Delhi District Court
State vs Anup Kumar@ Chipra on 6 September, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-001039-2017
SC No. 54/2017
FIR No. 513/2016
U/s 392/397 IPC & 25/27 Arms Act
P. S. Burari
STATE VERSUS ANUP KUMAR @ CHIPRA
(i) SC No. of the case : 54/2017
(ii) Date of commission of offence : 11.10.2016
(iii) Name, parentage and address : Anup Kumar @ Chipra
S/o Sh. Bhagwati Parsad
R/o Gali No.5, D Block,
Surender Colony, Part-I,
Jharoda, Burari, Delhi
(iv) Offences complained of : 392/397 IPC & 25/27
Arms Act
(v) Plea of the accused : Not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 06.09.24
Date of Institution : 13.01.17
Date of Judgment reserved on : 29.08.24
Date of Judgment : 06.09.24
SC No. 54/2017 Page 1 of 40
FIR No. 513/2016
U/s 392/397 IPC & 25/27 Arms Act
P. S. Burari
State vs. Anup Kumar @ Chipra
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Rinku Kumar vide Ex.PW3/A. On the complaint FIR Ex.PW1/A was registered at 1:20 PM on 12.10.2016 and the time of the occurrence of the offence is 9:30 PM on 11.10.2016. It is the case of the prosecution that PW-3 Rinku Kumar on 11.10.2016 in the night was going for night study to Mukherjee Nagar, Delhi. He was going at about 9:30 PM. When he reached at Gate No.5 Part-I, Surender Colony, Jharoda Pushta Road where one boy was standing under intoxication. That boy had shown knife to PW-3 and put the knife on the neck of PW-3. The said boy/accused had asked for money and on resistance he had slapped the PW-3 and also thrown punches and kicks. Accused had snatched mobile phone of black colour of Nokia make bearing SIM No.9027077870. PW-3 recognized the boy staying in the near gali by the name of Chipra. A call at 100 number was made by PW-3. The DD No.35 PPJ Ex.PW8/A was registered in the matter at 10:05 PM with the report that after showing a knife a mobile phone was snatched at Jharoda Pushta, Burari Masjid, Surender Colony. Site plan is Ex.PW2/D1. HC Bharat had asked Beat Staff to reach in the SC No. 54/2017 Page 2 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra street and he alongwith Ct. Anup had reached at the spot where a lot of person were standing to see the burning of effigy of Ravan on the occasion of Dusshera. The complainant had pointed out at the accused in the crowd. Accused started running after seeing the police and he was caught with the help of Beat Staff and his search was made by Ct. Anup. Ct. Anup found a knife from the right back pocket of the accused and from the right front pocket a mobile phone was recovered which was identified by the complainant at the spot. In the meanwhile the mother and brother and family members of the accused had reached at the spot. Accused started running towards his house who was caught by HC Bharat with other police staff. IO had investigated the case and filed the charge-sheet.
2. Charge was given to the accused under Section 392/397 IPC and a further charge under Section 25/27 of Arms Act was given to which the accused had pleaded not guilty. Prosecution had examined PW-1 to PW-10 as evidence against the accused. Statement of accused under Section 313 Cr. P. C. was recorded on 06.03.2024. Accused had produced DW-1 as one evidence in defence and the evidence of the accused was closed vide separate statement of learned Counsel for accused on 22.07.2024.
SC No. 54/2017 Page 3 of 40 FIR No. 513/2016U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
3. Final arguments are heard from both the parties and record perused.
4. To prove ingredients of Section 392/397 IPC, the prosecution has to prove necessary ingredients. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC 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. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be SC No. 54/2017 Page 4 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, SC No. 54/2017 Page 5 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--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.
SC No. 54/2017 Page 6 of 40 FIR No. 513/2016U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with SC No. 54/2017 Page 7 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC 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. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where 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. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any SC No. 54/2017 Page 8 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 SC No. 54/2017 Page 9 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the SC No. 54/2017 Page 10 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) SC No. 54/2017 Page 11 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
8. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint SC No. 54/2017 Page 12 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
SC No. 54/2017 Page 13 of 40 FIR No. 513/2016U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but SC No. 54/2017 Page 14 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the SC No. 54/2017 Page 15 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for. Xxxxxxx
5. It is settled law that under Section 392, Section 394 and Section 397 IPC only the offender/ accused who has committed robbery and /or has voluntarily caused hurt or attempt to commit such robbery and who uses any deadly weapon to cause grievous hurt on any person at the time of committing such robbery or dacoity can only be punished. For the aforesaid SC No. 54/2017 Page 16 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra purpose the accused cannot be convicted on the basis of constructive liability. Only the offender who uses deadly weapon can be punished.
