Delhi District Court
State vs Mohd. Gulzar @ Pappu Etc on 24 July, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 240/2010
PS.: Timarpur
u/S.: 395/511/468/471/120B IPC
State Vs. Mohd. Gulzar @ Pappu & Ors.
(a) SC Case No. 27518/2016 (Old No. 64/2015)
(b) CNR No. DLCT01-000066-2010
(c) Date of commission 05.09.2010 at 10:00 p.m., in front of
of offence Metro Main Gate, Outer Ring Road,
Timarpur, Delhi.
(d) Name of the Manoj, S/o. Shri. Bhola Mandal,
complainant R/o. Jhuggi Teliwara, Sadar Bazar,
Delhi; Permanent address: Vill.
Kash Nagar, PS Sonbarsa Raj, Dist.
Saharsa, Bihar.
(e) Name of the accused i) Mohd. Gulzar @ Pappu, S/o.
person(s), parentage Mr. Noor Mohd., R/o. K-254,
and residence Janta Colony, Pilli Mithi,
Welcome, Delhi;
ii) Gulbahar, S/o. Mohd. Abbas,
R/o. Pooja Colony, Near Quaba
Majid, Loni, Uttar Pradesh;
Permanent address: Village
Sonta, PS Bhawan, Mohalla-
Adhey Wala, Dist. Mujaffar
Nagar, Uttar Pradesh; Presently
at: Piran Kaliyar, Haridwar,
Uttrakhand-247667;
iii) Mohd. Khalid, S/o. Mr.
Hashmat Khan, R/o. Azad
Enclave, Pooja Colony, Loni,
Ghaziabad, Uttar Pradesh;
Permanent address: Vill.
Dhakoli, Dist. Bulandsaher,
Uttar Pradesh (since deceased
on 16.05.2019 and the
proceedings abated qua the said
accused on 03.02.2022);
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 1 of 82
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.24
16:17:45
+0530
iv) Imran, S/o. Mr. Saleem @
Kadar Khan, R/o. U-32
(UK-32), Gali No. 2, Third
Pusta, Arvind Mohalla,
Usmanpur, Delhi; Presently at:
K-485, Gali No. 7/4, Gautam
Vihar, Usmanpur,
Delhi-110053;
v) Raju @ Rizwan, S/o. Mr.
Liakat, R/o. H. No. K-484, Gali
No. 4, Khadda Wali Masjid,
Usmaanpur, Delhi.
(f) Plea of the accused All the accused persons pleaded
persons 'not guilty'
(g) Final Order All the accused persons have been
acquitted of the charges levelled
against them.
(h) Date of institution of 11.01.2011
case
(i) Date when judgment 05.06.2025
was reserved
(j) Date when judgment 24.07.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on 05.09.2010, on receipt of PCR Call vide DD No. 37A, the concerned police officials, namely, SI Pawan Singh along with Ct.
Mahesh reached at the spot, i.e., in front of Metro Gate, Outer Ring Road, Timarpur, Delhi (hereinafter referred to as the 'spot'). Upon reaching there, Ct. Sanjeev and truck driver, Manoj (hereinafter referred to as the 'complainant') were found present, who had apprehended two persons (जहाँ पर Ct Sanjeev No 1502/N व ट्रक ड्राईवर मनोज ने दो लोगो को पकड रखा था). Correspondingly, statement of the complainant was obtained/recorded, wherein he/the complainant inter alia asserted that he used to work at Maharashtra Freight Carrier (Pvt.) Ltd. as a driver. As per the complainant, on SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 2 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:17:54 +0530 05.09.2010, at around 09:00 p.m., he/the complainant was proceeding towards his employer's godown at Siraspur, Delhi, in his TATA-709 vehicle, bearing registration No. HR-38G-7808 from Gandhi Nagar. The complainant further proclaimed that at that point in time, the said vehicle/truck of the complainant, contained 20 (twenty) bales of readymade garments ( आज दिनांक 05.09.10 को वक्त करीब 9 बजे रात गांधी नगर से अपने TATA-709, न० HR-38G-7808 में रे डीमें ट कपड़ों के 20 बन्डल गाड़ी में लोड करके अपने मालिक के गोदाम सिरसपुर दिल्ली जा रहा था।). It was further proclaimed by the complainant that when he reached in front of Metro Gate, Outer Ring Road, one silver color Scorpio jeep, wherein 5-7 persons were present, overtook the complainant's vehicle and stopped in front of his vehicle/truck (जब मैं मैट्रो गेट के सामने आऊटर रिंग रोड पहुंचा तो एक SCORPIO जीप बारंग सिल्वर जिसमें 5-7 लोग थे ने मेरी गाडी को ओवरटे क किया और सामने ला कर मुझे अवरोध उत्पन्न किया।). As a consequence, the complainant is asserted to have stopped his truck/vehicle, whereupon 3-4 persons from the said car/Scorpio car approached the complainant and started to forcible pull him/the complainant towards their car (गाड़ी से 3-4 लोग मेरे पास आये और मुझे खींच कर अपनी गाड़ी में जबरदस्ती बैठानेलगे ). Further, as per the complainant, the said persons also started beating him, snatched the keys of his truck/vehicle, and tried to start his truck ( और मुझे मारने पीटने लगे और मरे ट्रक की चाबी छीन ली और ट्रक स्टार्ट करने लगे।). It is further the complainant's case that he raised an alarm, whereupon, one person from the public reached there and he called the police. Correspondingly, the complainant avowed that one police personnel also reached there on hearing the commotion and caught hold of one of the perpetrators (मैने शोर मचाया तो पब्लिक का एक आदमी आया और उसने पुलिस को फोन किया। एक पुलिस वाला मरी आवाज सुन कर मेरे पास आया और एक आदमी को दौड़ कर काबू किया।). The complainant further SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 3 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:17:59 +0530 proclaimed that he ran and caught of one (other) person, while other 3-4 persons fled from the spot in their vehicle/Scorpio car (एक को भाग कर मैने काबू किया, बाकी 3-4 लोग अपनी गाड़ी लेकर मौका से भागने में सफल हो गए।). Significantly, the complainant further asserted under his complaint that the names of the apprehended persons were determined to be Md. Gulzar @ Pappu S/o Noor Mohd. and Gulbahar S/o. Md. Abbas (उनके नाम पते बाद दरियाफ्त (1) मौ० गुल्जार @ पप्पु S/० नूर मौ० R/o K- Block, 254, जनता कालोनी, पिली मिट्टी वेलकम दिल्ली, (2) गुलबहार S/o मौ० अब्बास R/० पूजा कालोनी, लोनी, इन्द्रापुरम यू०पी० व स्थाई पता गाँव शामली जिला मुजफ्फर नगर, यू०पी० मालूम हु आ।).
REGISTRATION OF FIR AND INVESTIGATION:
2. Notably, under the aforenoted facts and circumstances as well as on the basis of the complainant's complaint, the concerned police official/SI Pawan Singh prepared tehrir and directed Ct. Mahesh to have the same taken to the police station for the registration of the FIR. Consequently, the present FIR was registered at PS Timarpur for the offences under Sections 392/511/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Correspondingly, the complainant was taken to Aruna Asaf Ali Hospital and his medical examination was conducted vide MLC No. 2155/10, besides the seized articles were got deposited in the malkhana and the police custody remand of the accused persons was obtained. Concomitantly, at the instance of accused Gulbahar, co-accused Mohd. Khalid S/o. Hashmat Khan was apprehended from Loni. Ghaziabad. Thereafter, at the instance of co-accused, Mohd. Khalid, silver colour Scorpio car, bearing registration no. DL-3CAJ-2975 was recovered, besides one broken number plate of UP number was recovered from bushes near the said spot. Notably, during the ensuing investigation, the owner of the said Scorpio car is asserted to have SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 4 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:03 +0530 been called at the said spot of recovery, besides the mechanical inspection of the aforenoted truck and the said car was got conducted and the photographs of the said vehicles were taken, prior to their release on superdari. Further, the police officials/concerned IO recorded the statements of various witnesses, including the disclosure statements of the aforenoted accused persons. Notably, at that point in time, co-accused persons, namely, Imran and Raju @ Rizwan were found evading their arrest, ergo, NBWs were got issued against them.
FILING OF CHARGESHEET/SUPPLEMENTARY CHARGESHEET AND COMMITTAL:
3. Markedly, upon conclusion of aforenoted investigation in the instant case, chargesheet was filed by the concerned IO before Ld. MM-01, Central, Tis Hazari Courts under Sections 395/511/468/471/120B IPC on 10.11.2010.
Subsequently, cognizance of offence(s), as specified under the chargesheet was taken by Ld. MM-01, Central, Tis Hazari Courts on 20.11.2010. Correspondingly, upon conclusion/compliance of the provisions under Section 207 Cr.P.C., Ld. MM-01 (Central), Tis Hazari Courts vide order dated 04.01.2011, passed an order of committal of the present case before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge, Tis Hazari Courts.
4. Subsequently, co-accused persons, namely, Imran and Raju @ Rizwan were apprehended by Special Cell NDR, on the basis of secret information and upon constitution of a raiding team. However, upon their apprehension, both the said accused persons, refused to undergo Test Identification Parade/TIP proceedings on 09.11.2010. Nevertheless, the said accused persons are asserted to have been, subsequently, identified by the complainant as one of the perpetrators of offence and being SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 5 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:07 +0530 involved with aforenoted co-accused persons, in the incident of attempted dacoity and abduction. Correspondingly, upon the arrest of the said accused persons, recording of their respective disclosure statements, etc., supplementary chargesheet came to be filed before Ld. MM-01, Central, Tis Hazari Court on 20.01.2011. Thereafter, the said supplementary chargesheet came to be committed, routed through Ld. District & Sessions Judge, Tis Hazari Courts, pursuant to order dated 28.01.2011 of the Ld. MM-01, Central Tis Hazari Courts.
CHARGE FRAMING:
5. Relevantly, the Ld. Predecessor Judge, initially, heard the arguments addressed on behalf of the accused persons, namely, Mohd. Gulzar, Gulbahar and Md. Khalid, as well as by Ld. Addl. PP for the State on filing of main chargesheet and upon conclusion of such arguments, charge(s) under Sections 395/365/511/34 IPC were framed against the said accused persons, pursuant to order dated 01.03.2011. Notably, the relevant extract of the said order of charge is reproduced as under;
"...Both the counsels for accused argued that the accused were not apprehended at the spot and as per the complainant, accused ran away from the spot but it seems that IO has not made any efforts to get their TIP done and further has stated in the report that they were apprehended at the spot. Counsel for accused Mohd. Khalid argued that it was only a case of road rage and the accused have been falsely implicated in this case. There is no recovery from the accused persons and no case is made out against the accused persons as per the counsels for all the accused persons.
So far as the recovery is concerned, then the allegations are that accused could not succeed in committing dacoity. They attempted the same and in that process, two of them were apprehended at the spot. Whether it is a case of road rage or not is a question of fact and not of law which cannot decided without there being an evidence of both the parties. At this stage, court is required to see only prima facie case.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 6 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:11 +0530
Prima facie case U/s 395/511 IPC and U/s 365/511 IPC r/w sec. 34 IPC is made out against all the accused persons. Charge framed against them to which they plead not guilty and claim trial. To come for PE on ..."
(Emphasis supplied)
6. Further, it is apposite to reproduce the charges, as framed by the Ld. Predecessor Judge, against the accused persons, namely, Mohd. Gulzar @ Pappu, Gulbahar and Md. Khalid, pursuant to the aforesaid order, as under;
"...I, ***, Additional Sessions Judge-01, Delhi do hereby charge you accused (1) Mohd. Gulzar S/o Noor Mohd. aged about 35 years, R/o K-254, Janta Colony, Pilli Mithi, Welcome, Delhi (2) Gulbhar S/o Mohd. Abbas, aged about 31 years R/o Pooja Colony, Near Qaba Masjid Loni, U.P. (3) Mohd. Khalid S/o Hashmat Khan, aged about 22 years, R/o Azad Enclave, Pooja Colony Loni, Ghaziabad, U.P. as under:-
That on 5.9.2010 at 10.00 p.m. in front of Metro main gate Outer Ring Road, Timarpur, Delhi within the jurisdiction of Police Station Timarpur you all in furtherance of your common intention attempted to commit dacoity of Tata 709 bearing Registration No. HR-38 G 7808 containing 20 bundles of readymade garments. At the time of incident you were 6-7 persons and reached there in a Scorpio and you all thereby thereby committed an offence punishable u/s 395/511 IPC and within the cognizance of this court. Secondly, on the above noted date, time and place you had also attempted to abduct Manoj and you all have thereby committed an offence punishable u/s 365/511 read with section 34 IPC and within the cognizance of this court.
I therefore direct that you all be tried by this court for the aforesaid charge..."
(Emphasis supplied)
7. As aforenoted, subsequently, accused persons, namely, Imran and Raju @ Riwan came to be committed before the Ld. Predecessor Judge and inter alia upon hearing of arguments by/on behalf of the said accused persons as well as by Ld. Addl. PP for the State, Ld. Predecessor Judge vide order dated 05.04.2011, SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 7 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:14 +0530 directed framing of charges under Sections 395/365/511/34 IPC against the said accused persons inter alia under the following observations;
"... Heard on the point of charge. Prima facie case u/s. 395/365/511/34 IPC is made out against both the accused. Charge framed against them to which they plead not guilty and claim trial.
This is a supplementary chargesheet against the accused persons. Same be clubbed with the main file and now the evidence shall be recorded in the main file only. To come up for PE on ..."
(Emphasis supplied)
8. Pertinent to reproduce the charges, consequently, framed against accused Imran and Raju @ Riwan (hereinafter accused persons, namely, Mohd. Gulzar @ Pappu, Gulbahar, Md. Khalid, Imran and Raju @ Riwan are collectively referred to as the 'accused persons'), pursuant to the aforesaid order, as under;
"I, ***, Additional Sessions Judge-01, Delhi do hereby charge you accused (1) Imran S/o Sh. Kadar Khan Salim aged about 25 years. R/o U-32, Gali no.2, Third Pusta, Arvind Mohalla, Usman Pur. Delhi and (2) Raju @ Rizwan S/o Sh. Liakat aged about 22 years R/o House no. K-484, Gali no.4, Khadda Wali Maszid, Usmaan Pur. Delhi as under-
That on 5.9.2010 at 10.00 p.m. in front of Metro main gate Outer Ring Road, Timarpur, Delhi within the jurisdiction of Police Station Timarpur you both alongwith co-accused Mohd. Gulzar, Khalid Khan and Gulbhar in furtherance of your common intention attempted to commit dacoity of Tata 709 bearing Registration No. HR-38 G 7808 containing 20 bundles of readymade garments. At the time of incident you were 6-7 persons and reached there in a Scorpio and you all thereby thereby committed an offence punishable u/s 395/511 IPC and within the cognizance of this court.
Secondly, on the above noted date, time and place you along with abovesaid co-accused had also attempted to abduct Manoj and all have thereby committed an offence punishable u/s 365/511 read with section 34 IPC and within the cognizance of this court.
And I hereby direct that you both be tried by this SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 8 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:18 +0530 court for the said charge..."
