Santosh @ Mota v. State (NCT of Delhi)

1 These appeals filed by appellant Santosh and Lucky are directed against the impugned judgment and order on sentence dated 23.04.2012 wherein the appellants have been convicted under Section 397/392/34 of the IPC and each of them has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.20,000/each and in default ofpayment of fine to undergo SI for a period of 2 months. CRL.A. Nos. 287/2013 &1152/2013 Page 1of[5] 2015:DHC:11961

2 Nominal roll of appellant Santosh reflects that as on 06.04.2015, he has undergone incarceration of 3 years, 9 months and 25 days besides remission earned of 1 year meaning thereby that as on date, he has completed incarceration of about 5 years and 2 months. Nominal roll of appellant Lucky reflects that as on the date when he was granted bail i.e. in January, 2014 (having availed of by the appellant only in March, 2014 after his bond amount had been reduced) he has undergone incarceration of almost about 4 years which includes his period ofremission.

3 Learned counsel for the appellant has made a twofold submission. First submission is that the ingredients of Section 397 of the IPC are not made out as there is no 'use' of deadly weapon as is clear from the deposition of the complainant who has been examined as PW-1. The second submission is that the blade which was admittedly the weapon of offence was found in a wrapper and even otherwise does not qualifies as a 'deadly weapon'. On both these counts, the conviction of the appellants under Section 397 of the IPC is ill-founded.

4 The version of the prosecution is that PW-1 had been robbed at the point of blade by two persons namely the appellants before this Court who had accosted PW-1 who was accompanied by his friend at a public urinal near Hans Cinema and after beating them, had forcefully removed Rs.200/- from his pant pocket. Accused Lucky had caught hold ofhis friend Bhola Ram (not examined) and removed Rs.400/- from his pocket in the presence of Santosh. From accused CRL.A. Nos. 287/2013 & 1152/2013 Page 2 of[5] Santosh, robbed amount of Rs.200/- was recovered and one blade from his right pant pocket and from the right palm of Lucky, cash of Rs.400/- (robbed from Bhola Ram) and one shaving blade was recovered. Testimony of PW-1 who had been examined on oath discloses that although PW-1 had stated that both the appellants had robbed him in the public urinal and having shaving blades in their hands yet this testimony did not disclose that this weapon of offence was used by them either to threaten or victimise PW-1. This version of PW-1 in fact discloses that both the accused were having blades in their hands but the necessary ingredients of 'use' i.e. the actual use or even a passive use which may be sufficient to terrorise or threaten the victim does not find any mention in this version of PW-1. Thus, the first argument of learned counsel for the appellant that there is no 'use' ofthe deadly weapon stands substantiated.

5 The second submission ofthe learned counsel for the appellants that the blade was found in a wrapper and this is clear from the testimony of PW-6 (recovery witness) also stands substantiated. PW-6 in his testimony clearly stated that on opening the second pulanada duly sealed with the seal of the Court, it was found to contain one match box containing shaving blade 'mark 365' was written on it which was wrapped in a wrapper. This has been elicited in his cross-examination. PW-6 has categorically stated that the blades were in a paper wrapper when they were seized from the accused and they have not taken out of the paper wrapper before sealing them again. Apart from this, the Court notes that a shaving CRL.A. Nos. 287/2013 & 1152/2013 Page 3 of[5] 15.. blade would not qualify as a 'deadly weapon'.

6 Even otherwise, noting the admission of PW-6 that the blade were wrapped in wrappers when recovered from the accused, it is all the more reason to hold that there was no 'use' of the 'deadly weapon'; both of which are necessary ingredients to establish a conviction under Section 397 ofthe IPC.

7 In this context, the following observations of a Bench of this Court in MANU/DE/2866/2013 Dinesh Rai Vs. State are relevant; they read as under:- "In order to bring home a charge urider S. 397, the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely toproduce death. It is, therefore, a question offact to be yroved by the prosecution that the knife used by the accused was a deadly weapon."

8 By no stretch of imagination, can a shaving blade qualify as a deadly weapon.

9 The conviction of the appellants is accordingly modified from Section 397 to one under Section 392 of the IPC. This Court notes the period of incarceration already suffered by the appellants. Accused Santosh who is in judicial custody has already undergone incarceration of 5 years. The period of the sentence already undergone by him be treated as the sentence imposed upon. He be released forthwith, ifnot required in any other case. CRL.A. Nos. 287/2013 & 1152/2013 Page 4 of[5]

10 Accused Lucky had completed incarceration of almost 4 years when he had been granted bail. The period of sentence already undergone by him be also treated as the sentence imposed upon. He be released forthwith, ifnot required in any 4^her case..

11 Both the appeals are disposed ofin the above terms.

SEPTEMBER 09,2015 A CRL.A. Nos. 287/2013 & 1152/2013 INDERMEET KAUR, J Page 5 of[5]