6. The first ingredient the prosecution has to prove is that the accused has committed theft. In the present case the complaint is Ex.PW3/A in which it is alleged that the accused had snatched the mobile phone of PW-3 Sh. Rinku Kumar under threat of knife and by giving beating. The mobile was of make Nokia of black colour which was having SIM number 9027077870. The mobile was produced in unsealed condition on record which is allegedly snatched by accused which is Ex.P-1. The prosecution has to prove that this mobile phone belongs to PW-3. It is deposed by PW-3 that police had served upon him notice to produce bill of mobile. PW-3 could not produce bill of mobile as the mobile was given to him by his brother-in-law for using the same. However PW-3 had not mentioned in the complaint Ex.PW3/A that this mobile was given to him by his brother-in-law and for use for what period. The brother-in-law of PW-3 is PW-4 who is labourer by profession. PW-4 has deposed that in the year 2016 to pursue his coaching PW-3 was residing with him. PW-4 had given a mobile phone to PW-3 for use. PW-3 had informed PW-4 that mobile phone was snatched in a quarrel. There is much SC No. 54/2017 Page 17 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra difference between a quarrel and an offence of robbery and PW- 3 had partially informed PW-4 regarding loss of mobile in a quarrel. PW-4 also could not produce the bill of the mobile phone which was lost by PW-3. The PW-4 had not informed the police in his statement Mark-PW-4A under Section 161 Cr.P. C. that the mobile phone was lost in a quarrel by PW-3 and such theft was informed to him by PW-3. It is also not disclosed by PW-4 that in what manner and at what time PW-3 had informed PW-4 about the quarrel and loss of the mobile. The prosecution has failed to prove the ownership of the mobile allegedly stolen from PW-3 nor the prosecution has proved on record if the alleged mobile number was used in the said mobile phone or that the said mobile number was issued either in the name of PW-3 or PW-4. No witness was examined in this respect and there is absence of any evidence to show such ownership of mobile phone or the mobile number. Hence in absence of proof of ownership it cannot be said that this mobile phone belongs to either PW-3 or PW-4 of which theft could be committed by the accused. Hence doubt has arisen in the case of the prosecution benefit of which is given to the accused.
7. Further PW-5 Ct. Anup at page 2 of his cross examination has deposed that they had reached at the spot within 10 minutes on receipt of information. However he does not remember when SC No. 54/2017 Page 18 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra the departure entry was made. He does not remember the DD number. He had received telephone call of HC Bharat/ PW-8 regarding the incident and within 10 minutes he had reached at the spot. The telephone call was received by him at 10:00 PM.
