Azam v. State (Nct of Delhi)

JUDGMENT

¶1By way of the present apeal, the apelant seks to asail the judgeme nt of conviction dated 2 0 . 05 .202 4 vide which he has ben convicted for ofences punishable under Sections 392/397/41 / 34 IPC and order on sentence dated 0 6 .0 7 .202 4 vide which he has ben directed to undergo rigorous imprisonment for a period of years for the ofence punishable under Sections /34 IPC alongwith payment of fine of Rs. 5 , 0 0/ - in default whereof, he was directed to further undergo simple imprisonment for a period of 60 days; rigorous imprisonment for a period of years for the ofence puni shable under Sections IPC rigorous imprisonment for a period of year for the ofence punishable under Sections IPC alongwith payment of fine of Rs. 5 , 0 0/ - in default whereof, he was directed to further undergo simple imprisonment for a period of 60 days . The benefit

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of Section 428 Cr.P.C. has also ben provided to the apelant and al the sentences were directed to run concurently.

¶2The present FIR came to be registered on the complaint of one Naven

(PW4) aleging that on 29.04.2019 at ab out 7:45 P.M., when he was returning home on his motorcycle, while he stoped to receive a cal, two boys came on a Pulsar motorcycle and the pilion rider snatched his mobile phone of make "POCO F - 1 ', from his right hand and at that point , the pilion rid er further tried to take out his purse from the right - side pocket of his pant . Simultaneously, t he driver tok out a sharp - edged weapon i.e. knife and asked him to handover whatever he was carying failing which, he would kil him. Frightened, the complain ant tok out his purse from his pant, and the pilion rider forcibly tok out sum of Rs.35,0/ - from the said purse also tok out another mobile phone , of make "JIO Keypad '. The reafter, both the said acused fled from the spot and the complainant trie d to chase, however, could not trace the robers. He informed his uncle Pawan Kumar

(PW3) , and reported the mater. Initialy, the FIR was registered under Sections 392/34 IPC. The present apelant , being the driver of the motorcycle and the pilion rider (a CL) w ere arested in another FIR No.62/2019 (Ex.PW13/A) registered under Sections 392 IPC at PS Narela Industrial Area, where they disclosed their involvement in the subject FIR. From the posesion of the apelant, the robed mobile phone make POCO F - 1 (Ex.PW8/A) was recovered. While the second phone make JIO Keypad

(Ex.PW8/B) was recovered from the CL. During the investigation, Section 41 IPC was aded. Subsequently, during the charge, noting the contents, Section 397 was also aded.

¶3During tri al , b esides the complainant (PW - 4), the prosecution also

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examined the uncle Pawan (PW - 3), the aunt Dimple (PW - 5) and one Sajid Khan (PW - 1), the person who had purchased the mobile phone of make POCO F - 1 and thereafter, sold it to the complainant as wel a s one Ravi Chand Singh, (PW - 12) Unit Head of the factory where the complainant was employed. The complainant , in his testimony before the court, reiterated his version of the incident as stated earlier during the investigation. He also not only proved the seizure memo of the recovered mobile phone make POCO F - 1 (Ex.PW4/B), but also exhibited his invoice as Ex. PW4/C. He also identified the apelant as the person who was driving the motorcycle and had pointed the knife at him. The testimonies of his uncle ( PW - 3) and aunt (PW - 5) namely, Pawan Kumar Dimple are to the extent that a sum of Rs.35,0/ - was borowed from them. In his testimony, Sajid Khan (PW - 1) stated that he had purchased mobile phone make POCO F - 1 on 13.1.2018 for a sum of Rs.21,0/ - . Th e bil for the said phone was in his name. He deposed that after keping the mobile phone for about 15 days, he sold the same to the complainant, however, admited that no separate sale document was executed. He identified the mobile phone as wel as the i nvoice. Ravi Chand Singh (PW - 12) deposed that on 29.04.2019, he was working as Unit Head at Diwan Mundhra Brothers Pvt. Ltd. and on that day, the complainant left the factory at about 7:40 pm. He proved the duty records of the complainant in the factory on that day as Ex.PW12/A and Ex.PW12/B.

