Delhi District Court
State vs Aarti Etc on 23 May, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000781-2012
SC No.28035/2016
FIR No.112/2012
U/s 394/397/411/452/506/34 IPC
P. S. Kotwali
STATE VERSUS AARTI ETC.
(i) SC No. of the case : 28035/2016
(ii) Date of commission of offence : 03.05.2012
(iii) Name, parentage and address : 1. Aarti
of accused S/o Sharwan
R/o Vega-bond Patri
New Delhi Railway
Station Platform No.1
New Delhi
2. Mohd.Anwar (PO
vide order dated
29.10.2018)
S/o Mohd Jenul
R/o Vill. Hathiunder,
PS Biharigunj, Distt.
Madhyapura, Bihar
& Vega-bond Patri
New Delhi Railway
Page 1 of 70
SC No. 28035/2016
FIR No.112/2012
P. S. Kotwali
State vs. Aarti Etc.
Station near Sheela
Cinema, New Delhi.
3. Amit Gupta (PO
vide order dated
19.05.2016)
S/o Umesh Gupta
R/o Vill. Lakhanpur
PS Jamui, Distt.
Jamui, Bihar
& Vega-bond Patri
New Delhi Railway
Station near Sheela
Cinema, New Delhi
4. Ram Kumar @
Kalia (PO
vide order dated
20.09.2016)
S/o Kishore Lal
Yadav
R/o Vill. Janakpur,
PS Janakpur, Distt.
Sirah, Nepal
& Vega-bond Patri
New Delhi Railway
Station, New Delhi
(iv) Offences complained of : 394/397/411/452/
506/34 IPC
(v) Plea of the accused : Pleaded not Guilty
(vi) Final order : Acquittal
(vii) Date of such order : 23.05.2025
Page 2 of 70
SC No. 28035/2016
FIR No.112/2012
P. S. Kotwali
State vs. Aarti Etc.
Date of Institution : 13.08.2012
Date of Judgment reserved on : 03.05.2025
Date of Judgment : 23.05.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.Ram Babu vide Ex.PW1/A who was working in Shop since last 8/9 years No.1408, Second Floor, Katra Jhammar, Jhammar Mandir, Chandni Chowk, Delhi. On 03.05.2012 around 8:45 PM 2 boys one of which was wearing white shirt and pant of brown colour having wheatish complexion aged about 23/24 years and height of about 5'6", thin physique and other boy was having thin physique wearing gray colour pant, T-shirt of black and white colour aged about 25 years and height of about 5'6"
had entered in the shop. They asked the complainant / PW-1 Ram Babu about some person by the name Pankaj. PW-1 replied that there is no such person by name of Pankaj in the shop. Despite repeatedly asking by the accused the PW-1 had given same answer. On this the said 2 boys had left. In the adjacent room of the shop Gaurav Maheshwari another worker Page 3 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. was also present. PW-1 thereafter started folding clothes in the shop. After about 5-7 minutes both the said 2 boys alongwith one girl aged about 20 years complexion black, height of about 5'2" with average built wearing dark blue T-shirt and jean, red colour cap on head, tying hankie with design on her face. When they were coming up from the stairs at that time PW-1 went towards the door. At that time Gaurav Maheshwari was asking the said boys their reason for coming at the shop. No reply was given by the boys. On seeing PW-1 the boy moved aggressively towards PW-1 and the boy had taken out 1 knife from his right pocket. Behind the said boy the said girl came holding 1 Ustra/ barber knife in her right hand. On seeing this PW-1 started closing the door of the shop. However the accused pushed the door open. The boy wearing white shirt was also holding a knife in his hand and 3 accused came inside the shop after pushing PW-1. They had shown knife and Ustra / Barber knife to PW-1 and asked for keys of the locker/ safe on which PW-1 replied that he does not have the keys. Accused continued to threaten PW-1 and repeatedly asked for keys. However PW-1 continue to reply the same. Accused person had broken open an Attachi lying in the shop in which they could not find anything. The accused wearing white shirt had threatened PW-1 that if he raised alarm then PW-1 will get Page 4 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. killed. Thereafter accused person went outside and bolted the door from outside. After about 5-7 minutes the staff came and they had opened the shop from outside. PW-1 had found missing his mobile phone of make Samsung having SIM of TATA Company vide mobile No.9250035993. This phone was lying on table in the shop. FIR No.112/2012 dated 04.05.2012 at PS Kotwali was registered in the matter and matter was investigated after which chargesheet was filed. Accused were summoned.
2. Charge was framed against the accused Aarti, Mohd.
Anwar, Amit Gupta and Ram Kumar under Section 392/34 IPC, 394/34 IPC, 452/34 IPC, 411/34 IPC and under Section 397 IPC to which all accused had pleaded not guilty and claimed trial. Prosecution had examined PW-1 to PW-18 as total number of prosecution witness in the present case. PW Sunaina could not be traced and her whereabouts were not found in respect of which separate statement of SI Karamveer Singh dated 03.01.2017 was recorded. During the trial accused No.3 Amit Gupta had absented and process under Section 82 Cr.P.C. was issued against him. Statement of execution of such process was recorded of Ct. Dharampal/ CW-1. Process was executed on 24.12.2015 and statement was recorded on 19.05.2016. Accused Page 5 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. No.3 Amit Gupta was declared PO on 19.05.2016. During the trial accused No.2 Mohd. Anwar had absented and process under Section 82 Cr.P.C. was issued against him. Statement of execution of such process was recorded of SI Bachhan Prakash/ CW-2. Process was executed on 25.05.2018 and statement was recorded on 29.10.2018. Accused No.2 Mohd. Anwar was declared PO on 29.10.2018. Process under Section 83 Cr.P.C. against accused No.2 Mohd. Anwar was also issued which could not be executed as no movable or immovable property could be found. The report is Ex.CW3/A. During the trial accused No.4 Ram Kumar @ Kalia had absented and process under Section 82 Cr. P. C. was issued against him. Statement of execution of such process was recorded of HC Krishan Pal/ CW-1. Process was executed on 19.05.2016 and statement was recorded on 20.09.2016. Accused No.4 Ram Kumar @ Kalia was declared PO vide order dated 20.09.2016.
3. Statement of accused No.1 Aarti was recorded under Section 313 Cr. P. C. on 14.02.2023 and accused No.1 had preferred not to lead evidence in defence. It is stated by the accused No.1 Aarti that she is not the lady seen in the photograph Ex.PW2/B-1 to Ex.PW2/B-11. She used to stay at Nabi Karim and had to go to New Delhi Railway Station for Page 6 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. drinking tea at a stall. Since she was present at the tea stall from where other accused were arrested she was apprehended and falsely implicated in this case. Nothing was recovered from her.
4. Since all the other accused are PO in the matter except accused No.1 Aarti matter is proceeded further against accused No.1 Aarti.
5. The necessary ingredients are detailed in citation titled as State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom). Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or Page 7 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. Section 394 IPC is voluntarily committing robbery/ Section 392 IPC and in addition hurt is also caused voluntarily. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para are reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in Page 8 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such Page 9 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Page 10 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission Page 11 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and Page 12 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender Page 13 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
Page 14 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. "19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
6. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated Page 15 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
Page 16 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the Page 17 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
Page 18 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. "In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually Page 19 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
Xxxxxxxxxx
7. The first ingredient the prosecution has to prove under Page 20 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. Section 392 IPC is that accused No.1 Aarti had committed theft. In the citation referred above it is clearly laid down at para no.4 that for the purpose of Section 392, 394, 397 IPC only the offender / person who has committed robbery and / or voluntarily caused hurt or attempted to cause robbery and who used any deadly weapon or causes grievous hurt to any persons or cause to commit death or grievous death at the time of committing robbery or theft can be punished. The accused cannot be convicted on the basis of constructive liability. Therefore Section 34 IPC is held not applicable against accused No.1 Aarti in reference to Sections/ provisions of law mentioned above. The prosecution has to prove act of each of the accused independently and not constructively.
8. The two eye witness in the case of the prosecution are PW-1 Sh. Ram Babu and PW-4 Sh. Gaurav Maheshwari. PW-1 has deposed that in the second visit after 5-7 minutes one boy out of the 2 boys who came earlier entered in the room where PW-1 was folding clothes. PW-4 was in the adjoining room. The accused had peeped in the room from half open door. PW-1 on seeing the accused had asked them that why they are there and then PW-1 tried to close the door of the room but the boy had pulled out knife and caught collar of PW-1. That boy Page 21 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. stabbed PW-1 and pushed him inside the room. Then both the boy and the girl entered the room forcibly on the point of knife. The said boy and girl present in the Court are correctly identified by PW-1 as accused No.4 Ram Kumar and accused No.1 Aarti. The blood stained T-shirt is Ex.P-1. The mobile phone of make Samsung having TATA phone number 9250035993 is Ex.P-2. The 2 briefcase one of which was of gray colour and other was of black colour are Ex.P-3 and Ex.P-4 respectively. H.264 4CH digital video recorder alongwith switching adapter including wire and one remote which was seized by the police from the shop are Ex.P-5 (colly.). It is deposed by PW-1 that accused No.1 3 and 4 came together. Accused No.1 Aarti was having Ustra in her hand and accused No.4 Ram Kumar @ Kalia was having a knife in his hand. Accused No.3 Amit was also having a knife in his hand. It is deposed that accused No.4 Ram Kumar @ Kalia had stabbed PW-1. Together the accused person had pushed PW-1 inside and demanded keys of the locker. PW-1 told them that he does not know anything about the keys. The accused repeatedly asked from PW-1 about the keys and PW-1 continue to tell them that he had no knowledge about the key. The accused person broke the lock of the 2 brief case and they could not succeed in breaking open the locker. While running away Page 22 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. they had threatened PW-1 not to raise noise or he will be killed and thereafter bolted the door from outside. PW-1 found that his mobile phone of make Samsung was missing. His statement to police is Ex.PW1/A. The photocopy of the receipt of mobile phone is Mark-X and the receipt was seized by IO vide memo Ex.PW1/D. The Ustra is Ex.P-8 which was correctly identified by PW-1.
9. In cross examination it is deposed by PW-1 as correct that he is not aware from whose possession the mobile phone was recovered. It is deposed that at the time of identification of knife signatures of PW-1 were obtained by police on some papers. The hard-disk in CCTV is operational for 24 hours.