8. PW-3 has deposed that he had made a call at 100 number and reached at Police Chowki at Jharoda where he had met the police official/ PW-8 and informed them about the incident. Hence PW-8 did not reach at the spot on such call allegedly made at 100 number by PW-3. PW-3 has not disclosed that from whose phone he had made a call at 100 number. The phone of PW-3 was already allegedly snatched by the accused. There was no other person with PW-3. This call at 100 number was made between alleged snatching of phone by the accused and after the running by PW-3 to the Police Chowki. Hence doubt has arisen in case of prosecution that any phone was snatched at all by the accused. When PW-5 had reached within 10 minutes at the spot after 10:00 PM then PW-8 was already present there and on instructions of PW-8 accused was apprehended by PW-5 Ct. Anup/PW-2. Hence the alleged call must have been done by PW-3 at 100 number between 9:30 PM to 10:00 PM. PW-3 has failed to disclose that from where he had made such call. Vide DD No.35 PPJ Ex.PW8/A at 10:05 PM information was received by PCR that a mobile phone was SC No. 54/2017 Page 19 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra snatched after showing knife and the further proceedings was marked to HC Bharat Ratan/PW-8. Hence when PW-8 had already instructed PW-5 at 10:00 PM and PW-3 was already in Police Chowki at 10:00 PM then there was no reason with PW- 3 to make a call at 100 number at 10:05 PM. All the above facts creates doubt in the story of the prosecution that if any phone was at all snatched from PW-3 by the accused or that the police had fairly conducted the investigation. PW-2 Ct. Anup Singh does not remember the time when they had left Police Post Jharoda. He had not made any departure entry. PW-5 does not remember if any departure entry at all was made nor does he remember the DD number. PW-8 at 10:05 PM received DD No.35 Ex.PW8/A whereas before 10:00 PM the PW-3 was already before him at Police Chowki. Within 10 minutes PW-8 had reached at the spot. PW-8 does not remember the exact time of recovery of knife and mobile phone from the accused. He did not make any DD entry after arriving back at Police Post. When he had reached at the spot then he had prepared a Kalandra under Section 107/151 Cr. P. C. bearing No.1214/16 DD No.44PP Ex.PW8/DA. PW-8 admits that no recovery was effected on accused by SI Ramvir in his presence. He had sent Rukka around 1:00 AM in the night whereas the accused was within their reach by 10:10 PM which shows that much time is taken in sending the Rukka and registering the FIR and ample SC No. 54/2017 Page 20 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra time was available to improve upon the story of the prosecution.
9. Another fact to be noted is that PW-3 had a fight with the accused before the present incident about which he had become silent in his complaint Ex.PW3/A. In cross examination dated 03.06.2017 at page 2 it is deposed voluntarily by PW-3 that 2-3 days back to this incident accused had met him in drunk condition. The accused had collided with him and PW-3 had asked the accused to walk properly. No complaint in this regard was made by PW-3. In complaint Ex.PW3/A PW-3 had stated that the accused had slapped him and after that made hit him with hands and legs which means that the accused had slapped only once whereas in cross examination at page 5 it is deposed as correct by PW-3 that accused had slapped him many times.
10. In cross examination of PW-3 at page 3 it is deposed by PW-3 that he is doing graduation from MJP Rohilkhand University, Bareili and PW-3 is in final year. His course had started in 2014 and completed in 2017 as a regular course. The timing of classes were 8:30 AM to 1:00 PM. He came to Delhi in July, 2016. PW-3 started taking coaching from Paramount Coaching Centre where he took admission on 21.08.2016. The timing of coaching classes were 8:00 AM to 11:00 AM. It is admitted as correct by PW-3 that besides this he is not taking SC No. 54/2017 Page 21 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra any other coaching. PW-3 has deposed in examination in chief that he was going to Mukherjee Colony for taking coaching for SCC examination. Hence PW-3 has deposed contradictorily that he is not taking any other coaching classes. The prosecution has failed to prove that where and from whom coaching was being taken by PW-3 on 11.10.2016 at 9:30 PM in the night which is an unusual hour for taking coaching classes. Other then this it is difficult to believe that on the day of Dussehra which is usually a holiday the PW-3 would be taking any coaching class. Hence the prosecution has failed to prove that the PW-3 was going to take any coaching classes at 9:30 PM in the night on the day of Dussehra on 11.10.2016 and therefore PW-3 has no valid reason for going to take coaching on 11.10.2016. On the face of it the deposition of PW-3 in this regard cannot be believed and the same is not proved on record. Further PW-3 has improved in his deposition that the coaching classes are in morning session and he used to visit library at Mukherjee Colony for study whereas in complaint Ex.PW3/A it is not disclosed by PW-3 that he was going to library for study. Other then this on the first page of examination in chief PW-3 has not deposed that he was going to library but it is deposed that he was going to Mukherjee Colony for taking coaching for SCC examination. Hence contradictory statements are made by PW-3 without any valid reason at various points of time and which makes his SC No. 54/2017 Page 22 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra version and deposition doubtful. This creates doubts in the case of the prosecution benefit of which has to go to the accused.
