Delhi District Court
State vs Sultan @ Abdul on 30 March, 2026
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-017962-2017
SC No. 879/2017
FIR No. 122/2017
U/Sec. 395/397/411 IPC
P.S. ODRS
STATE VERSUS SULTAN @ ABDUL & ORS.
(i) SC No. of the case : 879/2017
(ii) Date of commission of offence : 26.07.2017
(iii) Name, parentage and address : 1. Sultan @ Abdul
S/o Sh. Firozuddin
R/o H.No. 4915, Gali No.
2, Kaushik Puri, Old
Seelampur, Delhi.
2. Bintu @ Bilota
S/o Lt. Sh. Raghubir Singh
R/o H. No. C-116, Gali
No. 2, Phase-II, Shiv
Vihar, Karawal Nagar,
Delhi.
3. Shahrukh
S/o Mohd. Mehtab
R/o Gali No. 4, Kachcha
Kanti Nagar, Delhi.
4. Danish @ Bhatka
S/o Sh. Rehmat Ali
R/o Gali No. 1, East Old
Seelampur, Delhi.
SC No. 879/2017
FIR No. 122/2017
State vs. Sultan @ Abdul & Ors. Page 1 of 52
5. Dilshad
S/o Sh. Sarfuddin @
Munna
R/o H. No. 4242, Gali No.
19/1, New Shanti Mohalla,
Old Seelampur, Delhi.
6. Vijay @ Vicky @ Tedha
S/o Sh. Rajpal Singh
R/o H. No. C-142, Gali
No. 2, Phase-II, Shiv
Vihar, Karawal Nagar,
Delhi.
(iv) Offence complained of : Section 395/397/411/34
IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL
Date of Institution : 01.12.2017
Date of Judgment reserved on : 23.03.2026
Date of Judgment : 30.03.2026
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Vipin Kumar vide Ex. PW-3/A on which FIR Ex. PW-4/A was registered in the matter. PW-3 Vipin Kumar has deposed as Vipin Kapri. It is stated in the complaint Ex. PW-3/A that on 26.07.2017 when PW-3 was going by train at seat no.5/6, Coach No. 9 then the train had stopped adjoining the SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 2 of 52 public pedestrian. The train had stopped after Seelampur Metro Station.
On the slum/Jhuggi adjacent to pedestrian five boys had climbed the train all of whom had knife in their hand. They had snatched two mobile phone from the brother of PW-3 of the make Redmi 4 and Nokia the mobile number of which was 9560427469 and 8287686297. They had opposed such robbery on which the accused person had attacked PW-3 and other passengers with knife. PW-3 had suffered injury from knife on his left hand. One of the passenger Pushpender Kumar Jain/PW-2 who was traveling at seat no. 33 was robbed of Rs. 3,000/- and mobile phone Life Water 1FS bearing mobile no. 9350529430/7011761347. The accused person also robbed other passengers in the train and accused had also beaten them. After 10-15 minutes the train had started running when the accused person had climbed out of the train and ran towards the Jhuggi/Slum. It is alleged that the train was deliberately stopped at Seelampur to commit the robbery. The endorsement on rukka Ex. PW- 4/C was sent on which FIR was registered and the DO had returned the FIR with endorsement on rukka for further investigation. The certificate under Section 65B of Indian Evidence Act on registration of FIR is Ex. PW-4/B. PW-4 ASI Sombir Singh was Duty Officer during such registration of FIR.
2. The investigation has started and the name and address of other passenger was also recorded who were robbed by the accused person. Dr. Ashok Bansal/PW-23 was posted as ADMO, Arya Nagar, Dispensary, Gaziabad, U.P. on 26.07.2017 who had medically examined Vipin Kumar, Male in the train on that day and provided first aid to him.
SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 3 of 523. PW-21 SI Vinod Kumar has deposed that Zero FIR was transferred to PS ODRS from GRP Ghaziabad bearing no. 502/2017 dated 26.07.2017 which is Mark PW-14/A. PW-21 was posted at PP Shahdara, PS ODRS. The FIR was marked to him at about 05:30 PM. He made endorsement on the complaint Ex. PW-3/A vide Ex. PW-21/A. On the basis of the said rukka FIR no. 121/2017 Ex. PW-4/A was registered. PW-21 had investigated the case and thereafter filed the chargesheet. During investigation 6 persons were apprehended who were summoned and brought to trial.
