Delhi District Court
State vs Rajesh @ Chuhi on 14 April, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 614/2015
PS.: Kashmere Gate
U/s.: 392/397/411/34 IPC
State Vs. Rajesh @ Chuhi & Anr.
(a) SC Case No. 28738/2016
(b) CNR No. DLCT01-008792-2016
(c) Date of commission of 11.12.2015 at 11:45 p.m.
offence
(d) Name of the Sh. Ramavtar Meena, S/o. Ganga
complainant Sahai
(e) Name of the accused i) Rajesh @ Chuhi, S/o. Sh. Dal
person(s), parentage Chand, R/o. H. No. 3777,
and residence Kucha Mohttar Khan, Mori
Gate, Delhi;
ii) Sadanand @ Prince, S/o. Sh.
Panna Lal, R/o. H. No. J-5,
Kucha Mohttar Khan, Mori
Gate, Delhi; Also at; H. No.
3878, Mori Gate, Kucha
Mohttar Khan, Delhi.
(f) Plea of the accused Not guilty
person(s)
(g) Final Order Accused persons, namely,
Rajesh @ Chuhi and Sadanand
@ Prince are convicted of the
charges under Section 392/34
IPC, however, accused, Rajesh
@ Chuhi and Sadanand @ Prince
are acquitted of charges under
Section 411 and Section 397
IPC, respectively.
(h) Date of institution of 19.07.2016
case
(i) Date when judgment 04.03.2025
was reserved
(j) Date when judgment 15.04.2025 (pursuant to
was pronounced Notification No. 10/G-4/Genl.-
I/DHC, dated 07.04.2025)
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 1 of 74
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.04.15
17:00:42 +0530
JUDGMENT
INTRODUCTION:
1. Succinctly, the facts leading to the initiation of the present proceedings are that on 12.12.2015, as ASI Krishan Pal and Ct. Praveen No. 2948/N, while engaged in night emergency duty and upon attending PCR Call had reached near Bholanath Market via Mori Gate, patrolling, they met the complainant, Ramavtar Meena S/o. Ganga Sahai. The complainant, at that point in time, apprised the said police officials of the incident that had transpired with him, besides, got recorded his statement.
Markedly, under his statement, the complainant inter alia asserted that he was engaged as chalak/sepoy at Old Police Lines/OPL. As per the complainant on the intervening night of 11/12.12.2015, he/ had reached Old Delhi Railway Station from his house via train. Subsequently, as he/the complainant was walking towards OPL from the railway station, and at around 11:45 p.m., had reached near Bhola Ram Market via Dufferin Bridge, Main Road, Mori Gate, two persons emerged from behind a truck (Bhola Ram Mkt के पास पहुँचा तो ट्रक के पीछे से दो शक्स अचानक निकलकर आये ). Suddenly, as per the complainant, one of the said persons grabbed his neck from his arms/hand in a loop and choked his neck (जिनमें से एक शक्स ने मेरे गले मे अपने हाथ का फं दा बनाकर मेरा गला दबा दिया) and the other person grabbed the complainant's hand (व दूसरे ने मेरा हाथ पकड लिया). Subsequently, both the said persons are proclaimed to have dragged the complainant towards gali and the person who had placed his arms around the complainant's neck, took out a chaku/knife from his possession and brandished the same at him/the complainant (और मुझे गली मे खींचकर ले गये जो फं दा डालने वाले शक्स ने चाकू निकालकर मुझे डराया). Thereupon, as per the complainant, both the said persons are asserted to have taken out a sum of Rs.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 2 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:00:47 +0530
1,200/- (Rupees One Thousand Two Hundred only), HDFC Bank and Axis Bank debit cards as well as Driving License from the pocket of the complainant's wearing pants (दोनों शक्सों ने मेरी पैन्ट की जेब में रक्खे 1200/- रू० नगद व HDFC BANK व AXIS BANK के दो Debit Card व Driving Licence निकाल लिये ). As the complainant raised an alarm, Ct. Anil No 1025/N and Ct. Rajesh No 1769/N, who are professed to be patrolling in the area, reached there and upon seeing them, both the persons/perpetrators attempted to flee from the spot. However, as per the complainant, Ct. Anil and Ct. Rajesh followed and caught hold of one of the said perpetrators, whose identity was later on, revealed as, Rajesh @ Chuhi S/o. Dal Chand R/o. H. No 3777, Kucha Mohtar Khan, Mori Gate, Delhi.
