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Delhi District Court

State vs Shyam//Fir No.61/11//Sc No.45/12 on 28 February, 2013

                                                      1

   IN THE COURT OF SH. SANJEEV  KUMAR ADDITIONAL SESSIONS 
            JUDGE­I (OUTER): ROHINI COURTS: DELHI.

                                                                               SC NO.45/12.
                                                                            FIR NO.61/2011.
                                                                       PS - SOUTH ROHINI. 
                                                                        U/s.394/397/34 IPC.

STATE 

                                            VERSUS


SHYAM S/O. SHRI SOHAN LAL
R/O. B­4/307, SULTANPURI, DELHI.
                                                                                                
                                                              Date of Institution: 18.07.2012.
                                                             Date of Arguments:19.02.2013.
                                                              Date of Judgment: 27.02.2013.

JUDGMENT

1. The brief facts of the case are that on 22.03.2011 on receiving the DD No.28A SI Parveen Atri reached at the spot i.e. near CAW Cell, Sector­3, Rohini, Delhi, where complainant Yudhvir Singh met with him and who produced the accused Shyam and one piece of blade. SI Parveen recorded the statement of complainant Yudhvir Singh, in which he had stated that, 'today in the evening STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

hours he alongwith his two bhanjas (nephew) aged 1 year old and 5 years old were roaming near CAW Cell, Sector­3, Rohini and at about 7.20pm, two boys aged about 20­25 years started walking very closely to his nephew Pratyaksh Rana and one of the boy had cut down the thread of the locket, which his nephew was wearing. At that time, he apprehended one person who had cut the thread, but said person shown him blade and threatened him that, "Chup­Chap Hat Ja Nahi To Abhi Faad Dunga", and thereafter he gave a fist blow in his stomach, but he did not let him and at that time that boy had thrown the said locket towards other boy, who ran away. Thereafter, he made a call to the police on 100 number.

On the said statement SI Parveen prepared the rukka and got registered the FIR through Ct. Ravinder. He arrested the accused Shyam, prepared site plan, seized the blade, which was handed over to him by the complainant Yudhvir Singh, recorded the confessional statement of the accused. He recorded supplementary statement of the witnesses and filed the chargesheet under Section 392/397 IPC.

2. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

Sessions. Thereafter, it was assigned to this court.

3. Vide order dated 13.08.2012 charge for offence punishable u/s. 394/34 IPC and 397 IPC framed against accused Shyam to which he pleaded not guilty and claimed trial.

4. To prove the case, the prosecution has examined four witnesses. PW1 Ct. Deepender. PW2 HC Jitender. PW3 Yudhvir, complainant of the present case. PW4 IO/SI Parveen Kumar. Their brief testimony discussed as under :­

5. PW2 HC Jitender had deposed that on 22.09.2011 he received rukka from Ct. Deepender and on the basis of rukka, registered the FIR No.61/11, u/s. 392/34 IPC, which he proved as Ex.PW2/A and he also made endorsement on the rukka, which he proved as Ex.PW2/B. He was not cross examined.

6. PW3 Yudhvir Singh/complainant had stated that on 22.3.2011, he alongwith his two bhanja aged around 1 year and 5 year had come to market at Sector­3, Rohini, Delhi. At around 7.20pm, when they were present near CAW Cell, Sector­3, Rohini, two boys started walking with his bhanja Pratyaksh Rana, aged around 5 year, was just moving ahead of him. His Bhanja was wearing a locket of gold of 2gms in his neck, which was in a black STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