4. Accused no. 1 Sultan, accused no. 2 Bintu, accused no. 3 Shahrukh, accused no. 4 Danish and accused no. 5 Dilshad had received charge under Section 365 IPC to which accused have pleaded not guilty and claimed trail on 04.01.2018. Accused no. 1 Sultan has received charge under Section 397 IPC read with Section 411 IPC on 04.01.2018 to which he has pleaded not guilty and claimed trial. Accused no. 2 Bintu has received charge under Section 397 IPC read with Section 411 IPC on 04.01.2018 to which he has pleaded not guilty and claimed trial. Accused no. 3 Shahrukh has received charge under Section 397 IPC read with Section 411 IPC on 04.01.2018 to which he has pleaded not guilty and claimed trial. Accused no. 4 Danish has received charge under Section 411 IPC on 04.01.2018 to which he has pleaded not guilty and claimed trial. Accused no. 5 Dilshad has received charge under Section 411 IPC on 04.01.2018 to which he has pleaded not guilty and claimed trial. Accused Vijay @ Vicky has received charge under Section 395 IPC and also under Section 397 IPC on 08.03.2018 to which he has pleaded not guilty and claimed trial. Accused no. 1 Sultan, accused no. 2 Bintu, SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 4 of 52 accused no. 3 Shahrukh, accused no. 4 Danish and accused no. 5 Dilshad had received amended charge under Section 395 IPC in place of Section 365 IPC on 08.03.2018 to which he has pleaded not guilty and claimed trail.
5. Prosecution has led PW-1 to PW-25 as entire evidence against all the accused person. The prosecution evidence was closed on 17.07.2025. The statement of accused was recorded under Section 313 Cr.P.C on 04.02.2026. All accused have preferred not to lead evidence in defence.
6. Final arguments are heard on behalf of both the parties and record perused.
7. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 5 of 52 difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"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. 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.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 6 of 52 "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 7 of 52 carrying away or attempting to carry away property obtained by the theft, the offender, 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 the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC 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.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 8 of 52 version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 9 of 52 held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon"
and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz.
"uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 10 of 52 overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 11 of 52 (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253]."
8. The prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v.
State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 12 of 52(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
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 theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt 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.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 13 of 52 crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
Xxxxxxx
9. The first ingredient which has to be proved by the prosecution is that the accused has committed theft. The case of the prosecution is that on 26.07.2017 near Seelampur metro station, Delhi within jurisdiction of PS ODRS the accused person had climbed the Farakka Express around 10:15 PM when the train had temporarily halted near Seelampur metro SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 14 of 52 station for the reason of oncoming metro train. The accused person had thereafter robbed/looted the passengers in the train. Ld. Counsel for the accused has argued that there was no railway platform at Seelampur railway station where the train had halted which means the train did not halt and stopped there and the accused person did not climb the train. However PW-1, PW-2, PW-3, PW-5, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11, PW-12 has consistently deposed that train had so halted and the accused person have climbed in the said train. There were passengers on the train and have so deposed consistently. Their testimony remains unimpeached and therefore prosecution has successfully proved that the train had so halted.
10. Ld. Counsel for the accused has argued that there is variation in deposition of prosecution witness. In the complaint Ex.PW3/A (at page no. 23 of the document file) it is mentioned that all the five person have knife. Whereas PW-1 has deposed that three person had climbed in inebriated state and two of them were carrying knife. They came near PW-1 and asked him to handover his mobile phone. During cross- examination by ld. APP for the State PW-1 despite of confrontation with his statement under Section 161 Cr. PC Ex.PW1/B has continued to depose as incorrect that there were five person boarded the coach of the train near Seelampur metro station. PW-1 has deposed that he had handed over his two mobile phone of make MI and Nokia. Accused had snatched Rs.800/- from brother of PW-1 who is Vipin/PW-3. When PW- 3 had refused then one of the accused stabbed him on his hand and they started beating both PW-1 and PW-3. The accused person had looted the co-passengers for about 10 minutes. PW-2 has deposed that one person SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 15 of 52 was carrying iron rod and one person was carrying knife. He does not remember what other person were carrying. PW-2 has deposed that there were 4-5 person. PW-2 had pointed towards accused no. 2 Bintu @ Bilota as the person who sat beside PW-2 and he was carrying iron rod. PW-2 had identified accused no. 1 Sultan who stood before him at the time of dacoity. Accused no. 2 Bintu @ Bilota had forcibly snatched his mobile phone of make LYF Water F-15 and Rs.3000/-. The earrings of another lady with purse was also snatched and the robbery continued for 10-12 minutes. When the train started moving then the accused person had ran away.
11. PW-3 has deposed that the train had started at about 9:40 PM and after about 7-8 minutes five accused person had boarded the train. 2-3 accused person had their faces covered with handkerchief. Some of them were carrying knife and other person were carrying rod. All of them abused the passengers and started looting and beating the passengers. Two of them came near PW-3 and tried to take out purse containing Rs.800/-. When PW-3 had objected then accused had stabbed on his hand with knife. Two mobile phones of make Redmi company and Nokia company were robbed from Gangadhar Tapri who is brother of PW-3. PW-3 cannot identify his robbed currency of Rs.800/- before the Court. He has made improvement to his statement/complaint Ex.PW3/A where he has not stated that 2-3 robbers had covered their face with cloth piece.
12. PW-5 has deposed that all the 4/5 robbers had appeared in inebriated state having knife and rod in their hands. One of the boy tried to snatch her earrings. Another robber told to hit with knife if PW-5 did SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 16 of 52 not hand over her earrings. The robbers were aged about 25-28 years. Her earrings with Intex mobile phone having black colour with SIM number having mobile phone no. 9568586470 was robbed by the accused person. PW-5 has failed to identify the mobile phone Ex.P1 when produced before her during evidence. PW-6 has deposed that 4-5 robbers had entered the train under inebriated state having knife and rod in their hands. He has correctly identified the mobile phone of make Intex of black colour as Ex.P1 which was robbed from his wife PW-5. However he has failed to produce any document regarding ownership of mobile phone.
13. PW-7 has deposed that 4-5 persons have climbed the coach/train in inebriated state who had knife and rod in their hands. One of the boy had robbed her purse containing Rs.2500/- and two mobile phone of make Carbon at knife point. The mobile phone belongs to her husband and another mobile phone of make Lenova belongs to her bearing mobile phone no. 9889018879 and 8601289172 respectively. All the boys aged around 25-26 years. PW-8 has deposed that 4-5 person had climbed the train in inebriated state having knife and rod in their hands. They had robbed his wife PW-7. He has failed to identify the phone of make Carbon produced during evidence. PW-9 has deposed that 4-5 accused had climbed the train in inebriated state having knife and rod in their hands. One robber having thin and dark complexion and another robber having fair complexion had knife in their hands who robbed from him Rs.1200/- and one mobile phone from his friend Anirudh/PW-10. PW-10 has deposed that 4-5 person had climbed the train in inebriated state having knife and rod in their hands. One thin and dark complexion SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 17 of 52 robber and another fair complexion robber had robbed one mobile phone of make Carbon having no. 7533097397 and Rs.1200/- from him and another Rs.1200/- from his friend PW-9 was robbed.
14. PW-11 has deposed that there were 5-6 robbers who snatched his mobile phone of make Intex having two Idea SIM at knife point. It is deposed during cross-examination by ld. APP for the state that the mobile phone was having mobile phone no. 8285154896. PW-12 has deposed that there were 5-6 boys all of whom were having knives in their hands.
15. PW-1 has correctly identified accused no. 2 Bintu @ Bilota who had hit him on chest at the time of dacoity. He has identified accused no. 3 Shahrukh who stabbed him with knife. PW-1 has failed to identify the other accused and also the accused no. 1 Sultan despite being specifically pointed out by ld. APP for the State. PW-2 has identified accused no. 2 Bintu @ Bilota as the person who sat beside him and who was carrying iron rod. PW-2 has identified accused no. 1 Sultan as the person who stood before him at the time of dacoity. Accused no. 2 Bintu had forcibly snatched his mobile phone and Rs.3000/-. PW-3 has deposed that he had seen the faces of the accused but he cannot recollect their faces. He could not identify all the accused in the Court. He has made improvement to his statement Ex.PW3/A the complaint that the accused person were covering their face with handkerchief. PW-5 has deposed that at the time of commission of offence 03 assailants had their face covered with clothes and two had not covered their faces. PW-5 cannot identify the accused who robbed her earrings, mobile phone and SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 18 of 52 robbed other passenger. She cannot identify the mobile phone Ex.P1 as the same belongs to her husband. During cross-examination she has stated that none of the accused person are the robbers. PW-6 has deposed that the robbers has looted the passengers in the coach for about 10-15 minutes. Three of the assailants had covered their face with clothes and two had not covered. PW-6 cannot identify any of the accused person before the Court who had robbed earrings of his wife alongwith mobile phone. During cross-examination by ld. APP for the State it is deposed by PW-6 that none of the accused persons are the robbers. It is deposed during cross-examination that he did not hand over any documents relating to purchase of mobile phone. PW-7 has deposed that three assailants had covered their faces and two had not covered their face. He cannot identify any of the accused person present in the Court and during cross-examination it is deposed that none of the accused person are among the robbers. PW-8 has deposed that three assailants had covered their faces and two had not covered their face. He cannot identify the offenders who robbed the purse of his wife containing Rs.2500/- and two mobile phones. He has failed to identify mobile phone of make Carbon. He has deposed that none of the robbers are amongst the accused person. He did not hand over any of the documents relating to the purchase of mobile phone. PW-9 has deposed that three assailants had covered their faces and two had not covered their face. He cannot identify any of the accused person before the Court and it is further deposed that none of the robbers are amongst the accused person. PW-10 has deposed that three assailants had covered their faces and two had not covered their face. He cannot identify any of the accused person before the Court and it is further deposed that none of the robbers are amongst SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 19 of 52 the accused person. PW-11 has deposed that 5-6 boys had boarded the train all of whom were having knife in their hands. His mobile phone make Intex containing two SIM of Idea company was also snatched by robbers after showing knife. He cannot identify accused person before the Court as they had covered faces at the time of commission of robbery. PW-12 has deposed that there were 5-6 boys/robbers all of whom having knife in their hands. She cannot identify accused person as they had covered their faces with clothes.
