State of U.P. Vs.
Ilyas  INSC 1940 (12 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICITION CRIMINAL APPEAL NO. 168 OF 2001 State
of U.P. ...Appellant Ilyas ...Respondent
Dr. ARIJIT PASAYAT,
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
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.
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.
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 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 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 along with 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.
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.
Placing reliance on
the evidence of eye witnesses and the TI Parade the accused persons were held
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.
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
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 done. The High Court could have
altered the conviction and imposed adequate sentence. There was no prejudice
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.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)