigorous imprisonment for period offive years for the offence under Section 392 of the IPC; and fine of₹500/- was imposed on him, in default of which, the appellant would have to undergo fifteen days of simple imprisonment. All the aforesaidsentences were directed to run concurrently.

2.Briefly stated, the case of the prosecution is that on 13.12.2014at about 11:00 pm, near red light Welcome towards Seelam Pur, Delhithe appellant committed the robbery of mobile phone belonging toMohd. Firoz (the complainant) and during this incident, the appellantused weapon – paper cutter. Thereafter, certain public personsapprehended the appellant and gave him beatings. Consequently, FIRNo. 853/2014 under Sections 397/392 of the IPC was registered withPS Seelam Pur, thus setting criminal law into motion.

3.The charge sheet was filed against the appellant and by an orderdated 03.02.2015, he was charged with the commission of the offencespunishable under Sections 392/397 of the IPC. The appellant pleadednot guilty and the case was set down for trial. During the course of thetrial, the prosecution examined six witnesses and the defence did notlead any evidence.

Evidence

4.The complainant (Mohd. Firoz) was examined PW1. He statedthat he worked in computer designing at Netaji Subhash Place, Delhi.On 13.12.2014, at night time, he was going home from office. At about11:00-11:15 pm, he was going to the Welcome side on foot to take anauto after deboarding at the Seelampur Metro Station. Suddenly, oneperson came from behind him, caught hold of his collar and put papercutter on his neck and told him to hand over all his belongings to him.PW1 stated that he did not have any valuable items. The assailant thenput his hand into PW1’s pocket and took out his mobile phone (Redmi

Note make). He also tried to take money (about ₹30-₹40), however, he did not take the same. Thereafter, the assailant told PW1 to go awayfrom the spot. PW1 then ran away from the spot and after about fifteenpaces, he found 3-4 persons of the locality who PW1 informed aboutthe incident. The said 3-4 persons then apprehended the assailant andgave beatings to him. PW1’s mobile phone and the paper cutter wererecovered from the assailant. Thereafter, he made call at 100 numberfollowing which, PCR and the local police came to the spot.

5.In his cross-examination, PW1 affirmed that the accused camefrom his back side. Thereafter, PW1 stated that the accused put his handon the pocket of his pant and felt the mobile phone; he asked PW1 whatthe article was and thereafter, PW1 took his phone out and handed thesame over to the accused due to fear. PW1 denied informing the policethat the accused had put his hand into PW1’s pocket and took out themobile phone. PW1 stated that the accused did not take any otherarticles from the person of PW1 and did not check his bag either. PW1stated that the incident occurred at public spot and at the material time,there was traffic on the road. However, he did not try to stop any vehicleto ask for help. PW1 affirmed that he handed over his mobile phone andthe paper cutter, which he had recovered from the accused, to the policewhen the police reached the spot.

6.HC Anil Dutt, PCR NE Zone, deposed as PW2. He stated that on13.12.2014 at about 11:24 pm, call was received from the PCR controlroom that mobile phone was robbed from the informant near ShyamMedical store double storey Welcome and the assailant was caught hold

of by the informant. The PCR reached there at about 11:30 pm. PW2stated that public persons were present at the spot. The informant(Firoz) met them there and produced the accused Gulfam before thepolice officials and stated that the accused had been apprehended withthe help of public persons. The informant handed over the mobile phoneand the paper cutter (weapon of the offence) to ASI Gopal Das. In hiscross-examination, PW2 affirmed that the IO did not ask any publicpersons to join the investigation in his presence.

7.ASI Gopal Das, PCR Line Model Town, deposed as PW3. Hedeposed that when he, along with Ct Subhash, reached the spot the PCRwas already present there. The complainant produced the accusedbefore PW3 and made allegations that the accused had robbed hismobile phone by putting knife on his neck. The complainant producedone mobile phone and one paper cutter and alleged that the said mobilephone was robbed and the paper cutter was used by the accused in theincident. The accused was in an injured condition and thus, PW3 senthim to GTB Hospital for medical examination. PW3 affirmed hissignatures on the rukka (Ex. PW-3/A) at point A. PW3 correctlyidentified the paper cutter allegedly used by the accused. In his cross-examination, PW3 stated that the custody of the accused was handedover to the police officials by the complainant and the accused wasintoxicated. He denied asking public persons to join the investigations.

8.HC Rakesh Kumar, PS Seelampur, deposed as PW4. He provedthe FIR on the basis of the rukka and the DD entry for the registrationof the FIR (Ex. PW-2/A).

