ASHFAQversusSTATE (GOVT. OF NCT OF DELHI)

                               ASHFAQ                                    A
                                   V.

                STATE (GOVT. OF NCT OF DELHI)

                         DECEMBER I0, 2003

        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
                                                                         B

     Penal Code 1860 :

     Ss.452, 392 and 397 rlw s. 34-Test identification parade not
conducted-Effect of-Accused armed with pistol and knives-Entered the C
house of complainant and using threat of weapons took away cash and
other belongings of the persons present in the house-Conviction and
sentence by trial court-.A.ffirmed by High Court-Appeal by two of the
accused contending that identification ofaccused in court without conduct-
ing a test identification parade renders prosecution case unreliable-Held, D
accused having remained in the house for quite sometime, holding
witnesses at ransom by directing and using threat to relieve them of their
valuables, and one of the accused being already known to the witnesses,
it cannot be said that evidence of the eye-witnesses was not sufficient to
properly identify the accused or that it could not be relied upOn against E
the accused in the absence oftest identification parade-Test identification
parade.

     Ramanbhai Naranbhai Patel & Ors. v. State of Gujarat, (2000) l
sec 358, relied on.
                                                                          F
     S.397-Robbery- 'Offender uses deadly weapon '-Connotation of-
Plea that since it was not shown by evidence that deadly weapon was
actually used or put into any use, s.397 cannot be resorted to-Held, what
is essential to satisfy the word "uses" for the purpose of s. 397 is the
robbe1y being committed by an offender who was armed with the deadly G
weapon which was within the vision of the victim so as to be capable of
creating terror in his mind and notthat it should be further shown to have
been actually used for stabbing, shooting et.::.

     Phool Kumar v. Delhi Administration, AIR (1975) SC 905, relied on. H
                                   619
    620                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A         S. 397 rlw s. 34-0ut of the four accused one armed with pistol and
    others with knives-Plea that since one accused alone was in possession
    of pistol, others could not have been vicariously held liable u/s 397 with
    the aid of s.34-Held, s.397 does not create any new substantive offence
    but merely serves as complementary to ss. 392 and 395 by regulating the
B   punishment already provided for the relevant offence by fixing a minimum
    term of imprisonment when the offence committed was found attendant
    upon certain aggravating circumstances viz., use of a deadly weapon, or
    causing of grievous hurt or attempting to cause death or grievous hurt-
    For that reason, no doubt the provision postuiates only the individual act
    ofthe accused to be relevant to attracts. 397 and thereby inevitably negates
C   the use of the principle of constructive or vicarious liability engrafted in
    s. 34-0nfacts, other accused were also armed with and used their knives,
    and knife is equally a deadly weapon for purposes ofs. 397-Consequently
    challenge made to conviction u/s 397 even after excluding applicability of
    s.34 does not merit countenance.
D
         Shravan Dashrath Datrange v. State of Maharashtra, (1998) Crl.
    L.J. (1196), held inapplicable.

          Words and Phrases:

E       Words "uses" and "deadly weapon" occurring in s. 397 IPC-
    Meaning of

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1296 of 2002.

F        From the Judgment and Order dated 7.3.2002 of the Delhi High Court
    Court in Cr!. A. No. 293 of 1998.

                                      WITH

          Cr!. A. No. 1479 of2003.
G
        S.A. Siddiqui, Hasan Anzar, Goodwill Indeevar and Varirider Kumar
    Sharma for the Appellant.

       . Raju Ramachandran, Additional Solicitor General, P.P. Malhotra,
                                                                                   ~·
H   Rajeev Sharma and Mrs. Anil Katiyar for the Respondent.
           ASHFAQ v. STATE (GOVT. OF NCT OF DELHI)                     621

      The following Order of the Court was delivered :                       A
     Leave granted in SLP (CRL.) No. 1676/2003.

     Criminal appeal No.1296/2002 has been filed by A-4 (Asfaq) and
Criminai Appeal arising out of SLP (Crl.) No. 1676/2003 has been filed B
by A-3 (Haroon) who stood charged along with two others in Sessions Case
No. 274/96 on the file of the Additional Sessions Judge, Shahdara.