11. Other then this the PW-4 had deposed that PW-3 had told him that his mobile was lost in a quarrel and this fact was informed by PW-4 to the police. Hence PW-3 has not correctly informed PW-4 that it was a robbery and if PW-3 had informed correctly then it was not a robbery but it would be a quarrel with the accused. Hence doubt has arisen in the case of the prosecution due to contradictory deposition by PW-3 and PW-4 that if it was a robbery at all.
12. Another fact to be noted is that PW-5 at page 3 of his cross examination has deposed that there were 50-60 person present where Ravandahan program was going on. Accused was apprehended by PW-5 and Ct. Anup/PW-2. PW-2 at page 2 of his cross examination has deposed that there were 100-200 people in the crowd and he has deposed that first he had apprehended the accused. Hence there is contradiction whether PW-2 and PW-5 together apprehended the accused or PW-2 alone had apprehended the accused. PW-8 at page 2 of his cross examination dated 01.08.2019 has deposed that there were 20- 50 public person at the spot. Hence PW-2, PW-5 and PW-8 has deposed in contradiction to each other that about how many SC No. 54/2017 Page 23 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra public person were present at the spot. It is suggested to PW-8 by the accused which is denied by PW-8 that on 11.10.2016 at about 7:00PM in gali No.3, Surender Colony, Jharoda Part-I, the PW-3 has altercation with about 6-7 people namely Bablu, Laiseni, Rakesh, Vinay, Jonty, Sharma, Ronald, Vikram and Satender Kumar which PW-8 and Ct. Anup had got settled. It is deposed as correct by PW-8 in cross examination dated 01.08.2019 at page 3 that Kalandra under Section 107/151 Cr. P. C. was prepared by PW-8 against brother of accused. He has further deposed that he does not remember the time and place of preparation of said Kalandra. Medical examination of brother of accused was done at Aruna Asif Ali Hospital. PW-8 arrested the brother of accused in the said Kalandra. He does not remember the name of the brother of the accused nor does he remember if he had produced the brother of the accused before Executive Magistrate. It is a material fact that brother of the accused was arrested by PW-8/IO just few days before and he has shown total loss of memory about the circumstances of the said case. It was the duty of the PW-8 to disclose previous disputes of the family of the accused which was recent in origin. PW-8 has failed to disclose even the nature of such dispute under the said Kalandra. The number of Kalandra is produced in certified copy before the present Court which is vide DD No.44PJ dated 11.10.2016. This shows that the conduct of the IO in coming SC No. 54/2017 Page 24 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra before the present Court with true facts is unfair and this creates doubt in the investigation conducted by PW-8. Now it is proved on record that public person were available on the spot. Hence it is incumbent upon the IO to join public witness at the spot when they were available. Not one in number but a crowd was there. Hence it is not sufficient on the part of the prosecution to state that public witness were asked to join but they did not join which is so deposed by PW-5 at page 3 of his cross examination and due to many lapses in the investigation the truthfulness of non-joining the public witness on asking of IO is doubtful and fatal to the case of the prosecution.
13. The relevant citation titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2nd November, 2020 in CRL. A. 419/2018 & CRL. M.(BAIL) 6459/2020 of Hon'ble High Court of Delhi at relevant para no. 56, 62, 63, 65, and 69 which are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case.
The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea SC No. 54/2017 Page 25 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian SC No. 54/2017 Page 26 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 SC No. 54/2017 Page 27 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114 (a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession. Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of SC No. 54/2017 Page 28 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra the Indian Evidence Act.
14. PW-9 has admitted as correct that he had mentioned in MLC Ex.PW3/DX that Rinku Kumar/PW-3 was physically assaulted by 8-9 person. Further on 12.10.2016 at about 3:40 AM accused was brought in casualty who was smelling positive for alcohol and had complained physical assault by public. The MLC of accused is Ex.PW9/A. The above deposition has proved on record that other then PW-3 there were person who had assaulted the accused and it also proves that other then accused there were persons who had assaulted PW-3. It shows that there was fight between two group of people which is unfairly concealed or improperly investigated by the IO during investigation. The facts as disclosed in complaint Ex.PW3/A are not truthful version of what had actually occurred at the spot. The accused had produced DW-1 Ms. Kamlesh Devi who is mother of accused and she has deposed that two officials came to her house and took her son Anup Kumar the accused to the police station on such day. The day was Dussehra and name of the police officials are Rambir and Bharat. Neighbours Kalu and Mintu were present.