9.Ct Subhash, PS Seelampur, deposed as PW5. PW5 deposed thaton 13.12.2014, he was posted at PS Seelampur. He along with ASIGopal Das reached at the spot where the complainant met them andproduced the accused. Many public persons were present at the spot.Thereafter, PW5 stated that he was sent to PS Seelampur along withrukka for the registration of an FIR. He proved the sketch of the papercutter (Ex. PW-3/B). Thereafter, he stated that the IO sealed the papercutter in cloth pullanda bearing the seal of RK. IO also seized themobile phone of Red Me make and affixed the seal of RK on the same.In his cross-examination, he stated that the colour of the paper cutterwas deep blue (firozi). Further, he deposed that one mobile phone ofSamsung make was recovered from the accused from his search andnothing else was recovered. He could not recollect whether the IO hadasked any public persons to join the investigations. He denied thesuggestion that efforts were not made to join any public persons.

10.SI Rizwan Khan, PS Seelampur, deposed as PW-6. He stated thatin the intervening night of 13/14.12.2014 at about 01:20 am, he waspresent at the PS and Ct Subhash came to him and handed him copyof the FIR of this case and the original rukka for further investigation.He reached the spot with Ct Subhash where he met ASI Gopal Das whoproduced one mobile phone of Red Me make and one paper cutter asproduced by the complainant to him and was allegedly recovered fromthe accused Mohd. Gulfam. On checking the phone, it contained twoSIM cards. He also checked the IMEI number of the said mobile phone.PW6 stated that he interrogated the accused and thereafter, arrested him.

PW6 also stated that on search of the accused, one mobile phone ofSamsung make was recovered from his person. PW6 correctlyidentified the accused in open court.

11.In his cross-examination, he affirmed that he had requested somepersons to join the proceedings, however, none agreed. He denied thesuggestion that since he had not earlier stated that he had made effortsto join public persons, thus, he had conducted the proceedings while inthe PS.

12.The accused’s statement under Section 313 of the CrPC wasrecorded on 17.11.2015. In his statement, conducted in question-answer format, he denied all suggestions made and stated that he isinnocent and has been falsely implicated in the case.

Reasons and Conclusion

13.The learned counsel appearing for the appellant contended that apaper cutter is not deadly weapon and therefore, even if it is acceptedthat the appellant had used paper cutter for the purposes of robbingthe complainant, an offence under Section 397 of the IPC was notestablished. He relied on the decision of the Coordinate Bench of thisCourt in Guddu v. State: Crl. A. 721/2018 decided on 19.03.2019, insupport of his contention. He further contended that paper cutter couldnot be equated with knife, as it was stationery item. He submitted thatthe blade of paper cutter is not robust and usually breaks if it is metwith any resistance. He submitted that therefore, paper cutter couldnot be equated with knife.

14.Next, he relied on the decision of this Court in Bishan v. TheState: (1984) 6 DRJ 78, wherein the Coordinate Bench of this Courthas held that vegetable knife could not be considered as deadlyweapon. He referred to the decision of Mathai v. State of Kerala:(2005) 3 SCC 260 and drew the attention of this Court to the followingobservations made by the Supreme Court: “The facts involved in aparticular case, depending upon various factors like size, sharpness,would throw light on the question whether the weapon was dangerousor deadly weapon or not.” He submitted that in the present case, therewas no evidence that the paper cutter was sharp one and in fact thesketch (Ex. PW 3/B), produced on record, has indicated that the edgesof the paper cutter were blunt.

15.The evidence on record clearly establishes that the appellant hadused the paper cutter for the purposes of robbing the complainant’smobile phone. There are minor inconsistencies in the testimony of thecomplainant; however, the same are not material. The learned counselappearing for the appellant also did not seriously canvas that theappellant was not involved in the incident, as described by thecomplainant and as found by the Trial Court.

16.In view of the above, the only question that needs to be addressedis whether the use of the paper cutter in committing the robbery wouldjustify the appellant being punished under Section 397 of the IPC. InGuddu (supra), this Court had referred to earlier decisions of this Courtin Rajender Yadav v. The State (NCT of Delhi): (2013) VII AD (Delhi)359, wherein this Court has held that vegetable knife could not be

considered as deadly weapon so as to attract the punitive provision ofSection 397 of the IPC. The Court has also relied on an earlier decisionin Charan Singh v. State: (1998) Crl. L.J. NOC 28 (Delhi), whereinthis Court has held that it was essential for the prosecution to produceevidence establishing that the knife used was deadly weapon.

