Aslam @ Deewan vs State Of Rajasthan

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.

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

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.

4. Since 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.

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5. In 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.

6. Learned counsel for the State, on the other hand,

supported the judgment.

7. Section 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

5 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

probability.

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

Bhardwaj (PW-20). The identification proceedings reports are

Ex. P-13 and P-14.

9. As 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).

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10. So 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.

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.

..........................................J. (DR. ARIJIT PASAYAT)

...........................................J. (DR. MUKUNDAKAM SHARMA) New Delhi:

September 25, 2008

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