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National Law Institute University

Criminal law Ii CASE ANAYLSIS OF Vikram @ Ganja v State MANU/DE/0454/2014

IN THE HIGH COURT OF DELHI Submitted to -: Miss Divya Salim Assistance Professor, Criminal Law Submitted by -: Dheeresh Kumar Dwivedi 2012B.A.LL.B.65 A-1214

VI trimester

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Table of Contents
Acknowledgement: ............................................................................................................................... 3 Statement of facts ................................................................................................................................ 4 Case at trial court ................................................................................................................................. 5 Relevant legal provisions .................................................................................................................... 5 Legal issues .......................................................................................................................................... 6 Case before Honble High Court ........................................................................................................ 6 Argument advanced by Appellant .......................................................................................... 6 Argument advanced by respondent ...................................................................................... 8 Observations of the Court and Critical analysis of the offence of Dacoity .................................. 8

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Acknowledgement:
I take immense pleasure in thanking Miss Divya Salim, our respected teacher of Criminal Law, for having permitted me to carry out this project work. I express my gratitude to her for giving me an opportunity to explore the world of information concerning my project topic. Words are inadequate in thanking my seniors and batch mates for their support and cooperation in carrying out the project work. Finally, I would like to thank my family members for their blessings and wishes for the successful completion of the project.

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Statement of facts
1. On 26.06.2007 at about 3.15 a.m., at outer ring road, near CNG Pump, Chandgiram Akhara, Delhi,the victim i.e. Jahangir Ali was driving his auto through the outer ring road wherein his auto tyre got puncture, as result he had to stay in the road side. 2. At around 3:00 AM an individual came and asked him for screw driver which, on account of non-availability, the victim did not give 3. After 15 minutes victim was caught hold of his legs and hairs by the assailants and a knife was put on his neck. 4. The appellant i.e. Vikram @ Ganja and his associates Sameer @ Sonu, Raj Kumar, Ashok Kumar and Amit @ Bouncer committed decoity of 28 bags of plastic raw material loaded in a Tempo No. DL-1LH-4864 from the possession of its driver Jahangir Ali. 5. It was alleged that they did it in furtherance of common intention1. 6. It was further alleged that Vikram @ Ganja i.e. appellant used a knife while committing decoity. 7. Saleem @ Khan was found in possession of 28 bags filled with plastic raw material which he received or retained knowing or having reasons to believe to be robbed / stolen property. 8. In 313 statement2, the accused persons pleaded false implication and denied their complicity in the crime. 9. The facts narrated by the complainant remained unchallenged and unrebutted in the cross-examination 10. No prior animosity or acquaintance of victim with appellant could be proved. 11. Saleem and Ashok has confessed their guilt. 12. The prosecution was able to establish beyond doubt that the appellant was one of the assailants who committed decoity and deprived the complainant of 28 bags of plastic raw material on the day of occurrence.

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S. 34 of Indian Penal Code, 1860. Power of the court to examine the accused- S. 313 of Criminal Procedure Code, 1973.

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Case at trial court

1. The trial court convicted the appellant and his other associates under section 395/397 of Indian Penal Code 18603. 2. The appellant was given sentence of seven years rigorous imprisonment4 and fine of Rs.5000 /- under Section 395 read with Section 397 IPC and in default of payment of fine to further undergo simple imprisonment 5for five months.

Relevant legal provisions

The accused were convicted under section 395/397 of IPC i.e. for offence of decoity. The offence of decoity has been defined under section 391 of IPC. The said section reads as followsWhen five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. The essential ingredients of offence of decoity can be summerised as follows1. there has to be five or more person. 2. they conjointly commit of attempt to commit robbery or are present and aiding such commission or attempt to commit robbery. 3. every person so committing, attempting or aiding is said to have committed the offence of decoity.6 Here, in order to understand the nature of offence of decoity, we must understand the offence of robbery. The offence of robbery has been defined under section 390 of IPC wherein the robbery is either theft of extortion. Theft is robbery when the offence of theft is accompanied
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Hereafter referred as IPC. Hereafter referred as RI. 5 Hereafter referred as SI. 6 State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).

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by force potential enough to cause death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Also, if the offence of extortion is accompanied with force to cause death or hurt or wrongful restraint or fear thereof7. Punishment for decoity has been given under section 395 of IPC. The punishment is either life imprisonment, or rigorous imprisonment which may extend up to 10 years and fine. The offence is Cognizable, Non-bailable, Triable by Court of Session and Non-compoundable. Section 397 gets attracted when the offence of robbery or decoity has been committed with attempt to cause death or grievous hurt or the offender has used any deadly weapon. In such cases the minimum punishment given is of seven years of rigorous imprisonment. The nature of offence is Cognizable, Non-bailable, Triable by Court of Session and Non-compoundable.

