ARVIND @ BODY GUARD  Vs STATE

CRL.A.589/2018 Page 1 of 20
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 07 th December, 2020
Pronounced on: 14th January, 2021

+ CRL.A.589/2018

ARVIND alias BODY GUARD ….. Appellant
Through: Mr. Anuj Kapoor, Adv.

versus

STATE ….. Respondent
Through: Mr. Izhar Ahmad, APP for State

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T
The hearing has been conducted through video confe rencing.
1. The present appeal has been filed by the appellant to set aside the
judgment of conviction and order on sentence dated 19.03.2018 passed by
learned ASJ, East District, Karkardooma Courts, Del hi in SC No.2316/2016
pertaining to FIR No.624/2016, for the offences pun ishable under Section
392 IPC read with Section 397 IPC, registered at Po lice Station Shakarpur,
Delhi and to acquit the appellant.
2. The case of prosecution is that on 09.06.2016 at ab out 9.30 am, during
emergency duty, ASI Anand Kumar was assigned DD No. 9A, who along
with Ct. Dinesh reached just ahead of Metro line at Yamuna Bank Railway
Line, near Pole No. 1/28, Shakarpur, Delhi, and in the way, he met
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complainant Anil Kumar, and with him, they walked t owards the said spot,
and the ASI Anand Kumar recorded statement of compl ainant who stated
that he was working in a Security Office, at S-559, School Block, Shakarpur
and on 09.06.2016, he was coming from Hapur to Delh i by a train and at
about 8.00 am when train reached ahead of Metro Lin e at Yamuna Bank,
Shakarpur, it stopped as no signal was received. Si nce his office was near to
the said place, he got down from the train and star ted walking. In the
meantime, train also went away after receiving sign al and till then he had
walked a little distance. A boy came from behind an d asked him as to where
he hailed from, and thereafter that boy took out a knife and asked him to
take out whatever he was having with him. The said boy took a sum of
Rs.7,000/- from his ‘Pithoo Bag’ (the bag hanging o n his back) and took out
his mobile phone make Nokia Lumia 730 (from left po cket of his pant)
forcibly, however, that boy returned him, (the comp lainant) two SIMs No.
9212412810 and 9410454970 after taking out from the said mobile.
3. On the basis of the said statement of the complaina nt Anil Kumar, the
ASI got registered the FIR, and during investigatio n, the site plan of scene of
occurrence was prepared. Thereafter, on 25.08.2016, on an information of
the secret informer, ASI Anand Kumar along with Ct. Harender and
informant reached at Laxmi Nagar Metro Station, whe re the appellant was
pointed out by the secret informer and he was arres ted in the case.
Thereafter, a request was made for conducting his T IP, to which the
appellant refused before the concerned MM. During p olice custody remand
of the appellant, the mobile phone of the complaina nt and the knife used in
the commission of the offence could not be recovere d. On 27.08.2016, the
complainant came to the Police Station to hand over the copy of his mobile
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bill where he identified the appellant at the Polic e Station. After completion
of investigation, the charge-sheet was filed.
4. Vide order dated 09.12.2016, the Trial Court framed charges against
the appellant for the offences under Sections 392/3 97 IPC to which he
pleaded not guilty and claimed trial.
5. In order to substantiate its case, the prosecution has examined as
many as 7 witnesses in the case, whose depositions inter-alia would be
discussed.
6. The appellant was examined under Section 313 Cr.P.C , wherein he
denied all the allegations levelled against him as false and claimed himself
to be innocent and having been falsely implicated i n the case. He opted not
to lead any evidence in his defence.
7. PW4 ASI Vinod Kumar was the duty officer, who prove d copy of the
FIR as Ex.PW4/A on the basis of the rukka Ex.PW2/A, the certificate under
Section 65B of the Evidence Act as Ex.PW4/B and pro ved DD No.9A dated
09.06.2015 as Ex.PW4/C.
