HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1072 OF 2004 JUDGMENT: This Criminal Revision Case is directed against judgment dated 9.6.2004 delivered in Criminal Appeal No. 259 of 2002 on the file of the Court of VI Additional District and Sessions Judge (Fast Track Court), Tirupathi, whereby the learned Sessions Judge dismissed the appeal confirming conviction and sentence recorded by the Additional Assistant Sessions Judge, Tirupathi against the revision petitioner-A7 (for short A7) for offences punishable under Sections 395 and 395 read with 397 of Indian Penal Code in S.C. No. 84 of 2001, dated 28.11.2002. The facts which led to the filing of the present revision are as follows: On 20.10.2000 at about 3.30 a.m., A1 to A7 in the case went to S.V. Petrol Bunk near Perumallipalli in a Tata Sumo vehicle bearing Registration No. KA 34 K 2466 and asked the pump boy there to fill 6 litres of diesel and then A1 to A7 gained entrance into the cash room of the petrol bunk, under the pretext of paying cash for the cost of the diesel. Then they threatened the persons there at the point of knives and got opened the cash locker of the petrol bunk and robbed cash of Rs.80,000/- from the locker and escaped with the booty confining them in the room and locking it. They also disconnected the telephone connection and damaged the telephone there and later escaped. The learned Additional Assistant Sessions Judge tried A1 to A7 for the offences punishable under Sections 395, 395 read with 397 IPC. On the consideration of entire evidence on record, the trial Court found A1 to A7 guilty of committing the offences punishable under Sections 395 and 395 read with 397 of IPC and sentenced them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.200/- and in default of paying the fine to suffer simple imprisonment for a period of one month under the 1st count and sentenced to undergo rigorous imprisonment for a period of seven years under the 2nd count each and directed that both the sentences of imprisonment should run concurrently whereas the original appeals, 259/2002 and 261/2002 preferred against the said judgment by A7 and A1 to A6 before the learned Sessions Judge were dismissed and challenging the same, A7 filed the present revision. It is the contention of learned counsel for A7 that all the other accused excluding A4 filed Criminal Revision Case No. 1016 of 2004 against the judgments in the appeals which was allowed setting aside the conviction for the offence punishable under Section 397 IPC against all of them and reducing the sentence imposed against them for the offence punishable under Section 395 IPC to three years rigorous imprisonment, while retaining the fine clause. Learned counsel has further submitted that as per the prosecution pen knife was used in the commission of the offences but no discriptionof it is given and hence it is not a deadly weapon. While relying on one decision of the Delhi Court and one decision of the Madras High Court in Balik Ram vs State[1] and Raja vs. State[2] respectively. According to P.W.1, while the culprits were running away, he obstructed and therefore A7 in the case, stabbed on his hand with a pen knife whereas the other accused were also in the possession of pen knives and it is also his evidence that A7 in fact used the weapon with an intention to cause him grievous injury. Consequently, it is to be examined as to whether the pen knife which is used in the commission of the offence is a deadly weapon or not? Section 397 IPC reads thus: 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, so 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. In Balik Ram’s case, the Delhi High Court held: In Lakshmiammal v. Saniappa Gounder and Anr., , weapons like knife, hammer, crowbar and spades were held undoubtedly to be deadly weapons, but in Mir Bayyan Khan v. Emperor, AIR 1935 Pesh 65, it was said that a crowbar or spade may well be a deadly weapon if used as a weapon of offence, but not if used for destroying a bridge (that is, I think, for peaceful purposes). Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result in death by their use. What would make a knife deadly is its design or the manner of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved and prosecution should prove that the knife used by the accused was a deadly one. In Raja’s case, the Madras High Court held: “5. As far as 'use' is concerned, its meaning has to be properly understood. This section lists four kinds of acts punishable thereunder and 'using a deadly weapon' being one of those acts, should have more or less the same gravity as the other acts mentioned in the section and still be different therefrom. Secondly 'use' connotes an active operation; mere possession for keeping of deadly weapon cannot be considered as constituting the offence. In order to have a more precise idea of what is meant by 'using' in the section, it would be expedient to refer to sections 390 to 398, I.P.C.S. 390 I.P.C. gives a comprehensive definition of 'robbery' and lists the various kinds of robbery. Each kind of robbery is dealt with in subsequent section according to the gravity of the circumstances accompanying the robbery. Robbery without any aggravating circumstances is punished under S. 392 and robbery with aggravating circumstances are punished under the subsequent sections. If 'using a deadly weapon' appearing in S. 397, I.P.C. is considered in that light, it would appear that it corresponds in S. 390 to robbery by causing fear of instant grievous hurt or death. It is thus clear that the use of the deadly weapon should be such as to cause such a fear, for instance the act of brandishing it in a frightful manner, or the act of raising it over the head, or the act of touching the body, etc. In the present case, P.W. 1 deposed that the accused showed him the button knife and threatened him. He did not state how the accused showed, nor how he threatened. The evidence of P.W. 1 is not sufficiently detailed in order to enable the court to ascertain whether there were such acts by the accused as were susceptible of causing fear of instant grievous hurt or fear of instant death to him. It is, therefore, found that in the present case the prosecution has not proved that there was a deadly weapon in the hand of the accused and that such a weapon was used within the meaning of section 397 I.P.C.” The aforesaid decisions are well applicable to the facts and circumstances of the case because it is the prosecution version that all the accused were in the possession of pen knives and when they were running away with the booty, P.W.1 obstructed them and therefore A7 stabbed on the left hand of P.W.1 with the pen knife and caused simple injury and according to P.W.8, the Medical Officer, the defacto complainant received one lacerated injury measuring 3 x 1 c.m. on the middle of his forearm, which was simple in nature and further no descriptive particulars are given about the pen knife and ultimately it has to be held that no deadly weapon was used for causing the injury to P.W.1 or in fact A7 was not holding any deadly weapon. Therefore, the applicability of Section 397 of IPC does not arise and A7 is to be acquitted of the charge under Section 397 IPC. Taking into consideration the facts and circumstances of the case, including the reduction of sentence for the charge under Section 395 IPC, in favour of the other accused except A4, I feel it reasonable to reduce the sentence imposed against A7 also to three years rigorous imprisonment only, out of which, the period of detention undergone by him shall be given as set off. In the result, the Criminal Revision Case is allowed in part setting aside the conviction and sentence imposed against the revision petitioner-A7 for the offence punishable under Section 397 IPC and further the sentence of imprisonment imposed against him for the offence punishable under Section 395 IPC is modified to rigorous imprisonment for three years, out of which, the period of detention already undergone by him shall be given as set off under Section 428 of Cr.P.C. _____________________________ G. KRISHNA MOHAN REDDY,J Date: 15.7.2011 pnb [1] 1983 Crl. L.J. 1438 [2] 1986 Crl. L.J. 285