        The above appellants were tried before the learned Additional
  Sessions Judge along with two others by name Ikrar (A- I) and Shahid
 (A-2) for charges under Section 452 IP~, Section 392 IPC and Section 397 C
  IPC read with Section 34 IPC. A-3 (Haroon) was also charged for an
 offence under section 25 of the Anns Act. The sum and substance of the
  prosecution case was that on 9 .1 I .1991 at about 7 .15 p.m. when PW-3 (Bal
  Kishan) was witnessing a TV programme in the inner room of his house
  in the company of his wife, PW-10 (Smt. Raj Rani), the accused persons D
  entered their house and when PW-3 (Bal Kishan) came out of the room
  and was told by one of the four persons that they were sent by one Mahabir
  Thekedar for white washing of their house, PW-3 (Bal Kishan) was said
  to have told one of them that he only had already white washed the house
  and enquired about the need for it again. As the conversation was said to E
  be going on like that the accused closed the door and one of the boys took
  out a country-made pistol and other took out their knives and by using such
   threat with such weapons they pushed PW-3 (Bal Kishan) and PW-I 0 (Smt.
   Raj Rani) inside and demanded the keys of the almirah. PW-10 (Smt. Raj
   Rani) the wife seems to have told them that the keys were with her daughter F
   who resides at a different place. But she was not believed and they started
  searching all around inside for the keys and as this was in progress, PW-
  2 one of the relatives also arrived there. At that point of time one of the
  boys opened the door and brought the new comer also inside and ordered
  them all to hand over their belongings which included a sum Rs. 1400 and
   Rs. 200 from Manoj Kumar PW-2. When the search was being made ~y G
· them one of the accused asked for the sten gun and in the process they
   were able to lay their hands on the sten gun belonging to the father of PW-
  3 (Bal Kishan). Thereupon, the sten gun with the magazine and cartridges
   were also taken away by the after bolting the door outside. On an alarm
   raised by the inmates, it appears the neighbours came and opened the door. H
    622                SUPREME COURT REPORTS (2003) SUPP. 6 S.C.R.

A It appears the accused also removed the gold chain in the temple which
    was also said to be missing. Thereafter Police report was said to have been
    lodged and on completion of investigation during which the sten gun,
    magazine and cartridges were said to have been recovered, charges were
    laid against the accused as noticed above. A-2 (Shahid), absconded and was
B   also declared as Proclaimed offender, after following procedure under
    Sections 82 & 83 of the Cr. P.C.

           The accused denied the charges and thereupon the trial was con-
    ducted. Apart from the prosecution witnesses examined and the exhibits
    marked one Shahid Raza was examined as Defence-witness. After consid-
C   ering the materials on record, the learned trial Judge came to the conclusion
    that .the charges against the accused stood sufficiently proved and estab-
    lished and convicted them under Sections 452, 392 aPd 397 read with
    Section 34 IPC. A-3 (Haroon) was further convicted imder Section 25 of
    the Arms Act. Thereunder, seven years R.l. with a fine of Rs. 5000 each
D   was imposed fqr the offence under Section 397 IPC and in default one year
    RI was also imposed. Under Section 392 IPC three years' R.l. and a fine
    of Rs. 3000 was imposed with a default clause therefor. A further sentence
    of three years' R.l. with a fine of Rs. 2000 each under section 452 IPC
    also was imposed with a default clause therefor. All the sentences were
E   ordered to run concurrently with further benefits under Section 428 Cr. P.C.
    So far as A-3 (Haroon) is concerned, he was sentenced in addition to
    undergo 2'years' RI for the offence under section 25 of the Arms Act.
    Aggrieved A-3 (Haroon) filed Crl. Appeal No. 225/1998. A-4 (Asfaq) filed
    Crl. Appeal 293/1998 and A-1 (Ikrar) filed Crl. A. 155/1998 before the
F   High Court. The learned Single Judge in the High Court considered the
    materials on record by ·undertaking an independent appreciation of the
    evidence let in and ultimately affirmed the conviction and sentence
     imposed, as well. Hence, these appeals.