¶4Learned counsel for the apelant has primarily contended that in the absence of recovery of the aleged knife, the prosecution was bound to prove that the weapon used in the ofence was a dangerous weapon. In this regard, reference is invited to the portions of cros -examination where the complainant had stated that he could not definitely state whether the sharp -

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edged weapon was a knife or not. In this regard, learned counsel has relied o n the decision dated 12.03. 1983 pased by the Co - ordinate Bench of this Court in Balak Ram v. The State , Crl. Apeal No.136/1981 , Samiudin @

Chotu v. The State of NCT of Delhi reported as ILR (201) I Delhi 39 Asif v. State (NCT of Delhi) reported as 202 SC OnLine Del 270. W hile raising doubts with respect to the recovery of the mobile phone from the apelant, it was next contended that was raised that no judicial TIP of the mobile phone was conducted.

¶5Learned AP for the State, on the other hand, submited that the test imony of the complainant is c redible reliable. The complainant has not only stuck to his version on the role of the present apelant , but has also duly identified the apelant and recovered mobile phone in the trial. The apelant was produced before the learned M for TIP which he refused on the ground that his photograph s were taken in the police station . Further, the testimonies of Sajid Khan, Naven Kumar and Dimple strengthen the fact that the apelant was found in posesion of mobile phone and Rs.35,0/ - , which was robed.

¶6Having gone through the testimonies of the complainant and the other aforementioned witneses, the factum of complainant being robed of his two mobiles and Rs.35,0/ - on the day of the incident is not in doubt . During the cros - examination, the sugestion was given on the aspect that the invoice is not in the name of present complainant, however, considering the testimony of Sajid Khan , the contentions are meritles. The recovery of mobile phone of make POCO F - 1 from th e apelant stands duly proved. Mere sugestion that IMEI of the phone was not mentioned on the bil invoice (Ex.PW4/C) is also not of much help as the invoice refers to the

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details of make of mobile phone as wel as its model number. The only contention r aised before this Court is whether Section 397 IPC in these facts is made out or not.

¶7Section 397 IPC states that if, at the time of comiting robery or dacoity, the ofender uses any deadly weapon, or causes grievous hurt to any person, or atempts to cause death or grievous hurt to any person, the imprisonment with which such ofender shal be punished shal not be les than seven years.

¶8Thus, to atract this S ection, the ofender has to use any deadly weapon at the time of comision of robery . The question which arises for consideration is whether a knife or knife - like sharp object is a deadly weapon. A careful reading of the prevailing case law on this subjects reveals that there are two schols of thought on this subject. One line of decisio ns treat the question as to whether a knife is deadly weapon as a factual one, which would take into acount its size, design or method of use. For example, in Balak Ram (Supra), it was held by a Co - ordinate Bench of this Court as under: - —5…Knives are wea pons available in various sizes and may just cause litle 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 maner 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 acused was a deadly one. "

Relying on the decision in Balak Ram (Supra), another Co - ordinate Bench of this Court in Saimudin @ Chotu (Supra) held that non - recovery of the weapon would bring the case out of the ambit of Section 397 IPC.

9 . However, these decisions fail to take into acount the Supreme Court

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decision in Phol Kumar v Delhi Administration 1 wherein held that a knife is a deadly weapon. It held as folows : —5………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 PW16 —Phool Kumar had a knife in his therefore carying deadly weapon open to the view of the victim suficient to frighten or terrorize them."

. A Co - ordinate Bench of this Court in Salim v. State (Delhi Admn.) 2 , relying on the decision in Phol Kumar (Supra), adopted a diferent line of