(Emphasis supplied) PROSECUTION EVIDENCE:
9. Notably, during the course of proceedings, prosecution examined 19 (nineteen) witnesses/prosecution witnesses (apposite to outrightly note that due to inadvertence, no witness has been examined as PW-9), who deposed in their respective testimonies as under;
9.1. PW-1/Sh. Alim Khan deposed that he knew nothing in respect of the present case and, he/PW-1 was consequently, cross examined by ld. Addl. PP for the State. 9.2. PW-2/HC Manjeet Singh deposed that on 06.09.2010, he/PW-2 was posted at PS. Timarpur as MHC(M) and on the said day, SI Pawan Singh produced the truck 709, bearing registration no. HR-38G-7808 along with the 20 (twenty) nags (bales) of readymade garments. Further, as per PW-2, he made entry in the register no. 19 at serial no. 3516, photocopy of which is Ex. PW2/A. PW-2 further deposed that the said vehicle was released on superdari to Sh. Gurvinder Singh S/o. Sh. Jagtar Singh. It was further deposed by PW-2 that on 08.09.2010, he was posted at PS. Timarpur as MHC(M) and on the said day, SI Pawan Singh produced one Scorpio bearing registration no. DL-3CAJ-2975 along with the copy of memo. Further, as per PW-2, he made entry in the register no.19 at serial no. 3518, photocopy of which entry is Ex. PW2/B. PW-2 further avowed that on 11.09.2010, the said vehicle was released on superdari in the name of Rahees S/o. Akhtar, R/o. 796, Chamanwala, Panch Bartan Market, Sadar Bazar, Delhi. It was further deposed by PW-2 that he made entry in register no.19 at point A and one number plate, which was installed on the Scorpio was retained. As per PW-2, the SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 9 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:21 +0530 registration number of the vehicle was written on the number plate, i.e., UP-14J0 and the original number of the vehicle, i.e., was DL-3CAJ-2975, as per the IO. PW-2 further avowed that the number plate was deposited separately.
9.3. PW-3/Manender Singh deposed that on 05.09.2010 at around 10:00 p.m., he/PW-3 was driving his/PW-3's Ritz car and when he/PW-3 reached in front of Metro Gate as well as was about to take a U-Turn, he/PW-3 saw that one truck driver being dragged from his truck by three/four persons. Further, as per PW-3, he slowed down his vehicle and saw that the said three-four persons were beating that truck driver and dragging the driver of the truck in a Scorpio vehicle, which was in front of truck. PW-3 further proclaimed that he thought that the said persons were looting the truck and he, accordingly, made call at 100 number from his/PW-3's mobile no. 9999634378. Further, PW-3 asserted that he had not seen the faces of the aforesaid three-four boys and the driver of the truck, as he was driving his Ritz Car. 9.4. PW-4/Dr. Priti Prabhakar, Medical Officer, Casualty Aruna Asaf Ali Hospital deposed that on 05.09.2010 at around 11:33 p.m., Manoj, S/o. Sh. Bhola Mandal was brought to the Hospital with alleged history of assault at Majnu Ka Till, Ring Road. On that day, as per PW-4, she was working in casualty of Aruna Asaf Ali Hospital and that she prepared MLC No. 2155/10 (Ex. PW4/A) of the complainant, bearing PW-4's signatures at point 'A'. PW-4 further avowed that on the local examination of the said patient/complainant, there was an abrasion present, on the left lower lip. Further, as per PW-4, the injured Manoj sustained 'simple' blunt injury.
9.5. PW-5/Manoj Kumar deposed that on 05.09.2010 at around 09:00 p.m., he/PW-5 left for godown of Maharashtra SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 10 of 82 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.24 16:18:25 +0530 Freight Carriers Pvt. Ltd./MFC at Siraspur from Gandhinagar by loading 20 (twenty) bundles of readymade garments in a truck bearing no. HR-38-7808. Further, as per PW-5, while he was proceeding towards the said godown and had reached in front of Metro gate, Outer Ring Road, one Scorpio of silver colour overtook his/PW-5's vehicle and three-four persons got down from the said Scorpio car. As per PW-5, he was made to stop his vehicle and the said three-four persons dragged him/PW-5 from his vehicle and gave beating to him/PW-5. Further, as per PW-5, he was taken to Scorpio car and he/PW-5 raised noise, whereupon, public persons reached at the spot and someone called the police. Correspondingly, as per PW-5, two-three persons were sitting in the Scorpio car, however, after seeing public persons, they ran from the spot in their Scorpio car, except the person who sat in PW-5's car and tried to take it away. It was further avowed by PW-5 that the persons, who came in the Scorpio, snatched the keys of PW-5's vehicle and he/PW-5 caught the person, who was trying to take away his/PW-5's vehicle by starting it. Further, as per PW-5, the police also reached at the spot and one of the persons, who came in the Scorpio, was also caught by the police. PW-5 asserted that the name of the person, apprehended by him was revealed as Gulbahar and the one, who was apprehended by the police was determined to be Gulzar @ Pappu. As per PW-4, the accused persons and their associates had given bearing to him in order to snatch his/PW-5's truck, loaded with bundles of readymade garments. Concomitantly, as per PW-5, police recorded his statement as Ex. PW5/A, bearing PW-5's signatures at point A. Further, PW-5 correctly identified accused persons, Gulbahar and Gulzar in court. It was further deposed by PW-5 that his truck was taken into possession by the police vide Ex. PW5/B, SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 11 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:29 +0530 bearing PW-5's signatures at point A and he/PW-5 was taken to the Hospital, where he was medically examined. Correspondingly, as per PW-5, accused Gulbahar was arrested vide arrest memo Ex. PW5/C, bearing PW-5's signatures at point A. As per PW-5, there was a broken number plate on the said Scorpio car. Further, PW-5 proclaimed that the police prepared site plan at his instance and after 2-3 days, he along with the police personnel went for the search of accused persons and reached at Pooja Colony. Loni, UP. As per PW-5, at that spot, the police officials caught one person, who disclosed his name as Mohd Khalid and who had run away from the Scorpio on the date of incident. PW-5 further proclaimed that he told to the police that he was the person who had run away from the Scorpio car and the police caught Mohd. Khalid on his/PW-5's identification. Thereafter, as per PW-5, they reached at Sonia Vihar pushta and the Scorpio vehicle was taken by the police, in possession. Further, as per PW-5, the number plate was also lying near the bushes, which was also taken in possession by the police. As per PW-5, accused Khalid was arrested vide arrest memo Ex. PW5/D1, bearing PW-5's signatures at point A. Correspondingly, as per PW-5, personal search of accused Khalid was conducted vide personal search memo, Ex. PW5/D-2, bearing PW-5's signatures at point A. PW-5, however, expressed his inability to identify accused, Mohd. Khalid in Court, however, asserted that he came to know his name, as he was caught by the police in his/PW-5's presence. PW-5 further expressed his inability to recognize, accused Mohd. Khalid in Court. PW-5 further testified that the truck bearing no. HR-38G-7808, TATA 709 was released to its owner on superdari. Nevertheless, PW-5 correctly identified the truck from its photographs, marked as A1, A2 and A3, collectively Ex. PW1. PW-5 further correctly SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 12 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:33 +0530 identified the broken number plate bearing no. UP-14JO ( Ex. PW2) as the one which was on the Scorpio car on the date of incident. Pertinently, PW-5 was recalled for his examination, pursuant to order dated 19.07.20161 of the Ld. Predecessor Judge, wherein PW-5 inter alia deposed that there were five-six assailants at the time of incidents, however, he/PW-5 expressed his inability to recollect the exact date when he had identified the said three accused persons in November, 2010. Further, as per PW-5, the remaining accused persons were not arrested at that time and thereafter, he/PW-5 never went to the police station. It was further deposed by PW-5 that he could not recollect the names of other accused persons, whom he had identified apart from accused persons, namely, Gulzar, Gulbahar and Khalid, due to lapse of time. However, PW-5 asserted that the said accused persons were present in Court. Ergo, PW-5 identified accused Raju @ Rizwan and Imran in Court, who were proclaimed by PW-5 to be involved in the incident of 05.09.2010. PW-5 further correctly identified the silver color Scorpio vehicle bearing registration no. DL-3CAJ-
2975 from its photographs as the one, deployed by the accused persons, while committing dacoity. As per PW-5, the said vehicle was bearing registration number of Uttar Pradesh, and PW-5 proved the said photographs along with negatives as Ex. PW14/1 and Ex.PW14/2 and the Scorpio vehicle as Ex. P-1. 9.6. PW-6/Rahees deposed that on 05.09.2010 in the evening time, Mohd. Gulzar came to him/PW-6 and requested him for his Scorpio vehicle. As per PW-6, he could not recollect the registration number of his Scorpio vehicle as well as he did not know Gulzar, however, he gave his vehicle on the request of 1 Notably, the Ld. Predecessor Judge vide order dated 19.07.2016, allowed the application moved on behalf of the State inter alia under the observation, "...An application u/s. 311 Cr.P.C. has been moved on behalf of the prosecution for recalling PW-5 Sh. Manoj Sharma for further deposition.*** Heard. The said application is allowed.*** Let PW-5 be summoned again for his further deposition on 19.08.2016..." (Emphasis supplied) SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 13 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:36 +0530 his/PW-6's father-in-law, namely, Alim Khan. As per PW-6, Gulzar took his vehicle, which was for personal use of PW-6. Correspondingly, as per PW-6, his father-in-law was present at the time, when he/PW-6 handed over his vehicle to Gulzar and he/PW-6 received his Scorpio car from the police station. PW-6 further produced his Scorpio vehicle and the Registration Certificate/RC, which was released to him/PW-6 on superdari. PW-6 further proved/produced a photocopy of the RC as Ex. PW6/A. However, PW-6 expressed his inability to identify Gulzar @ Pappu before Court and even failed to identify the driver who came with Gulzar @ Pappu for taking his/PW-6's vehicle. PW-6 further proved the said Scorpio vehicle as Ex. P1. 9.7. PW-7/Ct. Dinesh Kumar deposed that on 05.09.2010, he/PW-7 was posted at PS. Timarpur as a DD writer from 04:00 p.m. to 12.00 midnight and on that day, at about 10:05 p.m., he/PW-7 recorded the departure entry of beat constables in DD no. 39B, which is Ex. PW7/A. 9.8. PW-8/SI PS Bhardwaj deposed that on 06.09.2010, he/PW-8 was posted at PS. Timarpur and on that night at around 01:00 a.m., he/PW-8 was present in the police station as well as, had joined the investigation of the present case on the direction of the SHO. Further, as per PW-8, he recorded the disclosure statement of accused, Mohd. Gulzar @ Pappu in the presence of SI Pawan Singh. Correspondingly, PW-8 deposed that pursuant to the disclosure statement of accused Mohd. Gulzar @ Pappu, Ct.
Sanjeev and Ct. Mahesh joined them and they went to Pooja Colony Loni, Ghaziabad, UP. PW-8 further deposed that accused Gulbahar was also in police custody and both the said accused persons led them to the said place, however, no other co-accused could be apprehended. PW-8 correctly identified accused Gulzar SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 14 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:39 +0530 and Gulbahar in Court. Further, PW-8 proclaimed that on 08.09.2010, he joined the investigation with aforesaid officials, complainant Manoj Kumar and SI Pawan Singh/IO for tracing the other-co-accused and reached at Azad Enclave, Pooja Colony, Loni Ghaziabad, UP. Consequently, as per PW-8, at that point in time, accused Mohd. Gulzar was in police custody and on the identification of the complainant, accused Mohd. Khalid was apprehended. As per PW-8, the IO interrogated accused Mohd. Khalid and arrested him, whereupon, accused Mohd. Khalid is asserted to have made disclosure that he could point out the place where they had left the Scorpio vehicle. Ergo, as per PW-8, the accused Mohd. Khalid led them to Tisra Pusta, Sonia Vihar and one Scorpio vehicle bearing number plate of DL-3CAJ-2975 was found there. Further, as per PW-8, they searched the nearby places, where there were bushes and found one broken number plate of UP-1450. As per PW-8, the IO seized the said vehicle as well as the said broken number plate. PW-8 further correctly identified accused Mohd. Khalid in Court as well as also identified the Scorpio car as Ex. P1 and broken number plate bearing no. UP-14JO as Ex. P2.
9.9. PW-10/HC Ram Singh deposed that on 05.09.2010, he/PW-10 was posted at PS. Timarpur as Duty Officer, with his duty hours from 04:00 p.m. to 12:00 mid night. At about 10.10 p.m., as per PW-10, he received message that 5-7 (five-seven) persons, tried to loot a TATA 407 and one of the offenders had been apprehended/caught near Gas Agency, Majnu Ka Tilla. Accordingly, as per PW-10, he made DD No. 37A (Ex. PW 10/A), bearing PW-10's signatures at point A. Further, as per PW-10, he informed SI Pawan Kumar, about the said DD. PW-10 further asserted that on the same day, at around 12:08 a.m., he/PW-10 SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 15 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:42 +0530 received rukka from Ct. Mahesh, sent by SI Pawan Singh for registration of FIR. Consequently, as per PW-10, he got the contents of rukka fed in the computer through computer operator and the computer generated copy of the FIR (Ex. PW 10/B), bearing PW-10's signatures at point A. Further, as per PW-10, he made an endorsement on the rukka (Ex. PW 10/C), bearing his/PW-10's signatures at point A. Further, as per PW-10, he handed over the copy of FIR and original rukka to Ct. Mahesh to be presented to SI Pawan Singh, for further investigation. 9.10. PW-11/Ct. Shubhkaran deposed that on 08.09.2010, he/PW-11 was posted at PS. Timarpur and he/PW-11 joined the investigation of the present case with SI Pawan Singh, SI Bhardwaj, Ct. Sanjeev, Ct. Mahesh and the complainant, namely, Manoj, for the arrest of co-accused. PW-11 further deposed that at that point in time, accused Gulbahar, who was correctly identified by PW-11 in Court, was in police custody and led them to the house of co-accused Khalid at Azad Enclave, Pooja Colony, Loni, Ghaziabad, UP. Further, as per PW-11, the accused Gulbahar, pointed out to the accused Khalid and the complainant Manoj Kumar, also identified him, whereupon, accused Mohd. Khalid, was caught. PW-11 further correctly identified accused Mohd.
Khalid in court. As per PW-11, the IO interrogated accused Md. Khalid and he was arrested vide arrest memo as well as personal search memo. Correspondingly, as per PW-11, the disclosure of accused Khalid was recorded by the IO and the said accused led them to Sonia Vihar, III Pusta, where Scorpio car bearing registration number DL3C-AJ-2975 (silver color) was found abandoned. Further, as per PW-11, one broken number plate was found under the bushes, bearing number UP-14J0. Thereafter, as per PW-11, the owner of the vehicle, namely, Rahees was called at SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 16 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:46 +0530 the spot, who reached there with a key and the broken number plate as well as the Scorpio vehicle were seized vide seizure memo, Ex. PW 6/B. PW-11 correctly identified the broken number plate (Ex. P-2) as well as the Scorpio vehicle from its photographs Ex. PW 14/1 and 14/2, before the Court, which are asserted to have been recovered at the instance of accused Khalid. 9.11. PW-12/Ct. Sanjeev deposed that on 05.09.2010, he was posted at PS. Timarpur as Constable and was working as beat Officer of the area. Further, as per PW-12, at around 10:00 p.m., he heard noise from the other side of road, and reached there where one truck, bearing registration no. HR-38-7808 and one silver color vehicle was standing ahead of the said truck. Further, as per PW-12, two-three persons were standing near the silver color vehicle, which went away. As per PW-12, two boys, however, could not board the said vehicle of silver color. Further, as per PW-12, both the said persons started to run away and he/PW-12 chased one of the said boys and caught him, who was determined to be accused, namely, Mohd. Gulzar, who was correctly identified by PW-12 in court. PW-12 further asserted that the driver of the truck also apprehended the second boy, namely, Gulbahar, who was also correctly identified by PW-12 in Court. Further, as per PW-12, he brought accused Gulzar to the spot, where the truck was standing. Correspondingly, as per PW-12, SI Pawan and Ct.