          Learned counsel appearing for the appellants strenuously contended
G that the i~entification of the accused in the Court without holding a proper
    test identification parade earlier and at the relevant point of time renders
    the evidence wholly unreliable and completely vitiated the judgments of
    the Courts below and that no reliance whatsoever could pe placed on the
    testimony of the witnesses in question to indict the appellants. Learned
H   counsel urged fuither that even according to the PWs it was only one
           ASHF AQ v. STATE (GOVT. OF NCT OF DELHI)                       623

person who was said to be in possession of the country-made pistol and. A
in the absence of any recovery of the same or proof by concrete materials
of the role of other individually as against each one of the accused, no
conviction under Section 307 with the aid of Section 34 of the Penal Code
was permissible and that the necessary ingredient, to attract Section 397
of the Penal Code was also said to be conspicuous by their absence in this B
case. Jt was also contended that on the facts and circumstances of the case,
when it was not shown by any evidence that the deadly weapon was
actually used or put into any use as such, Section 397 IPC cannot at all
be resorted to. Reliance has been placed on some of the decisions of this
Court with reference to the grievance made on the omission to conduct th~
test identification Parade. Reliance was also placed on the decision of a C
Division Bench of the Bombay High Court reported in 1998 Cr!. L.J.
(1196) (Shravan Dashrath Datrange v. State of Maharashtra) as to the
inapplicability of Section 34 IPC for conviction under Section 397 of IPC.
The learned Senior Counsel for the respondent-state while inviting our t .
attention to the reasoning of the Courts below, with equal force contended D
that the evidence on record sufficiently established the guilt of the accw;ed
and the reasons assigned by the Courts below are fortified by sufficient
material and consequently no interference is called for with the concurrent
findings of the Courts below.
                                                                                  E
      We have carefully considered the submissions made by the learned
counsel on either side in the light of the materials on record and the relevant
portions of the judgments of the Courts below to which our attentior has
 been drawn to impress upon their resIJective stands. Though as a matter
 of general principle, the point urged which reference to the omission to
 conduct earlier the test identification Parade may be correct, the question F
 as t0 whether there is any violation of the same in a given case would very
 much depend on the facts and circumstances of each case and there cannot
 be any abstract general formula for universal and ready application in all
 cases. Even the decision repotted in [2000] 1 SCC 358 (Ramanbhai
 Naranbhai Patel & Ors. v. Stu.te of Gujarat) relied upon for the appellants, G
.after dealing with the principles in general, adve1ts to the facts for the case
 and in so doing the learned Judges have categorically observed that since
 two eyewitnesses in the said case were assaulted an seriously injured in
broad daylight, they could have easily seen the faces of the assailants and
their appearance and identity would well remain imprinted in their minds H
       624              SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A and the third witness who was said to have seen the fatal assault on her
   husband could also be easily considered to have got imprinted in her mind
   the faces of the accused and that, therefore, the omission to hold the test
   identification parade did not affect the credibility or truthfulness of their
   evidence. The case on hand is akin to the said case dealt with by learned
B Judges therein, is that among the accused one was already known on
    account of having white washed their house, that they have entered their
   house and was for quite some time present there holding them at ransom
   by directing and using threat to relieve them of the valuables on which they
    could lay their hands and it is too much to claim, in spite of all these, that
   the evidence of PWs. 2, 3 and IO could not be either sufficient to properly
C iidentify the accused or relied upon against the accused in the absence of
   !proper test identification parade. In this case it has also further come on
    record that one whose identity was known was initially traced, that the said
    trail led the investigating authorities to the others and that the complainant
   was also said to have been associated even at that stage of investigation
~9 ~o identify the accused and ensure properly the arrest of the real accused.
   Consequently, we see no merit whatsoever in the grievance made and
   ,challenge to the judgments of the :Court below ori this ground.

