Delhi District Court
State vs Raj Kumar on 28 March, 2025
IN THE COURT OF SH. ANIMESH KUMAR, JUDICIAL MAGISTRATE
FIRST CLASS-02, NEW DELHI DISTRICT, PATIALA HOUSE COURT,
NEW DELHI
STATE VS. RAJ KUMAR & ORS.
FIR NO: 313/2013
P. S Vasant Kunj North
U/s 392 r/w 34 IPC
Crc No./47893/16
JUDGMENT
Date of its institution : 02.01.2014
Name of the complainant : Sh. Ram Karan Meena, S/o Sh.
Kanhaiya Lal, R/o RZF-9/11, Gali No.
12B, Saad Nagar, Palam Colony,
Delhi.
Date of Commission of offence : 09.08.2013
Name of the accused : (1) Raj Kumar, S/o Sh. Mashi Charan,
R/o Jhuggi No. 117, Arjun Camp,
Mahipalpur, New Delhi.
(2) Laxman, S/o Sh. Deendayal, R/o
Jhuggi No. 680, Arjun Camp,
Mahipalpur, New Delhi.
Plea of accused : Not Guilty
Case reserved for orders : 31.01.2025
Final Order : Conviction
Date of orders : 28.03.2025 Digitally
signed by
ANIMESH
Name of Ld. APP : Sh. Shravan Navaria ANIMESH
KUMAR
KUMAR
Date:
2025.03.28
16:49:41
+0530
0
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1.Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Raj Kumar S/o Sh. Mashi Charan and Laxman, S/o Sh. Deendayal for having committed the offence punishable u/s 392 r/w 34 of the Indian Penal Code, 1861 (hereinafter referred as "IPC").
2.Briefly stated, the present FIR was registered on the basis of the complaint given by Sh. Ram Karan Meena. As per the complaint, on 09.08.2013, the complainant was going to his friend's house situated in Mahipalpur on his motorcycle make splendor plus bearing registration no. RJ 29 SD 9701. When he reached near Shamshan ghat, Mahipalpur, the complainant stopped his motorcycle to attend nature's call. At that time, two persons came there, started his motorcycle and tried to flee away. The complainant ran towards them to stop them from fleeing away. The said persons started fighting with the complainant. The complainant raised alarm and some passerby came there and caught hold of the said persons who disclosed their name as Raj Kumar and Laxman. The accused Laxman managed to flee away from the spot. Thereafter, the police officials came there.
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3.After completing the formalities, the investigation was carried out by PS Vasant Kunj North and a charge sheet was filed. Thereafter, cognisance was taken and charge was framed against the accused persons for the offence punishable u/s 392 r/w 34 IPC vide order dated 06.05.2016. The accused persons pleaded not guilty and claimed trial
4.In order to prove the guilt of accused persons, the prosecution examined the following six witnesses:
• Ct. Deepak Kumar, deposed as PW-1;
• Sh. Ram Karan Meena, the complainant and eye-witness, deposed as PW-2;
• ASI Shashi Bhushan, deposed as PW-3;
• Sh. Kuldeep Singh, deposed as as PW-4;
• Sh. Jaipal, deposed as PW-5; and • Inspector Ravi Yadav, the investigating officer, deposed as PW-6.
5.PW-1 was one of the the police officials who was involved in the investigation of the present case. In his examination-in-chief, he deposed that on 09.08.2013, he was posted at PS Vasant Kunj North. On that day, he was on emergency duty and at about 8:30 PM, one DD entry No. 41A was received. Thereafter, he along with IO SI Ravi Yadav reached at the 2 spot i.e. Shamshan Ghat, Mahipalpur where the complainant and the accused along with Beat Constable met them. IO recorded the statement of the complainant, prepared rukka and got the present FIR registered through him. Thereafter, IO seized the motorcycle vide seizure memo Ex. PW-1/A. IO arrested the accused Raj Kumar vide arrest memo Ex. PW-1/ B and conducted his personal search vide memo Ex. PW-1/C. IO also recorded the disclosure statement of the accused Ex. PW-1/D and also recorded the statement of PW-1. He further deposed that on the next day, he along with IO reached at the house of the co-accused Laxman at Jhuggi, Arjun Camp, Mahipalpur where IO arrested co-accused Laxman vide arrest memo Ex. PW-1/E and conducted his personal search vide memo Ex. PW-1/F. IO also recorded the disclosure statement of the accused Laxman Ex. PW-1/G. He correctly identified both the accused persons in the Court and also correctly identified the case property from the photographs Ex. P-1 and P-2.