Mahesh, reached at the spot to whom, PW-12 handed over accused Mohd. Gulzar. Further, as per PW-12, SI Pawan recorded the statement of driver Manoj Kumar, who also produced accused Gulbahar. PW-12 further proclaimed that the IO prepared rukka and handed over the same to Ct. Mahesh, who went to the PS. Further, as per PW-12, IO prepared site plan and after some time, Ct. Mahesh, returned to the spot with a copy of FIR as well as SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 17 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:52 +0530 original rukka and presented the same to IO for further investigation. As per PW-12, accused Mohd. Gulzar @ Pappu, was interrogated by the IO and arrested vide arrest memo Ex. PW 12/A, bearing PW-12's signatures at point A and the accused put his thumb impression at point Z. Further, as per PW-12, the personal search of accused Gulzar, was conducted vide memo Ex. PW 12/B, bearing PW-12's signatures at point A and the thumb impression of accused at point Z. It was further deposed by PW-12 that accused Mohd. Gulbahar, was interrogated by the IO and arrested vide arrest memo Ex. PW 5/C, bearing PW-12's signatures at point B and the accused put his thumb impression at point Z. Further, the personal search of accused Gulbahar, was conducted vide memo Ex. PW 12/C, bearing PW-12's signatures at point A and the accused put his thumb impression at point Z. PW-12 further deposed that accused Mohd. Gulzar made disclosure statement, Ex. PW12/D, bearing PW-12's signatures at point A and the accused put him thumb impression at point Z. Correspondingly, as per PW-12, accused Gulbahar also made disclosure statement Ex. PW12/E, bearing PW-12's signatures at point A and accused put his thumb impression at point Z. PW-12 further testified that on 08.09.2010, he/PW-12 joined the investigation of the present case with SI Pawan Singh, SI Bhardwaj, Ct. Mahesh, Ct. Shubhkaran and the complainant, namely, Manoj, for the arrest of co-accused and accused Gulbahar led the team to the house of co-accused Khalid at Azad Enclave, Pooja Colony, Loni, Ghaziabad, UP. Further, as per PW-12, the accused Gulbahar and the complainant Manoj, pointed out to the accused Khalid and the said accused was caught. PW-12 further correctly identified accused Mohd. Khalid in court. PW-12 further proclaimed that the IO interrogated accused Md. Khalid and SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 18 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:18:55 +0530 arrested him vide arrest memo Ex. PW 5/D1, bearing PW-12's signatures at point B and the accused signed at point Z. Further, as per PW-12, the personal search of accused Khalid, was conducted vide memo already Ex. PW5/D2, bearing PW-12's signatures at point B and accused signed at point Z. PW-12 also proved the disclosure of accused Khalid as Ex. PW12/F, bearing PW-12's signatures at point B and accused signed at point Z. It was further asserted by PW-12 that the accused Mohd. Khalid, led them to Sonia Vihar, III Pusta, where Scorpio number DL3C-AJ-2975 (silver color) was found abandoned and one number plate, which was in broken condition, was found under the bushes bearing the number UP-14J0. Further, as per PW-12, the owner of the vehicle namely, Rahees was called to the spot with a key and the broken number plate as well as the Scorpio vehicle was seized vide seizure memo, Ex. PW6/B. PW-12 further correctly identified the broken number plate (Ex. P2) and Scorpio vehicle from its photographs and negative (Ex. PW14/1 and Ex.PW14/2). 9.12. PW-13/ASI (Retd.)/Tech. Devender Kumar deposed that on 07.09.2010, he/PW-13 conducted the mechanical inspection on vehicle no. HR-38G-7808 TATA 709/Canter on the request of SI Pawan Kumar of PS Timarpur. Further, as per PW-13, his detailed mechanical inspection report of the said vehicle is Ex. PW 13/A, under PW-13's seal and impression. As per PW-13, there was no fresh damage and the vehicle was fit for road test. Correspondingly, PW-13 deposed that on 10.09.2010, he conducted mechanical inspection on vehicle no. DL-3CAJ-2975 Scorpio on the request of SI Pawan Kumar of PS Timarpur. Further, PW-13 proved his mechanical inspection report as Ex. PW 13/B, under PW-13's seal and impression. Further, as per SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 19 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:18:59 +0530 PW-13, there was no fresh damage on the said the vehicle, which was found to be fit for road test.
9.13. PW-14/Ct. Mahesh Dagar deposed that on 05.10.2010, he/PW-14 was posted at PS Timarpur and that day, he/PW-14 was on emergency duty. As per PW-14, after about 10:15 p.m., SI Pawan Kumar received one DD regarding looting incident at Majnu Ka Teela. Consequently, as per PW-14, they went to the said spot and found that Ct. Sanjeev and the truck driver, namely, Manoj had caught two boys, who later on disclosed their names as, Md. Gulzar @ Pappu and Gulbahar. Further, as per PW-14 both the said accused were presented to the IO and SI Pawan recorded the statement of Manoj as well as made an endorsement on the same. Thereafter, as per PW-14, the rukka was handed over of SI Pawan Kumar to him/PW-14 at around 11:50 p.m. for the registration of FIR. Consequently, as per PW-14, he went to PS. Timarpur and handed over the rukka to the Duty Officer/DO for the registration of case, who got the FIR registered through computer operator and handed over the computer generated copy of FIR and original rukka to him/PW-14, for presenting the same to IO. Further, as per PW-14, truck bearing registration no. HR-38G-7808 was taken in possession vide seizure memo Ex. PW 5/A, bearing PW-14's signatures at point A. As per PW-14, accused Md. Gulzar Pappu was arrested vide arrest memo Ex. PW12/A, bearing PW-14's signatures at point B, besides the said accused person's personal search was conducted vide memo Ex. PW12/B, bearing PW-14's signatures at point B. Correspondingly, as per PW-14, accused Gulbahar was arrested vide arrest memo Ex. PW5/C, bearing PW-14's signatures at point B and his personal search was conducted vide memo, Ex. PW12/C, bearing PW-14's signature at point B. As per PW-14, accused Md.SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 20 of 82 Digitally signed by ABHISHEK
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2025.07.24 16:19:02 +0530 Gulzar and Gulbahar made disclosure statements, Ex. PW12/D and Ex. PW12/E, respectively, bearing PW-14's signatures at point A. PW-14 correctly identified accused Gulzar in court, while identity of accused Gulbahar was not disputed by the defence. It was further deposed by PW-14 that on 08.09.2010, accused persons led them to Pooja Colony, Loni Ghaziabad, UP and on the pointing out of the said accused persons, Md. Khalid was apprehended, who was interrogated and arrested vide arrest memo Ex. PW5/D1, bearing PW-14's signatures at point C. Further, as per PW-14, accused was arrested as well as his personal search was conducted, besides accused Md. Khalid is asserted to have left them to the place of abandonment of Scorpio car bearing no. DL-3CAJ-2975. Further, as per PW-14, owner of the said vehicle reached at the said spot and its owner, Md. Rahees produced the duplicate key of the Scorpio car, besides nearing the place of recovery, one broken number plate under the bushes of No. UP14J0 was found. PW-14 further correctly identified accused Mohd. Khalid, truck bearing no. HR-38G-7808 (Ex. P1), broken number place UP1430 (Ex. P2) and Scorpio car, before court. 9.14. PW-15/HC Sanjeev Kumar deposed that on 08.11.2010, he was posted as HC at NDR Lodhi Colony, Special Cell, Delhi. Further, as per PW-15, on the said day, at about 08:00 p.m., one secret informer, apprised ASI Ajay Veer that two persons namely, Imran and Raju Rizwan, who were involved in several robbery cases, would reach at MCD Parking, Chandni Chowk, Delhi to meet their associates. Further, as per PW-15, ASI Ajay Veer told about the said information to Inspector/In-charge of the team and he informed about the said information to Sr. Officers and on the directions of Inspector/In-charge, a raiding party consisting PW-15, ASI Ajay Veer, SI Satish Rana, HC SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 21 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:19:06 +0530 Surender, HC Raj Kumar, HC Umesh and HC Ram Gopal was constituted. Thereupon, as per PW-15, ASI Ajay Veer briefed the raiding party and they proceeded along with secret informer for MCD Parking, Chandni Chowk, Delhi at about 08:15 p.m. Correspondingly, as per PW-15, they reached, MCD park Chandni Chowk at about 09:00 p.m., where two persons were already present on the road in front of MCD Parking, Chandni Chowk, Delhi. Secret informer, as per PW-15, pointed out towards the said persons and he/PW-15, with the help of staff overpowered both the said accused persons. PW-15 further correctly identified accused persons, namely, Imran and Raju Rizwan in court. Further, as per PW-15, both the said accused persons were arrested vide arrest memo, Mark PW15/A and Mark PW15/B, respectively. As per PW-15, personal search memo of both the accused persons was conducted vide memos Mark PW15/C and Mark PW15/D, respectively and their disclosure statements were recorded vide memos Mark PW15/E and Mark PW15/F, respectively, all memos bearing PW-15's signatures at point A and that of accused at point Z. As per PW-15, both the said accused were brought to the Special Cell, Lodhi Colony in muffled face and the IO ASI Ajay Veer informed PS Timarpur as well as Burari about the arrest of the accused persons and the production of accused persons in the Court in muffled face.
9.15. PW-16/ASI Ajaibir Singh deposed that on 08.11.2010, he was posted at P.S. Special Cell, Lodhi Colony and on that day, at around 08:00 p.m., secret informer reached at their office and informed them that Imran and Raju, who were residents of Usmanpur and involved in the robbery committed in the area of Burari and Timarpur would visit MCD Parking Chandni Chowk, Delhi at around 09:00 p.m. Consequently, as per PW-16, he SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 22 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:19:09 +0530 informed Inspector Subhash Chander about the said information, who discussed the same with senior officers. Consequently, as per PW-16, on the directions of the senior officers, a raiding party comprising of PW-16, SI Satish, HC Umesh, HC Rajkumar, HC Sanjeev, HC Surender, HC Ramgopal and secret informer was constituted. Thereafter, the raiding party left for the spot at about 08:15 p.m. in private vehicle and at around 09:00 p.m., they all reached at MCD parking, Chandni Chowk, where accused Imran and Raju Rijwan were found present. As per PW-16, the secret informer pointed out towards the said accused, who were apprehended, interrogated and their respective disclosure statements were recorded by PW-16. PW-16 while correctly identifying accused, Imran and Raju @ Rizwan, also proved their respective arrest memos, disclosure statements and personal search memos. PW-16 further asserted that they took both the said accused persons to PS. Special Cell where they prepared the kalandra under Section 41.1A Cr.P.C., which is Ex. PW16/A. As per PW-16, he also informed PS. Burari and Timarpur about the arrest of accused persons.
9.16. PW-17/Rakesh Bhardwaj deposed that on 10.09.2010, he was called by the IO of the present case and he/PW-17 took photograph of the silver color Scorpio. PW-17 further asserted that the photographs along with their negatives were handed over to IO. Further, PW-17 proved the photographs of Scorpio as Ex. PW 14/1 and 14/2 as well as their negatives as Ex. PW17/1 and Ex. PW17/2.
9.17. PW-18/Sh. Sandeep Gupta, Ld. MM, Rohini District Courts deposed that on 09.11.2010, he/PW-18 was working as Metropolitan Magistrate at Tis Hazari Courts, Delhi and that day, IO/SI Pawan Singh reached along with case file. Further, as per SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 23 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:19:13 +0530 PW-18, accused Imran and Rizwan were produced from police custody in muffled face and an application for TIP of accused persons was moved by the IO. As per PW-18, both the said accused persons were identified by the IO and separate statement of the IO was recorded to the said effect. Correspondingly, PW-18 proclaimed that he asked the accused persons of their willingness to join the TIP proceedings. However, as per PW-18, both the said accused persons refused to participate in TIP, despite warning of adverse inference. PW-18 further proved the application, moved by IO as Ex. PW18/A and the TIP proceedings of both accused persons as Ex. PW18/B and Ex. PW18/C, respectively. PW-18 further avowed that he also gave his certificate regarding the correctness of proceedings recorded by him/PW-18 at point X on both the TIP proceedings.
9.18. PW-19/SI Pawan Singh deposed that on 05.09.2010, he/PW-19 was posted as SI at PS Timarpur and on the said day, he/PW-19 received a PCR call vide DD No.37A (Ex.PW10/A).
