Aslam @ Deewan Vs.
State of Rajasthan  INSC 1635 (25 September 2008)
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
Dr. ARIJIT PASAYAT,
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, 1 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.
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 2
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 3 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.
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.
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.
counsel for the State, on the other hand, supported the judgment.
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 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
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.
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).
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.
in the instant case minimum sentence has been awarded, we find no reason to
interfere with the appeal.
appeal is dismissed.
(DR. ARIJIT PASAYAT)
(DR. MUKUNDAKAM SHARMA)
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