thread. Accused Shyam had cut down the said black thread from the neck of his bhanja and taken the locket. He caught hold accused Shyam, accused had shown him a blade and said, "Chup Chap Hat Jaa Nahi To Phaar Dunga", he also gave a fist blow on his stomach. Accused Shyam had thrown the locket to his associate and who ran away from the spot with the locket and he continued to hold accused Shyam. He made call to the police on 100 numbers from his mobile phone. Police came there. He handed over the accused Shyam to SI Praveen, who came at the spot alongwith Ct. Jitender. He had also taken out the blade from the accused Shyam and which he handed over to SI Praveen. Accused Shyam told the name of his other associates as Ishwar @ Chana. IO had recorded his statement, the same is Ex.PW3/A. Police prepared the site plan at his instance. Blade was put up into a match box and converted into a pullanda and sealed with the seal of PK and seized vide memo Ex.PW1/A. Accused Shyam was arrested by IO vide memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. He identified the accused correctly and also identified the blade recovered from accused as Ex.P2.

In his cross examination, he stated that on the day of STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

incident he left his house at about 7.10pm. He had come in the market to purchase balloon etc. for his bhanjas. At the time of incident, he had already purchased the balloon. He had purchased the balloon from a moving vendor on bicycle. He has not stated to the police that he has already purchased the balloon. Some public persons gathered at the spot. Out of those persons, none was known to him. He could not say whether anyone from the crowd was recognizing the accused Shyam. Police reached at the spot at around 8pm. SI Praveen alongwith Ct. Deepender reached at the spot. No PCR Van reached there. The locket which was cut down by accused Shyam was thrown by him to his associates, who ran away from the spot. Nothing was recovered from the possession of accused Shyam except the surgical blade. He reached at the PS at about 10/11pm. His statement was first recorded at the spot and thereafter in the PS. He has signed four/five papers. He was called by the IO again in the present case, when the other associates of accused Shyam was arrested and he was called at Juvenile Court for the identification of Ishwar @ Chana. The site plan was prepared in his presence. He had not signed on the site plan. The surgical blade put up into a match box and converted into pullanda and STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

sealed with the seal of PK. He denied the suggestion that accused Shyam was not apprehended at the spot or that he had not cut down the locket from the neck of his bhanja. He further denied the suggestion that that no such incident had taken place or that he deposed falsely.

7. PW4 SI Parveen Kumar had deposed that on 22.3.11, he was posted as SI in PS South Rohini. On that day, he received DD no.28A, copy of which is ExPW4/A. Thereafter he along with Ct. Dipender reached at the spot i.e near CAW Cell, Sector­3 Rohini where they met complainant Yudhvir Singh and he produced accused Shyam along with one piece of surgical blade. He recorded statement of Yudhvir Singh ExPW3/A. He also asked 4­5 public persons to join the investigation but none agreed and they went away without telling their names and addresses. He put the blade into a matchbox and converted into pulunda and sealed with the seal of PK and seized vide memo ExPW1/A. He prepared rukka ExPW4/B and handed over to Ct. Dipender for getting the FIR registered. Ct. Dipender got the FIR registered and handed over to him the copy of FIR and original rukka. He prepared the site plan ExPW4/C. Accused was interrogated and arrested vide ExPW1/B, STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

his personal search was conducted vide ExPW1/C, he made disclosure statement vide ExPW1/D. He further stated that later on the other associate of accused Shyam, namely Ishwar @ Channa was arrested and he was juvenile and locket was recovered from his possession and his charge sheet was filed separately in the Juvenile Justice Board. He identified accused Shyam and surgical blade correctly.

In his cross examination, he stated that he received the DD no.28A at about 7.50 pm and reached at the spot at about 8 pm. There is one school at the spot which is opposite the CAW Cell. The distance between CAW Cell and spot is about 50 yds. There was no shop near the spot. He had not contacted to the balloon seller from whom complainant had purchased the balloon. He remained at the spot till 12 mid night and reached at the PS at about 1 am in the night. He went alone in the PS. Accused Shyam was sent for medical examination through constable. The complainant was called again in respect to the investigation of the present case but he does do not remember for how many times the complainant was called. He denied the suggestion that all the investigation was carried out while sitting in the police station or that no such incident STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

had taken place or that he deposed falsely being the IO of the case.

