* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 170/2001 % Reserved on: 23rd November, 2010 Decided on: 7th January, 2011 PAPPU ..... Appellant Through: Mr. S.D.S Rathore, Advocate. versus STATE ..... Respondent Through: Mr. Pawan Bahl, APP. Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Not necessary 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MUKTA GUPTA, J.
1. The facts leading to the filing of the present appeal are that on 16th June, 1999, the Complainant PW1 Raj Kumar boarded the bus from Nand Nagri for Seelampur and as the bus reached Durgapuri Chowk at 4.00 P.M., two or three persons in the bus started fighting with him and tried to snatch his Crl. A. 171/2001 Page 1 of 10 briefcase. One of them was carrying a sword like weapon which he aimed at the Complainant but the Complainant warded off the attack with the help of the briefcase. One other person who had the revolver or country made pistol, forced the driver of the bus to stop, on which all of them got down and ran away after some scuffle. The Complainant and the public ran after the culprits and one of them, identified as Pappu the Appellant herein, was apprehended whereas the others managed to escape. The Appellant was carrying sword in his hand which was seized by SI Satya Prakash. On the statement of the Complainant FIR No. 279/1999 under Sections 393/397/34 IPC was got registered at PS Shahdara. The Appellant was sent to GTB hospital for his medical examination as when he was being apprehended, he was beaten by the public. On the disclosure statement of the Appellant herein, co-accused Jagdish was arrested. After completion of investigation the charge sheet was filed.
2. The Appellant and the co-accused were charged for commission of offences punishable under Section 393/34 and 397 IPC. The Appellant was additionally charged for offence punishable under Sec. 27 Arms Act. During the trial, the Complainant PW1 Rajkumar though supported the prosecution case, turned partially hostile and deposed that he could not identify the Appellant Pappu. However PW8 Ram Kumar identified the Appellant. Since Crl. A. 171/2001 Page 2 of 10 no prosecution witness identified co-accused Jagdish, he was acquitted when the case was taken up for recording of statements under Sec. 313 CrPC. The statement of the Appellant was recorded under Section 313 Cr.P.C. and thereafter the Appellant was convicted for offences punishable under Sections 392/34 and 397 IPC and was awarded a sentence of rigorous imprisonment for a period of seven years and a fine of `2,000/-, and in default of payment of the fine to undergo simple imprisonment for a period of three months. Since the Appellant was convicted for the offence under Section 397 IPC, which was more serious in nature, the Appellant was not separately convicted for offence under Section 27 Arms Act.
3. Learned counsel for the Appellant contends that there is no evidence against the Appellant and the learned trial court erred in imposing the conviction and sentence on the Appellant. The Complainant, PW1 has not identified the Appellant in the Court. PW3 Sudhir Kumar and PW2 Om Singh, the conductor and the driver of the Bus, have also not identified the Appellant in the Court. Thus, it is a case of no evidence against the Appellant. There is contradiction in the testimony of the witnesses in regard to the arrest of the Appellant. Moreover, even as per the charge against the Appellant he along with the co-accused has attempted to rob and thus, he cannot be convicted for offence punishable under Section 392 IPC. As regards Crl. A. 171/2001 Page 3 of 10 the conviction for offence punishable under Section 397 IPC, the Appellant is not alleged to have used the sword to commit robbery, hence no case for commission of offence of robbery with attempt to cause death or grievous hurt under Section 397 IPC is made out. Even if the use of weapon stands proved, it is only a case of attempt to robbery and hence the Appellant cannot be convicted for the offence punishable under Section 397 IPC.
4. Learned APP for the State contends that because of lapse of time the Complainant, the bus driver and the conductor have not been able to identify the Appellant. However, the public witness PW8 Ram Kumar who was present at the place where the Appellant was apprehended by the public has duly identified him. PW3 Sudhir Kumar has identified the sword in the Court, which was seized from the Appellant by the police and thus, there is sufficient evidence adduced on record against the Appellant.
5. It is further contended relying on Sanjay @ Ravindra N. Gaikwad and Anr. vs. State of Mahrasthra, 1996 Crl. Law Journal 2172 that conviction under Section 393 and 397 IPC can be sustained. Learned APP states that though the Appellant has been wrongly convicted for offence under Section 392 IPC however, this Court in the present appeal can convert the conviction for offence under Section 392 IPC to one under Section 393 IPC as both the charge and the finding are that of attempt of robbery. Referring to Section Crl. A. 171/2001 Page 4 of 10 464 Cr. PC, it is urged that the judgment rendered cannot be set aside merely due to an error or omission in the framing of a charge. By altering the conviction to one for an offence punishable under Section 393 IPC, no prejudice would be caused to the Appellant.