8. PW5 Sh. Shishir Malhotra, the Nodal Officer, of M/s Aircel Ltd,
deposed that the mobile phone numbers 9212412810 an d 9410454970 were
not found operational during the period from 09.06. 2016 to 05.09.2016 and
from 29.08.2016 to 05.09.2016 respectively as per I MEI No.
357168066773544 and IMEI No. 353894070528921. PW6 S h. Subhash
Kumar Mishra, Metropolitan Magistrate, proved appli cation for conducting
TIP of the appellant as Ex.PW6/A, besides the TIP p roceedings as
Ex.PW6/B whereby the appellant had refused to join the TIP.
9. PW7 ASI Anand Kumar, the IO, has proved receiving o f DD No.9A
dated 09.06.2016; going to the spot of occurrence w ith Ct. Dinesh; meeting
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complainant there; recording the statement of the c omplainant; preparing
rukka Ex.PW7/A; handing over the same to Ct. Dinesh for registration of the
FIR; preparing of site plan of the spot as Ex.PW2/B ; a secret information
dated 25.08.2016 reaching gate No.2, Laxmi Nagar Me tro Station and
apprehending the appellant at the pointing out of s ecret informer; arresting
the appellant; recording the disclosure statement E x.PW7/B and arresting
him vide memos Ex.PW3/A and Ex.PW3/B; on 26.08.2016 moving the
application for TIP before the concerned MM; refusi ng to join the TIP by
the appellant; obtaining police custody remand of t he appellant; preparing
pointing out memo of the place of occurrence by the appellant vide memo
Ex.PW7/C; the complainant identifying the appellant at the Police Station on
27.08.2016 and the complainant providing mobile bil l which is Ex.PW7/D.
10. In his cross-examination on behalf of the appellant , PW7 stated that
DD No.9A was received by him at 9.30am and he admit ted that in the said
DD at the top, the date is written as 09.06.2015. H e further deposed that the
complainant met them on the way at a distance of ½ km before the spot and
he had contacted the complainant on his mobile phon e. He admitted that no
DD entry was recorded for the secret information an d he left for the Laxmi
Nagar Metro Station at 1.00 am where Ct. Harinder m et him and the
appellant arrived at the spot from where he was arr ested around 1.25 am. It
took five to ten minutes while interrogating the ap pellant and preparing the
memos. He left the Laxmi Nagar Metro Station at abo ut 1.40 am. He could
not join any public person or any official of the M etro Station during the
said proceedings. He further deposed that he return ed to Police Station at
2.50 am, where DD entry was recorded to that effect but he neither
remember the DD number nor he placed the copy of th e same on the judicial
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record. He admitted that the complainant had come t o the Police Station
with copy of the bill of mobile of his own in the m orning time, but he did
not make any seizure memo of the same.
11. PW2 Sh. Anil Kumar, the complainant, deposed that o n 09.06.2016,
he was working in a office at Shakarpur School Bloc k, located at S-561. On
that day, he had boarded train from Hapur Railway S tation and reached
Delhi at around 8.00 am. The train had not reached the destination, however,
stopped just ahead of Metro Bridge, Yamuna Bank as there was no signal
for the train. Sensing the situation, he got down f rom the train because his
office premises was near to that place. Thereafter, when he was coming
towards Yamuna Metro Bridge, one person came from b ehind and pointed
the knife on his person aiming his chest. The said person questioned him as
to from where he (the complainant) hailed and direc ted him to hand over
whatever articles he had. That person was the appel lant who took out
Rs.7,000/- from his purse which he had kept in his bag. The appellant also
removed his mobile phone, make Nokia Lumia 730 from his left side pant
pocket. The phone was operational on mobile phone N os. 9212412810 and
9410454970. Appellant removed both the SIMs from th e said mobile phone
and handed over the same to him (the witness). Ther eafter, the appellant
went away towards Yamuna Bank.
12. PW 2 further deposed that at about 8.30 am, he reac hed his office and
from there dialed at number 100 to the police from the mobile phone No.
9212412810 by inserting the said SIM in another ins trument which was
lying in the office. After making the call, he reac hed under Yamuna Metro
Bridge at about 9.00 am, and that at about 9.45 am, ASI Anand and Ct.
Dinesh reached there, to whom he narrated the incid ent, and then, he went to
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the spot with the said police official and had show n the spot where incident
had occurred. Again they came to a place under Yamu na Bridge where his
statement was recorded, which bears his signature a t point A, and the same
is Ex.PW2/A. The IO had prepared the site plan of t he spot at his instance,
which is Ex.PW2/B bearing his signature at point A. On 27.08.2016, he
went to Police Station Shakarpur with his ID and bi ll of mobile phone. At
that point of time, the appellant was found sitting in the Police Station,
whom he had identified him (the appellant) before t he IO. He gave his ID
and bill of mobile to the IO, and the photocopy of the same are Mark
PW2/A and PW2/B respectively. He admitted that none of his articles could
be recovered by the police.
13. In his cross-examination, PW2 replied that he had n ot provided
ticket/document of the train regarding his journey on 09.06.2016 from
Hapur to Delhi to the police as it was MST Pass. Fu rther admitted that he
had not given the photocopy of the MST Pass to poli ce. He stated to the
police in his statement Ex.PW2/A that he had gone t o his office and from
there he dialed at number 100 from his mobile phone No. 9212412810 by
inserting the SIM in another instrument, which was lying in the office.
However, he was confronted with his statement Ex.PW 2/A, where it was not
found so recorded, but he volunteered that the same might not have been
recorded in his statement by police. He further adm itted that he had not
stated in his statement to the police regarding age , height and features of the
offender who had committed the offence, but police had informed him
regarding arrest of the appellant in this case. Fur ther admitted that he went
to Police Station on 27.08.2016 on his own and was not called by the police
on that day. The police had not prepared seizure me mo of documents when
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he handed over the documents Mark PW2/A and PW2/B. During his further
cross-examination, he deposed that he had stated to police in his statement
that the appellant took out Rs.7,000/- kept in his purse which was lying in
his bag and that the appellant had pointed knife at his chest. However, he
was confronted with his previous statement Ex.PW2/A , wherein factum of
purse lying in Pithoo bag was not mentioned, but he volunteered that the
said facts were not recorded in his statement by th e IO.
14. Learned APP, while opposing the present appeal, has submitted that
the appellant has not only been identified by the c omplainant/victim, but his
role has been defined clearly in his deposition. Th e incident is dated
09.06.2016 at about 8.00 am. The Court can take jud icial cognizance of the
fact that in the month of June it is not only hot b ut sufficient shining sun
light at 8.00 am and the place of occurrence was no t a regular way but was a
lonely place. The appellant as per deposition of PW 2 (the complainant)
came from behind and pointed the knife on his perso n aiming at chest,
which means the appellant was face to face with the complainant, and
thereafter, the appellant questioned about the nati ve place of the complainant
and directed him to hand over whatever articles the complainant was having
with him. The said act of the appellant in the day light and that too he being
face to face with the complainant, talking to him, asking him to hand over
the articles at the point of the knife and thereaft er taking out the purse from
the bag of the complainant, removing Rs.7,000/- and mobile phone,
thereafter removing both the SIMs from mobile phone and handed over the
same to the complainant and certainly the appellant was not either in a
muffled face or hide his identity. All this, must h ave taken a considerable
time facilitating the complainant not only to see h is (appellant’s) face but his
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face must have been imprinted in the mind of the co mplainant. All the said
facts narrated by the complainant as PW2 in his dep osition have remained
unrebutted on the record in his cross-examination o n behalf of the appellant.