Further, as per PW-19, thereupon, he along with Ct. Mahesh went to the spot i.e. Outer Ring Road, in front of Metro Gate, Timarpur and there, the complainant, Manoj Kumar met him/PW-19 along with Ct. Sanjeev. Further, as per PW-19, Ct. Sanjeev produced accused Gulzar and Gulbahar before PW-19 and a Tempo Tata 709 bearing registration no. HR38***** was also found stationed there. As per PW-19, the complainant Manoj got his statement recorded as Ex. PW5/A and he/PW-19 made an endorsement (Ex. PW19/A) on the said complaint as well as sent Ct. Mahesh to PS for registration of the FIR. Further, as per PW-19, he prepared the site plan (Ex. PW19/B) at the instance of the complainant, bearing PW-19's signatures at point A. Both the accused persons, as per PW-19 were arrested vide arrest memos, Ex. PW12/A and Ex.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 24 of 82
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signed by
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ABHISHEK GOYAL
GOYAL Date:
2025.07.24
16:19:16
+0530
PW5/C, both, bearing PW-19's signatures at point X. Correspondingly, as per PW-19, the personal search of the said accused persons was conducted vide memos, Ex. PW12/B and Ex. PW12/C, both bearing PW-19's signatures at point X. In the meantime, as per PW-19, Ct. Mahesh reached at the spot and handed over the original rukka and copy of the FIR to him/PW-19 and he/PW-19 got the medical examination of complainant Manoj conducted. Concomitantly, PW-19 proclaimed that the truck/tempo was seized vide seizure memo (Ex. PW5/B), bearing PW-19's signatures at point C. Thereafter, as per PW-19, they returned to the police station and the accused persons made their disclosure statements Ex. PW12/D and Ex.. PW12/E, both, bearing PW-19's signatures at point X. On the following day, as per PW-19, photographs of truck/tempo were taken and the mechanical inspection of the said vehicle was also got conducted, besides the statements of witnesses were recorded. PW-19 further asserted that on obtaining remand orders of the said accused, efforts to search co-accused persons were made and they proceeded to Pooja Colony, Ghaziabad and on 08.09.2010, accused Mohd. Khalid was arrested vide arrest memo (Ex. PW5/D1), bearing PW-19's signatures at point X, at the instance of complainant Manoj. PW-19 further proved the arrest memo, personal search memo as well as disclosure statement of accused Khalid, all bearing his signatures. As per PW-19, accused Mohd. Khalid led them to third pusta, Sonia Vihar and they got recovered the vehicle which was used in the offence, which was seized vide memo Ex. PW6/B, bearing PW-19's signatures at point C. One fake number plate having registration no. UP-14JO was also found lying near the Scorpio car and the said number plate was also seized vide memo Ex. PW6/B. On 09.09.2010, PW-19 proclaimed SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 25 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:19:20 +0530 that the mechanical inspection of the car was got conducted and the photographs of the car was also taken. Further, PW-19 asserted that he verified the ownership of both the vehicles and after completing the investigation, PW-19 filed the charge sheet against the accused Gulzar, Gulbahar and Mohd. Khalid, who were correctly identified by PW-19 in Court. Pertinently, as per PW-19, on 09.11.2010, he received information from Special Cell that two accused persons, namely, Raju @ Rizwan and Imran were arrested by Special Cell and they had disclosed about their involvement in the present case. Further, as per PW-19, both the said accused persons were produced in the court by Special Cell in muffled face and he/PW-19 arrested them in the present case vide arrest memo Ex. PW19/C and Ex.PW19/D, both bearing PW-19's signatures at point X. Thereafter, as per PW-19, an application for TIP of both the accused persons was moved and both of the accused denied to take part in TIP proceedings. As per PW-19, both the said accused persons led police party in different area of Trans-Jamuna in search of their co-accused persons, however, no clue was found. As per PW-19, during the investigation both the said accused persons were identified by complainant, namely, Manoj in the police station. Further, as per PW-19, he completed the investigation in this case and prepared supplementary charge sheet as well as filed the same in the court. PW-19 also correctly identified accused Imran and Raju @ Rizwan in Court. 9.19. PW-20/HC Surender deposed that on 08.11.2010, he/PW-20 was posted as Head Constable at PS. Special Cell and on that day, he/PW-20 was present in the office. Further, as per PW-20, a secret information was received by ASI Ajay Veer and he informed Insp. Subhash Vats of the same, whereupon, a raiding team was constituted. As per PW-20, he participated in the raiding SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 26 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:19:23 +0530 team and went to MCD parking, Chandni Chowk in a private vehicle at around 09:00 p.m. As per PW-20, two boys were found standing there and were waiting for someone. At the instance of secret informer, PW-20 asserted that the said persons were apprehended and their names were revealed as; Imran and Raju @ Rizwan. They were informed about the reason of their arrest, as per PW-20, besides the information of such arrest was also supplied/furnished to the concerned police station. 9.20. Notably, all the aforenoted prosecution witnesses were thoroughly examined by/on behalf of the accused persons by their Ld. Counsel. Here, this Court deems it further pertinent to note that during the course of trial, accused Mohd. Khalid left for heavenly abode. Consequently, upon death verification report qua the said accused having been received, Ld. Predecessor Judge vide order dated 03.02.2022 abated the proceedings against the said accused/accused Mohd. Khalid inter alia noting as under;
"...Death verification report qua the accused, namely, Khalid. As per report, he expired on 16.05.2019. An attested copy of his death certificate is enclosed. Accordingly, proceedings qua the accused, namely, Khalid are abated..."
(Emphasis supplied) EXAMINATION OF ACCUSED PERSONS:
10. Apposite to note here that upon conclusion of prosecution evidence, statements of accused persons in terms of the provisions under Section 313 Cr.P.C. were recorded, wherein the accused persons denied their involvement in the present case and proclaimed that they have been falsely implicated in the present proceedings/case. Notably, accused, Raju @ Rizwan denied his involvement in the present case and inter alia asserted that in the year 2010, he was falsely implicated in the present case as well as arrested by calling him in the police station.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 27 of 82
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.07.24
16:19:26
Correspondingly, Raju @ Rizwan asserted that his signatures were obtained on blank paper in the police station by the police officials and all the false documents were prepared in the police station at the instance of the IO. Further, as per the said accused, his face was never muffled and the police officials, who took him to the Court, muffled his face, immediately prior to entering the court room. Notably, the relevant extracts from accused, Raju @ Rizwan's statement, recorded under Section 313 Cr.P.C. on 18.10.2024, are reproduced as under;
"...Q. 23: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed, when recalled for his further examination, that there were 5-6 assailants at the time of incident. It is further in evidence that as per PW-5, he could not recollect the exact date, however, he had identified the three accused persons in November 2010. It is further in evidence that as per PW-5, remaining accused persons were not arrested at that time. It is further in evidence that as per PW-5, thereafter, he never went to police station. What do you have to say?
Answer: It is incorrect. I am falsely implicated in the present case. I am not involved in any offence of the incident. Rest, I do not know.
Q. 24: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that he could not recollect the names of other persons, whom he/PW-5 had identified apart from aforesaid 3 accused persons, namely, Gulzar, Gulbahar and Khalid, due to lapse of time. It is further in evidence that as per PW-5, the said persons were, however, present in the Court on the date of his said deposition and the witness/PW-5 pointed towards the accused persons, namely, Raju @ Rizwan and Imran. What do you have to say?
Answer: It is incorrect. I am falsely implicated in the present case. In 2010, my photographs were taken by the police officials/investigating officer and those photographs were shown to the said witness at that time, that is why, I respectfully declined the TIP before the Ld. Magistrate. Thereafter, I was again shown to the said witness in the police station. When the said witness came for his evidence on 18.08.2011 and he did not state anything about me. Thereafter, he stated in his cross examination dated 19.09.2011, "I cannot identify any person at the time of occurrence."SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 28 of 82 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:19:31 +0530 He also stated in his cross examination "it is correct that accused persons are not involved in the incident of that day". Thereafter, the witness was cursed by the IO, who was present on that day. Thereafter, I do now know what happened with the said witness and he falsely stated his evidence again after 10 years in the year 2022. I have been falsely implicated in the present case.
*** *** *** Q. 68: It is in evidence against you that PW15/HC Sanjeev Kumar deposed that on 08.11.2010, he was posed as HC at NDR Lodhi Colony, Special Cell, Delhi. It is further in evidence that as per PW-15, on the same day at about 08:00 p.m., one secret informer informed ASI Ajay Veer that two persons namely, Imran and Raju @ Rizwan R/o. Usmanpur, Delhi, who are involved in several robbery cases, would came at MCP Parking, Chandni Chowk, Delhi to meet their Associates. It is further in evidence that as per PW-15, ASI Ajay Veer told about this information to Inspector/Incharge of the team and he informed about this to Sr. Officer. What do you have to say? Answer: It is incorrect. I have been falsely implicated in the present case.
Q. 69: It is in evidence against you that PW15/HC Sanjeev Kumar deposed that on the directions of the Inspector/Incharge, a raiding party comprising of PW-15/Ct. Sanjeev Kumar, ASI Ajay Veer, SI Satish Rana, HC Surender, HC Raj Kumar, HC Umesh and HC Ram Gopal was formed. It is further in evidence that as per PW-15, the raiding party along with secret informer left for MCD Parking, Chandni Chowk at about 08:15 p.m. and reached there at about 09:00 p.m. where two persons were already present on the road in front of MCD Parking, Chandni Chowk, Delhi. What do you have to say?
Answer: It is incorrect. I have been falsely implicated in the present case.
Q. 70: It is in evidence against you that PW15/HC Sanjeev Kumar deposed that the secret informer pointed out towards those persons and told that they were Imran and Raju @ Rizwan. It is further in evidence that as per PW-15, he/PW-15, with the help of staff overpowered both of them and both, Imran and Raju @ Rizwan, who were correctly identified by PW-15 in Court, were formally arrested vide arrested memo Mark PW15/A and Ex PW15/B, respectively. What do you have to say?
Answer: It is incorrect. Though, it is correct that I was arrested in this case, however, not in the manner SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 29 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:23:45 +0530 as stated above. I was arrested in the present case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and my photographs were also taken in PS Timarpur by the investigating officer and some other police officer, who were in civil clothes.
*** *** *** Q. 93: It is in evidence against you that PW-19/SI Pawan Singh deposed that thereafter, application for TIP of both the accused persons was moved and both the accused denied taking part in TIP proceedings. Two days police custody remand in respect of both the accused Raju @ Rizwan and Imran was taken. It is further in evidence that as per PW-19, both the accused made their disclosure statement Ex. PW19/E and Ex. PW19/F. What do you have to say?
Answer: The proceedings before the Ld. Magistrate are matter of record. I humbly declined for TIP before Ld. Magistrate as my photographs were taken by the police officials and also I was not kept in muffled face neither in the police station nor thereafter. My face was muffled by the police officials, who brought me to the Court, just before entering of the Court room. I never made any disclosure statement and my signatures were taken on blank papers in the PS by the IO.
*** *** *** Q. 102: Why was this case registered against you? Answer: I cannot tell. However, it is a false case. I have been falsely implicated in the present case.
Q. 103: Why have the PWs deposed against you? Answer: I cannot tell. However, it is a false case. They have deposed falsely to wrongfully implicate me in the present case.
Q. 104: Do you want to lead any evidence in your defence?
Answer: No. Q. 105: Do you want to say anything else?
Answer: I am innocent. In the year 2010, I was falsely implicated in the present case. I was arrested in this case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and my photographs were also taken in PS Timarpur by the investigating officer and some other police officers who were in civil clothes. I never made SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 30 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:23:52 +0530 any disclosure statement. I was never taken to Special Cell, Lodhi Colony. All the false documentation were prepared at PS Timarpur at the instance of the IO by the other police officials, who were in civil clothes. My face was never muffled by the police officials. The police officials who took me to the Court, muffled my face, just before entering the Court room. No recovery were effected from me or at my instance. All the memos were made by the police officials in the police station which are false and fabricated. I do not know why the police officials have falsely implicated in the present case, however, I am innocent."
(Emphasis supplied) 10.1. In so far as accused, Gulzar is concerned, as aforenoted, the said accused also denied his involvement in the present case as well as affirmed about his false implication. Relevant extract of accused, accused, Gulzar @ Pappu's statement under Section 313 Cr.P.C. dated 20.12.2024, is reproduced as under;
"...Q. 10: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that PW-5/he caught the person who was trying to take away his vehicle by starting it. It is further in evidence that as per PW-5, Police reached at the spot and one of the persons who came in the Scorpio was also caught by the police. It is further in evidence that as per PW-5, he/PW-5 caught the person, who disclosed his name as Gulbahar and police person caught Gulzar @ Pappu. What do you have to say?
Answer: It is incorrect. I am falsely implicated in the present case.
*** *** *** Q. 12: It is in evidence against you that PW-5/Sh. Manoj Kumar correctly identified the accused Gulzar and Gulbahar, who were present in the Court on the date of his deposition. What do you have to say? Answer: It is incorrect. However, the witness identified the me at the instance of the IO.
*** *** *** Q. 14: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that the accused Gulbahar was arrested vide arrest memo Ex. PW5/C, bearing PW-5's signatures at point A. It is further in evidence that as per PW-5, there was broken number plate on the said Scorpio Car. It is further in evidence that as per PW-5, Police prepared site plan as he/PW-5 had SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 31 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:23:55 +0530 pointed out the place where the incident had taken place. What do you have to say?
Answer: It is incorrect. I am falsely implicated in the present case.
*** *** *** Q. 102: Why was this case registered against you? Answer: I cannot tell. However, it is a false case. I have been falsely implicated in the present case.
Q. 103: Why have the PWs deposed against you? Answer: I cannot tell. However, one of the co- accused was my friend due to which IO of the present case has falsely implicated me in the present case. Q. 104: Do you want to lead any evidence in your defence?
Answer: No. Q. 105: Do you want to say anything else? Answer: I am innocent. In the year 2010, I was falsely implicated in the present case. I was arrested in this case by calling me in the PS Timarpur on the pretext of some enquiry regarding my friend but 1 was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and my photographs were also taken in PS Timarpur by the investigating officer and some persons who were in civil clothes. I never made disclosure statement."
(Emphasis supplied) 10.2. Correspondingly, under his statement dated 20.12.2024, recorded in terms of the provisions under Section 313 Cr.P.C., accused Imran also denied his involvement in the incident in question as well as asserted regarding his false implication in the present case. Pertinent to reproduce the relevant extracts from the said statement of accused Imran, as under;
"...Q. 24: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that he could not recollect the names of other persons, whom he/PW-5 had identified apart from aforesaid 3 accused persons, namely, Gulzar, Gulbahar and Khalid, due to lapse of time. It is further in evidence that as per PW-5, the said persons were, however, present in the Court on the date of his said deposition and the witness/PW-5 pointed towards the accused persons, namely, Raju @ Rizwan and Imran. What do you have to say?
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 32 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.24 16:23:59 +0530
Answer: It is incorrect. I am falsely implicated in the present case. In 2010, my photographs were taken by the police officials/investigating officer and those photographs were shown to the said witness at that time, that is why, I respectfully declined the TIP before the Ld. Magistrate. Thereafter, I was again shown to the said witness in the police station. When the said witness came for his evidence on 18.08.2011 and he did not state anything about me. Thereafter, he stated in his cross-examination dated 19.09.2011, "I cannot identify any person at the time of occurrence".
He also stated in his cross-examination "it is correct that accused persons are not involved in the incident of that day. Thereafter, the witness was cursed by the IO who was present on that day. Thereafter, I do not know what happened with the said witness and he falsely stated his evidence again after 10 years in the year 2022. I have been falsely implicated in the present case.
*** *** *** Q. 102: Why was this case registered against you? Answer: I cannot tell. However, it is a false case. I have been falsely implicated in the present case.
Q. 103: Why have the PWs deposed against you? Answer: I cannot tell. However, it is a false case. They have deposed falsely to wrongfully implicate me in the present case.
Q. 104: Do you want to lead any evidence in your defence?
Answer: No. Q. 105: Do you want to say anything else?
Answer: I am innocent. In the year 2010, I was falsely implicated in the present case. I was arrested in this case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and my photographs were also taken in PS Timarpur by the investigating officer and some other police officers who were in civil clothes. I never made disclosure statement. I was never taken to Special Cell, Lodhi Colony. All the false documentation were prepared at PS Timarpur at the instance of the IO by the other police officials, who were in civil clothes. My face was never muffled by the police officials. The police official who took me to the Court, muffled my face, just before entering the Court room. No recovery were effected from me or at my instance. All the memos were made by the police officials in the SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 33 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:24:02 +0530 police station which are false and fabricated. I do not know why the police officials have falsely implicated in the present case, however, I am innocent."
(Emphasis supplied) 10.3. Similarly, accused, Gulbahar inter alia asserted under his statement under Section 313 Cr.P.C., recorded on 18.01.2025, as under;
"...Q. 10: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that PW-5/he caught the person who was trying to take away his vehicle by starting it. It is further in evidence that as per PW-5, Police reached at the spot and one of the persons who came in the Scorpio was also caught by the police. It is further in evidence that as per PW-5, he/PW-5 caught the person, who disclosed his name as Gulbahar and police person caught Gulzar @ Pappu. What do you have to say?