6. I have given my anxious consideration to the facts of the case and perused the evidence on record. The Complainant PW1 Raj Kumar, the driver PW2 Om Singh and the conductor of the bus PW3 Sudhir Kumar have deposed about the incident, however, they have failed to identify the Appellant. PW1 has stated that a person with a sword in the hand tried to snatch the briefcase from the Complainant which he warded off by his briefcase. He stated that one of the culprits was apprehended by the police at the spot who had disclosed his name as Pappu but he cannot identify him. PW1 further stated that he i.e. Pappu was badly beaten up by the public. PW3 has stated that he heard the noise from the front side and saw that a brief case was being pulled by some persons on their respective sides in the bus. After the bus stopped some boys ran after alighting followed by the person whose bag was being snatched. One boy who was having a sword in his hand apprehended with the help of other public persons at some distance from the bus stop. His name was Pappu but he could not identify that Pappu due to lapse of time. The police seized the sword which was in the hand of that Crl. A. 171/2001 Page 5 of 10 accused Pappu and prepared a sketch and parcel of the sword. He identified the sword Ex. P-1 to be the same sword recovered from the accused Pappu. PW8 Ram Kumar is an independent public witness, who was standing on the road near Shivam Saree Centre, waiting for the bus to go to Koria Bridge. He had witnessed the entire incident after the Appellant and his co-accused alighted from the bus and ran away. The Appellant was chased by the public, apprehended and beaten, which he witnessed and deposed. The Appellant was armed with a sword which was seized on the spot and the same has been identified by PW8, Ram Kumar also. PW-6, SI Satish Kumar reached the spot just in front of Shivam Saree Centre on receiving the information, where PW1 met him and produced the accused Pappu, present in Court and gave his statement Ex.PW1/A. He stated that since the incident had taken place within the jurisdiction of PS Shahdra, SI Sat Prakash PW7 of PS Shahdra was handed over the statement of PW1 and the Appellant along with the sword. PW7 has also deposed about the Appellant being handed over on the spot along with the sword and the statement of PW1. Thus, as far as the Appellant is concerned, the fact that by trying to snatch the brief case by showing the sword to the Complainant he attempted to commit robbery and thereafter ran away and was apprehended at the spot near the bus stop, is proved beyond reasonable doubt.
Crl. A. 171/2001 Page 6 of 10
7. The issues which now arise for determination are whether the Appellant can be convicted for an offence under Section 392 IPC, though charged for offence under Sec. 393 and 397 IPC and secondly, once it is a case of attempt of robbery, whether the Appellant is liable to be convicted for offences punishable under Sections 393/398 IPC or under Sections 393/397 IPC.
The relevant provisions of the Penal Code are:
"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.
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.
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."
8. In the present case the Appellant had tried to snatch the briefcase from PW1 by using the sword, which he aimed at PW1, however, he did not Crl. A. 171/2001 Page 7 of 10 succeed in snatching the brief case. Thus, this is a case of attempt of robbery. Hence, the appropriate section under which the Appellant can be convicted is Section 393 IPC and not Section 392 IPC. Once the Appellant was charged for offence under Section 393 IPC the Appellant could not be convicted for offence punishable under Section 392 IPC but because the Appellant was also charged for offence under Section 397 IPC, which is a major offence, the Appellant could be convicted for an offence under Section 392 IPC. However, in the present case the offence committed by the Appellant is not punishable under Section 392 IPC as the offence of robbery had not been completed but one punishable under Section 393 IPC being only an attempt to commit robbery. The learned Trial Court thus erred in convicting the Appellant for offence punishable under Section 392 IPC. The conviction of the Appellant is altered to one under Section 393 IPC.
9. The Appellant has also been convicted for offence punishable under Sec. 397 IPC. Both the provisions 397 and 398 IPC contemplate the accused being armed with weapon while committing robbery/dacoity or attempting to commit robbery/dacoity. Section 397 IPC applies when offence of dacoity/robbery has finally been committed. Section 398 IPC on the other hand, applies to cases of attempt to commit robbery or dacoity. Section 393 IPC corresponds to Section 398 IPC whereas Section 392 IPC corresponds to Crl. A. 171/2001 Page 8 of 10 Section 397 IPC in case of attempt to robbery/dacoity and robbery/dacoity respectively coupled with user of deadly weapon. Thus, Section 398 IPC regulates the punishment in a case of attempt to commit robbery being armed with deadly weapon as distinguished from the case in which the offender has already accomplished his purpose and robbery has been actually committed with the use of deadly weapon under Section 397 IPC. Since from the facts proved by the prosecution, only a case of an attempt to commit robbery with use of deadly weapon is made out, the offence committed by the Appellant is one punishable under Section 398 IPC. Since Section 398 IPC is a minor offence of Section 397 IPC, no prejudice will be caused to the Appellant and thus, the conviction of the Appellant is altered from Section 397 to one for offence punishable under Section 398 IPC.
10. As far as the sentence is concerned, both under Sections 397 and 398 IPC the minimum sentence which can be awarded to the accused is Rigorous Imprisonment for a period of seven years, which has been awarded by the learned Trial Court. Thus, the sentence awarded by the learned Trial Court is maintained.
11. The present appeal is partially allowed modifying the conviction of the Appellant to one for offences punishable under Sections 393/398 IPC. The sentence awarded by the learned Trial Court i.e., Rigorous Imprisonment for a Crl. A. 171/2001 Page 9 of 10 period of seven years with a fine of `2,000/- and in default of payment of fine, to further undergo a period of simple imprisonment for three months, is maintained. The Appellant be taken into custody for undergoing the remaining sentence. The bail bond and the surety bond stand cancelled.
(MUKTA GUPTA) JUDGE JANUARY 7th, 2011/vn Crl. A. 171/2001 Page 10 of 10