6.PW-1 was duly cross-examined by the Ld. Counsel for the accused persons. In the cross-examination, he could not tell the name of the Duty Officer who recorded the DD entry. He further stated that the said DD was handed over to the IO at about 8:30 PM. He also stated that the distance between the spot and the police station was about 5-6 km and he went 3 with the IO on his bike. He could not tell the name of the motorcycle of the IO. He further stated that they left the police station at about 8:35 PM immediately after receiving the DD. He also stated that the said DD was in respect of snatching of bike forcefully by two persons. He further stated that IO did not record the time when they left the police station and he also did not sign in the DD register prior to leaving the police station. He further stated that they reached the spot which was nearby NH-8 and Shamshan ghat within 10 minutes. He could not tell the name of the said Shamshan ghat. He admitted that the public persons were passing from the spot in his presence. He further stated that the spot was situated at some distance from the Shamshan ghat but he could not tell the exact distance/ He admitted that the persons were available at the Shamshan ghat.
7.PW-1 further stated in his cross-examination that when they reached at the spot, Beat Constable Ct. Shashi, complainant and the accused were present there and apart from them, no other persons were present there. He also stated that the IO had requested 3-4 persons to participate in the investigation but nobody joined the investigation. He further stated that he was not aware as to whether the IO had noted down the name and address of the said persons or not. He also stated that he and the IO did not go to the cremation ground to join the public witness. He further stated 4 that they remained at the spot for about one hour during which the IO recorded the statement of the complainant, prepared the arrest memo and disclosure statement of the accused. He also stated that the distance between the electric pole and the spot was about 10-15 metres. He also stated that the IO had handed over the rukka at about 9:45 PM. He further stated that he had taken the bike of the IO to go to the police station with the rukka.
8.In his cross-examination, he further stated that in his presence, IO enquired from 3 to 4 persons and, thereafter, the accused was taken to the hospital for medical examination from the spot. He further stated that he reached the hospital along with the accused at about 12:15 AM. He further stated that after medical examination of the accused, he along with the accused went to the police station at about 1 AM. He further stated that nothing was recovered from the accused during his personal search. He also stated that he had signed on arrest memo, personal search and seizure memo. He also stated that the complainant and the IO had also signed on the said papers.
9.In his cross-examination, PW-1 could not tell the beat number. He further stated that he did not make DD entry regarding arrival with the accused at the police station. He denied the suggestion that all the proceedings were 5 conducted at the police station and he was not present at the spot. He also denied the suggestion that the accused persons were not present at the spot and the accused were not arrested in presence. He also denied the suggestion that he did not visit the spot. He further stated that his statement was recorded in the police station on the same night. He further stated that he again joined the investigation on 10.08.2013. He also stated that he did not remember the registration number of the motorcycle which was seized by the investigating officer.
10.He further stated that they left the police station at about 6:15 AM on 10.08.2013 for going to the house of another accused Laxman. He also stated that the distance between the police station and house of the another accused Laxman was about 4 to 5 km. He also stated that he came to know about the address of the accused Laxman from the accused Rajkumar and he enquired from public persons regarding the location of the accused. He admitted that the house of the accused was situated in a residential area but he did not find any public person of the locality as it was morning time. He further stated that the family members of the accused Lakshman were present there when he was arrested. He further stated that he remained at the house of the accused Laxman for about 4-5 minutes. He denied the suggestion that he did not visit the 6 house of the accused Laxman and the said accused was not arrested at the house. He denied the suggestion that he was falsely implicated in the present case and even deposing falsely.
11.PW-2 is the complainant and eye-witness of the present case. In his examination-in-chief, he deposed that he did not remember the exact date but it happened in the month of August 2013. On that day, he was going towards Mahipalpur through AIIMS. When he reached some distance from Mahipalpur service Road, he parked his motorcycle and went to urinate. Suddenly, two persons came out from the bush and started their motorcycle. He immediately got hold of them and asked as to why they started his motorcycle. Thereafter, the accused persons gave beatings to him and he made alarm.