Answer: It is incorrect. I have been falsely implicated in the present case. Though, it is correct that I was arrested in this case, however, not in the manner as stated above. I was arrested in the present case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and some other police officers who were in civil clothes. In 2010, my photographs were taken by the police officials/investigating officer and those photographs were shown to the said witness in PS. When the said witness came for his his cross-examination on 19.09.2011, "It is correct that I identified Gulbahar and Gulzar @ Pappu at the instance of the police." He also stated that "I cannot identify any person at the time of occurrence.". He also stated in his cross- examination "it is correct that accused persons are not involved in the incident of that day". Thereafter, the witness was cursed by the IO who was present on that day. Thereafter, I do not know what happened with the said witness and he falsely stated his evidence again after 10 years in the year 2022. I have been falsely implicated in the present case.
Q. 11: It is in evidence against you that PW-5/Sh. Manoj Kumar deposed that the accused persons and their associates had given beatings to him/PW-5, in order to snatch his truck loaded with bundles of readymade garments. It is further in evidence that as per PW-5, police recorded his/PW-5's statement as Ex. PW5/B, bearing his signatures at point A. What do SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 34 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:06 +0530 you have to say?
Answer: It is incorrect. I am falsely implicated in the present case.
Q. 12: It is in evidence against you that PW-5/Sh. Manoj Kumar correctly identified the accused Gulzar and Gulbahar, who were present in the Court on the date of his deposition. What do you have to say? Answer: It is incorrect. I have been falsely implicated in the present case. Though, it is correct that I was arrested in this case, however, not in the manner as stated above. I was arrested in the present case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that time, my signatures were taken on blank paper in PS by police officials and some other police officers who were in civil clothes. In 2010, my photographs were taken by the police officials/investigating officer and those photographs were shown to the said witness in PS. When the said witness came for his his cross-examination on 19.09.2011, "It is correct that I identified Gulbahar and Gulzar @ Pappu at the instance of the police." He also stated that "I cannot identify any person at the time of occurrence.". He also stated in his cross-
examination "it is correct that accused persons are not involved in the incident of that day". Thereafter, the witness was cursed by the IO who was present on that day. Thereafter, I do not know what happened with the said witness and he falsely stated his evidence again after 10 years in the year 2022. I have been falsely implicated in the present case.
*** *** *** Q. 102: Why was this case registered against you? Answer: I cannot tell. However, it is a false case. I have been falsely implicated in the present case.
Q. 103: Why have the PWs deposed against you? Answer: I cannot tell. However, it is a false case. They have deposed falsely to wrongfully implicate me in the present case.
Q. 104: Do you want to lead any evidence in your defence?
Answer: No. Q. 105: Do you want to say anything else?
Answer: I am illiterate. I am innocent. In the year 2010, I was falsely implicated in the present case. I was arrested in this case by calling me in the PS Timarpur on the pretext of some enquiry and there I was falsely implicated in the present case. At that SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 35 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:09 +0530 time, my signatures were taken on blank paper in PS by police officials and my photographs were also taken in PS Timarpur by the investigating officer and some other police officers who were in civil clothes. I never made disclosure statement. All the false documentation were prepared at PS Timarpur at the instance of the IO by the other police officials, who were in civil clothes. No recovery were effected from me or at my instance. All the memos were made by the police officials in the police station which are false and fabricated. I do not know why the police officials have falsely implicated in the present case, however, I am innocent."
(Emphasis supplied)
11. As aforenoted, all the accused persons, in their respective statements recorded under Section 313 Cr.P.C., opted not to lead any evidence in support of their assertion, leading to the closure of defence evidence.
CONTENTIONS OF STATE:
12. Ld. Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the testimony of the complainant/PW-5, the role, complicity as well as active involvement of the accused persons in the commission of the offences alleged against them stands proved. As per the Ld. Addl. PP for the State, the complainant/PW-5, in his testimony, has specifically deposed about the commission of incident by the accused persons, while acting in furtherance of their common intention and concert with each other, besides PW-5 duly identified all the accused persons during his deposition. Ld. Addl. PP for the State further submitted that the accused persons namely Gulzar and Gulbahar were apprehended at the spot, besides the accused persons namely, Khalid, Imran and Raju @ Rizwan were identified subsequently on their apprehension by the police officials. Correspondingly, Ld. Addl. PP for the State submitted that accused persons, namely, Imran and Raju @ Rizwan, SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 36 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:12 +0530 deliberately opted not to participate in the TIP proceedings despite being warned, necessitating raising adverse inference against the said accused. Ld. Addl. PP for the State further submitted that the apprehension of the accused persons is duly corroborated under the testimonies of various police officials/formal witnesses, who were a part of the raiding team as well as search and seizure proceedings. It was further contended by the Ld. Addl. PP for the State that despite an extensive and though cross examination of the said witnesses/prosecution witnesses, the defence has not been able to rebut the sterling testimonies of the prosecution witnesses, clearly, indicating towards the only inference of guilt of the accused persons. Further, as per the Ld. Addl. PP for the State, the accused persons, despite being afforded an opportunity to lead evidence, deliberately opted not to belie the case of prosecution. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making them liable for the offences/charges levelled against them. CONTENTIONS OF DEFENCE:
13. Per contra, Ld. Counsel/Ld. Amicus Curiae for the accused persons submitted that from the material placed on record, the ingredients of offence under Section 395/365/511/34 IPC are not made out against the accused persons in the instant case. In this regard, Ld. Counsel vehemently asserted that there are material improvements, contradictions and variations in the statements of various prosecution witnesses, belying their allegations against the accused persons. Ld. Counsel further submitted that PW-5/complainant has repeated changed his version during his deposition making him unreliable and unworthy of credence in the instant case. Further, as per the Ld. Counsel, there is no other SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 37 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:24:16 +0530 witnesses/eyewitness to the alleged incident in question or attributing specific role qua the accused persons. Correspondingly, it was submitted that even the apprehension of the accused persons in the instant case is not beyond a pale of doubt, besides the accused persons, namely, Imran and Raju @ Rizwan have been falsely implicated in the instant case by calling them in the police station. Even otherwise, it was vehemently argued by the Ld. Counsel for the accused persons that the investigation in the present case has not been properly conducted as neither any endeavour made to join independent witnesses in the alleged search and seizure proceedings, nor any attempts made to retrieve CCTV footage of the vicinity of the alleged place of occurrence. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused persons be permitted to benefit of doubt and be acquitted of the charges levelled against them. APPEARANCE:
14. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel/Ld. Amicus Curiae for the accused persons have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral and documentary evidence), thoroughly perused. LEGAL PROVISIONS:
15. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the relevant provisions under law/IPC as under;
"23. "Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully-A person SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 38 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:20 +0530 is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
24. "Dishonestly"-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".
*** *** ***
34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
39. "Voluntarily"-A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
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362. Abduction-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
*** *** ***
365. Kidnapping or abducting with intent secretly and wrongfully to confine person-Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
*** *** ***
378. Theft-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft...
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383. Extortion-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
*** *** ***
390. Robbery-In all robbery there is either theft or extortion.SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 39 of 82
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:25 +0530 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.
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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 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
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395. 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.
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511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment-Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-
half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 40 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:24:35 +0530 (Emphasis supplied)
16. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability2 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law3 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently4, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
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11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) 2 Suresh v. State of U.P., (2001) 3 SCC 673.3
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
4Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 42 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:43 +0530 hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
17. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention5. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an 5 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 43 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:24:47 +0530 intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
18. In so far as accountability under Section 390 IPC is concerned, this Court deems it pertinent at this stage to make a reference to the decision of the Hon'ble Supreme Court in Mohd. Wajid v. State of U.P., 2023 SCC OnLine SC 951 , wherein the SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 44 of 82 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.24 16:24:51 +0530 Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC noted as under;
"15. Theft amounts to '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. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted 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 second necessary ingredient is that this must be 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 third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."..."
(Emphasis supplied)
19. Conspicuously, in order to convict a person under Section 395 IPC, ingredients of Section 390 IPC must be SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 45 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:24:54 +0530 established, inert alia to the effect that the offender should voluntarily cause or attempts to cause to any person death or hurt or wrongful restrain, or put such persons in fear of instant death or of instant hurt, or of instant wrongful restrain, in order to commit or while committing theft or extortion, as the case may be. In fact, it is trite law6 that the offence of dacoity is not an offence, "separate from robbery; it is just an offence of robbery committed by five or more persons. The only difference between Section 390 and Section 391 is that of the number of accused required to constitute the two offences.". Correspondingly, this conscious of the law that in order to attract culpability under Section 395 IPC, mere attempt to commit robbery by five or more persons is sufficient. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Shyam Behari v. State of U.P., 1956 SCC OnLine SC 30, wherein the Hon'ble Court enunciated, as under;
"5. The essential ingredients of the offence of dacoity, therefore, are that five or more persons should be concerned in the commission of the offence and they should either commit or attempt to commit a robbery.
6. There was in the circumstances of the present case, an attempt to commit robbery by the appellant and his companions though in fact no robbery was committed by reason of the hue and cry raised by Mendai and Ganga. The dacoits took to their heels without collecting any booty when they found that the villagers from Banni Purwa and Banni came immediately to the aid of Mendai and Ganga. The offence of dacoity was, therefore, completed the moment they took to their heels without any booty. There was an attempt to commit a robbery though it was foiled as stated above; nonetheless the dacoits would have been guilty and could have been punished for the offence under Section 395, Penal Code, 1860 which prescribes the punishment for dacoity...."
(Emphasis supplied) 6 Bhagwat Singh v. State of Rajasthan, Crl. Appeal Nos. 863, 864 Of 2001, dated 02.06.2023.
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20. Here, it is further pertinent to make a reference to the decision of the Hon'ble High Court of Bombay in Bhalkya Ambrushi Kale v. State of Maharashtra, 2007 SCC OnLine Bom 1648, wherein the Hon'ble High Court, while inter alia cogitating on the ingredients of the offence under Section(s) 391/395 IPC, noted that for the offence under said provision to be established, mere presence of the accused, amongst the robbers is not enough and that the essence of the said provision, lied in the commission of offence by five or more persons 'conjointly'. As a corollary, the Hon'ble Court in unambiguous terms held that is during an incident, one or more persons, by their individual act commit robbery and that act is not a result of united, common or concerted action, all such persons cannot be held liable for the offence of dacoity. Apposite at this stage to reproduce the relevant extract(s) from the decision in Bhalkya Ambrushi Kale v. State of Maharashtra, (Supra.), as under;
"11. From the language of Section 391, it is clear that offence of robbery, when committed or attempted conjointly by 5 or more persons, all the persons are held liable for the offence of dacoity. The word 'conjointly' has an important significance in assessing liability of the persons accused of the offence of dacoity. Mere presence of the accused amongst the robbers is not sufficient. The word 'conjointly' used in Section 391 manifestly refers to the united or concerted action of the persons participating in the offence. If during the certain incident one or more persons by their individual act commit robbery and that act is not a result of united or concerted action, it cannot be said that all the persons, who were involved in that incident had conjointly committed the offence of robbery. The persons, who may have actually committed the offence of robbery may be held guilty for their act. Accused persons may be held guilty for the offence of dacoity only if the prosecution proves that five or more persons acted conjointly to commit dacoity or in attempt to commit dacoity."
(Emphasis supplied) SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 47 of 82 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.24 16:25:02 +0530
21. Pertinent at this stage to further observe that this Court is further cognizant that for the offence of dacoity to be attracted against an accused, what is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Ego, simply because some of the accused/accused persons, absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Sections 391/395 IPC is not made out, if other ingredients stand satisfied. In this regard, reference is made to the decision in Ganesan v. State of T.N., (2022) 15 SCC 634, wherein the Hon'ble Apex Court in an akin context, noted as under;
"34. Now so far as the submission on behalf of the appellant-accused that no case is made out even for the offence under Section 391IPC and they cannot be punished under Section 395IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was a reference to five persons involved in committing the robbery. Even the charge-sheet was filed against five persons. However, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery. Merely because some of the accused absconded and less than five persons came to be tried in the trial, it cannot be said that the offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of "dacoity". Therefore, in the facts and circumstances, the accused can be convicted SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 48 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:25:06 +0530 for the offence under Section 391IPC punishable under Section 395IPC."
(Emphasis supplied)
22. In so far as the offence of abduction under Section 362 IPC is concerned, prosecution is required to prove that there is an element of force, compulsion or deceitful means or any inducement7, "which would directly or indirectly force a person to go with the abductors. Thus, if any force is applied upon a person or a deceitful mean is resorted to, which compels a person to go from any place to another", same would amount to abduction. Correspondingly, for the offence under Section 365 IPC to be established in a given case, it must be demonstrated that there is abduction. However, law is trite8 that for wrongful confinement to be established in such a case, proof of actual physical restriction is not essential, rather, it is sufficient if the evidence shows that such an impression was produced in the mind if the accused as to create a reasonable apprehension in the mind of the victim. Reference in this regard is made to the decision of the Hon'ble High Court of Rajasthan in Bhanwar Singh v. State of Rajasthan, S.B. Criminal Revision Petition No. 794/2019, dated 18.03.2025, wherein the Hon'ble Court iterated similar sentimentalities in the following terms;
"...To prove the ingredients of Section 365 of the IPC, it is essential that there should be abduction, if no abduction is there; the offence under Section 365 of the IPC is not made out. To prove charge of wrongful confinement, proof of actual physical restriction is not essential. The offence under Section 365 IPC can indeed be made out irrespective of whether the accused left the victim behind after the act, provided that the essential elements of kidnapping or abduction and the intent to wrongfully confine are established through evidence. It is crucial for the prosecution to 7 Bapi Namta @ Baapi Namta v. State of Jharkhand, Criminal Appeal (D.B.) No. 1837 of 2023, dated 09.04.2024 (Jharkhand HC).8
Yakub Khan v. State of Chhattisgarh, Criminal Appeal No.798 of 2023, dated 04.04.2023 (Hon'ble High Court of Chhattisgarh).
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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+0530
demonstrate that the victim was abducted and that there was an intention to confine them secretly and wrongfully. In the present case, based on the statement of the witnesses, Shri Sharwan [2025:RJ- JD:13573] (19 of 19) [CRLR-794/2019] Nayak, Banshi lal, Sunita, Madan lal @ Topi, it is observed that the accused abducted the deceased in a Bolero car and subsequently left the deceased behind after a period of time. At this stage, being the stage of charge framing, the court finds that the statement of the eyewitness cannot be disregarded, as it specifically details the act of abduction and the subsequent abandonment of the deceased. The court emphasizes that the fact of dropping back the deceased does not negate the commission of the offence under Section 365 IPC, as the essence of the offence lies in the initial act of abduction with the intent to secretly and wrongfully confine the victim. Therefore, it is the opinion of this court that the charges under Section 365 IPC, at this stage, cannot be quashed, as the allegations, based on the eyewitness statement, prima facie indicate the commission of the offence..."
(Emphasis supplied)
23. Here, it is also apposite to refer to the provisions under Section 511 IPC, which provides for culpability/penalty for attempting to commit offences punishable with imprisonment for life or other imprisonment, under IPC. Relevantly, Section 511 IPC is a general provision dealing with attempts to commit offences, not made punishable by other specific sections/provisions under IPC. Evidently, the rationale9 behind attracting culpability for 'attempt' is that, "although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded." Pertinent to further note that though the term 'attempt' has not been defined under law, yet, the same has been understood and persistently asseverated by superior courts10 as the "last proximate act which a person does towards the commission of an offence, the consummation of the offence being hindered by circumstances 9 Koppula Venkat Rao v. State of A.P., (2004) 3 SCC 602.