reasoning than Balak Ram (Supra) and held that the w are of comon use and do not require any interpretation. It further held that a knife maybe of diferent types and it was not apropriate to consider only a particular type or size o f knife as a deadly weapon. The relevant extract is reproduced hereunder: - —Under Section 397 I.P.C. an ofender is guilty if he uses any deadly weapon or causes grievous hurt to any person or atempts to cause death or grievous hurt to any person. The wor ds "deadly weapon comon use and do not ned any definition or interpretation. The words "deadly weapon' have also been used Section 324 I.P.C. uses the words "d says whoever volu ntarily causes hurt by any instrument for shoting, stabing or cuting, or any instrument which used as a weapon of ofence is likely to cause death, etc., is liable to punishment. In Lakshmiamal v. Samiapa (AIR 1968 Madras 310), the acused were armed with weapons like knife, hamer, crowbar and spades. It was held that these were undoubtedly deadly weapons. The Concise Oxford Dictionary defines the word "weapon' as "material thing de instrument for inflicting bodily harm, e.g. gun, bomb, rifle, sword, spear, stick hammer, poker, horn, claw'. Th Dictionary, means "causing fatal i Dictionary, "knife' means "blade wit handle either rigidly ……..or with hinge weapon'. As per Webster's Third New "a simple instrument used for cuttin - edged usualy steel blade provided with a handl an Dictionary of

1 (1975) 1 SC 797

2 (198) 14 DRJ 85

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Contemporary English defines "knife' for cutting as a tool or weapon'. Th can be multiplied. We al understand what a knife means and to categorise it or to fix its size for it to be a deadly weapon may not be apropriate. A knife has also ben described as a pocket knife, pen knife, table knife, kitchen knife, etc. It canot be denied that a knife can be used as a weapon of ofence. It can cut, it can pierce, it can be deadly. To say that a knife to be a deadly weapon should be of a particular size would perhaps be not a corect statement. In the present case, the evidence shows that the injury was caused to Singh Ram witnes by a sharp - edged weapon and there is a sta tement that the acused Salim was carying a knife and it was with that knife that the injury was caused to the witnes. It would not be necesary for the witnes to further state as to what was the size of the knife to atract the provisions of Section 39 I.P.C, as was contended by Mrs. Ahlawat. This contention that case under Section 397 I.P.C. is not made out fails . (emphasis suplied) "

1 1 . In Ashfaq v State, 3 where the acused persons were armed with country made pistol and knives. The conviction of the acused persons was upheld by the Supreme Court for the ofence punishable under Section 397 IPC despite the fact that the knives were not recovered. It was held that:

—7. So far as the contention urged as to the aplicability of Section 397 IPC and th e aleged lack of prof of the necesary ingredients therefor is concerned, it proceds, in our view, upon a misconception that unles the deadly weapon has ben actualy used to inflict any injury in the comision of the ofence as such, the esential in gredient to atract the said provision could not be held to have ben proved and substantiated. We are of the view that the said claim on behalf of the apelants proceds upon to narow a construction of the provision and meaning of the word —uses" found in Section 397 IPC…

¶8Thus, what is essential to satisfy Section 397 IPC is the robery being comited by an ofender who was armed with a deadly weapon which was within the vision of the victim so as to be capable o f creating a teror in the mind of the victim and not that it should be further shown to have ben actualy used for cuting, stabing, shoting, as the case may be. "

3 (204) 3 SC 16

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1 2 . Similarly, in Setal v. State (NCT of Delhi) 4 , a cordinate bench of this Court hel d as under:

—19. The resultant position tha Section 397 would be atracted even if the acused, who posesed a knife during the robery, does not actualy use it to threaten the victim. A victim who has noticed the knife in the hand of t he acused would undoubtedly fel threatened. It is posible that the victim may not have noticed what type of knife it is and whether it is capable of causing actualy harm. In other words, the actual size or length of the knife would not mater.

In Phol Kumar, the Supreme Court noticed the observations of the Bombay High Court in Govind Dipaji More v. State AIR 1956 Bom 353 that if the knife "was used for the purpose of producing such an impresion upon the mind of a person that he would be compeled to part with his property, that would amount to using the weapon within the meaning of Section

397." Therefore, the fact that the knife was not recovered at al, or that the recovered weapon was not shown during the course of trial to the victim, would not ma ter as long as the eye witneses to the crime are able to convincingly and consistently recount the fact that they were threatened by the sight of the acused wielding the knife into parting with their belongings."