12.Thereafter, public persons came and saved him from the accused persons and also caught both the accused persons. After 2 to 3 minutes, one accused fled away from the spot. In the meanwhile, PCR came at the spot and police official made enquiry and after some time two more police officials came at the spot by motorcycle. Thereafter, PCR took the accused and he went to the police station on his motorcycle. He correctly identified the accused persons in the court. He also identified his motorcycle from the photographs available on record. He also stated that 7 his statement was recorded by the police and he also pointed out the place to the investigating officer where the incident had happened. He also stated that IO had seized the motorcycle and arrested the accused Rajkumar.
13.PW-2 was duly cross-examined by the Ld. Counsel for the accused persons. In his cross-examination, he stated that he was working at AIIMS as cook and his duty hours were from 12 noon to 8 PM. He further stated that he left his office at about 8 PM on the day of the incident. He further stated that the incident took place at about 8:30 PM. He also stated that when he was urinating at the spot, the motorcycle was stationed just nearby by him. He admitted that the spot was a public way. He denied the suggestion that the PCR stopped him as he was urinating at a public place. He denied the suggestion that the PCR vehicle did not stop him for checking his documents. He further stated that PCR vehicle took Rajkumar. He also stated that he reached the police station at around 10 PM and he remained there till 12 to 1 in the mid night.
14.He further stated that police did not take him anywhere else apart from the police station. He voluntarily stated that the police officers dropped him at his home. He further stated that police never called him after the day of the incident regarding the case. He admitted that the police told him the 8 name of the accused. He further stated that the police after her signature and certain documents in the police station. He denied the suggestion that he was detained by PCR and then taken to the police station as he was not possessing the driving license on the day of the incident. He denied that the accused Raj Kumar was already detained in the police station when he reached there and present case was planted upon him. He also denied the suggestion that incident did not happen. He further stated that he had read the document in the police station before signing the same. He denied the suggestion that his signatures were obtained on blank papers and he did not read the document before fixing his signature. He further denied the suggestion that he was deposing falsely against the accused persons at the instance of the police officials.
15.PW-3 was another police official involved in the investigation. He was the first police official who reached at the spot after the incident. In his examination-in-chief, he deposed that on 10.08.2013, he was posted at PS Vasant Kunj North as Head Constable. On that day, he along with Ct. Deepak were on patrolling duty. During the patrolling duty, they reached near Samson ghat, Mahipalpur. They saw that public persons were gathered there. Upon enquiry, they came to know that the accused along with associate tried to snatch motorcycle of the complainant Ram Karan 9 and with the help of the public persons, the accused Rajkumar was apprehended but his associate Lachhman managed to flee way from the spot. The public persons handed over the accused Rajkumar to him and he informed the police station regarding the incident. After sometime, public persons left the spot. SI Ravi Yadav came at the spot and recorded the statement of the complainant, prepared rukka and got the present FIR registered. Thereafter, IO recorded his statement. He correctly identified the accused Raj Kumar in the court. He also correctly identified the case property through the photographs.
16.PW-3 was duly cross-examined by the Ld. Counsel for the accused persons. In his cross-examination, he stated that on the day of the incident, his duty timings were from 8 AM to 10 PM. He did not remember how many police officers were deputed for patrolling duty in the area on the day of the incident. He further stated that at about 8:45 PM, when he reached the spot, he came to know about the incident. He did not remember how many public persons gathered there. He also did not remember the outlook of the person who was handed over to him. He did not ask the name and address of the public person who handed over the accused to him. He further stated that he remained at the spot at about two and half hours. He did not remember the time when he informed the 10 police station regarding the incident. He stated that the police official reached at the spot within 15 minutes after his information. He further stated that only ASI Ravi Yadav reached the spot. He did not remember as to how many public persons were present when the IO reached the spot. He further stated that in his presence, IO had only recorded the statement of the complainant and he did not ask the name and address of any public persons in his presence. He also stated that he left the spot after the recording his statement. He denied the suggestion that he was not present at the spot and no investigation or enquiry was conducted by the IO in his presence. He also denied the suggestion that his statement was recorded at the police station. He also denied the suggestion that public persons had not handed over to him one accused or he did not it intimate the police station in respect of the incident. He denied the suggestion that he was deposing falsely.
