While upholding the basic legal principle which postulates that:
Accused is innocent till proven guilty, the Delhi High Court in a brief, brilliant, bold and balanced judgment titled Asif vs State (NCT of Delhi) in CRL.A. 290/2021 that was reserved on December 10, 2022 and then delivered finally on January 28, 2022 has displayed a good sense of pragmatism in modifying the conviction and sentence of a man from Section 397 of Indian Penal Code as the prosecution had failed to prove the use of a deadly weapon. The single Judge Bench of Justice Mukta Gupta was of the plausible view that the prosecution is required to prove the nature of the weapon of offence used specially in the case of knife or blade. The Bench also held in no uncertain terms that:
In the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable under Section 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC.

To start with, the single Judge Bench of Justice Mukta Gupta of Delhi High Court first and foremost puts forth in para 1 that:
By this appeal, the appellant challenges the judgment dated 5th July, 2019 convicting the appellant for offence punishable under Section 397 IPC and the order on sentence dated 17th July, 2019 directing him to undergo sentence of seven years imprisonment.

On the one hand, the Bench states in para 2 that:
Learned counsel for the appellant assailing the conviction contends that the learned Trial Court failed to notice glaring contradictions in the testimonies of PW-1, PW-2 and PW-4 who gave altogether different versions in respect of the manner of commission of alleged robbery and the investigation carried out by the police qua the three witnesses. Admittedly, Mohd. Ibrahim (PW-1) is not an eye-witness as he himself admitted in his testimony that he was walking ahead of PW-2 and PW-4. He further stated that his statement was never recorded by the police during the investigation either at the spot or thereafter. Testimony of PW-2 does not inspire confidence and his version is not corroborated by PW-1, PW-4 and PW-8. As per rukka, PW-2 alleged that both the SIM cards were taken out by the accused from his mobile phone and returned back to him, however, in his testimony before the Court, he is silent about the removal and handing over of the SIM cards. Further, PW-2 stated that he never visited the place of occurrence after the incident and all the written work was done at the Police Station. PW-8 stated that he went to the spot with PW-2 and prepared the site plan. PW-4 altogether contradicted the version of PW-2 as he deposed that the appellant took out the blade and took Sonu (PW-2) with him, whereas PW-2 stated that the appellant took out the blade, kicked him and PW-4 tried to stop him, when co-accused helped the appellant, the appellant hit PW-2 and ran away. 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. Reliance in this regard is placed on the decisions of this Court in Samiuddin @ Chotu vs. State of NCT of Delhi, Crl. Appeal No.461/2016, decided on 9th November, 2010, Bishan vs. State, 1984 (6) DRJ 78, Rakesh Kumar vs. The State of NCT of Delhi, 2005 (1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT) 2010 (1) JCC 388.

On the other hand, the Bench then states in para 3 that:
Countering the contentions of the learned counsel for the appellant, Mr. Amit Gupta, learned APP for the State submitted that the version of the complainant Sonu (PW-2) is duly corroborated by PW-1 and PW-4. 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, when the complainant was waylaid by the appellant and his associate, who snatched the mobile phone and fled away from the scene. Call to the PCR was made by PW-1 from the spot and hence his presence at the spot, thereby witnessing the incident stands proved. Version of the complainant is also corroborated by PW-4. A mere detail testimony of one of the witnesses would not go to show that the complainant's version is not corroborated. Once the deadly weapon is shown, which in the present case was a blade, offence under Section 397 IPC is made out. Ingredients of the offence punishable under Section 397 IPC are satisfied once the weapon of offence is used and infliction of injury or that the weapon of offence should be recovered is not essential to prove the offence under Section 397 IPC. 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, the appeal be dismissed.

Truth be told, the Bench then points out in para 4 that:
FIR No.21/2015 was registered at Police Station Ranjit Nagar for offence punishable under Sections 392/397/34 IPC on the statement of the complainant Sonu who stated that on 9 th January, 2015 at about 10:30 p.m. opposite Satyam Cinema, Ranjit Nagar, Delhi the appellant and co-accused Moideen @ Tinku committed robbery of his mobile phone made Karbon from his possession by showing him a deadly weapon, that is the blade.

