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In the absence of the use of a deadly weapon, the conviction for offence punishable u/s 397 IPC cannot be sustained: High Court of Delhi

Theft is considered ‘robbery’ if 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. These were stated by the High Court of Delhi through the learned bench led by Justice Mukta Gupta in the case of Asif vs. State (NCT OF Delhi) [CRL.A. 290/2021] on 28.01.2022.

The facts of the case are that a complaint was lodged stating he along with Mohd. Ibrahim and Abdul Hamid were going to their house from their workplace. When they reached at Satyam Cinema and Mohd. Ibrahim was 40-50 paces in front of them and one Asif, who worked with him earlier met them opposite of Satyam Cinema. Asif asked for ₹50. When the complainant refused to give the money, Asif took out the mobile phone of the complainant. His friend Abdul Hamid tried to stop him when Asif took out a blade. Asif could not identify the complainant as his face was covered with muffler. However, the complainant duly identified him.

In the meantime, one associate of Asif, hit him and both of them ran away. They chased the appellant and his associate but they disappeared. He went to the house of Asif but Asif was not present there. In the meantime, his friend Mohd. Ibrahim had already made a call to the police. Thus, three of them i.e. Sonu, Abdul Hamid and Mohd. Ibrahim went to the Police Station and lodged the FIR. By this appeal, the appellant challenges the judgment convicting him for the offence punishable u/s 397 IPC.

The petitioner’s counsel submitted that there are contradictions in the testimonies of witnesses. Admittedly, Mohd. Ibrahim (PW-1) was not an eye-witness as he himself admitted in his testimony that he was walking ahead. He further stated that the alleged weapon of offence i.e. the blade has not been recovered and in the absence thereof, it cannot be said that it was a deadly weapon. No injury has been caused to the victim. Even as per the prosecution, the weapon was used after the alleged snatching, hence the appellant cannot be convicted for the offence punishable under Section 397 IPC.

The respondent’s counsel submitted that the version of the complainant (PW-2) is duly corroborated with other witnesses. He stated that even if PW-1 stated that he was walking a few steps ahead, the same does not mean that he did not witness the incident. It was further contended that since the blade causes serious incised wound injury, it falls within the category of deadly weapon. As per the nominal roll, the appellant is involved in four other cases of similar nature. Hence, there is no error in the impugned judgment of conviction and order on sentence.

Considering the facts and circumstances, the Court observed that in the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable u/s 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC and accordingly the appeal was disposed of. It was 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”.

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Judgment reviewed by – Shristi Suman

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