17.PW-4 proved on record the date of birth of the accused Laxman. He brought admission and withdrawal register of SDMC Primary Boys School, Mahipalpur. According to the register, the date of birth of the accused Laxman S/o Sh. Din Dayal was 12.12.1994. The copy of the said register is Mark A (OSR). He also identified the signature of previous incharge Kusum Yadav on the birth certificate of the accused Laxman issued by the 11 SDMC Primary Boys School, Mahipalpur, New Delhi Mark B. He was not cross-examined by the Ld. Counsel for the accused persons despite the fact that opportunity was provided.
18.PW-5 also proved on record the date of birth of the accused Laxman. He stated that as per the record available with the school i.e. MCD Boys School, Mahipalpur, the date of birth of the accused Laxman was 12.12.1994. He was not cross-examined by the Ld. Counsel for the accused persons despite the fact that opportunity was provided.
19.PW-6 was the investigating officer of the present case. In his examination-in-chief, he deposed that on 09.08.2013, he was posted at PS Vasant Kunj North. He was on night emergency duty and he received DD No. 41A regarding snatching of the motorcycle. He along with Ct. Deepak went to Shamshan ghat near Mahipalpur where they met HC Shashi Bhushan, complainant Ram Karan and one accused Raj Kumar. Thereafter, the complainant gave a written complaint Ex. PW-2/A on the basis of which he prepared tehrir PW-6/A and got the present FIR registered. Thereafter, he prepared the site plan at the instance of the complainant Ex. PW-6/B. He also seized the motorcycle which was lying at the spot. He also arrested the accused Raj Kumar, conducted his personal search and recorded his disclosure statement. He also recorded 12 the statements of the police officials. Thereafter, on 10.08.2013, the accused Raj Kumar took them to the house of the accused Laxman at jhuggi no. 680, Arjun Camp, Mahipalpur, New Delhi where he was found present. He was interrogated and arrested. His disclosure statement was also recorded. The accused was brought to the police station. He correctly identified both the accused persons and the motorcycle from the spot.
20.PW-6 was duly cross-examined by the Ld. Counsel for the accused persons. In the cross-examination, he deposed that on 09.08.2013, he was on emergency duty and his duty hours were from 8 PM to 8 AM. On that day, he received DD No. 41A at around 9:20 PM and he left for the spot immediately after receiving the same. He further stated that he did not make any departure entry while leaving for the spot which was at a distance of approximately 4 km from the police station. He also stated that he reached at the spot within 8-10 minutes. He also stated that the spot of the incident was at NH 8 situated near Shamshan ghat and he did not make any inquiry from the persons present there. He admitted that the public persons were present at the spot. He voluntarily stated that he made enquiries from the public persons present there. He did not record their names or addresses. He voluntarily stated that it was irrelevant as they refused to join the investigation and left the spot. He further stated 13 that when he reached at the spot, the accused Raj Kumar was standing there. He admitted that the site plan Ex. PW-6/B was prepared by him without scale. He further stated that the distance between point A and B in the site plan was approximately 50-60 feet. He further stated that he did not get conducted the medical examination of the complainant. He denied the suggestion that the medical examination of the complainant was not conducted as he did not receive any injury. He voluntarily stated that no external injury was received by the complainant. The complainant did not disclose to him any internal injury. He voluntarily stated that the complainant only told him that he was manhandled by the accused persons.
21.He further stated that the complainant did not disclose him the manner in which he had stopped the motorcycle. He also stated that the complainant did not disclose him name and number of the public persons who had helped him stopping the said motorcycle. He admitted that the accused persons were medically examined after they were arrested. He denied the suggestion that no MLC of the accused persons was conducted due to which the same was not placed in the judicial record. He could not tell from where the complainant was coming on the day of the incident. He further stated that he did not make any inquiries from the 14 complainant as to where he was working. He also stated that he looked for the installation of CCTV camera/footage near the spot of the incident, however, the could not find anything. He also stated that he had prepared the tehrir / rukka at around 10 PM. He further stated that Ct. Deepak returned back to the spot along with the original tehrir and FIR at around 11 PM. He did not remember as to whether he had recorded the disclosure statement of the accused persons at the spot or at the police station. He also stated that he did not give notice to any public persons gathered there to join the investigation. He further stated that he finally left the spot at around 12 midnight. He further stated that on the next day, he had left from the police station at around 5:30 PM to arrest the accused Laxman from his house. He further stated that both the accused persons were residing at Arjun camp near Mahipalpur Delhi.
22.PW-6 further stated in his cross-examination that no public persons were made witness of the arrest of both the accused persons. He admitted that when he went to effect the arrest of the accused Lakshman, public persons were gathered there. He also stated that he did not get the accused Lakshman identified by the complainant at the time of his arrest or thereafter. He voluntarily stated that both accused persons were caught hold by the complainant himself and one of them i.e. accused Lakshman 15 fled away by releasing himself from the clutches of the complainant after disclosing its identity and the FIR was registered with the name of the accused persons. He did not remember on the day of the incident after completing the enquiry of the day, who all left with him from the spot to the police station. He further stated that he had met the complainant several times during investigation, however, he did not remember the specific date and time. He further stated that the distance between the spot of the incident and Arjun Camp was approximately half kilometre. He denied the suggestion that he did not conduct fair investigation in the present case. He also denied that the accused persons were not taking away the motorcycle of the complainant. He also denied the suggestion that public persons were not examined in the present case as the present case was false. He also denied the suggestion that he was deposing falsely.
23.The accused also admitted the factum of the registration of the FIR and DD No. 41A dated 09.08.2013, Ex. A-1 to A-2 respectively u/s 294 Cr.P.C. Hence, formal proof of these documents was dispensed with.
24.After examination of all prosecution witnesses, at the request of Ld. APP, the prosecution evidence was closed on 09.02.2023. Thereafter, statement of accused persons was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 29.03.2023 wherein all the incriminating 16 circumstances were put to them which they denied and took a defence that they were falsely implicated in the present case. They also stated that on the said date, they were walking at the high way which was very close to their residential place. They were arrested by the police officials at that time.
25.During the final arguments, the Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination The complainant has completely supported the case of the prosecution.
26.The Ld. Counsel for the accused, on the other hand, argued that the prosecution has miserably failed to prove the the guilt of the accused persons in the present case. The accused persons cannot be convicted on the sole testimony of the complainant. No other independent public witnesses were examined even though they were allegedly present at the spot at the time of the alleged incident. It was also argued that since the motorcycle of the complainant was never actually moved from the spot, the offence of robbery was not completed. Therefore, the accused persons cannot be convicted for the same. Also, there are material contradictions among the testimonies of the prosecution witnesses. Thus, benefit of doubts needs to be extended to the accused. 17
27.I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
28.Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LAW INVOLVED IN THE PRESENT CASE
29.Section 390 IPC provides for the offence of robbery. It defines robbery in the following manner:
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.18
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
30.Bare reading of the above provision will clearly show that robbery is an aggravated form of theft or extortion which is committed when the person interalia voluntarily causes or attempt to cause death or hurt or wrongful restraint to the victim either while committing the theft or while carrying away the stolen property. "Theft" is defined u/s 378 IPC in the following manner:
" 3 7 8 . T h e f t . -- W h o e v e r, i n t e n d i n g t o t a k e dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which effects the severance may be a theft. Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.19
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
ANALYSIS & FINDINGS
31.After discussing the offence briefly, I shall now be examining the guilt of the accused persons by appreciating the materials available on record.
32.It is cardinal principle of law accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts and it always rests on the prosecution.
33.At the outset, in so far as the argument of Ld. Counsel for the accused persons regarding conviction of the accused persons based on sole testimony of complainant is concerned, it should be noted that the said argument does not hold any ground.
34.It is a settled proposition of law that an accused can be convicted based on the testimony of solitary witness if the same is unblemished and gains the confidence of the Court. Section 134 of the Indian Evidence Act clearly provides that no particular number of witnesses is required to establish a 20 case. It is the quality of the evidence and not the quantity which is to be seen.
35.At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Ramesh Krishna Madhusudan Nayar vs. State of Maharashtra 2008 Crl. LJ 1023 , wherein the Apex Court had upheld a conviction under Section 302 IPC based on the sole testimony of a witness. The Hon'ble Court has held that "on the basis of solitary evidence conviction can be maintained. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained."