15. Learned APP further submitted that in the above sai d circumstances,
even if the appellant was arrested on 25.08.2016, i t cannot be inferred that
the complainant may not have remembered his face in his memory. In such a
situation, even there was no need of conducting a T IP of the appellant which
would have been of the corroborative value only. On the other hand, he
denied the suggestion as wrong that on 25.08.2016 p olice had shown him
the appellant. He further denied the suggestion tha t he had identified the
appellant in the Court at the instance of the IO or that the appellant had not
committed any offence with him or that he was not p resent on 09.06.2016 at
the time and place as deposed by him. He positively asserted in the cross-
examination that he had gone to Police Station on 2 7.08.2016 of his own and
he was not called by the police on that day. Merely the facts that he has not
mentioned in his complaint to the police Ex.PW2/A t hat the knife was
pointed out by the appellant at his chest or the pu rse lying in his bag are not
so material improvements. The prosecution case cann ot be thrown away on
that account. Even in the complaint Ex.PW2/A, he go t recorded that the
appellant took out a knife and asked him to hand ov er whatever he had.
16. It is further submitted that the contention that ha nding over the two
SIMs to the complainant after taking out the same f rom the robbed mobile,
was against the human course of conduct and as to w hy the appellant would
return the same, if at all he has robbed the mobile itself. In a given
circumstance, how a particular person shall act in which manner, depends
upon the nature and circumstances of each case and no prediction can be
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given in this regard. If the knife would not have b een there in the hands of
the appellant, probably, the complainant might have fought with him or at
least protested against robbing him. But in the sai d circumstances, he might
have been so frightened that he could not dare to r esist even against the
conduct of the appellant. Similarly, the appellant might not have been
requiring the SIMs or he might have been taking ext ra precaution not to be
arrested or chased due to the location of the mobil e phone if the SIMs had
remained inserted in the mobile. Thus, the said arg uments on behalf of the
appellant do not come for his help.
17. Regarding the contention on behalf of the appellant that the
complainant did not call the police from the spot w here he was robbed and
first he had gone to his office and thereafter he c alled the police and as such
it is a delayed reporting to the police and possibi lity of manipulation and
afterthought cannot be ruled out. This contention h as been suitably uprooted
by the deposition of the complainant PW2 in his exa mination-in-chief and
cross-examination. Also when he deposed that at abo ut 8.30 am, he reached
his office and from there, dialed at number 100 fro m mobile phone number
9212412810 by inserting the said SIM in another ins trument which was
lying in the office. Moreover, in answer to questio n put in cross-
examination, he again repeated that he had stated t o the police in his
statement EX.PW2/A that he had gone to his office a nd from there, he dialed
at number 100 by inserting the said SIM in the inst rument lying in his office.
Although PW2 was confronted with his previous state ment Ex.PW2/A,
where it was not found so recorded, but PW2 volunte ered that the same
might not have been recorded in his statement by th e police. The time gap
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between the incident and reporting to the police is so short that the
possibility of manipulating or concocting a false s tory cannot be inferred.
18. Next contention that the mobile phone allegedly rob bed and the knife
used in the incident were not recovered, is again f utile in view of the fact
that the incident is dated 09.06.2016 and the appel lant was arrested on
25.08.2016. Thus, during this period he was having sufficient time to
dispose of the said two articles.
19. Further argument that bill of the mobile phone not proved on the
record may be a lapse on the part of the IO but cer tainly the complainant is
not having any control over the way of investigatio n. He had done whatever
he could do by producing the copy of retail invoice of the mobile phone,
which is computer generated, to the IO and the same is mark PW2/A. It was
for the IO to collect the evidence with regard to t he said copy of retail
invoice, which the IO has not done. But for the sai d lapse on the part of the
IO, the deposition of PW2 cannot be thrown away and rejected.