16. Ld. Counsel for accused had submitted that at some point witnesses are stating 3-4 robbers and at other point some are stating 5-6 robbers therefore the said witness were not present together in the same coach of train. It is also contested that the prosecution has not produced the tickets of the said witness. It is noted that there is no cross- examination of PW-1 in above respect. Similarly there is no cross- examination of PW-2, PW-3, PW-5, PW-6 to PW-12 regarding availability of ticket with them while travelling in the said train. Nor there is suggestion to the witnesses that they were not travelling in such train at the time of robbery. However it is settled law that the prosecution must stand on its own legs and it cannot make its case depend on weak defence of the accused. Therefore it is desirable that the best evidence must have been produced. It is not the case of the prosecution that the tickets were lost by PW-1 to PW-3 and PW-5 to PW-12. Hence in absence of production of best evidence the above fact of non production of tickets of the said passengers in the train who were allegedly robbed has created doubt in the case of the prosecution that if PW-1 to PW-3 and PW-5 to PW-12 are the passengers who were robbed by the accused SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 20 of 52 persons in Farakka Express.
17. Now identity of the accused person has to be seen. PW-21 has deposed in his examination-in-chief dated 07.03.2024 at page 3 that the TIP of accused person was conducted on 10.07.2017 and victim had identified accused no. 1 Sultan and accused no. 2 Bintu and rest of the accused person cannot be identified in TIP proceeding. Accused no. 3 Shahrukh has refused to join the TIP proceeding. However at page 4 it is deposed by PW-21 that during investigation he has found that accused no. 4 Danish and accused no. 5 Dilshad did not board the train at the time of robbery and they were standing on railway track near the coach. The TIP proceedings of accused no. 3 Shahrukh is Ex.PW24/C. Accused no. 3 Shahrukh has refused to join TIP proceedings as his photographs are taken by police officials at police station which might have shown to the witness. Hence the burden of proof to show that such photographs were taken has shifted on the accused. Accused has failed to bring any evidence on record of taking of such photographs and by which police official to ascertain if such photographs were at all taken or they are missing. TIP is a weak type of evidence and it is settled law that merely on the basis of TIP proceeding accused cannot be convicted. Therefore some other corroborative evidence must have been produced by the prosecution. It was laid down in case titled Ramesh Vs. State of Karnataka from Hon'ble Supreme Court of India in Criminal Appeal No. 629 of 2005 on 27 July, 2009 Equivalent citations: AIR 2009 SC (SUPP) 2189, 2009 (15) SCC 35 that only one identification cannot eliminate the possibility of pointing out being purely through chance and for this reason it is insufficient to establish the charge. The relevant para is SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 21 of 52 reproduced hereasunder:
17. We have noticed hereinbefore the respective dates of arrest of accused No.5 and accused No.3 respectively. It is difficult to conceive that accused No.5 would still be available so that the Investigating Officer could ask the witnesses to come to the police station. There is nothing to show that she was in custody of the police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same.
18. Mr. Chaudhary would submit that in all cases, it is not necessary to hold test identification parade. That may be so. In a case of this nature, the test identification parade would have been meaningless as appellant were shown to PW3 in the police station.
Appellant was shown to PW3 at the police station. He was identified in court also. Reliance has been placed by Mr. Chaudhary on Malkhansingh & Ors. v. State of M.P. [JT 2003 (5) SC 323 : 2003 (5) SCC 746], wherein this Court opined:
'The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 22 of 52 appropriate cases it may accept the evidence of identification even without insisting on corroboration.' 18.1. It was furthermore held:
'It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.'
19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy.
19.1. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. v. The State [AIR 1961 All. 153], wherein it was held that identification by only one person may not be relied upon stating:
'Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge.' 19.2. In Heera & Anr. v. State of Rajasthan [JT 2007 (9) SC 175 :
2007 (10) SCC 175], a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable.
19.3. In Ravindra Laxman Mahadik v. State of Maharashtra [1997 Criminal Law Journal 3833] in a case involving Section 395 of the Code of Criminal Procedure, it was opined:
'I find merit in Mr. Mooman's submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 23 of 52 identify the appellant.' 19.4. The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein.
19.5. In Kanan & Ors. v. State of Kerala [AIR 1979 SC 1127], this Court held:
'It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. Parade to test his powers of observations. The Idea of holding T. I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.'
20. As identification of PW3 is highly doubtful, in our opinion, having regard to the nature of other evidences brought on record by the State, i.e., purported recovery of a tarpaulin by itself cannot be said to be sufficient to convict the appellant for a charge of such grave offence.