10State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57.
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ABHISHEK GOYAL
GOYAL Date:
2025.07.24
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+0530
beyond his control". Strikingly, the Hon'ble Supreme Court in Aman Kumar v. State of Haryana, (2004) 4 SCC 379, while cogitating on the provisions under Section 511 IPC, noted as under;
"9. ...Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 51 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:25:17 +0530 defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt."
(Emphasis supplied)
24. Similarly, the Hon'ble High Court of Punjab and Haryana in Mohindar Singh v. State, 1959 SCC OnLine Punj 260, while deliberating on the provisions under Section 511 IPC, remarked as under;
"28. An attempt is an intended but unfinished crime, tending but failing to effect its commission. I Specific intention to commit the crime of murder is a necessary pre-requisite. In so far as the offence relates to an attempt, the overt act must necessarily be left unaccomplished, for otherwise the prosecution would be for the completed crime. Apart from the necessary mens rea, the actus reus must be more than a preliminary preparation.
*** *** ***
30. The means must be apparently, though not really, suitable, so that they can be adapted to the designed purpose. Well-laid plans after careful preparation are sometimes unexpectedly foiled-and rendered ineffectual. The best fire-arms loaded, capped, primed and well-aimed may misfire. It may even be, that the party shot at was wearing a jacket of impervious mail, or that the shot that a bullet proof object inside a pocket, e.g., metal clasp of a pocket book or of a purse, or a cigarette case.
31. In all such cases the accused is guilty of the offence of attempt to commit murder. But if the means adopted are such, as are apparently and also absolutely, inadequate to accomplish the designed purpose then the case for attempted murder cannot be made out. This is illustrated when a man threatens the life of another, with a child's popgun using a cork or similar innocuous thing as a projectile.
32. Thus the essentials for criminal attempt are:
(i) an existence of an intent on the part of the accused to commit a particular offence;
(ii) some step taken towards it after completion of preparation.
(iii) The step must be apparently though not necessarily adapted to the purpose designed;
(iv) it must come dangerously near to success;SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 52 of 82
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(v) it must fall short of completion of the ultimate design."' (Emphasis supplied)
25. Clearly, it is noted from the above that 'attempt' denotes an inchoate offence when an accused takes a significant step towards the commission of a targeted offense, however, ultimately fails to achieve the desired object due to intervening circumstances. Needless to further mention here that besides the aforenoted ingredients, for culpability for attempt/S. 511 IPC to arise the steps/device/means adopted must be apparently though not necessarily adapted for the purpose, designed. As a corollary, where the means adopted are such, as are apparently and also absolutely, inadequate to accomplish the designed purpose then, criminality would not arise.
APPRECIATION OF EVIDENCE:
26. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel/Ld. Amicus Curiae for the accused persons, this Court would proceed with the determination of the merits of the instant case. In particular and outrightly to the effect as to, 'whether from the material placed on record, culpability under Sections 395/511 read with Section 34 IPC and Sections 365/511 read with Section 34 IPC can be attracted against the accused persons in the instant case?' Conspicuously, in order to deal with the said aspect, this Court deems it pertinent to incipiently note that the fulcrum of the prosecution's case is the testimony of the complainant, namely, PW-5/Manoj Kumar, who deposed that on 05.09.2010 at around 09.00 p.m., he left for the godown of Maharashtra Freight Company Private Limited/MFC at Siraspur from Gandhi Nagar, by loading 20 (twenty) bales/bundles of readymade garments in a SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 53 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:25:24 +0530 truck bearing No. HR-38-7808 and while he was driving his truck with such garments and had reached in front of Metro Gate, Outer Ring Road, one silver colour Scorpio car overtook his vehicle. Further, as per the complainant/PW-5, 3-4 (three-four) persons got down from the said Scorpio car and he/the complainant was made to stop his vehicle, whereupon those 3-4 (three-four) persons dragged him from his vehicle and gave beating to him. As aforenoted, PW-5 further deposed that he was taken to the Scorpio car and as he raised alarm, public persons came at the spot, as well as someone called the police. PW-5 further proclaimed that 2-3 (two-three) persons were already sitting in the Scorpio, however, on seeing the public persons, they ran in the said car except the person who sat in the complainant's truck to take it away. It is further the case of the complainant, under his deposition, that the person who came in the Scorpio snatched the key of his vehicle and he/PW-5 caught hold of the person who was trying to take away the vehicle by starting it. As per PW-5, the police also reached at the spot and one of the persons, who had come in the Scorpio, was also apprehended by the police. It was further avowed by PW-5 that the person who was apprehended by him/PW-5 revealed his identity as Gulbahar while the police caught Gulzar @ Pappu. Notably, during the course of his deposition, PW-5 asserted that he had tendered his statement to the police officials as Ex. PW5/A, besides PW-5 deposed that the police had seized the aforesaid truck vide Ex. PW5/B. Correspondingly, PW-5 also proved the arrest memo of accused Gulbahar as Ex. PW5/C. Notably, under his deposition, PW-5 further proclaimed that the aforesaid Scorpio car bore a broken number plate and that 2-3 (two-three) days after the incident, he along with police personnel went in search of the other accused SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 54 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:25:28 +0530 persons, where the police officials caught hold of one person who disclosed his name as Mohd. Khalid and who was identified by the complainant/PW-5 as one of the persons involved in the incident and who had run away in the Scorpio car on the date of the incident. It was further asserted by PW-5 in his deposition that the police caught the said accused Mohd. Khalid on his identification and thereafter, they went to Sonia Vihar pushta, where Scorpio vehicle was taken into police possession. Further, PW-5 deposed that a number plate was also near the bushes which was also taken into possession by the police. Pertinently, PW-5 further proved the arrest memo of accused Mohd. Khalid as Ex. PW5/D1, his personal search Ex. PW5/D2. Notably, during the course of his examination, PW-5 identified accused Gulbahar and Gulzar in Court, however, in so far as the accused Mohd. Khalid is concerned, PW-5 expressed his inability to identify the said accused. On the contrary, PW-5 explicitly deposed, " I can not identify the accused Mohd. Khalid but I know his name because he was caught by the police in my presence. I cannot recognize Mohd. Khalid now." Correspondingly, PW-5 identified the truck bearing No. HR-38G-7808 Tata 709 from its photographs (A1, A2 and A3) as Ex. P1 as well as also identified one broken number place bearing No. UP-14JO, asserted to be the broken number place on the Scorpio car on the date of incident as Ex. P2.
27. Quiet astonishingly, as aforenoted, though, PW-5 expressed his inability to identify the accused Mohd. Khalid in Court under his examination-in-chief, besides, he asserted that he/PW-5 knew the name of the said accused only for the reason that the police had caught him in his presence and that he/PW-5 was not in a position to recognize Mohd. Khalid, however, upon being cross examined by Ld. APP for the State, PW-5 asserted that SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 55 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:25:32 +0530 the accused shown to him in Court was Mohd. Khalid. Pertinent in this regard to reproduce the relevant extracts from the cross-
examination of PW-5, by/at the behest of the State, as under;
"...At this stage APP for the State prays for cross examine the witness on the point of identification of accused Mohd. Khalid. Request allowed.
XXXXXX by Ld. APP for the State.
It is correct that the accused Mohd. Khalid shown to me in the court is Mohd Khalid (witness correctly identifies the accused)."
(Emphasis supplied)
28. Markedly, upon being cross examined by/on behalf of the accused persons, PW-5 asserted as under;
"XXXXXX by *** for accused Raju @ Rizwan. It is wrong to suggest that no such incident has took place on 05.09.10. It is wrong to suggest that I am deposing falsely.
XXXXXX by *** for accused Gulzar @ Pappu and Gulbahar.
I left my godown at about 8 p.m. At about 8.30-9 p.m. I reached at Metro gate station. Traffic was lying on the road at gate of metro station. The electricity pole were near the metro station gate at a distance of 150 mtrs away from the gate. There was darkness where the truck was standing. The light was off in the driver cabin of the truck. The light inside the Scorpio was switched off. I had not identified any person in the darkness at that time. There was no full number of the Scropio but it had its UP number plate. It is wrong to suggest that there was no UP number plate on the Scorpio. It is correct that I identified Gulbahar and Gulzar @ Pappu at the instance of the police. I can only sign. I was called in the police station only once when my truck was looted. I did not join investigation anywhere except the day of incident. I signed only blank papers at the instance of the police. The police had produced one number plate which they stated was on the said Scorpio..."
(Emphasis supplied)
29. Relevantly, it is seen from the foregoing that, though, the complainant/PW-5 in his examination-in-chief, identified accused persons, namely, Gulzar and Gulbahar, SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 56 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:25:39 +0530 however, during the course of his cross-examination by/at the behest of the accused persons, the complainant/PW-5 inter alia asserted/affirmed that he identified the said accused persons at the instance of police. Correspondingly, PW-5 deposed under his said cross-examination that the light in the driver cabin of the truck as well as inside the Scorpio car was switched off at the relevant point in time, besides, avowed that he had not identified any person in darkness at that time. Further, PW-5 went on to the extent of asserting that he had only signed blank papers at the instance of the police and that the police had produced one number plate which the said police officials stated was on the 'said Scorpio'/Scorpio car in question. Significantly, under such circumstances, PW-5 was re-examined by/at behest of Ld. Addl. PP for the State, wherein he asserted as under;
"...It is wrong to say that last time I have not given statement at the instance of police official Pawan. It is correct to say that the head lights of my truck were on when the Scorpio overtook my truck. It is incorrect to say that the head light of the Scorpio was on. It is incorrect to say that there was electricity pole at the place of occurrence and other source of light at the spot. Vol. there was a light at a distance of 100-150 mtrs from the spot. There was mercury bulb light at a distance of 100-150 mtrs. from the spot. I can identify a person who comes near to me at a distance of 2-3 feet even in darkness. I can identify the person if he tried to caught me and take me away. Even in darkness if any person removed me from my driver seat I can identify that person. I can identify any person who gave me beating in the darkness. I can identify the person who caught me, removed me from vehicle or gave beatings to me on the same day. I can identify the said person on the same day. It is wrong to say that there was no darkness in my truck and in the Scorpio of the accused on the date of incident. It is wrong to suggest that there was light near the place of occurrence. It is wrong to say that I have wrongly deposed today that I identify accused Gulbahar, Mohd. Khalid and Gulzar @Pappu today at the instance of police official Pawan. It is wrong to say that I had named accused Mohd. Gulzar and Gulbahar in my statement Ex. PW5/A and I signed at Ex.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 57 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:25:52 +0530
PW5/D-1. Ex. PW5/D-2, and Ex. PW5/C at point A. Vol. I signed on blank papers. It is correct that I signed Ex. PW5/A, Ex.PW5/D-1, Ex. PW5/D-2, and Ex. PW5/C at point A and my signatures at number 3 as a witness and my signs and writings are not overwritten on any other writing. It is wrong to suggest that I had signed the documents when the same were written by the police and on the printed proforma which were filled up by the police. It is wrong to suggest that I am deposing falsely in order to save the accused today..."
(Emphasis supplied)
30. Significantly, it is seen from the above that despite a thorough re-examination by Ld. Addl. PP for the State, the complainant/PW-5 inter alia denied the suggestion of Ld. Addl. PP for the State that he had not given any statement before the Court at the instance of the police officials Pawan. Correspondingly, PW-5 denied that there was no darkness in the truck and in the Scorpio of the accused on the date of incident. Further, PW-5 went on to the extent of denying the suggestion that he had wrongly deposed in his cross-examination by/at the behest of the accused persons that he had identified accused Gulbahar, Mohd. Khalid and Gulzar @ Pappu at the instance of the police official Pawan and also denied that he had named accused Gulzar and Gulbahar in his statement Ex. PW5/A. Subsequently, the complainant/PW-5 was again cross-examined by/on behalf of the accused persons, wherein he affirmed that he could not identify any person at the time of incident and that the accused persons were not involved in the incident. Relevant extracts of such cross-examination is reproduced as under;
"...XXXXXX by *** for accused Gulzar @ Pappu and Gulbahar.
There was darkness at the spot. I can identify the person if I had seen him 2-3 hours prior. I cannot identify any person at the time of occurrence. It is wrong to say that no such incident took place with me on the date of incident. It is correct that accused persons are not involved in the incident of that day..."SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 58 of 82 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:25:56 +0530 (Emphasis supplied)
31. Surprisingly, upon being recalled for his further examination, pursuant to order dated 19.07.2016 of the Ld. Predecessor Judge, the complainant in a complete turnaround, asserted that at the time of incident there were 5-6 assailants and that he had identified three accused persons in November 2010 as the remaining accused persons were not arrested at that point in time. Correspondingly, PW-5 asserted that he could not recollect the names of other accused persons, who he had identified apart from accused namely, Gulzar, Gulbahar and Khalid. However, quite astonishingly, during his said deposition, PW-5 pointed out towards accused persons, namely, Raju @ Rizwan and Imran, who were present in the Court and asserted that the said accused persons were also involved in the incident dated 05.09.2010 and that they had tried to rob his/complainant's truck as well as beat him. Further, PW-5 also correctly identified the Scorpio car bearing registration No. DL-3CAJ-4975 as the one which had overtaken his vehicle and was used by the accused persons at the time of commission of dacoity. Markedly, the relevant extracts of PW-5's deposition, pursuant to his recall are reproduced, as under;
"...There were 5-6 assailants at the time of incident. I do not remember the exact date but I had identified the three accused persons in November, 2010. Remaining accused persons were not arrested at that time. Thereafter, I never went to police station. I do not remember the name of other persons, whom I had identified apart from aforesaid 3 accused persons, namely, Gulzar, Gulbahar and Khalid, due to lapse of time. The said persons are present in the Court today. (Witness pointed towards the accused persons, namely, Raju @ Rizwan and Imran.) These accused persons were also involved in incident dated 05.09.2010 as already stated by me. They had tried to rob my truck and beaten me.
At this stage, photographs of silver colour Scorpio vehicle bearing registration No. DL 3C AJ 2975 are SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 59 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:00 +0530 shown to the witness. Witness has identified the Scorpio vehicle which had over-taken his vehicle and used by the accused persons while committing dacoity. At that time, this vehicle was bearing registration number of Uttar Pradesh. Photographs along with negatives are already Ex.PW14/1 and Ex. PW14/2. Scorpio vehicle is already Ex. P-1..."
(Emphasis supplied)
32. Apposite at this stage, to further reproduce the relevant extracts of cross-examination of PW-5 conducted by/on behalf of the accused persons, upon his recall, as under;
"XXXXXX by ***, Advocate for the accused, namely, Imran and Raju @ Rizwan.
*** *** *** I do not remember exactly where I was on 12.11.2010 after such long lapse of time. I identified the accused, namely, Raju @ Rizwan and Imran in police station. I do not remember whether police officials had given anything in writing to me for identifying the said accused persons. I went to the police station as police called me for identification of the said accused persons.
It is wrong to suggest that I named the accused persons, namely, Raju @ Rizwan and Imran in this case at the instance of police. IO called me, through mobile phone, to reach police station. I cannot tell the mobile number of IO. I reached police station at about 01.00 p.m. - 02.00 p.m. It is wrong to suggest that neither IO called nor I reached police station for identification of the accused persons, namely, Raju @ Rizwan and Imran. It is wrong to suggest that I did not identify the accused persons, namely, Raju @ Rizwan and Imran in the police station. I do not remember whether any other person was sitting with IO when I visited police station. I met SHO on that day. I do not remember his name.