10. The TIP proceedings of accused No.1 Aarti is Ex.PW16/C. The accused No.1 Aarti had refused to participate in TIP proceedings despite of warning issued by the learned MM to the accused that adverse inference during trial would be drawn against her for such refusal for TIP proceedings. Even after that accused No.1 Aarti continued not to participate in TIP proceedings for the reason that while she was in custody then at that time she was shown to the witness in the police station. The witness who visited to identify accused No.1 Aarti are PW-1 Page 23 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. and PW-4. On such refusal to participate in TIP proceedings the onus has shifted on the accused No.1 Aarti to show that she was shown to witness by police at police station. The date of TIP proceeding is 14.05.2012. Accused No.1 Aarti was arrested vide memo Ex.PW7/A on 10.05.2012. The disclosure statement of accused No.1 Aarti is Ex.PW7/C dated 10.05.2012. The sketch of Ustra is Ex.PW13/D which is proved by one witness HC Sanjay Kumar/PW-15. PW-15 has deposed that he had joined the investigation on 10.05.2012. When they had reached at Railway Station towards Paharganj side at about 3:25 PM the secret informer had met SI Karmavir and informed about accused No.4 sitting on pavement in front of Sheela Cinema near wall of flyover. Thereafter police team consisting PW-15, SI Karamvir, HC Harphool and lady Ct. Rachna apprehended accused No.4 Ram Kumar at 3:30 PM. Accused No.4 Ram Kumar led the police team in front of dispensary near flyover Paharganj, at about 5:45 PM and pointed out towards accused Mohd. Anwar. After arrest of accused Mohd. Anwar accused Amit was arrested. All the 3 accused had led the police to platform No.1 New Delhi Railway Station and got arrested accused No.1 Aarti. The accused No.1 Aarti was arrested vide memo Ex.PW7/A on 10.05.2012 at about 7:10 PM. The offence was committed on 03.05.2012 at about 8:55 PM. All Page 24 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. the accused were together namely accused No.1, 3 and 4 when they had forcibly opened the door which PW-1 was trying to close. In the statement of accused Aarti under Section 313 Cr. P. C. it is recorded that she is wife of Sh. Karan whereas as per chargesheet and as per disclosure statement of accused No.4 Ram Kumar the lady who was got involved through accused No.3 Amit was Aarti w/o Sh. Srawan. Hence there is difference in the name of husband of accused No.1 Aarti as per the chargesheet and the disclosure statement made by accused No.4 Ram Kumar. However in the chargesheet itself at the last page the present accused No.1 Aarti w/o Srawan is chargesheeted. As per the chargesheet accused No.1 Aarti was wearing blue T- shirt and dark blue jean with a red cap and a designer hankie on the face at the time of commission of offence. The said clothes were not proved in the evidence of PW-1, PW-2 and PW-4.
11. PW-1 in his evidence dated 19.03.2013 has deposed that police had also seized hard-disk of CCTV Camera from the shop. He has deposed in cross examination that the CCTV camera was operational for 24 hours. PW-2 in his examination in chief has deposed that he had handed over CCTV footage and photo of the date of incident to the IO. The CD containing CCTV footage is Ex.PW2/A and the photographs are Page 25 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. Ex.PW2/B-1 to Ex.PW2/B-11. The statement of PW-2 is Ex.PW2/C. The girl who was visible in CCTV footage was veiled / muffled face. The video record H.264 4CH digital video recorder alongwith switching adapter including wire and one remote are Ex.P-5 (Collectively). The police had seen CCTV footage which is so deposed by PW-2. PW-4 had seen the girl/ accused No.1 Aarti who took out 1 Ustra and started attacking PW-1 with knife and Ustra. PW-4 told the police about the age and description of accused person who were involved in the incident. He had correctly identified accused No.4 who had entered the room while committing offence and accused No.2 Mohd. Anwar (already PO in this case) who was having curly hair standing in the street. Accused No.2 was seen by PW-4 while peeping through the window. PW-9 Israr Babu has proved the CAF Ex.PW9/A pertaining to mobile No.9654712835 in the name of PW-1. The CDR of the mobile phone from 01.04.2012 to 10.05.2012 is Ex.PW9/C. The certificate under Section 65B of Evidence Act regarding the CDR is Ex.PW9/B. The Ustra / razor with one piece of cut cloth are proved as Ex.P-7 in evidence of PW-13. T-shirt and one jean pant allegedly worn by accused No.1 during the commission of offence are proved by PW-13 Ct. Pradeep Kumar stating that they were recovered at the instance of Page 26 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. accused No.1 Aarti. It is deposed by PW-15 during his examination in chief at page 2 that one day police custody was taken of the accused person during which all the 4 accused person had pointed out the place of incident. Thereafter the disclosure statement was made and recovery was effected from an under-construction dispensary. This fact is deposed in evidence by PW-2 to have happened on 15.05.2012. However during cross examination PW-2 has deposed that the disclosure statement of accused No.1 Aarti was prepared on 10.05.2012. Hence the contradiction has came in the deposition of PW-15 HC Sanjay Kumar about the date on which police custody of accused was taken after 15.05.2012 at one place whereas at other place in cross examination dated 12.12.2022 the disclosure statement of accused No.1 Aarti was recorded on 10.05.2012.
12. The disclosure statement of accused No.1 Aarti is Ex.PW7/C. In the disclosure statement allegedly made by accused No.1 Aarti at page No.287 of the document file has disclosed that she had Ustra / razor in her possession which she was keeping with her for her security. After committing the robbery/ dacoity they had hired an auto from Chandni Chowk and reached at Paharganj. She had thrown her hankie and cap Page 27 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. out of running auto. They had hidden their knife and Ustra/ razor under stones near dispensary and accused Amit had given the stolen mobile to accused No.4 Ram Kumar alongwith clothes used in committing the offence. It is disclosed that accused No.1 Aarti can get recovered the article of offence which is Ustra, knife and the clothes used while committing the offence. The said disclosure was witnessed by W/Ct. Rachna/ PW-7 and HC Sanjay Kumar/ PW-15. It is deposed by PW-7 that the disclosure statement of accused No.1 Aart was recorded at platform of New Delhi Railway Station. Same is the deposition of PW-15. PW-15 has deposed that all the accused person got recovered two knife kept in socks and a razor concealed under a stone. It is deposed at page No.3 of the cross examination of PW-15 that accused No.1 Aarti had got recovered white colour polythene containing her clothes which were worn by her at the time of incident which are T-shirt of purple colour and jeans pant of blue colour. The said articles are marked as C-1. Accused No.2 Mohd. Anwar got recovered one mobile phone of black colour of make Samsung which was robbed from the shop. PW-15 has deposed that the razor/ knife was recovered from accused No.1 Aarti.
13. Now it has to be seen that whether the recovery of Page 28 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. alleged clothes and the knife was under a valid disclosure statement. Accused No.1 Aarti was arrested at New Delhi Railway Station and as per the case of the prosecution the disclosure was recorded at the spot. Only police witness were there at the time of recovering the clothes used in committing the crime. It cannot be said that public witness were not available while so recording the disclosure statement of accused No.1 Aarti at New Delhi Railway Station. Hon'ble Supreme Court of India in case titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) has laid down the law at para No.51 to 76 that how recovery under Section 7 of Indian Evidence Act 1872 has to be proved. It was laid down that the disclosure must be out of free will and volition. At that time when the disclosure statement was made the first thing the IO has to do was to call 2 independent witness at the police station itself. Thereafter in the presence of those independent witness the accused should be asked to make an appropriate statement. The said 2 independent witness will be Panch witness. The exact words uttered by the accused should be incorporated in the 1 st part of Panchnama. In the present case neither the Panchanama was recorded at the police station nor the exact words uttered by the accused No.1 Aarti were recorded. The independent witness Page 29 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. are also not joined in the present case. Hence prosecution has failed to prove that the alleged disclosure was made out of free will of the accused No.1 Aarti nor what was the exact disclosure is proved on record. Only after completion of the 1 st part the police has to proceed for recovery of articles of offence which would form the 2nd part of the Panchnama. Similarly IO is expected to depose in evidence the exact words uttered by the accused at the police station to prove the contents of discovery Panchnama. The authorship of concealment has to be proved.
14. The relevant para No.51 to 76 are reproduced hereasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his bloodstained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery. In such circumstances, while on the way the investigating officer picked up PW2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the investigating officer the accused led Page 30 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. them to a coriander field and from a bush he took out the weapon of offence (Banka) and the bloodstained clothes. The weapon of offence and the bloodstained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon & clothes at the instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so.
In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a Page 31 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document Page 32 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence.
56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
Page 33 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, Hamlet Amethi, original resident of village Basadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lockup, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pant shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there."
In expectation of recovery of murder weapon and bloodstained clothes, I the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No. 7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka6 has been Page 34 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealedstamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka5...." [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma Shankar Mishra who at the relevant point of time was serving as a SubInspector Chowki Incharge Bahjam, Police Station. It appears that the PW6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station Dhaurahara, domicile of village Basadhiya, Police Station Isha Ganj, District Kheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then Incharge Inspector and followers S.I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pantshirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet Amethi for the purpose of recovery."
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW7, investigating officer & PW6, Sub Inspector the exact Page 35 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination in chief of the PW6, Sub Inspector and PW7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub Inspector (PW6).
62. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483
65. Two conditions for application -
(1) information must be such as has caused discovery of the fact;
Page 36 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. and (2) information must relate distinctly to the fact discovered - Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
66. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph- 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the Page 37 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
68. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
69. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could Page 38 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
70. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively.
73. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
Page 39 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. "18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v.
Page 40 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the mostquoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied]
74. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, Page 41 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accusedappellants (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8....." [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same.
15. In Ex.PW7/C W/Ct Rachna has deposed as PW-7 who is a witness to the disclosure statement and she has not deposed that what exactly were the words of accused No.1 Aarti in her Page 42 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. disclosure statement. HC Sanjay Kumar who is 2 nd witness to the disclosure statement Ex.PW7/C has deposed as PW-15. Similarly PW-15 has not deposed that what were the exact words of the accused No.1 Aarti while making disclosure statement Ex.PW7/C. It is deposed by PW-15 that accused person had taken the police team to an under-construction dispensary. It is deposed that all the 4 accused person had led the police team. The concept of preparation of joint pointing out memo is also not admissible under law. Pointing out memo of each of the accused has to be separate and each accused has to lead separately in such pointing out. When all the accused persons are making similar disclosure statement the separate police team may carry out pointing out by each accused separately. The alleged recovery was from an under- construction dispensary. Sketch of recovery of knife and razor is Ex.PW13/B. However the site plan of the place from where the recovery was effected which is an under-construction dispensary site is not proved on record. It is deposed by PW-15 during cross examination dated 12.12.2012 that IO had called public person to join the proceeding at the spot which is the place of recovery of article of offence. The said public person had left the spot without disclosing their name and address. As per deposition of PW-7 and PW-15 that accused No.2 Anwar Page 43 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. and accused No.3 Amit were arrested in front of dispensary. Hence their disclosure statement was not available with the police when they proceeded with accused No.1 Aarti after recording her disclosure statement. It means that the disclosure statement of accused No.2 and 3 was recorded at the spot at the dispensary situated a Paharganj which is an under-construction site. The disclosure statement of accused No.2 to 4 was already available with police before recording disclosure of accused No.1. Disclosure statement of all the accused is similar and the recovery had to be effected from the same place which is under- construction dispensary. PW-7 does not deposed that before recovery of article of offence IO had asked public person to join the investigation. It is admitted by PW-17 / SI Karamvir Singh / the IO as correct that the place of recovery is a public place. He has asked the public person to join the investigation but none agreed and went away without disclosing their identity. Hence the public person were not joined at Police Station in reference to the accused No.1 Aarti and such public person should have been joined as Panch witness. In such view of the matter the recovery from accused No.1 Aarti which is Ustra and her clothes from an under-construction site which is a dispensary is doubtful. In case titled Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 at Page 44 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. relevant para no. 71 to 73 wherein it was held that joint recovery is inadmissible. It was laid down that under Section 27 of Indian Evidence Act, 1872 when more than one accused was present then it was incumbent to record the exact words used by them to connect them to recovery and the information given. This is absent in the present case. The relevant para is reproduced hereasunder:
JOINT RECOVERY INADMISSIBLE
71. It was important for the prosecution, for the purpose of Section 27 of the Indian Evidence Act (IEA), to show that it was the accused who pointed out the place where the dead body was buried. As explained by the Supreme Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh AIR 1983 SC 367 it was obligatory on the IO for the purpose of Section 27 of IEA, when more than one accused were present, to indicate "what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide the incriminating evidence against that person."
72. Here the prosecution has tried to show that an identical disclosure was made by each of the three accused and pursuant thereto the recovery was effected. It virtually amounts to a joint recovery which in the present circumstances is not very convincing.
73. Had there been no video of the recovery, it may have been possible to argue that the oral testimonies of the police witnesses were sufficient to prove the recoveries. However, having placed the video on record and with it not showing even the presence of the accused, the evidence of disclosures made by the accused leading to the recovery of the skeletal remains of the deceased Page 45 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. cannot be said to have been convincingly proved by the prosecution.
16. PW-4 has deposed that taking a gap of 15-20 minutes after 8:30 PM the 2 boys and 1 girl came upstairs. Both the 2 boys had took out the knife and the girl took out Ustra and started attacking PW-1/Ram Babu with Ustra who was folding clothes. Hence PW-4 improved version against the deposition of PW-1. The PW-1 has deposed that accused No.4 Ram Kumar @ Kalia had stabbed and pushed him. Hence due to such contradictions when PW-4 was in the adjacent room and the attack was not directly visible to PW-4 then it cannot be said PW-4 could have viewed that PW-1 was stabbed with Ustra by accused No.1 Aarti.
17. PW-17 SI Karamvir Singh has deposed that he took into possession the CD of CCTV footage vide seizure memo Ex.PW17/A. The CD and photograph are Ex.PW2/A and Ex.PW2/B-1 to Ex.PW2/B-11. The DVR was seized vide seizure Ex.PW17/D. The DVR, adapter and remote control are Ex.P-5 (colly.). The sketch of Ustra was prepared at the spot which is Ex.PW13/B. It is noted that the CCTV footage was seized from PW-2 and the digital video recorder was also seized from PW-2. However in the entire evidence PW-2 has not Page 46 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. proved the certificate under Section 65B Indian Evidence Act of correct extraction of CCTV footage in CD Ex.PW2/A on the basis of which photograph Ex.Pw2/B-1 to Ex.PW2/B-11 were taken. The PW-2 in cross examination has denied the suggestion that he did not hand over the CCTV footage or the photographs to the police. Hence accused has disputed the correct handing over of CCTV footage. It was held by the Hon'ble Supreme Court of India in case titled Chandrabhan Sudam Sanap Versus State Of Maharashtra in Criminal Appeal No. 879 of 2019 ; Decided on:- 28-01-2025 that the documents are classified in two categories in respect of objections raised regarding them. One are the documents which themselves are inadmissible in evidence such as the statement of the police official under Section 161 Cr.P.C. and the others are which are admissible in evidence however objections are taken in respect of their mode of proof. Therefore the objections as such can be taken by the accused on production of CD by PW-2 is only regarding its mode of proof. Accused has disputed the handing over of such CD and photograph and as such accused has disputed the mode of proof in cross examination of this witness. Hence opportunity was available with the prosecution to remove this objection by producing necessary certificate under Section 65B of Indian Evidence Act which the prosecution has Page 47 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. failed to produce. The defect was not cured. The prosecution was required to make an application for such production of the certificate. It was laid down at para No.49 that the certificate under Section 65B (4) is the condition precedent to the admissibility of the evidence by way of electronic record. If the same is not produced despite having been an opportunity then such electronic evidence has to be eschewed for want of the certificate under Indian Evidence Act. 1872. The relevant para are produced hereinasunder:
2025 (0) AIJEL-SC 74639 by Hon'ble Supreme Court of India in case titled Chandrabhan Sudam Sanap Versus State Of Maharashtra in Criminal Appeal No. 879 of 2019 ; Decided on:-
28-01-2025
32. Mr. Shri Singh, learned counsel vehemently contended that the CCTV footage in no way advances the case of the prosecution.
According to the learned counsel, if the footage was admittedly from DVR-II, the life span of the footage would have been only till 17.01.2014 and since admittedly the Panchnama was drawn on 18.01.2014 and the pen drives were taken on 18.01.2014, the CCTV footage is not reliable. CCTV footage, if available from 18.01.2014, was inexplicably not used for identification by chance witnesses, raising doubts on its seizure and veracity. According to the learned counsel, if the CCTV footage had been obtained from 18.01.2014, there was no reason why it was not shown to PW-18 Shivkaran Chotelal Patel (statement recorded on 08.02.2014), PW- 19 Surendra P.P. Nayar (statement recorded on 22.01.2014) and PW-23 Prahlad Kumar Yadav (statement recorded on 19.01.2014) to confirm that the individual person that they saw on 05.01.2014 was in fact the same person seen in the CCTV footage. In any case, according to the learned counsel, PW-18, PW-19 and PW-23 only claim to have seen the appellant and not the appellant and the Page 48 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. deceased together. Equally, according to the learned counsel, a serious doubt arises since PW-20 Ramesh Sonu Rathod and PW-21 Ganesh Krishna Shetty were also not shown the CCTV footage since they claim to have seen the appellant with the deceased. No sketch or photograph of the person in the CCTV footage was also prepared and the footage was also not sent for forensic analysis. Xxxxxxxxxxxxxx
40. In Sonu @ Amar vs State of Haryana (2017) 8 SCC 570, (delivered on 18.07.2017) the following paragraphs being crucial are extracted hereinbelow:-
"30. In R.V.E. Venkatachala Gounder [R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752] , this Court held as follows: (SCC p. 764, para 20) "20. ... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
(i) an objection that the document which is sought to be proved is [Ed.: The matter between two asterisks has been emphasised in original.] itself inadmissible [Ed.: The matter between two asterisks has been emphasised in original.] in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the [Ed.: The matter between two asterisks has been emphasised in original.] mode of proof [Ed.: The matter between two asterisks has been emphasised in original.] alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.
The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, Page 49 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior court.
31. It would be relevant to refer to another case decided by this Court in P.C. Purushothama Reddiar v. S. Perumal [P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9] . The earlier cases referred to are civil cases while this case pertains to police reports being admitted in evidence without objection during the trial. This Court did not permit such an objection to be taken at the appellate stage by holding that:
(SCC p. 15, para 19) "19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility."
32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is Page 50 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof." As rightly pointed out by Mr. Raja Thakare, learned Additional Solicitor General, it was held in Sonu (supra) that objection about Section 65-B(4) of the Indian Evidence Act, not being complied, cannot be taken at the appellate stage since that will deny an opportunity for the prosecution or the opposite party to rectify the defect. It was also held that the documents were not inherently inadmissible in evidence.
Xxxxxxxxxxxxxxxxxxxxx
49. This judgment has put the matter beyond controversy. In view of the above, there is no manner of doubt that certificate under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record and further it is clear that the Page 51 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. Court has also held Anvar P.V. (supra) to be the correct position of law.
50. There is one more difficulty in the way of prosecution in this case. In Sundar @ Sundarrajan vs. State by Inspector of Police, (2023) SCC OnLine SC 310 this Court reiterated the holding in Mohd. Arif @ Ashfaq v. State (NCT of Delhi), (2023) 3 SCC 654 and held that in matters pertaining to award of death sentence, the case must be considered in the light of the decisions in Anvar P.V. (supra) and Arjun Panditrao Khotkar (supra). So holding, the Court in both Sundar (supra) and Mohd. Arif (supra), after noticing the holding in Sonu (supra) eschewed the electronic evidence for want of certificate under Section 65-B(4) of Indian Evidence Act and considered the matter. Paragraphs 44 to 46 from Sundar (supra) are extracted hereinbelow:-
"44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRS are inadmissible in the absence of a Section 658 certificate, especially in cases, where the trial has been completed before 18 September 2014, i.e. before the pronouncement of the decision in Anvar P.V.. However, we are also mindful of the fact that the instant matter involves the death sentence having been awarded.
45. Most recently, in Mohd. Arif v. State (NCT) of Delhi, a three judge Bench of this Court while deciding a review petition in a case involving the review of a death penalty faced a similar fact situation where the decisions of the trial court and appellate courts were rendered during the period when Navjot Sandhu was the prevailing law. In that case as well, the Court took note of it being a matter involving a death sentence and held that:
"24. Navjot Sandhu was decided on 4.8.2005 i.e., before the judgment was rendered by the Trial Court in the instant matter. The subsequent judgments of the High Court and this Court were passed on 13.9.2007 and 10.8.2011 respectively affirming the award of death sentence. These two judgments were delivered prior to the decision of this Court in Anvar P.V. which was given on 18.9.2014. The judgments by the trial Court, High Court and this Court were thus well before the decision in Anvar P.V. and were essentially in the backdrop of law laid down in Navjot Sandhu. If we go by the principle accepted in paragraph 32 of the decision in Page 52 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. Sonu alias Amar, the matter may stand on a completely different footing. It is for this reason that stand on has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao.
25. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act."
46. Accordingly, we too deem it appropriate to consider this review petition by eschewing the electronic evidence in the form of CDRS as they are without the appropriate certificate under Section 658 even if the law, as it was during the time the trial in the present case was conducted, allowed for such electronic evidence to be admitted." (Emphasis supplied)
51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration.
18. Hence it is held that the CCTV footage as led by the prosecution on record is not proved and the same cannot be relied upon. Similarly the photographs brought by the prosecution which are collected from the same CCTV footage cannot be said to be proved until the person who has printed these photographs come and depose of so correctly taken print out of these photograph from the said CD/CCTV. With such non-proof of CCTV footage and photograph the identity of Page 53 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. accused No.1 Aarti is not proved. From the photograph there is a girl wearing a red cap, blue t-shirt and blue jeans whose face is not clearly visible. Hence the identity of the said girl is not clearly established by the prosecution. The complexion of the girl is dark, as per the deposition of PW-1. However merely on the basis of complexion it cannot be said that it is the same girl. Moreso when sketch of such girl for identification is not prepared. In the disclosure by the co-accused No.1 where name of her husband is Srawan and in her statement under Section 313 Cr.P.C. of accused No.1 has disclosed the name of her husband as Karan. There is no other proof on record produced by the prosecution regarding the identity of the accused No.1 Aarti.
19. Hence the prosecution has proved that accused No.1 Aarti has refused to participate in TIP proceedings and the onus has shited on acucsed No.1 Aarti to prove that she has rightly refused to participate in the TIP proceedings. Accused No.1 Aarti has failed to produce any kind of evidence to show that her face was exposed in any manner to public person from the date of her arrest on 10.05.2012 till the date of refusal by her to participate in TIP on 14.05.2012. PW-16 the then learned MM has conducted TIP proceedings and proved the TIP proceedings Page 54 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. as Ex.PW16/C. Hence accused No.1 Aarti has failed to shift the onus and thereby adverse inference is liable to be drawn against her on such refusal to participate in TIP proceedings. Hence adverse inference is drawn against accused No.1 Aarti that had she participated in TIP proceedings then she would have been identified by the witness Ram Babu and witness Gaurav Maheshwari. Even if taking that the refusal of accused No.1 Aarti to participate in TIP proceedings vide Ex.PW16/C and adverse inference is drawn against her for such non participation even then it is settled law that the TIP proceeding is a weak type of evidence and only on the basis of TIP evidence conviction cannot be granted to the accused. The TIP proceedings can substantiate the other evidence available on record in absence of which the conviction cannot alone stand on the basis of TIP evidence. The TIP proceeding is a circumstantial evidence which is collected after happening of the event. In this case the said refusal was done on 14.05.2012 and the incident is dated 03.05.2012. The relevant law in this regard as laid down by Hon'ble Supreme Court of India in case titled Oma @ Omprakash & Anr vs State Of Tamilnadu on 11 December, 2012 Criminal appeal no. 143 OF 2007=2012 Latest Caselaw 717 SC relevant para of which are reproduced hereinasunder:
Page 55 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc. Supreme Court of India in case titled Oma @ Omprakash & Anr vs State Of Tamilnadu on 11 December, 2012 Criminal appeal no. 143 OF 2007=2012 Latest Caselaw 717 SC
31. Evidently, the witnesses did not know the accused earlier, hence the accused could be identified only through a test identification parade which was not done in this case, so far as A-2 is concerned. In this connection, we may refer to the judgment of this court in Mohd. Iqbal M. Shaikh v. State of Maharashtra (1998) 4 SCC 494 wherein this Court held that:
"If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after fairly a long period could get corroboration from the identification parade. But unfortunately the prosecution did not take any steps in that regard and no test identification parade had been held."