2. The complainant further proclaimed that the said person, who was apprehended on the spot, i.e., accused, namely, Rajesh @ Chuhi, declared the name of his associate as Prince @ Sadananad. However, the said associate of Rajesh @ Chuhi could not be apprehended at that point in time. Further, as per the complainant, upon the search of Rajesh @ Chuhi, a sum of Rs. 1,200/- (Rupees One Thousand Two Hundred only) was found/retrieved from his pocket, which was identified by the complainant as the amount, which was robbed from him. Further, as per the complainant, Rajesh @ Chuhi and his associate committed the incident of robbery with him, while brandishing knife and choking the complainant's neck. REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, under the aforenoted facts and circumstances as well as on the basis of the complainant's complaint, the concerned ASI prepared tehrir and directed Ct. Praveen to take the same to PS. Kashmere Gate for the registration of the FIR. Consequently, the present FIR was registered at PS SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 3 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:00:51 +0530 Kashmere Gate on 12.12.2015 for the offences under Sections 392/397/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and the investigation ensued. Correspondingly, during the ensuing investigation, the robbed articles, which were retrieved/recovered from the possession of accused Rajesh @ Chuhi, were seized as well as site plan was prepared by the IO. Correspondingly, accused, Rajesh @ Chuhi was formally arrested vide arrest memo and his personal search as well as disclosure statement was recorded. Notably, as per the prosecution, accused, Rajesh @ Chuhi, is asserted to have initially offered assistance to facilitate apprehension of his co-accused, Sadanand @ Prince. However, the chargesheet records that despite repeated endeavours, the said co-accused, Sadanand @ Prince could not be apprehended. Consequently, NBWs were obtained by the concerned police official(s) for the apprehension of the said co- accused.
FILING OF CHARGESHEET, SUPPLEMENTARY CHARGESHEET AND COMMITTAL PROCEEDINGS:
4. Markedly, upon conclusion of investigation in the instant case, in so far as accused, Rajesh @ Chuhi is concerned, chargesheet was filed by the concerned IO before Ld. MM-03, Central, Tis Hazari Courts under Sections 392/397/411/34 IPC. Notably, the cognizance of offences under Sections 392, 397, 411, 34 IPC, was taken by the Ld. MM-03, Central, Tis Hazari Courts on 15.02.2016.
5. Pertinently, during the ongoing search for co- accused, namely, Sadanand @ Prince, as aforenoted, NBWs were obtained for his/the said accused's apprehension. However, since accused, Sadanand @ Prince could not be apprehended, proceedings/proclamation under Section 82 of the Code of SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 4 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:00:55 +0530 Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), was got issued. However, on 21.04.2016, the accused, namely, Sadanand @ Prince is stated to have surrendered before the concerned Court/before Ld. MM, upon which, the concerned Ld. MM permitted interrogation/custody of accused, Sadanand @ Prince. Consequently, the said accused was formally arrested in the present case and he tendered his disclosure statement. Correspondingly, during the investigation proceeding, Test Identification Parade proceedings/TIP proceedings of accused, Sadanand @ Prince was scheduled to be undertaken for 28.04.2016. However, accused, Sadanand @ Prince is avowed to have refused to undergo his TIP proceedings on the said date (दिनांक 28.04.16 को मुलजिम Sadanand @ Prince ने माननीय अदालत Sh.