1 3 . While taking note of divergent view s, another Co - ordinate Bench of this Court in Sonu v. State (NCT of Delhi) , 5 relied on the decisions of the Supreme Court in Phol Kumar (supra) Ashfaq (Supra) and held that a knife was a deadly weapon irespective of its dimensions and it was not cor rect to categorize the knife as a certain type or size before considering it as a deadly weapon . The relevant portion is extracted hereunder : - —27. It is aparent from the above that the isue with respect to the divergent views in regard to whether a kni fe ought to be categorized as a —deadly weapon" depending on its dim

4 (2014) 215 DLT 60

5 2019 SC OnLine Del 183

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resolved. The decisions rendered by this Court holding that the question whether a knife is a deadly weapon would depend on the facts of the case, are not god law as none of the decisions had refered to the observations made by the Supreme Court in Phol Kumar v. Delhi Administration (supra) Ashfaq v. State (Govt. of NCT of Delhi) (supra). The said decisions had also not noticed the earlier decision o f this Court in Salim v. State (Delhi Admn.) (supra).

¶28In view of the observations made by the Supreme Court in Phol Kumar v. Delhi Administration (supra); and Ashfaq v. State (Govt. of NCT of Delhi) (supra) and decisions of this Court in Salim v. Stat e (Delhi Admn.) (supra), Ikram Ansari v. State (supra) Sanjay Kumar v. State (supra), it is not esential to categorize the knife in order to determine whether it is a deadly weapon. Thus, irespective of whether a knife is a kitchen knife, or a butche r knife, it would qualify as a deadly weapon for the purposes of Section of the IPC. "

1 4 . Adopting a similar aproach, t his Court in Shehzad v State 6 , while dealing with a case of non - recovery of the knife, held that a knife is a sharp weapon and is i nherently dangerous. it held as under: - —34. The controversy stands narowed down to determine the efect of non - recovery of the knife to sustain conviction under Section 397 IPC.

¶35The complainant in his very first statement stated that the injuries we re caused by a knife. The complainant was a policeman and canot be mistaken as to what a knife is. A knife is an article that is typicaly and characteristicaly dangerous, the display of which instils fear in an ordinary person. "

1 5 . In the present c ase, although there has not ben any recovery of the weapon, which is imaterial Ashfaq (Supra) however the testimony of the complainant has ben consistent as to the apelant, who was riding the bike, taking out a sharp - edged weapon i.e. Knife , from his pocket and pointing the same at the complainant and asking him to handover whatever he was carrying and threating to kill him also deposed that he got nervous and put his hand in his pocket but the pilion rider sn atched the purse and tok out Rs. 35,0/ - cash from it. The sharp - edged weapon i.e. Knife , was not used to actualy hurt the

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complainant but that has never ben a prerequisite for establishing the ofence under Section 397 of IPC. Simple exhibition, brand ishing or even holding it openly to generate fea is suficient to secure a conviction under Section 397 IPC . Reference in this regard may be made to the decision of the 3 - Judge Bench of the Supreme Court in Ram Ratan v. State of M.P. , 7 wherein it was held as under: - —17. From the position of law as enunciated by this Court and noted above, firstly, it is clear that the use of the weapon to constitute the ofence under Section 397 IPC does not requi r' should act fire from the firearm or actualy stab if it is a knife or a dager but the mere exhibition of the same, brandishing or holding it openly to threaten and create fear or aprehension in the mind of the victim is suficient. The other aspe ct is that if the charge of comiting the ofence is aleged against all the accused and only one firearm or deadly weapon, only such firearm or deadly weapon alone would be liable to b e charged under Section 397 IPC. " 1 6 . In the present case, the act of the apelant in brandishing a sharp - edged weapon , i.e. k nife , acompanied by a threat of causing harm if the complainant did not part with his valuables , has generated nervousnes in th e mind of the complainant.

1 7 . In view of the above, the apeal is dismised. The conviction of the

1 of * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 2 8 .07.2025 % Pronounced on : 08.08.2025 + AZAM .Apelant Through: Mr. Gautam Khaza n chi, Ms. Poja Depak, (DHCLSC), Advocates versus STATE (NCT OF DELHI) .Respond ent Through: Mr. Pradep Gahalot, AP for State with S.I. Lovkesh Kumar, P.S. Narela CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI