STATE OF U.P.versusILYAS

                        [2008] 15 S.C.R. 1088


A                          STATE OF U.P.
                                 v.
                                                                      ~
                               ILYAS
                 (Criminal Appeal No. 168 of 2001)

                       NOVEMBER 12, 2008
B
        [DR. ARIJIT PASA YAT AND DR. MUKUNDAKAM
                       SHARMA, JJ.]

       . Penal Code, 1860 - ss. 394 and 397 - Robbery with the
c help of deadly weapons - Injury caused - Eye-witness to the
  incident- Identification of accused in Tl Parade - FIR lodged
  u/s. 394 - Conviction by trial court u/s. 397 - Acquittal by High
  Court holding that identification of accused was doubtful; that
  conviction under s. 397 alone not sustainable; and since use
D of weapon not established conviction u/s. 397 not correct -
  On appeal, .held: Finding of he High Court is perverse and
  abrupt - However, accused is convicted uls. 394 for which he
  was originally charged.

       Respondent accused alongwith one co-accused was
E alleged to have· committed robbery on the point of
  country-made pistol and knife. In the course they also
  caused injuries to the victims-PWs. FIR was lodged u/s.
  394 IPC. Trial court relying on the evidence of the eye-
  witnesses (PWs 4, 5 and 6) and Tl Parade, held both
F accused guilty u/s. 397 IPC. High Court acquitted both the
  accused holding that Tl parade was doubtful as the
  accused must have been shown to the witnesses and
  that conviction u/s. 397 IPC alone is not sustainable as it
  is not a substantive offence and could have been
G convicted u/s. 394/397; and that since use of weapons
  was not fully established conviction u/s. 397 IPC was not
  called for. Hence, the present appeal.

        Partly allowing the appeal, the Court
                                 1088
H
                STATE OF U.P. v. ILYAS                    1089


     HELD: The conclusions arrived at by the High Court           A
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              B
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 co'nviction and imposed adequate
sentence. There was no prejudice involved. The High               c
Court's reasonings were perverse. However, the
respondent is convicted for offence punishable under
Section 394 IPC for which he was originally charged.
(Paras 5 and 6] (1092-F-H; 1093-A]

    CRIMINAL APPELLATE JURISDICITION: Criminal Appeal             D
No. 168 of 2001.

    From the final Judgment and Order dated 30.3.2000 of the
High Court of Judicature at Allahabad in Criminal Appeal Nos.
830 & 917 of 1980.                                                E'

   T.N. Singh, Rajeev Dubey, Kamlendra Mishra and Jatinder
Kumar Bhatia, for the Appellant.

    Sudhir Kulshreshtha and Shakeel Ahmed for the
Respondent.                                                       F

    The Judgment of the Court was delivered by

     DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a learned Single Judge of the Allahabad High   G
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
                                          ,                 -- - t-1-
    1090       SUPREME COURT REPOR1 S               [2008] 15 S.C.R

                                                                       ...
A   imprisonment.

       2. Two appealswere 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
B 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. Backg~oun~f facts in a. nutshell are as follows: ·

c        Written report (Ex. Ka. 5) of the incident in question was
   deliveredl;)y Mahen.dra 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
D 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
E
  Singh, Ram Rikhshpal, Ram Pal and Mustaque. A lighted lamp
  was available at the spot. At about 1 O' 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
F 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/-
G 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
H
               STATE OF U.P. v. ILYAS [DR. ARIJIT PASAYAT, J.]           1091

.    ).__
            inside. The victim of robbery then reported the incident to the      A
            residents of village Comawala and an unsuccessful searcb._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          a
            lantern on the spot who were unknown persons.
    ,.4..
                 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, Rampa! and
                                                                                 c
            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.                                                      D

                  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       E
            interrogation respondent llyas confessed his involvement in the
            present incident and disclosed the name of co-accused. The
            Test Identification Parade (in short the 'Tl Parade') was held
.,. ~       where the respondent was identified by the three eye witnesses
            i.e. PWs 4, 5 and 6. Mahavir $ingh (PW-1) had arrested
                                                                                 F
            accused llyas.

                Placing reliance on the evidence of eye witnesses and the
            Tl Parade the accused persons were held guilty.

                 In appeal the appellants pointed out that in the sketch map     G
            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 llyas was arrested in some other     H
    1092      SUPREME COURT REPORTS                [2008] 15 S.C.R.


A cases alongwith some illicit arms. The High Court held that since
  he was acquitted in the said case the arrest of llyas 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 ·
B 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

c
  conviction has been recorded under Section 397 and the use
  of the weapons was not fully established, the respondent is
  entitled to acquittal.

      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
D 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.
E
          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 ()~             ;..   ~
F · 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
G such a plea. First Information Report was lodged under Section
    394 IPC and charge was accordingly framed. Because-Gf-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
H
   STATE OF U.P. v. ILYAS [DR. ARIJIT PASAYAT, J.]         1093


was no prejudice involved.                                         A

     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        B.
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.

K.K.T.                                  Appeal partly allowed.     C