ASHFAQ versus STATE (GOVT. OF NCT OF DELHI)

Citation: [2003] SUPP. 6 S.C.R. 619 · Decided: 10-12-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU, ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

ASHFAQ 
A 
V. 
ST A TE (GOVT. OF NCT OF DELHI) 
DECEMBER I 0, 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 of accused 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 of test identification parade-Test identification 
parade. 
Ramanbhai Naranbhai Patel & Ors. v. State of Gujarat, (2000) l 
sec 358, relied on. 
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 
F 
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 
of the 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 of s. 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-
F 
G 
Meaning of 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
1296 of 2002. 
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. 
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
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