Delhi District Court
7. In Respect Of Knives A Single Judge Of ... vs . State on 17 May, 2014
State v. Raju and Hari Shankar @ Hari SC No. 91/14 FIR No. 225/10 PS : Hauz Khas 17.05.2014
Present : Mr. A. T. Ansari, Additional Public Prosecutor for the State.
Accused Raju and Hari Shankar on bail along with Mr. Dharamvir Singh Chauhan, Advocate.
By order dated 16.04.2014 passed by Sh. Ankit Singla, Metropolitan Magistrate03, South District, Saket, New Delhi, apparently, in exercise of powers under section 323 of the Code of Criminal Procedure, 1973 (Cr.P.C.), this case was committed to the Court of Session with a view to put the accused persons on trial for their having committed offences, inter alia, punishable under section 397 of the Indian Penal Code.
I have heard Additional Public Prosecutor for the State and counsel for the accused persons on the question of charge and have carefully gone through the record of the case and the documents submitted therewith.
Having drawn my attention on the provisions of section 397 of the Indian Penal Code, the record of the case, especially the testimony of Mr. Ajit Kumar Verma and the order dated 16.4.2014, whereby the case was Contd...
2 committed to the Court of Session, it is submitted by the learned Additional Public Prosecutor that from the testimony of Mr. Ajit Kumar Verma it has, prima facie, been established that on 02.7.2010, three persons including accused Raju and Hari Shankar had robbed him and his helper; and one of the accused had used a knife in committing the offence of robbery against him. It is further submitted by the learned Additional Public Prosecutor that since knife was used by one of the accused persons, therefore, offence punishable under section 397 of the Indian Penal Code is also made out against the accused persons besides the offence punishable under section 394 of the Indian Penal Code and therefore, both the accused persons be charged and be put on trial.
Percontra, it is submitted by counsel for the accused persons that during the trial before the learned Metropolitan Magistrate, Mr. Ajit Kumar Verma did not identify any of the accused persons as the person who had committed offence against him and his property and therefore, the accused persons be discharged. It is also submitted by counsel for the accused persons that in his statement recorded under section 154 of Cr.P.C., Mr. Ajit Kumar Verma nowhere stated that the persons who had committed the offence of robbery against him had also used any knife or other deadly weapon.
I have given my thoughtful consideration to the submissions Contd...
3 made on behalf of the parties.
As per the record, on 04.7.2010 on the information of Mr. Ajit Kumar Verma, first information report (FIR) no. 225 was registered at police station Hauz Khas. In the information, recorded under section 154 of Cr.P.C., Mr. Verma informed the police that in the night between the 1st and 2nd July, 2010 at about 1:30 am, after leaving articles, he alongwith his helper Sukhdev in Mahindra Champion DL 1LL 4561 was going from Vasant Kunj to his house and when they had reached near Safdarjung Hospital, a Maruti car, colour red came from back side wherein three boys were sitting; and they had stopped their car in front of his car causing him to stop his car. Mr. Verma further informed that the said three boys, having alighted from their car bearing registration no. DL 1CD 2602 started abusing and fighting with him and snatched away his mobile phone, Nokia 5030, no. 9654989630 and purse containing Rs. 650/ in cash and some documents. Mr. Verma also informed the police that the said three boys had also snatched away Rs.300/ in cash and some documents from his helper Sukhdev.
After registration of the FIR, the matter was investigated and the two accused persons were arrested. The third offender has not been arrested yet. Subsequently, on 14.10.2011, a police report was put up before the learned Metropolitan Magistrate with a view to put the accused persons on trial and to Contd...
4 punish them as per law. Alongwith the police report a list of witnesses was also filed wherein seven witnesses, namely, Mr. Ajit Kumar Verma, Constable Rajender, Mr. S.P.S. Laler, Metropolitan Magistrate, ASI Yad Ram, MHC (M), Police Station Hauz Khas, SI Narender Ojha and SI Inderjeet have been cited as prosecution witnesses. Mr. Sukhdev, the helper of informant Ajit Kumar Verma has not been cited as a prosecution witness.
As per the record on 01.6.2013, both the accused persons were charged with the commission of offence punishable under section 394 read with section 34 of the Indian Penal Code to which they did not plead guilty and were put on trial.
On 06.12.2013 and subsequently, informant Mr. Ajit Kumar Verma was examined as PW1. During his examination Mr. Ajit Kumar Verma had, slightly but on material aspects, changed his version and stated that out of the three boys, who had committed offence against him, one "probably" remained sitting in the Maruti car and two boys came out and manhandled him. On 06.12.2013, during his examination in chief Mr. Ajit Kumar Verma further stated that one accused person was having a weapon which was like a small knife and he flashed the knife and approached towards him. During his examination in chief Mr. Ajit Kumar Verma could not identify any of the accused persons as the persons who had committed offence against him and Contd...