20. Learned APP further submitted that admittedly, the complainant PW2
and the appellant were unknown to each other and th ere was no previous any
kind of dealing or enmity between them. The complai nant was not having
any axe to grind against the appellant nor he was h aving any motive to
falsely implicate him. His deposition has been corr oborated by DD No. 9A
Ex.PW4/C which proves that the matter was promptly reported by the
complainant to the PCR from the mobile phone number 9212412810 and it
mentions the spot as under the Akshardham Bridge wh ere there was a U-
turn and while going towards Delhi, the complainant was looted, at the point
of knife, of his Rs.7,000/- and a mobile phone. His deposition is further
corroborated by the deposition of the IO PW7 ASI An and Kumar, who on
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receipt of said DD No. 9A Ex.PW4/C along with Ct. D inesh proceeded for
the said spot and in the way he met the complainant Anil Kumar and from
there they reached the said spot. No other reason h as been assigned or
pointed out to this Court for false implication of the appellant on behalf of
the complainant. Even in his statement under Sectio n 313 Cr.P.C, there is
mere denial of all the incriminating evidence put t o him which was against
him on the record. He did not lead any defence evid ence to rebut or to create
a dent in the story of the prosecution. Thus, the p resent appeal deserves to be
dismissed.
21. Heard learned counsel for the parties and perused t he material on
record.
22. On perusal of the evidence on record, the facts dis cussed inter alia
emerged that the rukka (Ex. PW-2/A) which is the fi rst recorded information
about the alleged offence does not contain any desc ription about the
appearance of the offender/thief. PW2 Anil Kumar (t he complainant) admits
in his cross-examination that he had not informed t he police about the age,
height and features of the offender. Even the fact that the knife was pointed
at the chest is missing from the rukka, however, PW 2 (the complainant)
makes this improvement only during his examination- in-chief. The rukka
records that the offender came from behind and the alleged incident is said
to have happened in a jiffy. Thus, there is no doub t that the complainant got
only a fleeting opportunity to see the offender. Mo reover, the appellant is
said to have been arrested pursuant to secret infor mation received by the
police. However, both PW7 (IO) and PW3 (accompanyin g Ct.) admit that
the purported secret information was never recorded in writing. PW3 even
states that he is not aware if the IO conveyed the purported secret
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information to senior police officials. Also PW7 (I O) admits that there was
no record made about the secret information receive d.
23. PW7 states that before affecting arrest, PW3 Ct. Ha render met him at
the Metro Station at 1:10 am. PW3 Ct. Harender stat es that he had left the
police station during the relevant night when arres t was made just prior to 12
midnight. He further admits that the IO never made any telephonic contact
with him prior to meeting him. Thus, if admittedly the PW7 (IO) and PW3
were not present in the Police Station together, th en there is no explanation
forthcoming as to how PW3 was conveyed the purporte d secret information
about the appellant’s presence at the Metro Station . It is not the IO’s case that
the secret information was received while PW3 was s till at the Police
Station.
24. PW3 Ct. Harender states that he was on duty from 12 midnight to 6
am on 25.08.2016, and it is during this time at abo ut 1:30 am the appellant
was arrested pursuant to receipt of secret informat ion. Thus, PW3 speaks of
the night intervening 24-25 th August, 2016, whereas, PW7 ASI Anand
Kumar (the IO) states that he was on emergency duty on 25.08.2016 from 8
pm to 8 am, when the arrest was made. Thus, suggest ing that the arrest was
made on the night intervening 25-26 th August 2016. The arrest memo
records the date/time of arrest as 25.08.2016 at 1: 30 am, supporting PW3
Harender’s version, but the purported disclosure st atement of the appellant
(Ex. PW-7/B) indicates overwriting where date is wr itten at the bottom of
the page. The remand documents (@ pg 102 of LCR) al so bears overwriting
on the date.
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25. It is pertinent to mention here that PW7 states tha t the appellant was
taken for medical examination, however, his MLC has not been made part of
the record.
26. There are question-marks about purported secret inf ormation that the
alleged incident is of 09.06.2016, but the purporte d secret information
leading to the appellant’s arrest is received 2.5 m onths later. This, by itself,
does not inspire confidence. Admittedly, the allege d incident is said to have
happened near the railway line. It is not the prose cution version that there
was any eyewitness to the alleged incident. In such circumstances, who the
secret informer was, how he got information about t he appellant’s
involvement in the case, about his whereabouts etc. are all unexplained, and
do not inspire confidence. Moreover, there is no re ason as to why the
appellant would go to Metro Station in midnight whe n the metro services are
not even functional or any person present over ther e.