15. PW-2 does not remember the time when he left PS. He did not make departure entry. PW-5 does not remember the time SC No. 54/2017 Page 29 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra when the departure entry was made. He does not remember the DD number and he does not remember if Surender Colony Part- I is mentioned in departure DD entry. PW-8 does not remember whether sketch of knife was prepared at police post. He does not remember the time when pullanda of knife was prepared. He does not remember the name of the police official who went with pullanda to be deposited at Malkhana. Hence on material points PW-8 has failed to depose in the matter which is a matter of contradiction.
16. In cross examination dated 01.08.2019 at page 3 it is put to PW-8 that in examination in chief he has deposed that accused was apprehended at Chowk Gali No.5, Surender Colony, Part-I whereas in Kalandra he has mentioned that accused was apprehended from his house. It is deposed in answer that when the accused was apprehended at Chowk then family members of the accused had called him by shouting. The house of the accused is 20-30 paces away. The family members came at the spot and managed to take away the accused to his house. Then more police staff was called and thereafter accused was apprehended from his house. To the contrary PW-2 Ct. Anup Singh has deposed that he had chased and apprehended the accused in the gali. Further to the contrary PW-5 has deposed that PW-2 and PW-5 had together apprehended the accused SC No. 54/2017 Page 30 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra when the accused was trying to flea away from the spot. Hence PW-2, PW-5 and PW-8 are deposing all in contradiction to each other regarding the place and manner of arrest of the accused. It appears that the IO is manipulating facts as it suits him and he is not appearing with truth before the present Court. The manner in which the accused was arrested is completely doubtful. The deposition of DW-1 in this regard is found consistent and reliable which is also supported by deposition of PW-8/IO that the accused was arrested from his home.
17. In view of the above it is held that the prosecution has failed to prove on record that the accused had committed any theft in the nature as mentioned under Section 392 IPC and there are multiple doubts in the case of the prosecution with inherent contradictions and therefore benefit of which is extended to the accused.
18. Now it has to be seen that whether in an attempt to commit such theft accused had caused hurt or wrongfully restraint or fear of such hurt or wrongful restraint and further the prosecution has also to prove that the possession of knife with the accused and use to such knife by him under Section 25 and 27 of the Arms Act, 1959.
SC No. 54/2017 Page 31 of 40 FIR No. 513/2016U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
19. The relevant Section 25 of the Arms Act 1959 is reproduced hereasunder for ready reference:
25. Punishment for certain offences.―1[(1) Whoever--
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6;
or 2** * * *
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.] SC No. 54/2017 Page 32 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra 4[(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2[three years, but which may extend to seven years] and shall also be liable to fine.
(1B) Whoever--(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause
(iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section SC No. 54/2017 Page 33 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3[one year] but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3[one year].
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.―For the purposes of this sub-section, "disturbed area"means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be SC No. 54/2017 Page 34 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra punishable with imprisonment for a term which may extend to one year, or with fine, or with both. 1[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section(10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
20. The relevant Section 27 of the Arms Act 1959 is reproduced hereasunder for ready reference.
SC No. 54/2017 Page 35 of 40 FIR No. 513/2016U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra
27. Punishment for using arms, etc.--(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with imprisonment for life, or death and shall also be liable to fine.
