Delhi High Court: Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.
By the instant appeal, the appellant challenged the decision convicting the appellant for offence punishable under Section 397 of Penal Code, 1860.
An FIR was registered for the offence punishable under Sections 392/397/34 IPC on the statement of the complainant who stated that the appellant and co-accused committed robbery of his mobile phone made Karbon from his possession by showing him a deadly weapon, that is the blade.
Analysis, Law and Decision
High Court stated 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, an offence under Section 397 IPC is attracted.
Section 390 CrPC provides that in a robbery, there is either theft or extortion. It is further provided that 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.
Hence, 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.
In view of the above position of law, High Court rejected the submission that the Section 397 IPC will not be attracted since the blade was allegedly shown after the mobile phone was robbed.
Further, the contention that since the blade had not to be recovered, it cannot be held that the same was deadly weapon, Court expressed that it is well settled that whether the weapon of offence was deadly or not, is a question of fact which would depend on the nature of the weapon used in the offence.
A pistol, revolver, sword, axe or even a knife are deadly weapons. However, 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 present matter, the prosecution’s evidence was that the appellant took out a blade and kicked the complainant.
The Bench stated that it is not essential that 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 the commission of the offence, however, the prosecution was required to prove the nature of the weapon of offence used especially in the case of knife or blade.
Court held that since from the evidence of the prosecution witnesses the size and sharpness of the blade was not proved, the prosecution failed to prove that the appellant used a deadly weapon.
Lastly, Bench opined that in the absence of the use of deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable under Section 397 IPC could not be sustained and was required to be modified to an offence punishable under Section 392 IPC.
In view of the above appeal was disposed of. [Asif v. State (NCT of Delhi), 2022 SCC OnLine Del 270, decided on 28-1-2022]
Advocates before the Court:
For the appellant:
Kunal Malhotra, Advocate with Ravinder Gaur, Advocate/DHCLSC
For the respondent:
Amit Gupta, APP for the State through video conferencing with SI G.R. Meena, PS Ranjit Nagar