8. Almost similar facts have been deposed by PW1 Dipender in his examination in chief. In his cross examination he had stated that duty officer handed over DD No.28A to SI Parveen Atri. They left the PP at about 7.50pm and reached at spot at about 8.10pm. IO handed over rukka to him at 10.30pm and he returned back at the spot at about 11.30pm after registration of FIR. He denied the suggestion that he did not join the investigation with the IO. All writing work was done at PS.

9. The statements of accused under Section 313 Cr.P.C.

was recorded, in which he denied all the incriminating evidence put to him and also submitted that he does not want to lead any evidence in his defence.

10. I have heard the arguments from Shri Anil Kumar Gupta ld. Addl. PP for the State and Shri Neeraj Bansal ld. Amicus Curiae for accused.

11. Ld. Addl. PP for the State has argued that from the testimony of PW3 it is proved that accused Shyam alongwith his associate had robbed the locket from the nephew of PW3/complainant Yudhvir Singh by cutting the black thread from his STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

neck. At that time, accused Shyam was carrying deadly weapon i.e. surgical blade and by which he threatened the PW3 Yudhvir Singh, when he apprehended him. He further argued that accused Shyam had thrown the said gold locket to his associate, who was a juvenile and was arrested later on and locket was recovered. Hence, in such circumstances, prosecution has been able to prove the offence against the accused beyond reasonable doubt. Therefore, accused Shyam is liable to be convicted for offence punishable u/s. 394/397 IPC.

12. On the other hand, Shri Neeraj Bansal, ld. Amicus Curiae for accused has argued that locket was not recovered from the possession of accused Shyam. He further argued that the surgical blade which was allegedly shown to be recovered from the possession of accused Shyam does not bear the signatures of accused. Hence, the recovery is doubtful. He further argued that neither any document has been placed on record by the prosecution nor statement of MHC(M) has been recorded to prove that the said blade was deposited in the malkhana. He further argued that no independent witness has been joined as Prosecution witness despite being public place, which creates doubt in the entire story of STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

the prosecution. Hence, benefit of doubt be given to the accused Shyam and may be acquitted.

13. I have heard rival arguments and gone through the record. Accused Shyam has been charged for offence u/s. 394 IPC. Relevant provisions are reproduced as below:­

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.

"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, volun­ tarily 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"

14. The star witness of the prosecution is PW3 Yudhvir Singh as discussed above. He has categorically stated in his statement that on 22.03.2011, accused Shyam had cut down the thread of the locket, which is his bhanja Pratyaksh Rana was wearing and taken the locket of gold of 2gm and he caught hold the accused at that time and accused threatened him that, "Chup Chap Hat Jaa Nahi To Phaar Dunga", and accused shown him a blade STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

and also gave him a fist blow on his stomach. He further deposed that accused had thrown the said locket to his associate and who ran away from the spot. Nothing has come out in his cross examination, which could dent his testimony. No suggestion has been given to the witness that there was any previous enmity between him and accused due to which PW3 Yudhvir Singh had falsely implicated in this case. In fact, even there is no suggestion that both of them were previously known to each other. Therefore, I do not find any reason that PW3 would have falsely deposed against the accused. Hence, his testimony given to the police Ex.PW3/A and given in the court are appeared to be cogent, trustworthy and reliable. PW1's testimony cannot be discarded on the ground that no other independent witness has been joined in the investigation. It is known fact that now a days public persons are not interested in joining the investigations of the criminal case because either they have fear of backlash from the accused or they do not want to waste their precious time in visiting the PS as well as to the court for giving evidence.