5 his property on 02.7.2010. After obtaining permission under section 154 of the Indian Evidence Act, 1872, Mr. Ajit Kumar Verma was further examined by putting leading questions, but he could not identify the accused persons unequivocally and stated, "[P]robably both the accused persons present in the court were involved in the case".
On 06.12.2013 Mr. Ajit Kumar Verma was further examined, cross examined and discharged. Subsequently PW2 ASI Yad Ram and PW3 Constable Rajender were examined on 20.2.2014.
On 06.4.2014, the day on which the order of committal of the case to the Court of Session was passed, the matter was fixed for further prosecution evidence. On that day, in the wake of the submissions made by the learned Assistant Public Prosecutor to the effect that since articles were snatched away from the informant on the point of a small knife therefore, the offence punishable under section 397 of the Indian Penal Code was also made out, the learned Metropolitan Magistrate committed the case to the Court of Session.
As per section 323 of Cr.P.C., if, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions Contd...
6 contained under Chapter XVI of Cr.P.C. and thereafter, the provisions of Chapter XVIII shall apply to the commitment so made.
After going through the record of the case and hearing the learned Additional Public Prosecutor and counsel for the accused persons, for the reasons that follows, I am of the considered view that there was no occasion for committing the case to the Court of Session; and no charge under section 397 of the Indian Penal Code is made out against any of the accused persons.
Section 397 of the Indian Penal Code 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 of the Indian Penal Code envisages minimum sentence to be awarded to an offender who uses 'deadly weapon' while committing robbery.
In its judgment dated 14.12.2012 rendered in Crl. Appeal no. 1431/2011 entitled Kalu @ Saleem v. State the Hon'ble High Court having dealt with the question as to when a knife can be treated as a deadly weapon, under section 397 of the Indian Penal Code, observed as follows:
Contd...
7
7. In respect of knives a Single Judge of this Court in Mohan Singh vs. State 1987(13) DRJ 176 has held thus, "In order to bring home a charge under Section 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 Balak Ram v. State 1983 DLT 142 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 nonrecovery 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 Shri Bishan vs. State (Delhi) 1984 (1) Crimes 883."
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 I have already pointed out, in the information laid before the police under section 154 of Cr.P.C. and subsequently, Mr. Ajit Kumar Verma nowhere stated that any knife was used by the offenders at the time of committing the offence of rubbery against him and his helper. During the investigation no knife has been recovered. First time, during his deposition in the court, Mr. Verma stated that one of the two persons, who had committed offence against him, was having a weapon which was like a small knife. Even Contd...
8 at the time of his deposition, Mr. Verma was not sure that the weapon which was used was a knife. Even during his examination before the learned Metropolitan Magistrate Mr. Verma had not given the description of the knife. This court has nothing before it 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. The absence of any such material and particularly the nonrecovery of the weapon will certainly bring the case of the accused persons out of the ambit of section 397 of the Indian Penal Code.
Even if it is assumed that the knife that was used during the commission of robbery against Mr. Verma was a deadly weapon, it has not come on the record, at any place, as to which of the accused had used such deadly weapon. It is neither the case of the prosecution nor the version of Mr. Verma that both the accused persons were holding knives or any other deadly weapon and used them.
As per the law laid down by the Hon'ble Supreme Court in Phool Kumar v. Delhi Administration, AIR 1975 SC 905 and Ashfaq v. State, AIR 2004 SC 1253 and by the Hon'ble Delhi High Court Kalu @ Saleem's case (supra) it is only such offender, who uses the deadly weapon can be handed down the minimum sentence as envisaged under section 397 of Indian Penal Code and not the other accused accompanying such accused.
Contd...
9 It has been held by the Hon'ble Supreme Court in Phool Kumar's case (supra) that: "The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of theminimum punishment on another offender who had not used any deadly weapon".
It has been help by the Hon'ble Supreme Court in Ashfaq's case (supra) that: "No doubt the provision postulates only the individual act of the accused to be relevant to attract S. 397, I.P.C. and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in S. 34, I.P.C".
In view of above discussion, as the offences committed by the accused are, prima facie, not exclusively triable by Court of Session, therefore, in exercise of powers under section 228 of Cr.P.C. the case is transferred to the court of Metropolitan Magistrate03, South District, Saket, New Delhi or successor court to proceed with the matter as per law.
The accused is directed to appear before the court of Metropolitan Magistrate03, South District, Saket, New Delhi on 20.5.2014 at 2.00pm.
The Ahlmad is directed to send the record to the court of Contd...
10 Metropolitan Magistrate03, South District, Saket, New Delhi or successor court, if any, immediately.
Pronounced in the open court (Manoj Kumar)
on 17.05.2014 Additional Sessions Judge4
South District:Saket Courts:
New Delhi