21. PW-2 has deposed that one knife was recovered from back pocket pant of the accused on personal search of the accused. In the meantime brother and mother of the accused had also reached at the spot. IO had prepared the sketch of knife which was sealed in a pullanda by the IO. The sketch of knife is Ex.PW2/A bearing signature of PW-2 at point A. The seizure memo of knife is Ex.PW2/B bearing signature of PW-2 at point A. The personal search memo of accused is Ex.PW2/G bearing signature of PW-2 at point A. The knife is Ex.P-2 on record. PW-3 has deposed that knife was recovered from the pocket of accused. However he does not depose that from which pocket the knife was recovered. It is deposed by PW-3 that immediately when the accused snatched the mobile then he SC No. 54/2017 Page 36 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra went to police post Jharoda and from police post Jhorada he returned back with police official. PW-2 has deposed that the distance between the police post Jharoda and gali No.5 Pushta was about 20 meters and more. 20 meters is not such a distance where the accused cannot see with naked eye that PW-3 was going to police post Jharoda. It is difficult to believe that after so snatching the mobile phone and looking at PW-3 that he was going to police post Jharoda then the accused would continue to stand at the spot of incident having stolen mobile phone with him and knife in his pant. It is against the natural course of human conduct. This makes the story of the prosecution doubtful. PW-5 has deposed that the distance between the place where he had received call from HC Bharat and where he had to reach is about 150 meters. PW-8 ASI Bharat has deposed that the knife was recovered from back side pocket of the pant of the accused. However it is not deposed that from which backside left or right pocket of the accused was the knife recovered. Further the prosecution in evidence has not proved the breadth of blade of knife. In absence of proof of breadth of blade it cannot be said that the knife is prohibited as per Ex.PW10/A the notification dated 17.02.1979. Hence it cannot be said that the alleged knife is prohibited in terms of notification Ex.PW10/A. Since public witness were not joined by the IO when they were available the recovery of knife from the accused has become SC No. 54/2017 Page 37 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra doubtful. It is deposed by PW-8 that he had visited the house of the accused prior to the present incident and he does not remember the date. Though few days back there was a Kalandra prepared against the brother of the accused. PW-8 has further deposed that he does not remember the date when he visited the house of the accused. He had arrested the brother of accused in the said Kalandra and the medical examination of the brother of the accused was conducted at Aruna Asaf Ali Hospital. The place of arrest of accused is already doubtful which is discussed above in evidence. PW-8 does not remember whether the sketch of knife was prepared at the police post. He does not remember the time when the pullanda of knife was prepared. He does not remember the time when he had handed over the pullanda of knife to SI Rambir. PW-10 SI Rambir has deposed that he had arrested the accused in the police post. It is further deposed by PW-10 that in personal search of accused nothing was recovered. He had arrested the accused at about 3:00 AM on 12.10.2016. Hence the arrest of the accused was shown at police post and not at the spot where the accused was arrested and by whom the accused was arrested. PW-8 does not remember the time when the pullanda of knife was prepared. In further cross examination it is deposed by PW-8 that sketch of knife was prepared at the spot at gali No.5. Hence the accused was arrested later and the sketch of the knife was prepared by SC No. 54/2017 Page 38 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra the IO earlier to the arrest of the accused. It is deposed by PW-8 in cross examination dated 19.08.2019 that he does not remember the exact time of recovery of knife from the accused. In cross examination dated 19.08.2019 the IO has deposed that he prepared the sketch of knife by using his mobile phone torch whereas further in the same cross examination he has deposed that he prepared the sketch of knife in the street light. Hence it is seen that the IO has time and again improved his deposition and the evidence of police witness are contradictory to each other as discussed above. The IO has not conducted the investigation fairly. Hence it is held that the prosecution has failed to prove the recovery of knife Ex.P-2 from the accused.
22. In view of the finding above it is held that that the prosecution has failed to prove that the accused has committed theft. It is further held that the prosecution has failed to prove that the alleged knife was recovered from the accused. Thereby for the same facts and reasons it is observed that the prosecution has failed to prove that the accused has caused any fear of instant hurt or wrongful restraint on PW-3 at any point of time to carry away the alleged stolen property which is mobile phone.
23. In view of the discussion held above it is found that the SC No. 54/2017 Page 39 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra prosecution has failed to prove the offence committed by accused Anup Kumar @ Chipra under Section 392/397 IPC and 25/27 Arms Act, 1959. Hence the accused Anup Kumar @ Chipra is acquitted of the offence charged against him under Section 392/397 IPC and 25/27 Arms Act, 1959. Accordingly, the accused Anup Kumar @ Chipra stands acquitted. His earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to the record room.
Digitally signed by JOGINDER Announced in the open court PRAKASH JOGINDER PRAKASH NAHAR on dated 06.09.24 NAHAR Date: 2024.09.06 16:16:15 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/06.09.24 SC No. 54/2017 Page 40 of 40 FIR No. 513/2016 U/s 392/397 IPC & 25/27 Arms Act P. S. Burari State vs. Anup Kumar @ Chipra