15. The testimony of PW3 id duly corroborated PW1 and PW4 who are police officials and reached at the spot on the STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

receiving the DD regarding this incident. PW4 SI Parveen Kumar is the IO, he had recorded the statement of PW3 Ex.PW3/A and prepared the rukka. He has proved the rukka on the basis of which FIR has been registered. He has also testified that he arrested the accused Shyam and recorded his confessional statement Ex.PW1/D. He has testified that accused and his associate Ishwar @ Channa has also been arrested and facing trial before Juvenile Justice Board and from his possession locket has been recovered. It is accused Shyam who had disclosed the name of his associate in his confessional statement Ex.PW1/D. The disclosure of name of his associate is discovery of fact, hence, same is admissible in evidence u/s. 27 of the Indian Evidence Act. The recovery of locket robbed by accused Shyam from his associate corroborated the testimony of PW3 that accused Shyam had given the locket to Ishwar @ Channa after robbery from nephew of PW3.

16. In such circumstances, I hold that, prosecution has been able to prove the case against the accused beyond reasonable doubt that accused Shyam with his associate in furtherance of their common intention robbed the locket from the possession of nephew of PW3 Yudhvir Singh and when PW3 STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

caught hold him he caused hurt to him by giving fist blow and later on pass on the locket to his associate. Hence, I convict the accused Shyam for offence punishable u/s. 394/34 IPC.

17. As far as offence punishable u/s. 397 IPC is concerned.

As per Section 397 IPC the weapon used in committing robbery must be a deadly weapon. Section 397 IPC is reproduced as under:­

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."

18. As stated above, PW3 Yudhvir Singh had stated that when he apprehended the accused, he had shown him the blade. Hence, it is proved that, accused Shyam has used the said blade to threatened to run away with the robbed article.

19. Now the question is whether the blade which PW4 SI Parveen had called a "surgical blade" is a deadly weapon or not. In STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

the judgment Rakesh vs State of NCT of Delhi, Indian Kanoon­ http://indian kanoon.org/doc/12865671 dated 20.07.2010, passed by our own High Court in para 14 & 15 has observed as under :­

14. The term­deadly weapon// has been defined in Black's Law--any firearm or other weapon, device, instrument, material or substance//, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.// Such weapons or instruments are made and designed for offensive or defensive purposes or for destruction of life or inflation of injury, one which, from the manner used, is calculated or likely to produce death or serious bodily injury//.

15. In Balak Ram versus State, 1983 Cri.L.J. 1438, a single Judge of this Court has observed as under:­ ­­What is a deadly weapon is not defined in Code, it must, I think, therefore, be a weapon which is used was likely to cause death. In Lakshmi­ammal v. Saniappa Gounder, AIR 1968 Mad 310 : (1968 Cri LJ 1084), weapons like knife, hammer, crowbar and spades were held undoubtedly to be deadly weapons, but in STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

Mir Bayyan Khan v. Emperor, AIR 1935 Pesh 65 (2) : (36 Cri LJ 933), it was said that a crow­bar or CRL. App.No.208/2003 Page 10 spade may well be a deadly weapon if used as a weapon of offence, but not it used for destroying a bridge (that is I think, for peaceful purposes). Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest.

They are not deadly weapons per se such as would ordinarily result in death by their use. What would make a knife deadly is its design or the manner 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 by the accused was a deadly one.// The surgical blade itself is not a weapon. However, if it is used as an instrument for causing hurt or threatened to cause hurt to the victim, it become a weapon. There is no doubt that even death can be caused by a blade if it hit on the vital parts of the body like Neck. But merely on this ground a weapon cannot be considered a deadly weapon. Even death can be caused by lathi (wooden stick), but lathi is not a deadly weapon. In my view, it STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

would not be proper to consider the blade or even surgical blade as a deadly weapon. Showing a blade to a person will not terrorize to the extent that it cause fear of death in the mind of victim. It may cause fear that he may get injured. Hence, in these circumstances, I am of the view that, surgical blade is not a deadly weapon. In this regard, I rely upon judgment titled as, Bishan vs The State 1983 (1) Crimes 155, wherein Hon'ble High Court of Delhi had not considered a vegetable cutting knife as deadly weapon. Moreover, PW4/IO SI Parveen Kumar had not prepared the sketch of blade nor had mentioned the length or width of blade. Neither he had mentioned that, how much sharp was the blade. Hence, taking into account of the facts and circumstances, I held that the blade Ex.P1 recovered from the accused cannot be treated as deadly weapon. Therefore, I give benefit of doubt to the accused and stands acquitted for the offence u/s. 397 IPC.