27. Furthermore, the secret informer is said to have ac companied the
police to the Laxmi Nagar Metro Station, where on t he pointing out of the
secret informer, the appellant is said to have been arrested. It appears that
there was no attempt made to conceal the identity o f the secret informer
from the appellant herein. As such, non-examination of such person, whose
identity the police itself did not attempt to conce al from the appellant, raises
strong doubts about the reliability of the purporte d secret information.
28. In case of Peeraswami v. State of NCT of Delhi , 2007 (95) DRJ 363,
this Court held as under:
“…6. Thus the initial DD which was recorded by SI
Raj Kumar talks of three things. One that he receiv ed
information through an informer but before recordin g the
same, he conveyed it to Inspector Ashok Tyagi and b efore
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the information was recorded, Inspector Ashok Tyagi
conveyed it to senior officers and also sent it in writing to
them. When Inspector Ashok Tyagi appeared as PW-14 in
the court, he deposed that when he was present in h is
office along with other staff on 5th January, 2001 at
around 11.30 am, SI Raj Kumar received a secret
information on telephone and he conveyed the teleph onic
message to him. The information was that Peeraswmi and
his wife Chambai, appellants, used to deal in smack and
charas at their residence. He conveyed this informa tion
to his senior officials. In cross examination he ad mitted
that he had not sent the information to his senior officers
in writing and he only conveyed this information or ally.
He had not recorded the secret information on a pap er.
DD Ex.PW5/A recorded at 11.30 am, is not the
information received by Sub Inspector Raj Kumar but is a
detailed information recorded after deliberations g iving
who did what. Had SI Raj Kumar received the
information and recorded it directly in DD, he coul d not
have mentioned that he had informed about the
information to his senior officials and his senior officials
had in turn informed it to further senior officials and even
sent a copy. When the information had not been reco rded
by Sub Inspector Raj Kumar, how it could have been sent
to senior officials in writing. Section 42(1) of th e Act
casts a duty upon the police official to reduce the
information in writing whenever commission of an
offence in respect of narcotic drugs or narcotic
substances comes to his knowledge. After he reduces
down the information in writing, he has a duty to s end a
copy of the information to his superior officers wi thin 72
hours. In fact, Section 42 of the Act prescribes de tailed
procedure as to how a police official has to procee d when
he receives an information. This procedure is not a mere
formality for the sake of it but it provides a safe guard
against false implication of persons. Section 42(1) of the
Act mandates a police officer to necessarily record the
information in writing and Section 42(2) casts a du ty
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upon a police officer who takes down the informatio n in
writing to forthwith sent a copy of information to his
immediate superior officials. In the present case, it is
admitted by PW-14 that no copy of the information w as
sent by him to his senior officers. PW2, who appear ed
from office of DCP has specifically stated that onl y a
report under Section 57 of the Act regarding this c ase,
was received in the office of DCP from Special Staf f. He
proved this report as Ex.Pw2/A and stated that no o ther
document in respect of this case was received.
7. The manner in which DD Ex.PW5/A has been
recorded, casts doubt on the receipt of information itself.
This doubt is further fortified from the testimony of PW-
14, who stated that SI Raj Kumar had received telep honic
information and communicated the same to him wherea s
Sub Inspector Raj Kumar stated that the information was
received through a secret informer. The other facto rs
which throw doubt on the story of prosecution is th at the
secret informers are nourished by the police to rec eive
informations about the crimes. They are never broug ht
face to face before the accused persons because tha t puts
their lives in danger, neither their identity is di sclosed to
the courts and courts also do not insist upon their
identity. But in the instant case, it is testified by Sub
Inspector Raj Kumar that despite the fact that secr et
informer had given specific address where the trade of
smack and charas was being carried out, the secret
informer was made a part of the raiding party. He w as
taken to the spot and he also pointed out to the ap pellant
Peeraswmi and at his pointing out the appellants we re
arrested. If the identity of the secret informer wa s not so
secret and he could accompany police party up to th e
house and come face to face with the appellant, the re is
no reason why he could not have been produced in th e
court for deposition. The entire story of secret in former in
fact is falsified from the testimony of PW14, who s tated
that the information was received on telephone….. ”

2021:DHC:148CRL.A.589/2018 Page 16 of 20
29. PW2 (the complainant) has deposed that on 27.08.20l 6, he went to the
Police Station to handover the bill of the stolen m obile phone to the police.