Babru Bhan साहब के समक्ष अपनी TIP कराने से मना किया था). Thereupon, police remand of Sadanand @ Prince was obtained, wherein it was endeavoured to search and seize the weapon used during the commission of the offence. However, the said weapon is asserted to have not been found despite all possible attempts (मुकदमा हजा की वारदात मे प्रयोग किये गये चाकू की तलाश की परंतु हर संभव कोशिशो के बाद भी कोई सुराग नही चल सका). Consequently, upon conclusion of the investigation qua accused, Sadanand @ Prince, supplementary chargesheet was filed before the Ld. MM-03, Central, Tis Hazari Court on 24.06.2016, which was directed tagged by the Ld. MM-03 along with the main chargesheet, pursuant to order dated 28.06.2016. Subsequently, upon the chargesheet and supplementary chargesheets having been clubbed together and upon conclusion/compliance of the provisions under Section 207 Cr.P.C., Ld. MM-03 (Central), Tis Hazari Courts vide its order dated 14.07.2016, passed an order of committal of the present case SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 5 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:00:59 +0530 before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge (HQ), Tis Hazari Courts. CHARGE FRAMING:
6. Relevantly, the Ld. Predecessor Judge heard the arguments addressed on behalf of the accused persons namely, Rajesh @ Chuhi and Sadanand @ Prince (hereinafter accused, namely, Rajesh @ Chuhi and Sadanand @ Prince are collectively referred to as the 'accused persons') as well as by Ld. Addl. PP for the State and upon conclusion of the same, charge(s) under Sections 392/34 IPC were framed against the accused persons/accused, namely, Rajesh @ Chuhi and Sadanand @ Prince; charge(s) under Section 397 IPC was additionally framed against accused, namely, Sadanand @ Prince and charge(s) under Section 411 IPC was additionally framed against accused, namely, Rajesh @ Chuhi vide order dated 02.08.2016 of the Ld. Predecessor Judge. Notably, the relevant extracts of the said order of charge/order dated 02.08.2016 of the Ld. Predecessor Judge are reproduced as under;
"...It is submitted on behalf of accused Sadanand @ Prince that there is mere disclosure statement of accused and no recovery has been affected from him. As the name of said accused is appearing also in the FIR itself and that he refused to join the TIP and considering the statement of complainant wherein he has specifically levelled allegations against both the accused to the effect that he was looted at the point of knife, I am of the considered opinion that a prima facie case u/S 392/34 IPC is made out and a separate Charge 397 IPC is made out against accused Sadanand @ Prince and u/S 411 IPC against accused Rajesh @ Chuhi..."
(Emphasis supplied)
7. Further, it is apposite to reproduce the charges, as framed by the Ld. Predecessor Judge, against the accused persons on 02.08.2016, pursuant to the aforesaid order, as under;
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 6 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:01:03 +0530
"...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you 1. Rajesh @ Chuhi S/o Dal Chand; 2. Sadanand @ Prince S/o Sh. Panna Lal; as under:
That on 11.12.2015 at about 11.45 p.m. in the Gali near Bhola Nath Market, Main Road, Mori Gate, Delhi within the jurisdiction of PS Kashmere Gate, Delhi, you both in furtherance of your common intention robbed the complainant Ram Avtar Meena of Rs.1200/-, Two Debit Cards of the Bank and Driving Licence, and thus, committed an offence u/s 392/34 IPC within my cognizance.
And, I hereby direct that you both be tried by this Court for the aforesaid offence...
*** *** *** "...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you Sadanand @ Prince S/o Panna Lal; as under:
That on 11.12.2015 at about 11.45 p.m. in the Gali near Bhola Nath Market, Main Road, Mori Gate, Delhi within the jurisdiction of PS Kashmere Gate, Delhi, while committing the robbery of Rs.1200/-, Two Debit Cards of the Bank and Driving Licence of the complainant Ram Avtar Meena, you used a knife, a deadly weapon in coming the said robbery along with your co-accused and thus, rendered yourself liable to be punished with minimum mandatory punishment as provided u/S 397 IPC and show cause as to why you should not be punished with the said minimum mandatory punishment.