Legal issues
Whether recovery of the weapon used is necessary to establish the offence under section 395.

Case before Honble High Court

Argument advanced by Appellant

The appellant relied on various cases saying that since no recovery of weapon has been done, the prosecution could not prove its case beyond reasonable doubt that the weapon used was deadly or that any attempt to cause grievous hurt was made. The appellant relied in section 397 of the IPC wherein it is clearly stated that in order to establish an offence under section 397, the prosecution must prove it beyond any reasonable doubt that the weapon used was a deadly one, or grievous hurt has been caused or any attempt for same has been made.

S. 390 IPC.

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In one of the case 8it was held that an act would fall within the ambit of this section if at the time of committing robbery or dacoity the offender (a) uses any deadly weapon; or (b) causes grievous hurt to any person; or (c) attempts to cause death or grievous hurt to any person; Also, appellant relied in a case 9in which neither the victim has sustained grievous hurt nor there was an evidence that attempt was made to cause death or grievous hurt to the victim nor was there any evidence to show that the knife used at the time of committing robbery was a 'deadly weapon'. Simple injuries have been sustained by the victim on his thigh. The court observed10 that a perusal of the aforesaid provision makes it clear that if an offender at the time of committing robbery or dacoity, uses any deadly weapon or causes grievous hurt 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. Finally the appellant concluded his argument by arguing that in order to establish that the weapon used was a deadly one, the recovery of same must be done so as to true nature of the weapon can be recognized. The appellant relied in a case11 in which the court observed that in order to bring home a charge under Section 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 use by the accused was a deadly weapon. In the absence of such evidence and particularly, the nonrecovery of the weapon would certainly bring the case out of the ambit of Section 397. The accused could be convicted under Section 392.

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Shravan Dashrath Datrange v State of Maharashtra, (1997) 2 Crimes 47 (Bom) Gulab @ Bablu vs. The State (NCT of Delhi), Crl. A. 515/2010 10 Ibid 11 Charan Singh vs. The State, 1988 Crl. L.J. NOC 28 (Del)

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Argument advanced by respondent

Prosecution solely relied on the testimony of the victim and argued that all the requirements of the section 397 are being fulfilled i.e. the appellant has put his knife on victim and have robbed him, and thus are liable to be punished under section 397.

Observations of the Court and Critical analysis of the offence of DacoityThe honble High Court examined various dimensions of the case, whether the weapon used i.e. knife was a deadly weapon within the meaning of section 397 or not. In a case it was held that there can be no quarrel that knife is a deadly weapon within the meaning of section 39712. 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 and for that, the prosecution must bring the weapon before the court so that the court can be convinced that the knife used was a deadly one. 13 . It is, therefore, a question of fact to be proved by the prosecution that the knife use by the accused was a deadly weapon. In the absence of such any evidence and particularly, the nonrecovery of the weapon would certainly bring the case out of the ambit of Section 397. The accused could be convicted under Section 392.14 Also, in order to examine whether the weapon used was deadly one or not, if it is not recovered, another test which can be applied is that victim has to sustain grievous hurt or there should be any evidence that attempt was made to cause death or grievous hurt to the victim.15 Further, with respect to recovery of weapon used, the court in catena of cases has held that that when a knife used in the commission of crime is not recovered the offence would not fall within the ambit of Section 397 IPC.16 Finally, the court relied in the decision of Delhi High Court17 where it was held that if the offender had used any deadly weapon or attempted cause
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State of Maharashtra v Vinayak Tukaram Utekar, (1997) 2 Crimes 615 (Bom) Supra note 11 14 ibid 15 Supra note 9 16 Samiuddin @ Chotu v State of NCT of Delhi, 175 (2010) DLT 27; Rakesh Kumar v The State of NCT of Del, 2005 (1) JCC 334; Sunil @ Munna v The State (Govt. of NCT), 2010 (1) JCC 388 17 Supra note 9

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death or grievous hurt, then he would be punished under section 397 i.e. minimum punishment of 7 years RI therefore, in order to hold a person guilty under section 397, victim has to sustain some grievous injuries or the weapon used must be recovered.

In the instant case, admittedly no injuries, whatsoever, were inflicted to the complainant by any weapon. The weapon used in the crime was not recovered from the appellant or at his instance. The complainant did not give description, size or dimension of the knife used in the crime. In his deposition he did not described the broad feature of the weapon used at the time of occurrence. Thus, the conviction of the appellant with the aid of Section 397 was not permissible and is set aside.. On the above stated grounds the high court gave the benefit of doubt to appellant and reduced his sentence to four years of rigorous imprisonment.