18. The TIP proceedings are dated 05.09.2017 and the date of commission of offence is 26.07.2017. The accused was arrested on 05.08.2017 vide arrest memo Ex.PW21/D2 and therefore there is much unexplained delay in conducting TIP of the accused person. Delay in conducting TIP proceeding is one of the ground which further weakens the reliability of TIP proceedings. PW-3 has identified accused no. 3 Shahrukh as the person who has stabbed him on his hand with knife. However the same witness during cross-examination by ld. APP for the State on 25.07.2019 despite attention being drawn towards accused Sultan, Bintu, Shahrukh, Danish, Dilshad and Vijay has failed to identify the accused person. He has improved upon his statement that the above offenders had covered their faces with cloth pieces due to which he cannot identify them. Hence PW-3 has turned hostile to the case of the SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 24 of 52 prosecution. Similarly PW-1 has failed to identify accused Shahrukh during his cross-examination by ld. APP for the State. He has even turned hostile to the number of accused person who boarded the Farakka Express. According to him three robbers had boarded the Farakka Express. Hence both PW-1 and PW-3 has failed to identify accused no. 3 Shahrukh during their deposition. Further, PW-14 SI Harindera Singh has deposed that three mobile phone and cash of Rs.2900/- was recovered from accused no. 1 Sultan. He has deposed that two mobile phone and Rs.2100/- were recovered from remaining three accused person. He has failed to depose specifically that what exact amount was recovered from accused Shahrukh. The PW-22 HC Naveen Kumar at page 6 of his deposition has stated that Rs.2100/- was recovered from accused Shahrukh in FIR no. 502/2017 of PS GRP Ghaziabad. However the prosecution witness PW-1 to PW-3 and PW-5 to PW-12 has failed to point out any specific mark on currency notes which were allegedly robbed from them. In absence of which it cannot be said that it is the same currency which was robbed from the passengers of the train. The amount of currency notes allegedly recovered is not such an amount which cannot be said to be possessed by the accused person in normal course of their day to day living. Hence prosecution has failed to connect the recovery of currency notes with the accused person. The relevant citation in this regard Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 at para no. 78 and 79 is reproduced hereasunder:
78. Secondly, PW-1 is only a junk dealer. A-2 would have known he simply could not afford this kind of money. Therefore, the story of demand of Rs. 15 lakhs as ransom appears a far reach and wholly unrealistic. The motive plays an important role in a case of SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 25 of 52 circumstantial evidence where the other circumstances are not proved convincingly by the prosecution. As explained by the Supreme Court in Surinder Pal Jain v. Delhi Administration 1993 Supp (3) SCC 681:
"In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
79. In Arjun Mallik v. State of Bihar 1994 Supp (2) SCC 372 the Supreme Court further explained the position and the following words:
"...mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anybody else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."
19. The accused no. 2 Bintu was correctly identified by PW-2 in TIP proceedings Ex.PW2/B. The accused no. 4 Danish could not be identified by PW-2 in TIP proceedings Ex.PW2/C. The accused no. 5 Dilshad could not be identified by PW-2 in TIP proceedings Ex.PW2/D. The accused no. 3 Shahrukh could not be identified by PW-2 in TIP proceedings Ex.PW2/E. The accused no. 1 Sultan was correctly identified by PW-2 in TIP proceedings Ex.PW2/F. Hence only accused no. 1 Sultan and accused no. 2 Bintu were correctly identified by PW-2 SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 26 of 52 the witness Sh. Pushpender Kumar Jain. The accused Shahrukh could not be identified in TIP proceedings and there is absence of any other material on record to connect accused no. 3 Shahrukh with the present offence. The PW-2 has deposed that his stolen mobile phone could not be recovered by the police. Only accused Danish has appeared through Counsel to cross-examine PW-2 and rest of the accused have went unrepresented to cross-examine PW-2. The State has not pointed out that the accused person were not properly represented by ld. Legal Aid Counsel. Even otherwise merely on the basis of identification in TIP proceedings the accused person cannot be convicted.
20. PW-2 has deposed that accused no. 2 Bintu had sat beside him who was carrying iron rod and accused no. 1 Sultan who stood before him at the time of robbery/dacoity. It is deposed that accused Bintu has forcibly snatched his mobile phone and Rs.3000/- which was not recovered by the police. As per PW-22 HC Naveen Kumar only Rs.700/- were recovered from accused Bintu in FIR no. 506/2017 of PS GRP Ghaziabad and one knife was also recovered from accused Bintu. Whereas PW-2 has deposed that accused Bintu was having iron rod in his hand and not knife. As per PW-22 Rs.800/- was recovered from accused Sultan and a knife was also recovered from him. However PW-2 has not deposed that accused Sultan was carrying knife nor it is deposed that accused Sultan has snatched money from him.
21. It is noted that in the statement under Section 161 Cr. PC of PW-2 the physical appearance of the accused Bintu and Sultan is not mentioned nor the sketch of the above accused was prepared by the IO.
SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 27 of 52The TIP of the accused was conducted later in time on which therefore the identification of accused no. 1 and 2 for the first time before the Court has less reliability.