36.The above discussed principle was reiterated (albeit with certain qualifications) recently by the Hon'ble Supreme Court in the case of Amar Singh vs. State (NCT OF Delhi) Criminal Appeal No. 335 of 2015 decided on 12th October 2020 wherein it was held that conviction can be based on sole eye witness testimony only if he is wholly reliable. But if there are doubts about the testimony then the Courts will insist on corroboration. Relevant extract of the judgment is reproduced below: 21
"16. Thus, the finding of guilt of the two accused appellants recorded by the two Courts below is based on sole testimony of eye witness PW-1. As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise"
37.Further, the Hon'ble Supreme Court recently in the case of State through Inspector of Police vs. Laly @ Manikandan @ Ors. 2022 SCC OnLine SC 1424 has again reiterated the ratio that there can be a conviction on the basis of the deposition of the sole eye witness, if the said witness is found to be trustworthy and/or reliable.
38.Hence, in view of the above discussions, it becomes very clear that an accused can be convicted based on the sole testimony of witness/ complainant. However, the said testimony must be unblemished and wins the confidence of the Court. If there is any contradiction or doubt over the reliability of the witness, then the Courts can insist on corroboration. 22
39.In the instant case, it should be noted that the prosecution has only examined the complainant PW-2. No other independent or public witnesses who had witnessed the incident or were present at the spot were examined by the prosecution. Perusal of the testimony of the complainant PW-2 would show that he had supported the case of the prosecution to certain extent. In his testimony, he had stated that when he stopped his motorcycle and went to urinate, the accused persons came out from the bush and started his motorcycle. He also stated that he immediately caught hold of the accused persons, however, they started beating him. The accused persons were apprehended with the assistance of the public persons who came there when he reached alarm. However, one of the accused managed to flee away while another accused Raj Kumar remained at the spot.
40. He had correctly identified the accused persons in the Court. The complainant was duly cross-examined by the Ld. Counsel for the accused persons and no material contradictions could be seen in his testimony. Also, the Defence Counsel did not bring on record any material to show as to why the complainant would falsely implicate the accused persons in the present case when they were not even known to him.
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41.The above testimony of the complainant could also be corroborated from the testimonies of the police officials who reached at the spot shortly after the incident. PW-3 was the first police official who had reached at the spot after the incident. He had categorically stated that the accused Raj Kumar was present there at the spot when he reached there. Similar statements were made by PW-1 and the IO PW-6.
42.Thus, in view of the above, I find that there is no reason to discard the testimony of the complainant PW-2 which is free from any material contradictions or improvements.
43. However, a close perusal of the testimony the complainant of PW-2 would show that the offence of theft which is an essential ingredient of the offence of robbery punishable u/s 392 IPC was not completed in the present case. For the offence of theft, there has to be some movement of the property from the possession of the complainant without his consent by the accused persons with a dishonest intention. In the present case, as per the complainant PW-2, the accused persons had only started his motorcycle. The complainant had nowhere stated in his testimony that the said motorcycle was also actually moved by the accused persons to some distance. He had only stated that "two persons came out from the bush and started my motorcycle, I immediately caught hold of them and asked 24 why my motorcycle is starting". This would clearly show that the motorcycle of the complainant could not be actually moved by the accused persons, and, therefore, the offence of theft was not completed.
44.However, it would be also clear that there was a definite attempt to steal the motorcycle of the complainant by the accused persons. They had done the overt act i.e. attempt when they actually started the motorcycle of the complainant. Thus, it can be clearly said that the accused persons had indeed attempted to steal the motorcycle of the complainant.
45.Further, as discussed in the preceding part of this judgment, the offence of robbery is an aggravated form of theft. In the instant case, since, the offence of theft was not completed, the offence of robbery was also not completed. However, there was an attempt to theft committed by the accused persons. This attempt was not only restricted to stealing the motorcycle of the complainant rather the accused persons had also beaten the complainant when he caught hold of him. The complainant had categorically stated in his testimony that "I immediately caught hold them and asked why my motorcycle is starting. Thereafter, the accused persons gave beatings to me."
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46.Thus, from the testimony of the complainant PW-2, it would become clear that the the accused persons had also beaten the complainant when he caught hold of them in an attempt to flee away with the motorcycle of the complainant. Since, the accused persons had given beatings to the complainant while attempting to flee away with the case property, it could be said that the offence of attempt to robbery was completed which is punishable u/s 393 r/w 34 IPC.
47.I am of conscious of the fact that no medical examination of the complainant was conducted during the course of the investigation, consequently, no MLC of the complainant was brought on record by the prosecution. However, MLC is not a sine qua non for the offence of robbery. It cannot be sole determinant to prove as to whether robbery has occurred or not.