I do not remember as to how many police officials were available in police station. It is wrong to suggest that I had made false statement. It is wrong to suggest that I have identified and named the accused persons at the instance of police. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
33. Germane for the purposes of present discourse to refer to the testimony of PW-3/Manender Singh, who inter alia SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 60 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:04 +0530 asserted in his deposition that on 05.09.2010 at around 10:00 p.m., while he was driving his Ritz car and had reached in front of Metro Gate, proceeding to take a U-Turn, he/PW-3 saw that one truck driver was being dragged from his truck by three/four persons. As aforenoted, PW-3 further asserted that he slowed down his vehicle and saw that the said three/four persons were beating the said truck driver and were dragging him in a Scorpio vehicle, which was in front of the truck. It was further proclaimed by PW-3 that he thought that the said persons were looting the truck. Consequently, as per PW-3, he/PW-3 made a call at 100 number from his mobile no. bearing 9999634378. Relevantly, under his deposition, PW-3, however, explicitly asserted that he had neither seen the faces of the said three-four boys/persons nor that of the said driver of the truck as he/PW-3 was driving his Ritz Car at that time. Relevantly, upon being cross-examined, PW-3 deposed as under;
"XXXXXX by counsel *** for accused Mohd. Khalid.
There was construction of fly over near the place of occurrence. Sometimes traffic plies slowly or there remains traffic jam due to construction work. It is correct that the place of occurrence is on the Ring Road. The entry of heavy/commercial vehicles are allowed after 9 p.m. It is wrong to suggest that there was heavy traffic on 5.9.2010. It is correct that traffic was plying on the road. In my presence, at the spot no police persons came there. U-turn was at a distance of 500 meter from the place where I saw the incident. It is correct that the construction work take place around the clock. It is correct that I had only seen the incident/quarrel.
XXXXXX by counsel *** for accused Gulzar and Gulbahar.
I did not stop my vehicle but only slowed down it. I cannot tell the registration number of Scorpio and of the truck. It is correct that no other person came to the spot in my presence. It is wrong to suggest that I am deposing falsely or that I had not seen any such incident. It is wrong to suggest that I am deposing falsely at the instance of IO.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 61 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:08 +0530
XXXXXX by counsel *** for accused Imran. It is wrong to suggest that I am deposing falsely or that I had not seen any such incident. It is wrong to suggest that I am deposing falsely at the instance of IO.
XXXXXX by counsel *** for accused Raju @ Rizwan.
On the next day, I received a call from the police and I went to police station where police made inquiries from me. After that I never visited the police station."
(Emphasis supplied)
34. Ergo, in light of the foregoing deposition/ testimonies of the prosecution witnesses, this Court deems it pertinent, at this stage, to iterate and explore the judicial precedents governing the evidentiary value of the deposition of a sole eye witness. In this regard, it is apposite to note the settled law11, persistently avowed by superior courts that there is no legal hurdle/impediment in convicting a person on the testimony of a single/sole eyewitness if the version of said witness is clear and reliable. Quite lucidly, the rationale behind the same is that the evidence has to be weighed and not counted. Reference in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (GNCT of Delhi), (2003) 11 SCC 367, wherein the Hon'ble Court unambiguously noted, as under;
"9. ...Vadivelu Thevar case [AIR 1957 SC 614:
1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the 11 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 62 of 82
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:13 +0530 quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise..."
(Emphasis supplied)
35. Correspondingly, the Hon'ble Apex Court in Bhimapa Chandapa Hosamani & Ors. v. State of Karnataka, (2006) 11 SCC 323, expressed similar views, inter alia noting, as under;
"...This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."
(Emphasis supplied)
36. Clearly, it is seen from above that for the testimony of a sole witness/sole eyewitness to form the basis of conviction of an accused, same has to be of sterling quality/sterling witness, which expression in criminal jurisprudence has been repeatedly declared by superior courts to mean a witness who is12, "worthy of credence, one who is reliable and truthful." Reference in this regard is further made to the decision in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , wherein the Hon'ble Supreme Court, catalogued the quality of a 'sterling witness', under the following observations;
"22. ...In our considered opinion, the "sterling 12 Kuriya v. State of Rajasthan, (2012) 10 SCC 433.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 63 of 82 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.07.24 16:26:17
witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged..."
(Emphasis supplied)
37. Markedly, this Court deems it apposite to further note that it is also conscious of the repeated avowals 13 of the 13 Selvamani v. The State rep. by the Inspector of Police, MANU/SC/0403/2024.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 64 of 82 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.07.24 16:26:20 +0530
superior courts inter alia to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence. Reference in this regard is made to the decision in C. Muniappan & Ors. v. State of Tamil Nadu, (2010) 9 SCC 567 , wherein the Hon'ble Apex Court, enunciated the law as under;
"82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p.
363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462.
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
*** *** ***
85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. Vide Sohrab v. State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State of Rajasthan v. Om Prakash, (2007) 12 SCC 381, Prithu v. State of H.P., (2009) 11 SCC 588, State of U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State v.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 65 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:25 +0530 Saravanan, (2008) 17 SCC 587." (Emphasis supplied) 38. Therefore, in view of the principles noted
hereinabove, when the depositions/testimonies of various prosecution witnesses and in particular, that of PW-5/Sh. Manoj Kumar/complainant, are/is scrupulously analyzed, this Court decidedly notes that the testimony of PW-5 is far from being labelled as, 'sterling quality'. Correspondingly, this Court is also not convinced that even the portions/extracts of deposition of PW-5/complainant, despite PW-5 having turned hostile on material aspects, would come to the aid and rescue of the prosecution's case in the present case. In this regard, this Court deems it pertinent to reiterate that while under his examination-in- chief, dated 18.08.2011, PW-5 inter alia asserted that he had caught hold of the person, who was trying to take away his vehicle by starting it and that he had come to know the name of the said person as Gulbahar. Correspondingly, PW-5 further asserted that the person, who was apprehended on the spot by the police was identified as Gulzar @ Pappu. Further, PW-5 duly identified both accused persons, namely, Gulzar and Gulbahar before the Court during the course of his deposition, however, upon being cross- examined, PW-5 asserted that he had identified Gulzar @ Pappu and Gulbahar in Court at the instance of police. In fact, as aforenoted, PW-5 was re-examined upon his said hostility by Ld. Addl. PP for the State. Nonetheless, PW-5, despite being so re- examined, denied the suggestion that he had not given the statement before the Court at the instance of the police official Pawan. Correspondingly, PW-5 further denied the suggestion that he had wrongly deposed that he had identified accused Gulbahar, Mohd. Khalid and Gulzar @ Pappu at the instance of police SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 66 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:30 +0530 official. Needless to mention, when the complainant/PW-5 was again cross-examined by/on behalf of the accused persons, he affirmed that he could not identify any person at the time of occurrence, besides, the complainant further affirmed that the accused persons were not involved in the incident. Strikingly, one of the most astounding aspects, noted from a scrupulous analysis of testimony of PW-5 is that when the said witness was recalled for his examination on 26.04.2022, pursuant to order dated 19.07.2016 of the Ld. Predecessor Judge allowing State's application under Section 311 Cr.P.C., he/PW-5 asserted that in the month of November 2010, he had identified three accused persons as the remaining accused persons were not apprehended at that point in time. Correspondingly, PW-5 deposed at that point in time that he could not recollect the names of other persons whom he had identified except accused, namely, Gulzar, Gulbahar and Mohd. Khalid. Nonetheless, during the course of his said examination on 26.04.2022, PW-5 identified accused persons, namely, Imran and Raju @ Rizwan as perpetrators of offence as well.
39. Clearly, it is seen from a conscientious perusal of the evidence of PW-5 that the said witness has given varied contradictory as well as irreconcilable testimony(ies) in so far as the identification of the accused persons is concerned. As aforenoted, during his initial examination, PW-5 only identified accused persons Gulzar and Gulbahar in Court, during the course of his examination in chief. However, upon being cross-examined by Ld. Addl. PP for the State on the said date, PW-5 asserted that accused Mohd. Khalid, who was pointed out to him by Ld. Addl. PP for the State, was also involved in the incident. Quite astonishing, the identification of accused Mohd. Khalid during such cross-examination is replete with uncertainty as in his SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 67 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:37 +0530 examination in chief conducted on the same day, PW-5 explicitly deposed, "I cannot identify the accused Mohd. Khalid but I know his name because he was called by the police in my presence. I cannot recognize Mohd. Khalid now". However, it is quite unappealing to the senses of this Court that whilst PW-5 expressed his inability to identify accused Mohd. Khalid in his examination in chief, however, on the same day, upon being shown by Ld. Addl. PP for the State, PW-5 proclaimed that the person present in the Court was accused Mohd. Khalid.
40. Another glaring aspect in the instant case is that despite such identification of accused Gulzar and Gulbahar, during his examination in chief, PW-5 upon being cross-examined by the accused persons, proclaimed that he had identified the said accused at the instance of police. Further, as aforenoted, PW-5 denied the suggestion of Ld. Addl. PP for the State that he had not given his statement at the instance of the police official and also denied that he had wrongly deposed in his cross-examination that he had identified the said accused at the instance of police. Needless to mention that upon being cross-examined by the accused persons again, PW-5 affirmed that none of the accused persons was involved in the incident. Ominously, despite such persistent turnarounds in his earlier conducted evidence, strikingly, after a lapse of around eleven year, when PW-5 was recalled for his examination on 26.04.2022, he once again, affirmed the role of accused persons Gulzar, Gulbahar and Khalid in the incident, besides also identified accused Raju @ Rizwan and Imran in Court as the persons involved in the incident. Quite strangely, on scrupulous analysis of the material placed on record, it is observed that not only PW-5 has been inconsistent in so far as the identification and involvement of accused Gulzar, Gulbahar SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 68 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:40 +0530 and Mohd. Khalid in the alleged incident is concerned, rather, it is only after a lapse of around eleven years, on 26.04.2022, PW-5 opted to identify accused Raju @ Rizwan and Imran for the first time before the Court, as the perpetrators/persons involved along with co-accused persons in the commission of offence. Needless to further mention that same is further despite the fact that on 18.08.2011, when the evidence of PW-5 was initially recorded both the said accused persons were duly present before the Court.
However, despite the same, neither accused Raju @ Rizwan or Imran were identified as perpetrators of offence nor anything averred against them in PW-5's testimony. In fact, even at that point in time, Ld. Addl. PP for the State opted not to cross-examine the witness on his inability to identify the said accused persons. Consequently, the only conclusion which this Court may reasonably draw and reiterate from above is that PW-5's deposition is not beyond a pale of doubt in so far as it inter alia relates to the identification and involvement of the accused persons in the alleged incident.
41. Another startling discrepancy/inconsistency, noted in the deposition of PW-5 vis-à-vis the testimonies of other prosecution witnesses relates to the fact that while PW-5, asserted under his deposition that some public persons reached at the spot when he raised an alarm and someone called the police, however, no other public witness/person has been adduced as a witness to corroborate the said version of the complainant/PW-5 that public persons had reached at the spot of incident. In fact, in this regard, even when the deposition of PW-3/Manender Singh is carefully perused, it is observed that the said witness merely deposed that on 05.09.2010 at around 10.00 p.m., he saw one truck driver being dragged from his truck by three-four persons and that the said SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 69 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:44 +0530 persons were beating the said truck driver as well as dragging him in the Scorpio vehicle, which was in front of the truck. However, PW-3 explicitly noted that he had neither seen the faces of said three-four persons/boys nor that of the driver of the truck. In fact, upon being cross-examined by/on behalf of the accused persons, PW-3 affirmed that no police persons or other persons had reached the spot in his presence. Further, PW-3 also declared that he could not tell the registration number of the Scorpio or that of the truck. Needless to further observe in this regard that PW-3 explicitly deposed in his testimony that at the time of him witnessing the said incident of three-four persons/boys dragging some truck driver, he was driving his Ritz Car and that he did not stop his vehicle, rather, only slowed it down.
42. Here, it is further pertinent to refer to the testimony of PW-12/Ct. Sanjeev, who asserted that on 05.09.2010, while he was working as Beat Constable in the area, at around 10:00 p.m., he/PW-12 heard a noise from the other side of the road. Further, as per PW-12, on reaching on the other side of the road, truck no.
HR-38-7808 and one sliver colour vehicle were found standing at the spot and three-four persons were standing near the said silver colour vehicle. Further, PW-12 avowed that the said silver colour vehicle went away, while two boys could not board the said vehicle and that both the said persons ran away, whereupon he chased and caught hold of one person, who was determined as Gulzar and the complainant caught hold of Gulbahar. Notably, in his entire testimony, PW-12 nowhere deposed of presence of any other public person at the spot even upon him reaching there, contrary to PW-5's assertion that on hearing his voice public persons had gathered at the spot and that the accused persons sitting in the Scorpio vehicle ran from the spot on seeing such public persons. In SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 70 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:47 +0530 fact, PW-12, in his cross-examination specifically asserted that no public person came to the place of apprehension of accused Mohd. Gulzar and that no shops or houses were situated near the place of occurrence or at the place of apprehension of accused Mohd. Gulzar. Correspondingly, upon being further cross-examined, PW-12 expressed his inability to depose whether or not any public person was present at or near the spot when accused Gulzar or Gulbahar were apprehended. Needless to mention that nowhere under his deposition, PW-12 asserted of having witnessed any incident, rather, merely proclaimed regarding hearing noise from the other side of road and of silver colour vehicle fleeing from the spot, while two person's inability to board the said vehicle at that point in time. In fact, though, PW-12 explicitly asserted that both the said persons ran away from the spot, however, nowhere under his deposition, PW-5 deposed on akin lines as that of PW-12. Needless to further mention that nowhere under his examination in chief, PW-12 deposed of the registration number of said silver colour car or its make or that the same was bearing a broken number plate of 'UP' number, however, it was only when the MHC(M) produced the Scorpio car bearing registration no. DL-3CAJ-2975 and broken number plate, bearing no. UP-14JO, PW-12 opted to identify the said car as the one used by the accused and the number plate, which the said car bore at the time of incident, which does not appeal to the senses of this Court.