At that time, the appellant was present in the Poli ce Station and he identified
him as the offender. It seems that this is not a co incidence, but was part of
the prosecution plan so that the appellant could be identified by the
complainant.
30. From the above facts, it is established that the co mplainant, who had
only got a fleeting glance of the offender during t he incident, was informed
and convinced by the police that the police had fou nd the offender, and the
complainant in his zeal to assist the police ‘solve ‘ the case, identified the
appellant as the offender.
31. It is pertinent to note that on 26.08.2016, the IO moved an application
for conducting the TIP of the appellant, however, h e refused it. In his
statement u/s 313, Cr.P.C. at Q. no. 14, the appell ant has answered that he
refused TIP as he had been shown to the witness at the Police Station. The
same was also suggested to the PW2 (complainant) du ring his cross-
examination. As such, the magical appearance of PW2 on 27.08.2016 was
meant only to overcome this refusal, since the appe llant had already been
shown to the complainant.
32. Admittedly, the stolen phone has not been recovered from the
appellant, or at all. As such, other than the weak identification by the
appellant, which itself was based on a fleeting and momentary glance, there
is nothing on record to connect the appellant to th e crime in question.
33. Further important to note that the complainant has nowhere disclosed
about the kind of knife that was allegedly used by the offender. Moreover,
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no knife has been recovered. As such, the convictio n u/s 397, IPC cannot be
sustained since there is no proof that a ‘deadly we apon’ was used.
34. In case of Ghanshyam @ Bablu v. State , Crl. A. 757/2007, this Court
observed as under:
“19. Insofar as their conviction under Section 397
IPC is concerned, in the absence of any recovery of the
deadly weapon at the instance of the appellants,
punishment for 7 years cannot be sustained. Referen ce
can be made to the judgment delivered by this Court in
the case of Rakesh Kumar Vs. The State of NCT of De lhi.
Some observation made in that case are reproduced
hereunder:
2. Mr. Sumeet Verma learned Amlcus Curiae
representing the appellant has pressed only one
submission in support of the appeal though the
grounds of appeal challenged the conviction on seve ral
grounds. The ground now being pressed is that at be st
the case than can be said to have been made out
against the appellant under Section 392 IPC, but no t
under Section 397 IPC. The basis of this contention is
that according to the prosecution case, the appella nt
had used a deadly weapon, i.e. a knife while
committing robbery along with his accomplices, but the
prosecution has not been able to establish that the
knife used by the appellant was in fact a deadly
weapon within the meaning of the term appearing
under Section 397 IPC. In support of his contention , he
has placed reliance on a decision of this Court in the
case of Charan Singh v. The State 1988 Crl.L.J. NOC
28 (Delhi) wherein the Court considering a similar
situation held that in the absence of recovery of k nife,
which was allegedly used at the time of commission of
the robbery/dacoity, it cannot be presumed that the
knife so used was a deadly weapon. The Court
observed as under in this regard:-
2021:DHC:148CRL.A.589/2018 Page 18 of 20
“At the time of committing dacoity one of the
offenders caused injury by knife on the hand of the
victim but the said knife was not recovered. In
order to bring home a charge under S.397 the
prosecution must produce convincing evidence
that the knife used by the accused was a deadly
weapon. What would make knife deadly is its
design or the method of its use such as is
calculated to or is likely to produce death. It is,
therefore, a question of fact to be proved by the
prosecution that the knife used by the accused was
a deadly weapon. In the absence of such an
evidence and particularly, the non-recovery of the
weapon would certainly bring the case out of the
ambit of S.397. The accused could be convicted
under S.392.”