22. PW-14 SSI Harindera Singh has deposed that he was on patrolling duty. However in his cross-examination dated 15.11.2025 it is deposed that he does not remember how many inspectors and SI were posted at PS Ghaziabad at that time. He cannot produce record as to his departure from police station. In his examination-in-chief dated 10.01.2023 it is deposed that on 01.08.2017 he alongwith SI Somvir Singh, SI Ravindra, Ct. Jugal Kishore, Ct. Saurabh Sharma, Ct. Jaspal and Ct. Rahul were on patrolling duty and in the evening SI Somvir had received secret information that some boys were present at Chander Nagar Railway Halt who were climbing to commit robbery. They went there and found five person sitting on the stairs. The accused person were apprehended on pointing out of secret informers and SI Somvir had interrogated all of them. One knife was recovered in personal search of all the accused. The name of accused no. 6 Vijay @ Vicky is not mentioned in his deposition which means he was not apprehended with other accused. Whereas PW- 15 in his examination-in-chief dated 18.11.2021 has deposed that on 01.08.2017 the said five accused were arrested by SO GRP Ghaziabad in FIR no. 517 of PS GRP Ghaziabad in his presence at about 5:05 PM. Hence deposition of PW-14 and PW-15 is contradictory in that who had arrested the accused person and how the information of accused had reached either to police officials of Delhi or of GRP Ghaziabad. Other than this the accused person were allegedly found in the possession of robbed and stolen articles which are mobile phone, cash and jewellery SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 28 of 52 including foreign currency. Foreign currency was allegedly recovered from accused no. 1 Sultan. Jewellery was allegedly recovered from accused no. 2 Bintu. No TIP of jewellery is proved on record. The identity of foreign currency if robbed from any of the public witness has not been established. It is doubtful that all the accused person will continue to have in their possession the articles robbed on 26.07.2017 to be carried on their person on 01.08.2017 keeping in view the contradiction in deposition of PW-14 and PW-15 that how the accused person were apprehended. When the accused person were already apprehended by SO GRP Ghaziabad at 5:05 PM then how SI Somvir Singh could have arrested the accused person on the same date on 01.08.2017 and this has created doubt in the case of the prosecution about the manner in which the accused person were apprehended and by whom. This therefore has created necessity of joining of public witness. When police party already has secret information about accused person then it was incumbent on them to join public witness. No such public witness is joined during such apprehension of accused person and this has created doubt in the case of prosecution. The relevant citation titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2 nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 in this regard at para no. 56, 62, 63, 65, and 69 are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 29 of 52 prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 30 of 52 it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114 (a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession. Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 31 of 52
23. Further, to the contrary PW-21 Retd. SI Vinod Kumar in his examination-in-chief dated 07.03.2024 has deposed that he had received information on 03.08.2017 vide DD no. 5B from duty officer that five person have been apprehended by the staff of GRP Ghaziabad in FIR no. 517/2017 who also confessed their involvement in FIR no. 502/2017. He went to PS GRP Ghaziabad and there he met SO SI Somvir Singh. However PW-16 at first page of his examination-in-chief dated 18.11.2021 has deposed that information was received that accused person were arrested at Chander Nagar Halt Railway Line. To the contrary PW-17 Insp. Somvir Singh has deposed that accused person were apprehended from Chander Nagar Halt platform no. 1 railway line. As per PW-17 he had arrested the accused person and got lodged the FIR 517 at PS GRP Ghaziabad. They had completed the proceeding at the spot and thereafter they left for PS GRP Ghaziabad. To the contrary PW- 15 at second page of his examination-in-chief dated 18.11.2021 has deposed that on that day they had left from PS GRP Ghaziabad on patrolling duty and on the basis of secret information they have arrested the accused person. They had left for patrolling duty alongwith police official of RPF, Shahdara namely Insp. Anil, Ct. Sukhbir, Ct. Bhupinder and Ct. Dharminder. Hence there is contradiction in deposition of PW-15 on the one hand and PW-14 on the other that who were part of the raiding team at the time of arrest of accused person. This is serious contradiction in the evidence of the prosecution. PW-21 has deposed that on 01.08.2017 at police post Shahdara PS ODRS one zero FIR was transferred from GRP Ghaziabad bearing no. 502/2017 which was marked to him at about 5:30 PM. Whereas as per PW-14 in his cross-SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 32 of 52
examination dated 15.11.2025 at first page it is deposed that they have reached at Chander Nagar Halt at 4:30 PM on 01.08.2017. Hence when the information was received late at 5:30 PM then it is a contradiction that the raiding team would reached at Chander Nagar Halt at 4:30 PM. This has created serious doubt in the case of the prosecution and in the absence of independent public witness the above arrest and recovery from accused person on 01.08.2017 has become doubtful which goes to the root of the case. PW-21 has deposed at page 3 of his cross- examination dated 06.09.2024 that no public witness was asked to join the investigation while the disclosure statement of accused person was recorded. It is also admitted by PW-21 in the same cross-examination that nothing has been recovered at the instance of accused Vijay @ Vicky. He does not remember the address of accused Vijay or the dates when he had visited his house. It is also admitted as correct by him that no public witness was asked to join while recording disclosure statement of the accused person. Hence the recovery at the spot is not in terms of Section 27 of Indian Evidence Act and as laid down in citation reproduced hereasunder: The relevant law in this regard is laid down in case titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) at para No. 51 to 76 with specific reference to Para 53, the relevant para of which are reproduced here under:
51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime. After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his blood-stained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 33 of 52 appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery. In such circumstances, while on the way the investigating officer picked up PW-2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the investigating officer the accused led them to a coriander field and from a bush he took out the weapon of offence (Banka) and the blood-stained clothes. The weapon of offence and the blood- stained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon & clothes at the instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so.
In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus: "27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 34 of 52 Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW-2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 35 of 5255. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence.
56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW-7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, HamletAmethi, original resident of village Basadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lockup, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 36 of 52 man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pantshirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there." In expectation of recovery of murder weapon and blood stained clothes, I the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No.7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealedstamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka5...." [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma Shankar Mishra who at the relevant point of time was serving as a SubInspector Chowki Incharge Bahjam, Police Station. It appears that the PW6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station Dhaurahara, domicile of village Basadhiya, Police Station Isha Ganj, DistrictKheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then Incharge Inspector and followers S.I. SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 37 of 52 Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pantshirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, HamletAmethi for the purpose of recovery." [Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW- 7, investigating officer & PW-6, Sub-Inspector the exact statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination in chief of the PW6, Sub Inspector and PW7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub Inspector (PW6).
62.In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 38 of 52
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible -Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483
65. Two conditions for application -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered -
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
66. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph- 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 39 of 52 discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
68. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
69. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 40 of 52 the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
70.In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively.
73. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 41 of 52 the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied]
74. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 42 of 52 admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused appellants (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section
8....." [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same.
24. Out of the robbed case property PW-3 cannot identify Rs.800/- allegedly robbed from him. PW-5 has no document/invoice for purchase of mobile allegedly robbed from him. PW-21 IO has deposed that no recovery was effected from accused no. 5 Dilshad. The case property allegedly stolen from PW-1 was not recovered during investigation. The stolen property of PW-2 is also not recovered during investigation. PW-6 has no document/invoice of the mobile phone with him and similarly PW-7 also does not have document/invoice of the mobile with him. PW- 8 has failed to identify the mobile phone of make Carbon and he does not have invoice of the said mobile phone. PW-14 SSI Harendera Singh has not deposed that the foreign currency was recovered from the accused person. Whereas PW-15 Ct. Saurabh has deposed that foreign SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 43 of 52 currency was recovered from accused Sultan. Hence there is material omission in the nature of contradiction in the deposition of PW-14 and PW-15. The mobile phone of make Intex Ex.P1 has come in evidence of PW-15 with broken seal and therefore its proper seizure has become doubtful. Similarly broken seal is produced on the mobile phone Ex.P2 of make Carbon allegedly recovered from accused Sultan. Hence the recovery of this mobile phone has also become doubtful if it is the same mobile which was recovered from the accused person. Both PW-16 and PW-7 has deposed about recovery of foreign currency. PW-14 does not depose that officials of GRP Ghaziabad were with them when the raiding team had proceeded to apprehend the accused person. Whereas PW-17 has deposed that they proceeded the police station with officials of GRP Ghaziabad. The offence is dated 26.07.2017. Whereas the alleged recovery was effected from the accused person on 01.08.2017. Keeping in view the law and facts discussed above it is held that the alleged recovery made from the accused person has become highly doubtful keeping in view the contradictions and inconsistencies in the evidence of prosecution witness as discussed above.
25. As per PW-1 the accused Vicky has surrendered himself before the Court and accused no. 4 Danish and accused no. 5 Dilshad did not board the train at the time of incident and they were standing near the said train bogy. No incriminating recovery is shown to be effected from accused no. 4 Danish, accused no. 5 Dilshad who did not board the train. No recovery could be effected from accused no. 6 Vicky. It is admitted in cross-examination dated 30.03.2024 that accused Dilshad was arrested only on disclosure of accused person and it is also admitted as correct SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 44 of 52 that no recovery was effected from accused Dilshad. Whereas PW-14 SSI Harendera Singh has deposed that one knife was recovered from all the five accused which is contradictory to the deposition of PW-21. The PW-14 has deposed contradictorily that two mobile phone and Rs.2100/- was recovered for three accused person without specifying them in reference to particular accused person. PW-21did not prepare sketch or photograph regarding identification of accused person. He has admitted as correct that he did not make any investigation regarding the recovery of case property in the present matter. He does not remember the address of accused no. 6 Vijay nor does he remember the dates when he had visited at the house of accused no. 6 Vijay. Hence accused Danish and Dilshad cannot be connected with the offence. The recovered case property which are allegedly two mobile phone and Rs.2100/- from accused Danish which is so deposed by PW-14 and the same has remained unproved on record. Two mobile pone and Rs.2100/- were allegedly recovered from accused Dilshad which has also remained unproved on record and prosecution has failed to connect the above recovery with the accused person. No recovery was effected from accused Vijay. Largely the prosecution witness have deposed that there are 4-5 accused person. Whereas in the present case only three accsued namely accused no. 1 Sultan, accused no. 2 Bintu and accused no. 3 Shahrukh had only boarded the train and the other accused could not be found/apprehended during investigation. The alleged robbery by the above three accused has also become doubtful for the manner in which the investigation was conducted due to non joining of public witness and due to contradictions in deposition of police and public witness that how the above accused were apprehended. In these circumstances of the case SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 45 of 52 it is held that prosecution has failed to prove the first ingredient of the offence that the accused person has committed theft on 26.07.2017.
26. The second ingredient the prosecution has to prove is that the accused person has voluntarily caused death, hurt or wrongful restraint or such fear.