32. This Court in Ravindra Alias Ravi Bansi Gohar v. State of Maharashtra and Others (1998) 6 SCC 609 deprecated the practice of showing the photographs for identifying the culprits and held as follows:
"The identification parade belongs to the investigation stage and they serve to provide the investigating authority with materials to assure themselves if the investigation is proceeding on the right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits - and not by showing the suspects or their photographs. Such being the purpose of identification parades, the investigating agency, by showing the photographs of the suspects whom they intended to place in the TI parade, made it farcical. If really the investigating agency was satisfied that PWs 2 and 12 did know the appellants from before and they were in fact amongst the miscreants, the question of holding the TI parade in respect of them for their identification could not have arisen."
33. In Ravi alias Ravichandran v. State represented by Inspector of Police (2007) 15 SCC 372, this Court held that:
"A judgment of conviction can be arrived at even if no test Page 56 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him."
34. Further, it is also held that:
"It was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification."
35. A-2, it may be noted, was not named in the FIR, nor any identification parade was conducted to identify him by the witnesses. It is rather impossible to identify the accused person when he is produced for the first time in the court i.e. after ten years since he was unknown to the witnesses. We are of the view that it is a glaring defect which goes to the root of the case since none of the witnesses had properly identified the accused.
20. The CD / CCTV footage is not run before the Court in the evidence of PW-2. As per deposition of PW-2 he had identified accused Ram Kumar and Amit in CCTV footage. However the girl in the CCTV footage was veiled / muffled face. Hence as per own deposition of PW-2 he had not initially identified the girl in the CCTV footage and there is no other evidence available on the record on the basis of which it can be said that accused No.1 Aarti was the girl/ lady as seen in the CCTV footage. Accused No.1 Aarti was arrested by the police Page 57 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. at the instance of accused No.2 Mohd. Anwar and accused No.3 Amit from platform No.1 New Delhi Railway Station. It is also settled law that merely on the basis of disclosure by co-accused no conviction can be given to other co-accused. The alleged disclosure statement of accused No.1 was recorded there itself at platform No.1 NDRS as per deposition of PW-7 which is contrary to law laid down in case titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) .
21. Hence it is held that prosecution has failed to prove the identity of accused No.1 Aarti if she is the same accused who had went to commit crime at the shop in presence of PW-2 and PW-4. Hence it is held that prosecution has failed to prove that accused No.1 Aarti had committed theft under Section 392/397 IPC.
22. The next ingredient which the prosecution has to prove is that the accused has voluntary hurt or attempted to cause hurt or wrongful restraint or fear of such hurt or wrongful restraint or instant death. The facts and law discussed under ingredient No.1 above are equally applicable under this ingredient and they are not repeated herein for the sake of privity. It is Page 58 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. deposed by PW-1 that the boy accused had attacked him and pushed him. Both the boy and girl entered in the room forcibly under the threat of knife. The PW-1 has correctly identified accused No.1 Aarti in his deposition on 08.01.2013 whereas the incident is dated 03.05.2012. No particular identity mark of accused No.1 Aarti is pointed out by PW-1 on the basis of which he could have identified the accused No.1 Aarti before the Court. Nor it is the case of the prosecution that PW-1 could have identified the accused No.1 Aarti by her voice and therefore the identification of accused No.1 Aarti by PW-1 cannot be relied upon. The TIP and its effect is already discussed under para as above. The recovery of Ustra is also discussed under above para and the above evidence and its recovery is found to be doubtful. PW-1 does not say that the girl had threatened him with Ustra whereas PW-4 has deposed that girl took out Ustra and threatened PW-1 Ram Babu with it and therefore PW-4 has improved upon the evidence of prosecution. PW-4 had locked himself in the room and it is difficult to see that how he could have identified the girl and her continuous conduct with PW-1 when PW-4 had locked himself in the room. In the above facts and circumstance of the case is held that the prosecution has failed to prove that accused No.1 Aarti has caused voluntary hurt or attempted to cause death, Page 59 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. hurt or wrongful restraint or fear of such instant death, hurt or wrongful restraint.
23. The third ingredient is that the accused No.1 has done the act for the end to commit theft or to carry away or attempt to carry away property obtained by theft. The facts and law discussed under ingredients dealt above is equally applicable under this ingredient and they are not repeated herein for the sake of privity. It is already discussed above under the heading of first ingredient and it is held that the prosecution has failed to proved that accused No.1 Aarti had committed theft or either did an act for that end in reference to Section 392/397 IPC. Ingredient No.1, 2 and 3 are interdependent both in facts and law which are already discussed above. In these circumstance of the case it is held that prosecution has failed to prove the 3 rd ingredient of Section 392 IPC. The prosecution has failed to show by any evidence that accused No.1 Aarti was related to co-accused No.2 to 4 who are PO in this case in reference to Section 392 and 452 IPC. There is no evidence direct or circumstantial to show that there was plan or meeting of mind between accused No.1 and accused No.3 & 4 before commission of the crime. The community of purpose and common design or prearranged plan is not seen proved. Prior Page 60 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. meeting of accused persons is not proved. In these circumstances of the case it is held that necessary ingredient under Section 34 IPC are absent in the present case in reference to citation titled Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) : MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007 . The relevant para is reproduced hereinasunder:
Chaman and Ors. vs. State of Uttaranchal (01.12.2008 - SC) :
MANU/SC/8334/2008 from Hon'ble Supreme Court of India in Criminal Appeal No. 409 of 2007
6. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. 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. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164 , the existence of a Page 61 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
7. As it originally stood, Section 34 was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.
8. In 1870, it was amended by the insertion of the words "in furtherance of the common intention of all" after the word "persons" and before the word "each", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor MANU/PR/0013/1945.
9. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246 , Section 34 is applicable even if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt act on the part of the accused.
10. The above position was highlighted recently in Anil Sharma and Ors. v. State of Jharkhand MANU/SC/0433/2004 :
2004CriLJ2527 ; in Harbans Kaur v. State of Haryana MANU/SC/0170/2005 : 2005CriLJ2199 and Amit Singh Page 62 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. Bhikamsingh Thakur v. State of Maharashtra MANU/SC/7004/2007 : 2007CriLJ1168.
24. The ingredients of house trespass having made preparation for causing hurt or assaulting any person or wrongfully restraining any person or putting any person in fear of hurt or assault or wrongful restrain are common both in reference to Section 452 and Section 392 IPC and the difference lies in further gravity of offence under Section 392 IPC. In the law and facts discussed above under Section 392/397 IPC it is already held that prosecution has failed to prove the house trespass and such causing of hurt on PW-2 and threat on PW-4 by accused No.1 Aarti and for the same reason it is held that the prosecution has failed to prove the necessary ingredients under Section 452 IPC.
25. The next offence with which accused No.1 Aarti is charged with is Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022 are reproduced hereinasunder:
13. Section 411 IPC:Page 63 of 70 SC No. 28035/2016 FIR No.112/2012
P. S. Kotwali State vs. Aarti Etc. "411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud Page 64 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
Page 65 of 70 SC No. 28035/2016 FIR No.112/2012P. S. Kotwali State vs. Aarti Etc.
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
xxxxxxxxx
21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
Xxxxxxxx
23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective Page 66 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
26. It is the case of the prosecution that the mobile phone of make Samsung of black colour was stolen on 03.05.2012 at about 8:55 PM from shop No.1408, Second Floor, Katra Jhammar, Chandni Chowk, Delhi. The said mobile phone was stolen by all the accused in furtherance of their common intention. It is already discussed that the prosecution has failed to prove the common intention under Section 34 IPC in reference to accused No.1 Aarti. Hence it is to be seen that whether the stolen mobile phone of make Samsung black colour was recovered from accused No.1 Aarti. SI Karamvir Singh/PW-17 had obtained CDR and CAF of the respective mobile phone. The stolen mobile phone had mobile number 9250035993 and the SIM was obtained from Idea Cellular Company. No call was made from it after 06.05.2012. PW-17 has deposed that accused Mohd. Anwar got recovered one mobile phone of make Samsung from below the stones which was kept below the already recovered polythene bag. Accused Mohd. Anwar who is accused No.2 and PO in this case had not claimed to be with the accused person at the time of Page 67 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. commission of robbery and as per the case of the prosecution he was standing in the street which is deposed by PW-4. In these circumstances of the case the mobile phone could not have been picked by accused No.2 Mohd. Anwar from the shop which is the spot of incident. Therefore somebody must have handed over after the commission of theft the said mobile phone to accused No.2 Mohd. Anwar. PW-1 has deposed that his mobile phone of make Samsung having mobile No.9250035993 was missing from the shop. Hence PW-1 has claimed ownership of that mobile. The photocopy of receipt of his mobile phone is Mark-X which was seized by IO vide Ex.PW1/D. There is no cross examination to this aspect that the mobile phone does not belong to PW-1. The mobile phone was allegedly recovered from the custody of accused No.2 and not accused No.1 Aarti. Therefore the prosecution does not have any evidence about receipt of such mobile phone with accused No.1 Aarti except disclosure statement of co-accused whereas as per the own case of the prosecution the mobile phone was recovered on the disclosure of accused No.2 Mohd. Anwar and not accused No.1 Aarti. It is settled law that no conviction can be granted merely on the basis of disclosure statement of co-accused. Further the possession of mobile phone is not proved with accused No.1. The recovery was effected from an open place which was an Page 68 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. under construction dispensary and therefore it cannot be said that this recovery was in exclusive knowledge of accused No.1 Aarti. Accused No.1 Aarti cannot be identified with the stolen mobile phone beyond reasonable doubt. In the disclosure statement accused No.1 Aarti had stated that she had thrown her mask and cap out of running auto and only knife and Ustra were hidden at the under construction dispensary. Other accused had hidden other articles. Hence as per her own statement accused No.1 Aarti had only hidden Ustra at the under construction dispensary and not her clothes which is blue t-shirt and blue jeans allegedly worn by her during commission of offence. Hence it is held that the prosecution has failed to prove that accused No.1 Aarti had knowingly received the mobile phone of make Samsung knowing it to be a stolen property and therefore the necessary ingredients laid down under Section 411 IPC remain unproved on record.
27. Hence the accused No.1 Aarti is acquitted of all the offence charged against her and it is held that prosecution has failed to prove the charge levelled against the accused No.1 Aarti under Section 392/394/397/452//411/34 IPC. Accordingly, the accused No.1 Aarti stands acquitted of the offence under Section 392/394/397/452//411/34 IPC. Her Page 69 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc. earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. P. C., accused has furnished her bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2025.05.23 on dated 23.05.2025 NAHAR 15:29:31 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/23.05.2025 Page 70 of 70 SC No. 28035/2016 FIR No.112/2012 P. S. Kotwali State vs. Aarti Etc.