17.There is divergence of opinion in various decisions of this Courtas to whether it was necessary to establish that knife is deadlyweapon. One line of cases follows the view that the question whether aknife is deadly weapon is to be determined by various factors,including the design of knife and the manner in which it was used.There was yet another line of cases where this Court had taken viewthat knife of any description is, still, knife and the same is deadlyweapon.

18.In Phool Kumar v. Delhi Administration: (1975) 1 SCC 797, theSupreme Court had observed that the appellant therein had knife inhis hand and “he was, therefore, carrying deadly weapon open to theview of the victims sufficient to frighten or terrorize them.”.

19.In Balik Ram v. The State: (1983) Crl. L.J. 1438, this Courtobserved: “What would make knife deadly is its design or the mannerof its use such as is calculated to or is likely to produce death.”. In alater decision in Salim v. State (Delhi Admin.): (1988) 14 DRJ 85, thisCourt referred to the decision of the Supreme Court in Phool Kumar(supra) and relying on the observation that knife is deadly weapon,did not accept the view as articulated in Balik Ram (supra) and held as

under:

“9……We all understand what knife means and tocategorise it or to fix its size for it to be deadly weaponmay not be appropriate. knife has also been' describedas pocket knife, pen knife, table knife, kitchen knife,etc. It cannot be denied that knife can be used as aweapon of offence. It can cut, it can pierce, it can bedeadly. To say that knife to be deadly weapon shouldbe of particular size would perhaps be not correctstatement. In the present case, the evidence shows that theinjury 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 that was thesize of the knife to attract the provisions of Section397 Indian Penal Code as was contended by Mrs.Ahlawat.Thiscontentionthatcaseunder Section397 Indian Penal Code is not made out fails.”

20.This Court observed that in Balik Ram (supra), the Court had nottaken note of the decision of the Supreme Court in Phool Kumar(supra), wherein the Supreme Court had held that knife is deadlyweapon. In Bishan (supra), this Court followed its earlier decision inBalik Ram (supra) and sought to distinguish the decision of PhoolKumar (supra). Further, the decision in Bishan (supra) was notconsidered or referred to by this Court in Salim (supra).

21.In the aforesaid facts, it is contended that the line of casesfollowing the decision in Salim (supra) ought not to be relied upon, asthey are not good precedent because this Court had not taken note of theearlier decision in Bishan (supra).

22.This Court is unable to accept the aforesaid contention. It iscorrect that in Bishan (supra), this Court had distinguished the decisionin the case Phool Kumar (supra) by observing that in that case, thequestion turned upon the interpretation of the use of the weapon andwho actually used the weapon. Although Bishan (supra) was notreferred to in Salim (supra), the Court had relied on the observationsmade in Phool Kumar (supra) and had clearly not interpreted the samein the manner as done in Bishan (supra). Be that as it may, theobservations made by this Court in Salim (supra) are unambiguous.

23.It is also relevant to refer to the decision of the Supreme Court inAshfaq v. State (Govt. of NCT of Delhi): (2004) 3 SCC 116, whereinthe Supreme Court had approved the findings of the Court below that“a knife is equally deadly weapon, for purposes of Section 394 IPC”.

24.In Sonu @ Shahnawaz v. State (NCT Govt. of Delhi): Crl.1141/2017 decided on 19.11.2019, this Court had examined the twolines of cases and had held that in view of the observations made by theSupreme Court in Phool Kumar (supra) and Ashfaq (supra) as well asthe decisions of this Court in Salim (supra); Ikram Ansari and Ors. v.State (NCT of Delhi) and Ors.: (2014) 8 High Court Cases (Del) 277and Sanjay Kumar v. State: Crl. A. 442/2014 decided on 18.09.2014,and held that it was not essential to categorize weapon in order todetermine whether it is deadly weapon or not.

25.A paper cutter is also species of knife inasmuch as, it has ahandle and blade. Although it is meant for specific purpose of cuttingpaper, there is no denying the fact that its blade is very sharp and iscapable of delivering fatal injury.

26.In the present case, the paper cutter had been placed on thecomplainant’s neck. Undeniably, deep cut on the neck – which couldbe easily inflicted by the said instrument – could be fatal. Indisputably,such an instrument used as weapon and placed on the neck of victimis sufficient to terrorize victim into yielding under fear of an injury. Inthe given circumstances, this Court is not persuaded to accept that thatuse of paper cutter in committing robbery did not invite punitionunder Section 397 of the IPC.

27.The appeal is unmerited and is, accordingly, dismissed.

FEBRUARY 03, 2020pkv

VIBHU BAKHRU, J