Be it noted, the Bench then specifies in para 8 that:
Abdul Haimd, who appeared as PW-4, stated that though he did not remember the date and month in the year 2015, on the date of incident he along with Sonu and Mohd. Ibrahim was going from the duty and when they reached Satyam Cinema at around 11:00 p.m., accused Asif met them and snatched the mobile phone of Sonu. When they asked him to return the mobile phone, Asif took out the blade. Mohd. Ibrahim went to the house, called Sonu's father at the spot and also made a call to the police. Thus, this witness did not depose the fact that first Asif asked for ₹50/- from Sonu and when he refused, he took out the mobile phone. On being cross-examined by the learned APP for the State he accepted that Asif was demanding ₹50/- from Sonu and when he refused to give him ₹50/- then Asif took out mobile phone make Karbon from his pocket of pant. In the cross-examination he also accepted that Asif removed the two SIMs and handed over the same to Sonu and refused to return the mobile phone and that Asif gave kick blow to Sonu and thereafter fled from the spot. In his cross-examination he clarified that the blade taken out by the accused was a small blade and not a shaving blade but it was of different type. Thus, even if Mohd. Ibrahim does not claim to have witnessed the incident as he was 40-50 paces ahead and had only heard Abdul Hamid calling that Sonu's mobile has been snatched, however, the version of Sonu is duly corroborated by Abdul Hamid in respect of the incident who has clearly stated about snatching of the mobile phone and when asked to return the mobile phone then appellant took out a blade.

Quite remarkably, the Bench then points out in para 9 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, offence under Section 397 IPC is attracted. Section 390 Cr.P.C. 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. Thus, 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. Thus the contention of learned counsel for the appellant that Section 397 IPC is not made out as the blade was allegedly shown after the mobile phone was robbed, deserves to be rejected. The decisions relied upon by the learned counsel for the appellant did not consider the necessary ingredients of an offence of robbery which in turn is a necessary ingredient of an offence punishable under Section 397 IPC.

Most significantly, the Bench then minces no words to hold in para 10 that:
In respect of the second contention of the appellant that since the blade has not been recovered, it cannot be held that the same was a deadly weapon, it is well settled that whether the weapon of offence is deadly or not, is a question of fact which would depend on the nature of 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 case, the evidence of the prosecution is that the appellant took out a blade and kicked the complainant. In cross-examination it is further stated that the blade was not a shaving blade, hence the kind of blade used is not proved even by the ocular evidence of the witnesses. Though it is not essential that the 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 commission of the offence, however, the prosecution is required to prove the nature of the weapon of offence used specially in the case of knife or blade. Since from the evidence of the prosecution witnesses the size and sharpness of the blade is not proved, hence the prosecution has failed to prove that the appellant used a deadly weapon.

Needless to say, the Bench then observes in para 12 that:
In the absence of the use of a deadly weapon being proved by the prosecution, the conviction of the appellant for offence punishable under Section 397 IPC cannot be sustained and is required to be modified to an offence punishable under Section 392 IPC. A perusal of the nominal roll of the appellant would reveal that the appellant has undergone approximately 3 years and 9 months of sentence including remissions and the appellant is involved in four other FIRs including three FIRs relating to similar offences.

As a corollary, the Bench then enunciates in para 13 that:
Consequently, the conviction of the appellant is altered to for an offence punishable under Section 392 IPC and the sentence of the appellant is modified to rigorous imprisonment for a period of five years.

In sum, we thus see that Justice Mukta Gupta of Delhi High Court makes it crystal clear in this notable judgment that the prosecution must prove the nature of weapon used during robbery was deadly for upholding conviction under Section 397 of the IPC. Also, in last para 15 the Bench concludes by holding that:
Judgement be uploaded on the website of the Court and be conveyed to the Superintendent Jail for updation of the record and intimation to the appellant. The same has to be done accordingly. Of course, it is indubitably clear that all the courts must always adhere to what has been laid down by Justice Mukta Gupta of the Delhi High Court in this leading case so clearly! Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh