REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 1531  OF 2008 (Arising out of S.L.P. (Crl.) No.3925 of 2007)

Aslam @ Deewan …Appellant

Versus

State of Rajasthan …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Rajasthan High Court, Jaipur Bench.  Two

appeals, one filed by the present appellant and the other by

Wasim @ Raju were directed against the common judgment

and  order  of  learned  Special  Judge,  Fake  Currency  Cases,

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Jaipur City, Jaipur.  The accused persons were found guilty

and were convicted for offence punishable under Section 394

of the Indian Penal Code, 1860 (in short ‘IPC’), and sentenced

to undergo RI for 10 years.

3. The background facts in a nutshell are as follows:

A written report (Exhibit P-1) was lodged by Jagdish Soni

(PW-1), at Police Station Manak Chowk, Badi Chopad, Jaipur,

wherein it was mentioned that on 24.4.2002 at about 8.30 to

8.45  p.m.  his  brother-in-law -  Shri  Nand  Kishore  S/o Shri

Rameshwar Das, was looted by some miscreants in between

Partanion-Ka-Rasta and Gali Mahadev, who inflicted grievous

blow on his head by iron rod and snatched his bag and ran

away.   Shri  Nand  Kishore  was  got  admitted  in  the  Bangar

Hospital.   

On the basis of the above report, the police registered a

chalked  FIR  (Exhibit  P-2)  under  Section  392  IPC.   During

investigation of the case, accused Waseem @ Raju S/o Qadir

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was arrested by the police on 2.5.2002 at Kadkad-duma Court

premise, Delhi, at about 3.00 p.m., vide arrest-memo (Exhibit

P-27) and accused-appellant Aslam @ Deewan S/o Shamshu

Khan  was  arrested  vide  Exhibit  P-25  on  11.5.2002  in  the

house  of  Sheokat  Bhai,  near  Bilala  Masjit,  Delhi.  Accused

Waseem gave an information vide Exhibit P-21, under Section

27 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’)

about the place of incident; he gave another information vide

Exhibit P-22 in respect of shop from where he took one cycle

on rent for the said incident, and the bag, which was looted on

the date of the incident, and told that these articles lying at

House  No.C-48,  Shahid  Nagar,  Gali  No.3,   Police  Station

Sahibabad (UP). He gave the third information under Section

27 of the Evidence Act vide Exhibit P-23 about Rs.10,000/-

which  were  given  to  Bharat  Properties,  Loaini  Road,  to

purchase a plot.  In pursuance of the aforesaid information, a

sum  of  Rs.10,000/-  was  recovered  vide  recovery  –  memo

Exhibit  P-24  in  presence  of  witnesses  Sajid  and  Manzoor

Hasan.  The other recoveries were also made in pursuance of

the information given by the accused.  The iron rod which was

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used  for  inflicting  injury  on  the  person  of  injured  Nand

Kishore  was  seized  vide  seizure-memo  Exhibit  P-12  on

15.5.2002.  The handbag and other gold items were recovered

as per the information of the accused persons vide Exhibit P-

18.  The  other  informations  were  also  given  by  the  accused

persons under Section 27 of the Evidence Act and recovery

was effected at their instance and information given in writing

by them voluntarily.                 

4. Since the accused persons pleaded innocence, trial was

held.  21 witnesses were examined to further the prosecution

case.   Nand Kishore (PW-11)  was the injured witness.   The

trial  Court  considering  the  evidence  on  record  found  the

accused  persons  guilty.   Thereafter  appellants,  as  noted

above, filed appeals. Before the High Court the primary stand

was that the evidence of PW-11 was not sufficient to fasten the

guilt  on  the  accused.   The  High  Court  did  not  find  any

substance and dismissed the appeal.        

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5. In  support  of  the  appeal,  it  was  submitted  that  the

evidence  adduced  by  the  prosecution  was  not  sufficient  to

fasten the guilt on the appellant for offence punishable under

Section 394 IPC.

6. Learned  counsel  for  the  State,  on  the  other  hand,

supported the judgment.     

7. Section 394 describes punishment for voluntary causing

hurt  in  committing  or  attempting  to  commit  robbery.   The

offence under this section is more serious offence than one

under Section 392.  Section 394 postulates and contemplates

the  causing  of  harm  during  commission  of  robbery  or  in

attempting to commit robbery when such causing of hurt is

hardly  necessary  to  facilitate  the  commission  of  robbery.

Section  394  applies  to  cases  where  during  the  course  of

robbery voluntary hurt is caused.  Section 394 classifies two

distinct class of  persons.   Firstly,  those who actually cause

hurt and secondly those who do not actually cause hurt but

are  “jointly  concerned”  in  the  commission  of  offence  of

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robbery.  The second class of persons may not be concerned

in the causing of hurt, but they become liable independently

of the knowledge of its likelihood or a reasonable belief in its

probability.

8. In the instant case test identification parade was held.

The accused persons were identified during investigation by

the  injured  Nand  Kishore  Soni  (PW-11)  in  the  presence  of

A.C.J.M, Mukesh Jat (PW-21).  PW-11 identified the articles

which were recovered in the presence of the Magistrate Arti

Bhardwaj (PW-20). The identification proceedings reports are

Ex. P-13 and P-14.   

9. As  noted  above,  the  identification  proceeding  was

conducted  by Mukesh  Jat,  the  Judicial  Magistrate  (PW-21).

The stand that PW-11 may have got opportunity to see the

accused  persons  earlier  was  found  to  be  without  any

substance by both the Trial Court and the High Court.  The

identification  of  the  articles  was  done  in  the  identification

proceedings carried out by Arti Bhardwaj, Judicial Magistrate

(PW-20).

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10. So far as the sentence is concerned, the minimum is ten

years.  Therefore,  there  is  no  question  of  reducing  the

sentence, though the appellant’s stand was that the appellant

has already suffered custody for a considerable length of time.

Same is of no consequence.  The Trial Court has also noted

that  both  the  accused  persons  are  habitual  offenders  and

appeals  involving  similar  offences  were  pending  before  the

High Court.   

11. Since in the instant case minimum sentence has been

awarded, we find no reason to interfere with the appeal.   

12. The appeal is dismissed.                 

……………………………………J. (DR. ARIJIT PASAYAT)

……………………………….……J. (DR. MUKUNDAKAM SHARMA)

New Delhi: September 25, 2008

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