48.In the instant case, from the testimony of the complainant PW-2 and the IO PW-6, it would become very clear that the complainant did not suffer any major injuries. He was only beaten by the accused persons. "Hurt" is defined u/s 319 IPC in such a manner that even causing bodily pain would also amount to hurt. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Lakshman Singh vs. State of 26 Bihar AIR 2021 Supreme Court 3552. Relevant extract of the judgment is reproduced below:
"However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. "Hurt" is defined under Section 319 IPC. As per Section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause "hurt". Therefore, even causing bodily pain can be said to be causing "hurt". Therefore, in the facts and circumstances of the case, no error has been committed by the courts below for convicting the accused under Section 319 IPC."
49.Since, the complainant was beaten by the accused persons then bodily pain must have been caused to him. Thus, it can be said that hurt was caused to the complainant by the accused persons when they tried to flee away with the motorcycle.
50.Having discussed the above, it should be noted that as per section 222 (3) Cr.P.C, the accused can be convicted for attempting to commit an offence for which he has been charged even though the accused has not been charged for the offence of attempt separately. In the instant case, the accused persons were charged for the offence of robbery punishable u/s 392 r/w 34 IPC and were not charged for the offence of attempt to commit robbery punishable u/s 393 IPC separately. However, they could still be 27 convicted for the offence of committing robbery publishable u/s 393 IPC in light of the provision enshrined u/s 222(3) Cr.P.C.
51.Even otherwise, it is a settled proposition of law that is an accused who is charged for a major offence and is not found guilty for the said offence, can still be convicted for minor offence even thought he was not separately charged for the minor offence. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh vs, Tara Dutta, AIR 2000 SC 297.
52.In the instant case, the offence of robbery punishable u/s 392 IPC provides for imprisonment upto 10 years while the offence of attempt to commit robbery punishable u/s 393 IPC provides for imtrpoirnsmnet upto 7 years. Thus, offence u/s 393 IPC is a minor offence as compared to offence punishable u/s 392 IPC.
53.It is all settled proposition of law that mere omission to frame charge or error or irregularity in framing charge would not vitiate the entire provided no prejudice was caused to the accused, he was aware about the nature of accusations against him and was afforded opportunity to defend him. Reference can be taken from the decision of the Hon'ble Supreme Court 28 in the case of Willie William Slaney vs. State of Madhya Pradesh AIR 1956 SC 116 wherein it was held that:
"Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."
54.In the instant case, accused persons were initially charged with the offence for committing robbery which is punishable u/s 392 IPC with 29 provides for imprisonment upto the period of 10 years and also with fine. However, prosecution failed to establish the necessary ingredients of section 392 IPC, however, succeeded in proving his guilt for attempting to commit robbery which is punishable u/s 393 IPC with imprisonment upto a period of 7 years or with fine or with both. It would clearly mean that section 393 IPC is a minor offence as compared to offence punishable u/s 392 IPC in which charge has been initially framed. Further, no prejudice could be caused to the accused persons as they were completely aware about the nature of accusations against them and were afforded opportunity to defend themselves. They knew that the motorcycle of the complainant in question could not be moved from the spot.
55.Therefore, in view of the above discussions and findings, I find that while prosecution has failed to establish the essential ingredients of theft in the present case, and, consequently failed to prove the guilt of the accused persons for the offence of robbery punishable u/s 392 IPC, however, it successfully proved beyond reasonable doubts the fact that the attempt to commit theft was completed and the complainant was also beaten by the accused persons when they were trying to flee away with the motorcycle of the complainant. Thus, the prosecution has successfully 30 proved beyond reasonable doubts the essential ingredients of attempt to commit robbery by the accused persons.
56.Thus, the accused persons namely Raj Kumar and Laxman stand acquitted for the offence punishable u/s 392 r/w 34 IPC but they stand convicted for the offence punishable u/s 393 r/w 34 IPC.
Announced in the open court Digitally signed
by ANIMESH
ANIMESH KUMAR
On 28.03.2025 KUMAR Date: 2025.03.28
16:49:51 +0530
(Animesh Kumar)
JMFC-02, Patiala House Court
New Delhi
It is certified that this judgment contains 31 pages and each page bears my signatures. ANIMESH Digitally signed by ANIMESH KUMAR KUMAR Date: 2025.03.28 16:49:56 +0530 (Animesh Kumar) JMFC-02, Patiala House Court New Delhi 31