3. On the other hand, Mr. Sunil K. Kapoor appearing
for the State has submitted that the Trial Court
returned a positive finding about the appellant hav ing
used a deadly weapon at the time of commission of t he
robbery and, therefore, a case under Section 397 is
squarely made out. Mr. Kapoor has vehemently urged
that in’view of the statement of PW-3, learned Cour t
was fully justified in recording conviction against the
appellant under Section 397 IPC.
4. This Court having considered the facts and
circumstances of the case, and the material brought on
record and the submissions made on behalf of the
parties is of the view that since in the present ca se,
prosecution has not been able to establish the
dimensions of the knife and to recover and produce the
same at the time of trial, it will not be appropria te to
raise a presumption that the knife so used by the
appellant was in fact a deadly weapon within the
meaning of the term. There are knives of hundreds o f
type available in different length and width. It is true
that PW3 in his examination stated that it was a
bucher’s knife which was used by the appellant. But in
2021:DHC:148CRL.A.589/2018 Page 19 of 20
the cross-examination, he could not give the exact
description or the length of the said knife. He has only
stated that the length of the knife was more than 6 “.
The prosecution in this case has not tried to find out
and record the length or the description of the kni fe
whether it was a spring operated knife (batandar) o r a
large knife which can be considered to be a deadly
weapon within the meaning of the term used under
Section 397 IPC. The Court is, therefore, of the
considered opinion that even though the sentence of the
appellant for the offences under Section 392 IPC is
based on the material brought on record, the
conviction of the appellant for the offences under
Section 397 IPC cannot be upheld and the appellant is
entitled to benefit of doubt on that count.
5. In the result, the appeal is partly allowed. Whi le
maintaining the conviction of the appellant for the
offences under Section 392 IPC, the conviction of t he
appellant under Section 397 IPC is hereby set aside .
The appellant was awarded 7 years rigorous
imprisonment for the offence under Section 397, out of
which, he has already undergone a sentence of almos t
6 years and 8 months and, therefore, this Court is of
the opinion that ends of justice will adequately be met
if the sentence of the appellant is restricted to t he
period already undergone by him and that would be
considered to be a sentence awarded to him under
Section 392 IPC. ”

35. As per prosecution itself, the bill of the mobile p hone has not been
duly proved. Only photocopy of the same was produce d as is clear from the
examination-in-chief of PW2 and also the cross-exam ination of PW7.
Importantly, the police did not even prepare any se izure memo for taking
into its possession the bill of the mobile phone. T his gives further credence
to the plea that the complainant’s appearance at th e Police Station on
2021:DHC:148CRL.A.589/2018 Page 20 of 20
27.08.2016 was meant only to overcome the appellant ‘s refusal of TIP since
he had already been shown to the witness.
36. In addition to above, even the PCR call was not pro ved. PW4 proves
the making of the DD no. 9A by him, but the PCR for m has not been
produced or proved.
37. In view of above recorded facts and appellant herei n was a vagabond,
I have no hesitation to place on record that the ap pellant was easy to
implicate for ‘solving’ the case. The Trial Court h as overlooked all the
evidence discussed herein. Thus, from the above dis cussion, it cannot be
said that the prosecution had established the appel lant’s guilt beyond
reasonable doubt. The appellant ought to be given b enefit thereof, however,
Trial court failed to do so.
38. Accordingly, I hereby set aside the judgment of con viction and order
on sentence dated 19.03.2018 passed by the Trial Co urt.
39. Consequently, the appellant is acquitted and discha rged from all the
charges.
40. The appeal is, accordingly, allowed and disposed of .
41. The Jail Superintendent concerned is hereby directe d to release the
appellant forthwith, if not required in any other c ase.
42. Pending application, if any, stands disposed of.
43. The judgment be uploaded on the website of this Cou rt forthwith.

(SURESH KUMAR KAIT)
JUDGE
JANUARY 14, 2021/rk

2021:DHC:148