Holding

The Supreme Court held that the identification parade was valid, the evidence satisfied the requirements for conviction under Section 394 IPC, and there was no ground to interfere with the ten‑year sentence, thereby dismissing the appeal.

Summary

The case involved a robbery on 24 April 2002 in which the victim, Nand Kishore, was assaulted with an iron rod and his bag was stolen. The accused, Aslam @ Deewan and Waseem @ Raju, were arrested after one of them provided information leading to the recovery of the stolen items and the weapon. The injured victim identified the accused and the recovered articles during a test identification parade conducted before a Judicial Magistrate. Both the trial court and the Rajasthan High Court convicted the accused under Section 394 of the Indian Penal Code and sentenced them to ten years’ rigorous imprisonment. On appeal, the Supreme Court examined whether the identification procedure was tainted and whether the evidence sufficed for a conviction under Section 394. Finding the identification parade valid and the evidence adequate, the Court upheld the lower courts’ judgment and dismissed the appeal.

Issues considered

Whether the test identification parade conducted before a Judicial Magistrate was proper and admissible.
Whether the evidence presented was sufficient to sustain a conviction under Section 394 IPC.
Whether the sentence of ten years’ rigorous imprisonment should be altered in view of the accused’s time already spent in custody.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 392, s. 394

Subjects

robberygrievous hurtSection 394 IPCidentification paradeconvictionsentencinghabitual offender

Judgment

[2008] 13 S.C.R 1010
)..

A ASLAM @ DEEWAN
v
STATE OF RAJASTHAN
(Criminal Appeal No. 1531 of 2008)
SEPTEMBER 25, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
·-
SHARMA, JJ.]

Penal Code, 1860 - s. 394 - Voluntarily causing hurl in
c committing robbery - Accused looted a person by inflicting
grievous injury- Conviction uls 394 with 10 years RI by courts
below - Interference with - Held: Test identification parade
was held - Injured victim identified accused during investiga-
tion in presence of Magistrate - Victim identified the articles
recovered - Thus, order of courts below does not call for inter-
D ~·
ference.
According to the prosecution case, on the fateful day,
some miscreants looted PW-11 by inflicting grievous blow
on his head with iron rod. They snatched the bag and ran
E away. FIR was lodged. Appellant and accused W were
arrested. On basis of the information by accused W, ar-
ticles looted and also the weapon used were recovered.
PW 11-injured witness as also other witnesses were ex-
amined. Trial court on basis of the evidence on record
F held the appellant and accused W guilty and convicted \--
them u/s 394 IPC and imposed rigorous imprisonment for
10 years. High Court upheld the order. Hence, the present
appeal.
Dismissing the appeal, the Court
G
HELD: 1.1 In the instant case, test identification pa-
rade was held. The identification proceeding was con-
ducted by PW-21-Judicial Magistrate. The accused per- t'
sons were identified during investigation by PW-11-in-
H 1010
ASLAM @ DEEWAN v. STATE OF 1011
RAJASTHAN
jured witness in the presence of PW-21. PW-11 identified A
the articles which were recovered in the presence of the
Magistrate. The identification proceedings reports are Ex.
P-13 and P-14. The stand that PW-11 may have got op-
portunity to see the accused persons earlier was found
-~ to be without any substance by both the trial court and 6
the High Court. [Paras 8 and 9] [1014,A-C]
1.2 The appellant's case that he has already suffered
custody for a considerable length of time is of no conse·
quence. Trial court also noted that both the accused per-
sons are habitual offenders and appeals involving simi- c
lar offences were pending before the High Court. Since
minimum sentence of 10 years has been awarded, there
is no reason to interfere with the appeal. [Paras 10 and
11] [1014,D-E]
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal D
No. 1531 of 2008
From the Judgment and Order dated 2.3.2007 of the High
Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Crl.
Jail Appeal No. 1233 of 2004
Chityanya Siddarth (AC.) and P. Purnima for the Appellant. E
Milind Kumar and Aruneshwar Gupta for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. F
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 G
and order of learned Special Judge, Fake Currency Cases,
Jaipur City, Jaipur. The accused persons were found guilty and
·-1 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. H
1012 SUPREME COURT REPORTS [2008] 13 S.C.R.
,l.'

A 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
B 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 Hos-
pita I.
c
On the basis of the above report, the police registered a
chalked FIR (Exhibit P-2) under Section 392 IPC. During inves-
tigation of the case, accused Waseem @ Raju S/o Qadir 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
D
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
E 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).
F 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 pursu-
ance of the aforesaid information, a sum of Rs.10,000/- was
recovered vide recovery - memo Exhibit P-24 in presence of
G 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 used for inflicting injury on the person of
injured Nand Kishore was seized vide seizure-memo Exhibit t-
P-12 on 15.5.2002. The handbag and other gold items were
H recovered as per the information of the accused persons vide
i
ASLAM @ DEEWAN v. STATE OF 1013
,...
\
RAJASTHAN [DR. ARIJIT PASAYAT, J.)

Exhibit P-18. The other informations were also given by the A
accused· persons under Section 27 of the Evidence Act and
-· recovery was effected at their instance and information given in
1 writing by them voluntarfly.
4. Since the accused persons pleaded innocence, trial ·
-.\
was held. 21witnesses were examined to further the prosecu- B
tion case. Nand Kishore (PW-11) was the injured witn·ess~ The
trial Court considering the evidence on record foun_g the ac-
cus·ed 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 c
the accused. The High Court did not find any substance and
' dismissed the appeal.
~

5: In support of the appeal, it was submitted that the evi"
dence adduced by the prosecution was not sufficient to fasten
D
~ the guilt on the appellant for offence punishable under Section
394 IPC.
6. Learned counsel for the State, on the other hand, sup.!
ported the judgment
· 7. Section 394 describes punishment for voluntary caus- E
ing hurt in committing or attempting to commit robbery. The of-
fence under this section is more serious offence-than one un-
der 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 neces- F
sary to facilitate the commission of robbery. Section 394 ap-
\' plies 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 com- G
mission of offence of robbery. The second class of persons may
not be concerned in the causing of hurt, but they become liable
-1 independently of the knowledge of its likelihood or a reason-
able belief in its probability.
H
1014 SUPREME COURT REPORTS [2008] 13 S.C.R.
;..

A 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
B Bhardwaj (PW-20). The identification proceedings reports are ~-
.
Ex. P-13 and P-14.
9. As noted above, the identification proceeding was con-
ducted by Mukesh Jat, the Judicial Magistrate (PW-21). The
stand that PW-11 may have got opportunity to see the accused
c persons earlier was found to be without any substance by both
the Trial Court and the High Court. The identification of the ar-
ticles was done in the identification proceedings carried out by
Arti Bhardwaj, Judicial Magistrate (PW-20).
10. So far as the sentence is concerned, the minimum is
D
ten years. Therefore, there is no question of reducing the sen-
tence, 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 in-
E volving 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.
F ,..~

N.J. Appeal dismissed.