27. The evidence and law discussed above under first ingredient is equally applicable under the second ingredient. PW-1 has deposed that there were three person two of which were carrying knife and he does not talk about iron rods. PW-2 has deposed that one person was carrying iron rod and one person was carrying knife. PW-2 has deposed that the accused person had stabbed one person and slapped another person who was refusing to hand over his belongings. Therefore the person who was refusing to hand over his belongings was slapped and not stabbed. To the contrary PW-3 has deposed that when he had objected/refused to hand over his belongings then he was stabbed on his hand and hence the deposition of PW-2 and PW-3 is contradictory to each other. PW-3 has deposed that he cannot identify any of the accused person since their faces were covered with clothes. PW-2 does not depose that face of accused person was covered with clothes. The MLC of Vijay @ Vicky is not proved on record by the prosecution. PW-20 Dr. Ashok Bansal has deposed that the patient Vipin Kumar has cut injury over his left hand whose prescription slip Ex.PW20/A. PW-3 has deposed that there is cut injury on his left hand. However the identity of said accused who has given the said cut injury was not established though the cut injury was there on the hand of PW-3 and the same is proved on record by medical SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 46 of 52 evidence. PW-1 has deposed that there were three robbers. PW-2 has deposed that there were 4-5 robbers. PW-3 has deposed that there were 5 robbers. PW-5 to PW-12 has deposed that there were 4-5 robbers. Hence the deposition of prosecution witness has remained consistent to the fact that there were 4-5 robbers and deposition of PW-1 in this regard is not seen in material inconsistency with other witness in view of the fact that the witness during such robbery/dacoity were in a state of shock has limited movement. They were under threat. Therefore minor inconsistency in their deposition may crept in which does not goes to the root of the case of the prosecution. The exact counting from such victims was not possible for the reason that they had restricted movement. In such view of the matter it is held that prosecution has failed to prove that while committing such robbery/dacoity accused person had used deadly weapon causing hurt on PW-3 or extended threat on PW-1 to PW-3 and PW-5 to PW-12 with dangerous weapon while committing such robbery/dacoity. Hence it is held that prosecution has failed to prove the necessary ingredients of Section 397 IPC against accused Sultan @ Abdul, accused Bintu @ Bilota, accused Shahrukh, accused Vijay @ Vicky @ Tedha and under Section 395 IPC against accused Sultan @ Abdul, accused Bintu @ Bilota, accused Shahrukh, accused Danish @ Bhatka, accused Dilshad and accused Vijay @ Vicky @ Tedha who stands acquitted for the offence under Section 395/397 IPC respectively.
28. The prosecution has also charged the accused under Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 47 of 5213. Section 411 IPC:
"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 48 of 52 the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
Xxxxxxxxx SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 49 of 52
21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
29. The prosecution has to prove that the accused person have received dishonestly the stolen property. The facts and law discussed in para above are equally applicable under Section 411 IPC which are not repeated herein for the sake of brevity. The prosecution witness must prove that accused person have received stolen property. It is already held above SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 50 of 52 that prosecution witness has failed to identify the recovered property which are cash and mobile phone . The invoice of said mobile phone with IMEI number is also not proved on record. PW-14 has deposed that three mobile phone and cash of Rs.2900/- was recovered from accused no. 1 Sultan. Whereas PW-22 has deposed that Rs.800/- was recovered from accused Sultan. PW-14 has deposed that three mobile phone with Rs.2800/- was recovered from accused Bintu. Whereas PW-22 has deposed that Rs.700/- was recovered from him. PW-14 has deposed that two mobile phone and Rs. 2100/- was recovered from accused Shahrukh. Whereas PW-22 has deposed that only Rs.2100/- was recovered from accused Shahrukh in reference to FIR no. 502/2017. Accused Danish and Dilshad did not board the train. No recovery was effected from accused no. 6 Vicky. There is absence of any evidence to connect the recovered mobile phone and cash with the accused person. Hence the prior possession with the prosecution witness having rightful ownership of the alleged mobile phone and cash with the prosecution witness has remained unproved on record. When the ownership of such recovered property is not proved then it cannot be said that the accused person knew that this property was stolen property and there dishonest knowledge has remained unproved on record. In absence of which it cannot be said that accused person has reason to believe that the said property was stolen property. Hence it is held that prosecution has failed to prove the necessary ingredients of Section 411 IPC against the accused no. 1 to 5 and accused person stands acquitted under Section 411 IPC.
30. In view of above discussion it is held that prosecution has failed to prove all the allegations levelled against the accused person and SC No. 879/2017 FIR No. 122/2017 State vs. Sultan @ Abdul & Ors. Page 51 of 52 therefore the accused no. 1 Sultan @ Abdul, accused no. 2 Bintu @ Bilota, accused no. 3 Shahrukh, accused no. 4 Danish @ Bhatka, accused no. 5 Dilshad and accused no. 6 Vijay @ Vicky stands acquitted under respective charges under Section 395/397/411 IPC levelled against them. The earlier personal bond of the accused person stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de- endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, accused person have furnished their bail bond as directed which will be in force for a period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 30.03.2026. PRAKASH PRAKASH NAHAR
Date: 2026.03.30
NAHAR 15:46:09 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 879/2017
FIR No. 122/2017
State vs. Sultan @ Abdul & Ors. Page 52 of 52