Prosecution Must Prove 'Nature Of Weapon' Used During Robbery Was Deadly For Upholding Conviction U/S 397: Delhi High Court

The Delhi High Court has modified the conviction and sentence of a man from sec. 397 of Indian Penal Code to sec. 392 as the prosecution had failed to prove the use of a deadly weapon.

Justice Mukta Gupta was of the view that the prosecution is required to prove the nature of the weapon of offence used specially in the case of knife or blade.

"In the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable under Section 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC," the Court said.

The Court also perused the nominal roll of the appellant which showed that he had undergone approximately 3 years and 9 months of sentence including remissions and that he was involved in four other FIRs including three FIRs relating to similar offences.

"Consequently, the conviction of the appellant is altered to for an offence punishable under Section 392 IPC and the sentence of the appellant is modified to rigorous imprisonment for a period of five years," the Court said.

The Court was dealing with a plea filed by one Asif challenging the judgment dated 5th July, 2019 convicting him for offence punishable under sec. 397 IPC and the order on sentence dated 17th July, 2019 directing him to undergo sentence of seven years imprisonment.

The FIR was registered under sec. 392, 397 and 34 of IPC on the statement of the complainant who stated that on 9th January, 2015 the appellant and a co-accused had committed robbery of his mobile phone from his possession by showing him a deadly weapon, that is the blade.

The counsel for appellant had pointed out glaring contradictions in the testimonies of three prosecution witnesses who gave different versions in respect of the manner of commission of alleged robbery and the investigation carried out by the police qua the three witnesses.

Perusing the testimonies of the prosecution witnesses, the Court said that it is trite law that even if the weapon of offence is shown after snatching had taken place for running away along with snatched article, offence under sec. 397 IPC is attracted.

It also noted that a theft is 'robbery' if, in order to 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 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.

"Thus, if the offender uses the deadly weapon at the time of committing robbery or dacoity which would include even the fear of instant death or instant hurt or wrongful restrain or an attempt to cause death or hurt or wrongful restraint even while carrying away or attempting to carry away the property obtained by theft, the act of the offender will fall within the four corners of Section 397 IPC," the Court said.

The Court therefore rejected the contention of counsel for the appellant that sec. 397 IPC is not made out as the blade was allegedly shown after the mobile phone was robbed.

"The decisions relied upon by the learned counsel for the appellant did not consider the necessary ingredients of an offence of robbery which in turn is a necessary ingredient of an offence punishable under Section 397 IPC," it noted.

Further noting that a pistol, revolver, sword, axe or even a knife are deadly weapons, the Court said that in the case of knife, the length of the knife, its sharpness and the pointed edge has to be seen to ascertain whether the knife is a deadly weapon or not.

In the facts of the case, the Court took note of the fact that while the evidence of the prosecution was that the appellant took out a blade and kicked the complainant, in cross-examination it was stated that the blade was not a shaving blade. Therefore, the Court said that the kind of blade used was not proved even by the ocular evidence of the witnesses.

"Though it is not essential that the weapon of offence should be recovered to prove the nature of the weapon used and that a deadly weapon was used at the time of commission of the offence, however, the prosecution is required to prove the nature of the weapon of offence used specially in the case of knife or blade. Since from the evidence of the prosecution witnesses the size and sharpness of the blade is not proved, hence the prosecution has failed to prove that the appellant used a deadly weapon," the Court added.

With the aforesaid observations, the plea was disposed of.

Case Title: ASIF v. STATE (N.C.T OF DELHI)

Citation: 2022 LiveLaw (Del) 55

Inputs by Suhavi Arya

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