CONCLUSION

20. In view of abovesaid facts and circumstances, accused Shyam stands acquitted for offence punishable u/s. 397 IPC. However, accused Shyam stands convicted for offence punishable STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

u/s. 394 IPC. Accused is on bail. He be taken into custody. His bail bonds and surety bonds are cancelled. Now to come up for order on sentence.

Announced in the open court (SANJEEV KUMAR) today i.e. on 27.02.2013. ADDL. SESSIONS JUDGE­01 (OUTER):ROHINI:DELHI.

STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

IN THE COURT OF SH. SANJEEV KUMAR ADDITIONAL SESSIONS JUDGE­I (OUTER): ROHINI COURTS: DELHI.

SC NO.45/12.

FIR NO.61/2011.

PS - SOUTH ROHINI.

U/s.394/397/34 IPC.

STATE VERSUS SHYAM S/O. SHRI SOHAN LAL R/O. B­4/307, SULTANPURI, DELHI.

ORDER ON SENTENCE 28.02.2013.

Present: Shri Anil Gupta, ld. Addl. PP for the State.

Convict Shyam is in JC.

Shri Neeraj Bansal ld. Amicus Curiae for accused Convict.

1. Arguments on the point of sentence heard from Sh.

Neeraj Bansal, ld. Amicus Curiae for accused and Shri A.K. Gupta, ld. Addl. PP for the State.

2. Convict Shyam was convicted for offence u/s. 394/34 IPC STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

vide judgment dated 27.02.2013.

1. It is submitted by ld. Amicus Curiae that convict Shyam is aged about 22 years and has old aged parents at his house and his father is handicapped. He has three younger brother to look after. His entire family depends upon him as he is only bread earner for his family. He has remained in JC from 23.3.2011 to 18.07.2011. He further submits that he has not been involved previous in any criminal case. A lenient view may be taken against accused Shyam.

2. On the other hand, ld. Addl. PP for the State argued that convict Shyam had committed robbery of a gold locket by cutting the same from the neck of five year old boy and he also threatened to complainant to cause injury to him by showing him blade, when he was apprehended by the complainant. He further submits that the incident of robberies and dacoity are increasing in the society and which is creating great fear in the minds of general public and they are even afraid of going out of their house. Due to such kind of incident, nobody is safe in Delhi and this has created law and order problems. Hence, convict deserves no leniency and they should be sentenced maximum terms as provided in the offences in which they have been convicted.

STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.

3. There is no fix formula of sentencing and it is totally depend on the facts and circumstances of each case. The object of sentencing is not only punish the offender for the offence committed by him, but also to give a message to the society that if any person(s) break the law, then he will be punished and also giving a sense of security to the general public at large.

4. It is known fact that offence of robberies are increasing in the society day by day. Robbers have no fear of law in their minds. But, at the same time, the convict is a young man of aged about 21 years and he has old parents to look after. Therefore, taking into account, all the facts I sentence convict for a period of three years Rigorous Imprisonment and a fine of Rs.2,000/­ for offence punishable u/s. 394/34 IPC. In default of payment of fine they will undergo SI for three months.

5. The benefit u/s. 428 Cr.P.C. will be given to the convict.

A copy of Judgment and that of order on sentence be supplied to the convicts free of cost today itself.

Announced in the open court (SANJEEV KUMAR) today i.e. on 28.02.2013. ADDL. SESSIONS JUDGE­01 (OUTER):ROHINI:DELHI.

STATE VS SHYAM//FIR NO.61/11//SC NO.45/12 PS­ SOUTH ROHINI// U/S. 394/397/34 IPC.