REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL  NO. 168 OF 2001   

State of U.P.   …Appellant  

Vs.

Ilyas …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Allahabad High Court directing acquittal of the respondent.  Learned

IV  Additional  District  and  Sessions  Judge,  Saharanpur,  found  the

respondent  as  well  as  one  Multan  guilty  for  offence  punishable  under

Section  397  of  the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  and

sentenced each of them to 7 years’ rigorous imprisonment.  

2. Two  appeals  were  filed  i.e.  one  by  Multan  and  the  other  by  the

present  respondent.  The  High  Court  by  the  impugned  judgment  directed

their  acquittal.  According  to  the  High  Court  the  identification  was  not

established and that arrest of the respondents was doubtful and they cannot

be treated to have been arrested in the manner stated by the prosecution.  

3. Background facts in a nutshell are as follows:

Written report (Ex. Ka. 5) of the incident in question was delivered by

Mahendra Singh at Police Station Bhagwanpur on July 4, 1979 at 1.30 P.M.

First Information report (Ex. Ka. 6) was then drawn up and relevant entries

were  made  in  the  general  diary,  of  which  Ex.  Ka.7  is  a  copy.  The

prosecution case, briefly stated, is that Mahendra Singh was employed as a

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Munshi  with  Sardar  Prithipal  Singh  and  Company.  On  July  3,  1979,

Mahendra  Singh  reached  village  Comawala  to  settle  accounts  with  the

labourers working at the brick-kiln owned by Prithipal Singh and company.

He stayed over night at the brick kiln. Others, who slept at the brick kiln

that night, were Sarnam Singh, Ram Rikhshpal, Ram Pal and Mustaque. A

lighted lamp was available at the spot. At about 1 0' clock in the night, three

miscreants, two holding country made pistols and one armed with a knife,

appeared at the brick kiln. The miscreants woke up all those sleeping on the

spot and robbed them of their belongings one after the other by brandishing

the arms they were carrying. Mahendra Singh was robbed of his wrist watch

of ‘Titus’ Make and Rs. 40/- in cash, Satnam Singh was deprived of a wrist

watch of ‘Titus’ make and Rs.125/- in cash and Ram Rikshpal was robbed

of his wrist watch and Rs.35/- in cash. The miscreants lifted an axe lying on

the spot and beat Mahendra Singh with bottom of the axe. The miscreants

locked the victim of robbery in the office room on the spot and carried away

the  suitcase  and  clothes  belonging  to  Ram Rikshapal.  The  doors  of  the

office were later  pushed by those detained inside.  The victim of robbery

then  reported  the  incident  to  the  residents  of  village  Comawala  and  an

unsuccessful  search of  the miscreants  was  made around the  village.  The

complainant Mahendra Singh reported the matter to his employers on the

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morning following the night of occurrence at Kankhel. The miscreants had

been seen and recognised in the light of the lantern on the spot who were

unknown persons.

Sub Inspector Kali Charan (P.W.9) conducted the investigation. He

interrogated  Mahendra Singh and others  at  the  Police  Station  on  July 4,

1979  and  later  reached  the  place  of  occurrence  on  the  same day.   Ram

Rikshapal, Rampal and others were interrogated at the place of occurrence.

A site plan with index (Ex. Ka.8) was then drawn up on the basis of the spot

inspection.  On the following day,  the Investigating  Officer  examined the

lamp and entrusted the same to the custody of Mahendra Singh.

After completion of investigation charge sheet was filed. It is to be

noted  that  the  respondent  was  arrested  alongwith  another  person  on

4.7.1979 for offence punishable under Section 25 of the Arms Act, 1959 (in

short  the  ‘Arms  Act’).  On  interrogation  respondent  Ilyas  confessed  his

involvement in the present incident and disclosed the name of co-accused.

The Test Identification Parade (in short the ‘TI Parade’) was held where the

respondent was identified by the three eye witnesses i.e. PWs 4, 5 and 6.

Mahavir Singh (PW-1) had arrested accused Ilyas.  

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Placing reliance on the evidence of eye witnesses and the TI Parade

the accused persons were held guilty.  

In appeal the appellants pointed out that in the sketch map the lamp

was not correctly shown. The lamp was allegedly kept at the height of 3/4 ft

and naturally very little light could have reached out of chapper. There was

no sufficient light for the witnesses to recognise the faces of the miscreants.

It was also pointed out that the respondent Ilyas was arrested in some other

cases alongwith some illicit arms.  The High Court held that since he was

acquitted  in  the  said  case  the  arrest  of  Ilyas  becomes doubtful   and  the

defence version  that he was not arrested as stated by the prosecution but

was arrested from his house is believable. It was therefore concluded that

the accused was shown to the witnesses. It  was  also  pointed  out  that

Section 397 is  not  a substantive offence and the accused could not  have

been convicted under Section 397 only but could have been convicted under

Section 394 read with  Section 397.  As the conviction has been recorded

under Section 397 and the use of the weapons was not fully established, the

respondent is entitled to acquittal.  

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4. Learned counsel for the appellant in the present appeal submitted that

PWs 4 and 5 were stated  to  be eye witnesses  and PW-6 was an injured

witness. The conclusions of the High Court are without any foundation. It is

pointed out that Section 397 does not contain the definition of substantive

offence. It only regulates the punishment. The trial Court itself noted that

charge  was  framed  under  Section  394  read  with  Section  397  IPC.  Mere

omission to Section 394 did not cause any prejudice.  

5. Learned counsel for the respondent on the other hand submitted that  

Section 397 does not speak of any substantive offence.  The factual scenario

has been correctly analysed by the High Court. Therefore, no person can be

charged or convicted under Section 397 alone. It regulates the punishment

in  a  given  situation.  The  emphasis  is  on  use  of  deadly  weapon.  The

conclusions arrived at by the High Court are absolutely sketchy. It came to

abrupt conclusions that the accused must have been shown to the witnesses.

There is no foundation to such a plea.  First Information Report was lodged

under Section 394 IPC and charge was accordingly framed. Because of the

use of deadly weapon, the trial Court convicted the accused under Section

397 IPC.  The trial Court could have altered the charge, but that was not

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done.  The  High  Court  could  have  altered  the  conviction  and  imposed

adequate sentence. There was no prejudice involved.  

6. Since  the  High  Court’s  reasonings  were  perverse  the  impugned

judgment is  set  aside.  However,  the respondent  is  convicted for offence

punishable under Section 394 IPC for which he was originally charged. He

is  sentenced  to  undergo  rigorous  imprisonment  for  5  years.  He  shall

surrender to custody forthwith to serve the remainder of sentence.  

7. The appeal is allowed to the aforesaid extent.  

……………………………………J. (Dr. ARIJIT PASAYAT)  

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: November 12, 2008

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