          So far as the contention urged as to the applicability of Section 397
   ripe and the alleged lack of proof of the necessary ingredients therefor, is
:E concerned it proceeds, in our view, upon a misconception that unless the
    deadly weapon has been actually used to inflict any injury in the
    commission of the offence as such, the essential ingredient to attract the
    said provision could not be held to have been proved and substantiated.
    We are of the view that the ·said claim on behalfofthe appellants proceeds
'F upon a too narrow construction of the provision and meaning ofthe words
    •:uses" found in Section 397 IPC. As a matter of fact, this Court had an
    occasion to deal with the question is the decision reported in AIR 1975
    SC 905 (Phool Kumar v. Delhi Administration) and it was observed as
   :follows :



                   Section 398 uses the expression ''.armed with any deadly
              weapon" and the minimum ,punishment provided therein is also
              7 years if at the time of attempting to commit robbery the offender
~F.I          is armed with any deadly weapon.· this has created an anomaly.
          ASHFAQ v. STATE (GOVT. OF NCT OF DELHI)                   625

        It is unreasonable to think that if the offender who merely A
        attempted to commit robbery but did not succeed in committing
        it attracts the minimum punishment of 7 years under Section 398,
        ifhe is merely armed with any deadly weapon, while an offender
        so armed will not incur the liability to the minimum punishment
        under section 397 if he succeeded in committing the robbery. But B
        then, what was the purport behind the use of the different words
        by the Legislature in the two sections, viz. "Uses'' in Section 397
        and "is arm_ed" in Section 398. In our judgment the anomaly is
        resolved if the two terms are given the identical meaning. There
        seems to be a reasonable explanation for the use of the two
        different expressions in the sections. When the offence of robbery C
        is committed by an offender being armed with a deadly weapon
        which was within the vision of the victim so as to be capable of
        creating a terror in his mind, the offender must be deemed to have
        used that deadly weapon in the commission of the robbery. On
        the other hand, if an offender was armed with a deadly weapon D
        at the time of attempting to commit a robbery, then the weapon
        was not .put to any fruitful use because it would have been of use
        only when the offender succeeded in committing the robbery."

      Thus, what is essential to satisfy the word "U~es" for the purposes E
of Section 397 IPC is the robbery being committed by an offender who
was armed with a deadly weapon which was within the vision of the victim
so as to be capable of creating a terror in the mind of victim and not that
it should be further shown to have been actually used for cutting, stabbing,
shooting, as the case may be.
                                                                          F
      The further plea that one accused alone, was in any event in
possession of the country-made pistol and the others could not have been
vicariously held liable under Section 397 IPC with the assistance of section
34 JPC over-looks the other vital facts on record found by the Courts below
that the others were also armed with and used their knives and that knife G
is equally a deadly weapon, for purposes of section 397 IPC. The decision
of the Division Bench of the Bombay High Court relied upon turned on
the peculiar facts found as to the nature of the weapon held by the accused
therein and the nature of injuries caused and the same does not support the
stand taken on behalf of the appellants in this case. The provisions of H
    626                 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A  Section 397, does not create any new substantive offence as such but
   merely serves as complementary to Sections 392 and 395 by regulating the
   punishment already provided for dacoity by fixing a minimum term of
   imprisonment when the dacoity committed was found attendant upon
   certain aggravating circumstances viz., use of a deadly weapon, or causing
B of grievous hurt or attempting to cause death or grievous hurt. For that
   reason, no doubt the provision postulates only the individual act of the
 . accused to be relevant to attract Section 397 IPC and thereby inevitably
   negates the use o( the principl~ of constructive or vicarious liability
   engrafted in Section 34 IPC. Consequently, the challenge made to convic-
C tion under Section 397 even after excluding the applicability of Section 34
   IPC does not merit countenance, for the reason that each one of the accused.
   in this case were said to have been wielding a deadly weapon of their own,
   and thereby squarely fulfilled the ingredients of Section 397 IPC, de hors
   any reference to Section 34 IPC.

D         So far as the other charges are concerned, though an attempt has been
    made to challenge those findings, we are of the view that the concurrent
    findings, as rightly contended for the respondent, are not only well merited
    but are found sufficiently based on and supported by overwhelming
    materials on record and no patent illegality or infirmity as to warrant our
E   interference have been shown to vitiate in any manner those concurrent
    findings recorded by the Courts below in this case. The conviction under
    Section 397 !PC made read with Section 34 !PC alone· is consequently
    altered and sustained under Section 397 IPC itself and the sentence
    imposed by the Courts below on this count would stand.

F          The appeals, therefore, fail and shall stand dismissed.

    R.P.                                                    Appeals dismissed.