How to appreciate evidence if the surgical knife is used for committing Robbery?

 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. 

{Para 10}

11. In the decision reported as MANU/DE/3330/2009 Sanjay and Ors. vs. The State of NCT Delhi this Court held as under:-

"12. The Investigating Officer has not prepared any sketch of

the surgical blade alleged to have been recovered from the

possession of the appellant Sanjay. The seizure memo of the

blade does not show what its size or shape was. Though the

police officials have described the instrument recovered from

the possession of the appellant as a surgical blade, none of the

witness has given any description of the blade which has been

referred by them as a surgical blade. The trial court has also

not made any observation as regards the size, shape or design

of the blade produced during trial. Unless size and shape etc. of

the blade recovered from the appellant is given or a sketch is

prepared from which these particulars may be ascertained, or a

photograph of the weapon is produced, it is not possible for this

Court to ascertain whether the blade recovered from the

possession of the appellant was actually a surgical blade or not

and whether it was a deadly weapon or not. There is no

evidence or opinion on record to show that the blade recovered

from the appellant was such, as would ordinarily result in death

by its use. What would make a blade deadly is its size, design

and shape etc. and a weapon cannot be said to be a deadly

weapon merely because the witnesses described it as a surgical

blade. This is more so when neither any sketch or photograph is

produced nor any particulars of the instrument are given

during evidence and the trial court also does not make a note

as regards the size, shape and design etc. of the blade produced

before it."

12. 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.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CRL.A. 290/2021

ASIF Vs STATE (N.C.T OF DELHI) 

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

Pronounced on :28th January, 2022

Print Page

Whether court should frame charge against accused for robbery or dacoity as per S 397 of IPC if weapon is not recovered from him?

 The fact that the weapon has not been recovered is no ground for not framing charges under Section 397 IPC. The effect of non recovery of the weapon would be seen only in trial and that cannot be a reason for not framing charges under Section 397 IPC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

CRL.REV.P. 108/2021

 STATE Vs  HASSAN AHMED

CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SUBRAMONIUM PRASAD, J.

Date of decision: 08th November, 2021

Print Page

Supreme Court Judgment upholding sexual autonomy of married woman(Adultery Judgment)

 The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.

To criminalize a certain conduct is to declare that it is a public wrong which would justify  public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the „best interest‟ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled „Principles of Criminal Law‟59 have stated that the traditional starting point of criminalization is the „harm principle‟ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be 59 Oxford University Press, (7th Edn.) May 2013  proved before the State can classify a wrongful act as a criminal offence.

John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.

60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts, & Green Co. 1869, 4th Edn.

61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011)  Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V.

Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 194 of 2017 (Under Article 32 of the Constitution of India)

Decided On: 27.09.2018

Joseph Shine Vs. Union of India (UOI)

Print Page

Whether paper cutter blade is a deadly weapon so as to constitute an offence U/S 397 of IPC?

9. Section 397 IPC reads as under:—

“Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, 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”.

10. Section 397 IPC envisages that if at the time of committing robbery or dacoity the offender uses any deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt, the imprisonment with which such offender shall be punished shall not be less than seven years.

11. In Rajender Yadav v. The State (NCT of Delhi), 2013 VII AD (Delhi) 359, this Court has held that where the prosecution case itself is that only vegetable knife was found in the possession of the accused, the knife cannot be considered a ‘deadly weapon’ to award the sentence of seven years which is a minimum sentence to be given with the aid of Section 397 IPC”. In Jagdish v. The State, 1985 Crl. L.J. 1621, this Court has held thus:

“Para 9. “A deadly weapon is a thing designed to cause death, for instance, a gun, a bomb, a rifle, a sword or even a knife. A thing not so designed may also be used as a weapon to cause bodily injury and even death. It will be a question of fact in each case whether the particular weapon which may even be a knife can be said to be a deadly weapon. In the instant case, there is evidence to the effect that the knives which the accused were having were small in size. They were ordinary vegetable cutting knives. This renders the possibility of those knives being deadly weapons highly doubtful and as such the appellants shall be entitled to benefit thereof. Consequently it would be unfair to impose the minimum sentence contemplated in Section 397 on the appellants merely because they used those knives in the commission of the crime. …. …..”

12. In Rakesh Kumar v. State of NCT of Delhi, 2005 (1) JCC 334, a Single Judge of this Court has held that there are knives of hundreds of type available in different length and width. All the knives cannot be graded as “deadly weapon” within the meaning of Section 397 IPC. It is the length, shape and the manner of use which makes a knife “deadly weapon”. In Charan Singh v. State, 1998 Crl. L.J. NOC 28 (Delhi), it was held 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 ‘deadly weapon’.

13. In this case also, the paper cutter blade used was having blade of 6.5 cm, inasmuch as has no sharp and pointed edge, for which no licence was needed, as per the Notifications issued by the Delhi Administration, inasmuch as, no witness has deposed that the paper cutter blade recovered from the appellant qualified to be a knife and more particularly a ‘deadly weapon’. In this case, prosecution has failed to lead any evidence to show that appellant had used a “deadly weapon” while committing robbery, thus, in my view, ingredients of offence under Section 397 IPC are not attracted in this case. In absence of necessary ingredients that have not been established by the prosecution, conviction of appellant under Section 397 IPC cannot be sustained. Accordingly, conviction of appellant is altered from Section 397 IPC to 392 IPC.

In the High Court of Delhi at New Delhi

(Before A.K. Pathak, J.)

Guddu  v.  State 

Crl.A. 721/2018

Decided on March 19, 2019

Citation: 2019 SCC OnLine Del 7855

Print Page