43. Markedly, another discrepancy in the testimony of PW-5/complainant/Manoj Kumar is that, as aforenoted, PW-5 in his deposition asserted that 2-3 (two-three) days after the incident, he along with the police officials went in search of the accused persons and reached at Pooja Colony, Loni, Ghaziabad and that the police officials apprehended accused Mohd. Khalid at his instance.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 71 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:26:52 +0530
However, nowhere under his deposition, PW-5 asserted regarding the presence of accused Gulbahar as a part of the said search/raiding team or of him/Gulbahar leading the raiding team to the house of accused Mohd. Khalid, where he was allegedly apprehended, as deposed by PW-11/Ct. Shubhkaran and PW-12/Ct. Sanjeev in their respective depositions. Correspondingly, though, PW-5 asserted that he had identified Mohd. Khalid and the Scorpio vehicle upon such apprehension of Mohd. Khalid, however, as aforenoted, PW-5 failed to identify accused Mohd. Khalid during the course of his examination-in- chief. On the contrary, as aforenoted, it was only during the course of his cross examination by Ld. Addl. PP for the State, PW-5 identified Mohd. Khalid present in Court. Obviously, under such circumstances, such identification of Mohd. Khalid by the complainant/PW-5 in the absence of proper TIP proceedings and that too, only upon the pointing of Ld. Addl. PP for the State, during the course of his/PW-5's cross-examination, in the considered opinion of this Court, is of no consequence. In fact, in this regard, this Court deems it further pertinent to note that it is trite law that mere identification of an accused in the police station or the Court for the first time, bereft of proper Test Identification parade/TIP proceedings, cannot be considered free from doubt. Reference in this regard, is made to the decision in Jafar v. State of Kerala, 2024 SCC OnLine SC 310, wherein the Hon'ble Apex Court in an akin situation, noted as under;
"8. Anil Kumar (PW-8), who is the Investigating Officer (IO), has also admitted that PW-1 identified the accused persons by seeing them at the police station. He has further admitted that no identification parade was conducted. As such, it can be seen that the identification of the appellant herein by PW-1 is quite doubtful as no identification parade has been conducted. PW-1 clearly states that he has identified SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 72 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:26:55 +0530 the accused persons since the police had shown him those two people.
9. In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. We find that the other circumstance that the Courts relied for resting the order of conviction is with regard to the recovery of an iron rod. An iron rod is an article which could be found anywhere. It is not the case of the prosecution that any stolen article was recovered from the appellant herein..."
(Emphasis supplied)
44. Similarly, the Hon'ble Supreme Court in Malkhansingh v. State of M.P., (2003) 5 SCC 746 , while explicating the significance of TIP proceedings and dock identification, for the first time by a victim/complainant/witness, remarked as under;
"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. 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 SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 73 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:27:01 +0530 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 appropriate cases it may accept the evidence of identification even without insisting on corroboration...
*** *** ***
10. 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..."
(Emphasis supplied)
45. Despondently, it is further observed that as per the complainant/PW-5, the police had seized the Scorpio vehicle at his instance and identification. However, the said seizure of the Scorpio vehicle, allegedly involved in the incident, in the considered opinion of this Court, is also not beyond a shadow doubt. Pertinent in this regard to note that it is the case of the prosecution that at the time of alleged incident, the Scorpio vehicle contained a 'UP' number/broken number plate of registration number of Uttar Pradesh. In fact, PW-5 in his examination in chief asserted that there was a broken number place on the Scorpio car, however, in the seizure memo Ex. PW6/B, the seized vehicle, i.e. Scorpio car is asserted to bear registration number DL-3CAJ-2975 at the time of such seizure. Significantly, nowhere in his examination in chief, PW-5 deposed regarding the exact registration number borne by the Scorpio vehicle, alleged deployed at the time of commission of incident. In fact, it was only upon MHC(M)'s producing one broken number place bearing registration number; UP-14JO before the Court, PW-5 identified the same as the number plate which was present on the Scorpio car on the date of incident. Ergo, under such circumstances, the identification of the Scorpio vehicle seized by the police officials SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 74 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:27:04 +0530 in the instant case or the seizure of said broken number plate is not untarnished, considering that no TIP proceedings of the said car and/or of the broken number plate were conducted in the instant case. Needless to further mention, nowhere under his deposition, PW-5 disclosed of any specific/exclusive identification feature of the seized Scorpio vehicle, which would identify/relate the same to the incident in question. Here, this Court deems it further pertinent to make reference to the depositions of PW-6/Rahees and PW-1/Alim Khan, who have been produced by the prosecution to assert that Scorpio vehicle was handed over to accused persons Gulzar and Gulbahar by the said witnesses. However, when the testimonies of the said witnesses are carefully analyzed, it is observed that none of the said witnesses have supported the case of prosecution. In this regard, it is observed that PW-6, in his deposition asserted that on 05.09.2010, when Mohd. Gulzar came to him and requested him to hand over his Scorpio vehicle to him/Gulzar, he/PW-6 gave the said vehicle on the request of his father-in-law Alim Khan. PW-6 further asserted that his father-in- law was present at the time when he had handed over the vehicle to Gulzar, however, he/PW-6, subsequently, received the said car from the police station. Further, nowhere under his deposition, PW-6 asserted that he was called to the place of seizure of said vehicle, contrary to the deposition of PW-11 and PW-12. Undoubtedly, PW-6 produced his said Scorpio car before the Court as well as produced a photocopy of the registration certificate, Ex. PW6/A, wherein the registration number of vehicle is noted as DL-3CAG-2975 and which corresponds with the registration number mentioned in seizure memo Ex. PW6/B, however, PW-6 expressed his inability to identify Gulzar @ Pappu as a person who had approached him to take his vehicle. In fact, upon being SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 75 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:27:08 +0530 rigorously cross-examined by Ld. Addl. PP for the State, PW-6 inter alia denied the suggestion that the accused Gulzar @ Pappu, who was present in Court, took his Scorpio vehicle and further denied that the said vehicle was recovered from Mohd. Khalid, who was also present in the Court. Apposite at this stage, to reproduce the relevant extracts from the cross-examination of PW-6 at the behest of Ld. Addl. PP for the State, as under;
"XXXXXX by Ld. APP *** for the State.
Police has not made any inquiry from me. I signed 2-3 papers. Something was written on the same when I signed those documents. It is correct that Ex. PW6/B & PW6/C bears my signatures at point A. I cannot read Hindi. I studied upto third standard. It is wrong to say that I stated in my statement to the police that I told Gulzar @ Pappu that I have no driver at this time and when the driver will come I will hand over my Scorpio to him, on which Gulzar told me that he had come with a driver. It is wrong to say that I stated in my statement to the police that Gulzar Pappu took my Scorpio by saying that one patient is to be dropped at Farrukhabad. It is wrong to say that I stated in my statement to the police that on 08.09.10 the police called me from my house and my Scorpio No. DL 3C AJ-2975 was standing with broken number plate and the said Scorpio was recovered on the pointing of accused Mohd. Khalid at at Sonia Vihar, Pushta No. 3, I gave the keys of my Scorpio to the police. The witness is confronted with his statement mark PW6/X where it is so recorded. It is wrong to say that accused Mohd. Gulzar @ Pappu is present in the court today who took my vehicle Scorpio. It is wrong to say accused Mohd. Khalid is also present in the court today who got recovered my Scorpio Car. It is wrong to suggest that I had given statement to the police and the documents signed by me has been read over and explained to me before I signed the same. It is wrong to say that both the accused are present in the court today and I am deliberately identified them. It is wrong to say that I am deposing falsely being won over by the accused persons"
(Emphasis supplied)
46. Correspondingly, it is observed from a perusal of the material placed on record that PW-1/Alim Khan did not support the case of prosecution, rather, PW-1 declared that he knew SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 76 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:27:12 +0530 nothing in the instant case. Needless to mention that PW-1 was duly cross-examined by Ld. Addl. PP for the State, wherein he inter alia denied that he had stated to the police officials that PW-6/Rahees telephoned him and told him that Pappu @ Gulzar had approached him for hiring a vehicle. Clearly, in light of the facts and circumstances, this Court reiterates and is of the considered opinion that even the identity and involvement of the aforesaid Scorpio car in the alleged incident has not been proved beyond reasonable doubt by the prosecution in the instant case.
47. Here, it is further pertinent to note that though PW-5 in his examination-in-chief held on 18.08.2011, proved the arrest memo of the accused Gulbahar as Ex. PW5/C, besides, PW-5 further proved the seizure memos of the truck (Ex. PW5/B) and the arrest as well as seizure memos of accused Khalid as; Ex. PW5/D1 and Ex. PW5/D2, respectively, however, nowhere under his deposition PW-5 uttered anything regarding the arrest of accused Gulzar @ Pappu or even proved his arrest memo despite PW-5's assertion that the said accused was apprehended by the police official on the spot. Needless to further mention that PW-5 even turned hostile on the aspect of aforestated seizure and arrest proceedings as during the course of his cross-examination by/at the behest of the accused persons, PW-5 proclaimed that he had signed on the blank papers and that too at the instance of the police officials. In fact, even upon being re-examined by Ld. Addl. PP for the State, PW-5 denied the suggestion that he had named accused Mohd. Gulzar and Gulbahar in his statement Ex. PW5/A and further denied that he had signed Ex. PW5/D1, Ex. PW5/D2, Ex. PW5/C at point A. On the contrary, PW-5 reaffirmed that he had merely signed blank papers. Markedly, another aspect, which is observed from a conscientious analysis of PW-5's testimony is SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 77 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:27:15 +0530 that, while PW-5 asserted under his cross-examination, conducted by/at the behest of the accused persons on 19.09.2011, that he had visited the police station only once, when his truck was looted and that did not join investigation anywhere except the day of incident, however, in his cross-examination conducted by/at the behest of the accused persons, on 26.04.2022, PW-5 asserted that he identified accused Raju @ Rizwan and Imran in the police station. Quite surprisingly, such assertion is even contradictory to the deposition/examination-in-chief of PW-5 recorded on 26.04.2022, wherein he affirmed that he had identified only three accused person in November 2010 and thereafter, he never went to police station.
48. Ergo, when the aforenoted discrepancies, omissions, contradictions and material improvements in the testimony of PW-5 are analyzed, the only conclusion which this Court, unerringly reach in the instant case is that the conviction of the accused persons cannot be premised on the sole testimony of the complainant/PW-5 in the instant case. Needless to reiterate that PW-5 not only persistently varied his stand on the aspect of identification of the accused persons as the perpetrators of offence, during various stages of proceedings of recording of deposition, rather, he/PW-5 has also been inconsistent on the material aspects such as the seizure of vehicle/Scorpio car or that of the involvement of the said vehicle in the alleged incident, apprehension and arrest of co-accused person(s), etc., as hereinunder observed. Germane for the present purpose(s) to further observe at this stage that this Court is cognizant of the settled law14 that where witnesses, "make two inconsistent statements in their evidence either at one state or at two stages, the 14 Suraj Mal v. State (Delhi Administration), AIR 1979 SC 1408: 1979 Cri. LJ 1087: (1979) 4 SCC 725.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 78 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:27:19 +0530
testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses..." . Reference in this regard is made to the decision of the Hon'ble High Court of Madhya Pradesh in Raghuveer Singh v. State of Madhya Pradesh, Crl. Appeal No. 35/2007, dated 18.05.2018, wherein the Hon'ble Court in an akin context, remarked as under;
"15. Similarly, Lakhu (PW-1) in FIR Ex.P-1 did not clarify the blow of axe by Raghuveer Singh through blunt side. Lakhu Singh (PW-1) in his deposition in para 29 has said that Raghuveer Singh inflicted the blow of Farsa from the side of sharp cutting edge because he says that he used the farsa from the side by which it is used for killing. This aspect is contradicted by Balister Singh (PW-3) who happens to be another eye witness, when he says in para 34 of his statement that Raghuveer Singh has inflicted the blow of axe from the back side. Therefore, both the alleged eye witnesses contradict each other about the use and mode of using the weapon, whereas they should have been in unison about the incident. The Hon'ble Apex Court in the case of Suraj Mal Vs. The State (Delhi Administration), AIR 1979 SC 1408 held that where witnesses make inconsistent statements in their evidence either at one stage or at two stages, testimony of such witnesses become unreliable and unworthy of credence and in absence of special circumstances, no conviction can be based on the evidence of such witnesses. This has been further reiterated in the the case of State of Bihar Vs. Bishwanath Rai and others, AIR 1997 SC 3818 wherein it has been held that testimony of eye witnesses not consistent with medical evidence regarding injury caused to the deceased, thus inference is that eye witnesses not giving correct account of manner in which incident took place. In the case of Anmol Singh Vs. Asharfi Ram and others, 1998 SCC (Cri) 369, Hon'ble Apex Court reiterated the law that inconsistencies and improvements of version of eye-witness in FIR different from the version giving by him in the Court when witness making material improvements in his evidence, thus, the said evidence cannot be taken into consideration . In a recent judgment of Hon'ble Apex Court in the matter of Mahindra Vs. Sajjan Galfa Rankhamb and others, 2017 (2) Cr.L.R. (SC) 433, the law has been reiterated in the same manner."SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 79 of 82 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:27:22 +0530 (Emphasis supplied)
49. Consequently, in light of the foregoing discussion, this Court unambiguously reaches a conclusion that the testimony of PW-5/complainant is unworthy of credence and wholly unreliable, so as to bring home the charges/allegations levelled against the accused persons in the instant case. Needless to reiterate that PW-5 has persistently changed his stand at various stages of his deposition before this Court even on material aspects of identification of the accused persons, besides has made several glaring improvements/variations/contradictions, making his deposition unreliable so as to attract culpability against the accused persons in the instant case. Needless to mention that prosecution has produced no other witness to the alleged incident and as aforenoted, PW-3/Manender Singh has attributed no role qua the accused persons or even identified them as the alleged perpetrators in the instant case. Correspondingly. Even PW-12/Ct. Sanjeev is not a witness to the incident in question and even for the sake of argument, presuming that accused Gulzar and Gulbahar were apprehended on the spot, in the light of aforenoted material contradictions in the testimony of PW-5 in so far as the identification or even the role of said accused persons is concerned, in the considered opinion of this Court, charges against even the said accused persons cannot be held to be proved beyond reasonable doubt in the instant case.
CONCLUSION:
50. Conclusively, in light of the foregoing, it is reiterated that from the material placed on record and arguments addressed on behalf of the State as well as that on behalf of the accused persons, it is reiterated that in the considered opinion of this Court, the prosecution has been able to prove its case 'beyond SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 80 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.07.24 16:27:26 +0530 reasonable doubt' against the accused persons, namely, Mohd. Gulzar @ Pappu, Gulbahar, Md. Khalid, Imran and Raju @ Riwan. On the contrary, in light of the various contradictions, lacunae, and material omissions, as hereinunder observed, benefit of doubt must, in the considered opinion of this Court, accrue in favour of the accused persons. Needless to mention at this stage that it is trite law15 that the prosecution has to prove the charge beyond reasonable doubt against and accused and that an accused should be considered innocent, till it is established otherwise. It is equally a settled law16 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
51. Accordingly, in light of the foregoing, accused persons, namely, Mohd. Gulzar @ Pappu, Gulbahar, Imran and Raju @ Riwan are acquitted of the charges/allegations levelled against them for the offences under Sections 395/511 IPC read with Section 34 IPC and Sections 365/511 IPC read with Section 34 IPC. Needless to mention that the proceedings qua accused Md. Khalid were already abated pursuant to order dated 03.02.2022 of the Ld. Predecessor Judge, consequent to his demise. Consequently, the accused persons, namely, Mohd. Gulzar @ Pappu, Gulbahar, Imran and Raju @ Riwan are admitted to bail on the said accused persons', each, furnishing a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) along with one surety of the like amount (each), as per the provisions under Section 437A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Further, as requested, the bail bond 15 Meena v. State of Maharashtra, (2000) 5 SCC 21.
16Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 81 of 82 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.07.24 16:27:31 +0530
be furnished by the accused persons within a period of one week from the date of this judgment.
52. File of the present case be consigned to record room after due compliance. Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.07.24 16:27:38 +0530 Announced in the open Court (Abhishek Goyal) on 24.07.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 27518/2016 State v. Mohd. Gulzar @ Pappu & Ors. Page 82 of 82