And, I hereby direct that you be tried by this Court for the aforesaid offence...
*** *** *** "...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you Rajesh @ Chuhi S/o Dal Chand; as under:
That on 12.12.2015 in the Gali near Bhola Nath Market, Main Road, Mori Gate, Delhi within the jurisdiction of PS Kashmere Gate, Delhi, you were found in possession of Rs. 1200/- recovered from your possession belonging to the complainant Ram Avtar Meena, which you received or retained having reasons to believe the same to be stolen property and thus, committed an offence u/s 411 IPC within my cognizance.
And, I hereby direct that you be tried by this Court for the aforesaid offence."
(Emphasis supplied)
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.04.15
17:01:06
+0530
PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings,
prosecution examined 12 (twelve) witnesses/prosecution
witnesses, who deposed in their respective testimonies as under;
8.1. PW-1/Sh. Ram Avtar Meena/complainant deposed that he was working as Constable/driver in Delhi Police and at the time of incident, he/PW-1 was posted in Old Police Line. As per PW-1, on the intervening night of 11/12.12.2015, he/PW-1 had returned from his village and reached at Old Delhi Railway Station at about 11:30 p.m. Further, as per PW-1, as he was going to Old Police Line on foot from Old Delhi Railway Station and at around 11:40 p.m., had reached near Dufferin Bridge, then, two persons caught hold of him/PW-1 from behind. PW-1 further deposed that one of the said persons, wrapped his hand around his neck. Further, as per PW-1, the said persons put a knife on PW-1's back and took him/PW-1 in a gali where they took out Rs. 1,200/- (Rupees One Thousand Two Hundred only), Debit Card of AXIS Bank and HDFC Bank as well as photocopy of his/PW-1's driving license, from his/PW-1's pocket. It was further asserted by PW-1 that he raised an alarm, and the police, who were on patrolling duty reached there and one of the said robbers was apprehended on the spot, whilst the other succeeded in evading from there. PW-1 further deposed that the name of the person, who was apprehended, was revealed as Rajesh @ Chuhi, who was correctly identified by PW-1 in Court at the time of his deposition. It was further asserted by PW-1 that on formal search of the aforesaid accused, Rs. 1,200/- (Rupees One Thousand Two Hundred only) and photocopy of PW-1's driving license was recovered from the possession of accused Rajesh @ Chuhi. Subsequently, as per PW-1, they went to the police station, where his/PW-1's statement SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 8 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:10 +0530 (Ex. PW1/A) was recorded, bearing PW-1's signatures at point A. PW-1 further declared that after the registration of FIR, he/PW-1 came to the spot along with the IO and the IO prepared the site plan (Ex. PW1/B) at PW-1's instance, bearing the signature of PW-1 at point A. PW-1 further proclaimed that Rs. 1,200/- (Rupees One Thousand Two Hundred only) was seized by the IO vide seizure memo (Ex. PW1/C), bearing PW-1's signatures at point A, as well as the accused Rajesh @ Chuhi was arrested vide memo Ex. PW1/D, bearing the signatures of PW-1 at point A. It was further asserted by PW-1 that accused Rajesh's @ Chuhi's personal search was conducted vide memo Ex. PW1/E, bearing PW-1's signatures at point A. PW-1 also deposed in his evidence that once, he/PW-1 visited Tihar Jail for taking part in TIP proceedings of another accused, however, could not recollect the date of his/PW-1's visit to Tihar Jail. Correspondingly, as per PW-1, the said accused, who was produced for TIP, refused to take part in the TIP proceedings, however, PW-1 correctly identified the said accused person as accused Sadanand @ Prince in his deposition before this Court. Correspondingly, as per PW-1, accused Sadanand @ Prince had put a knife on his/PW-1's back. PW-1 further identified the currency notes of Rs. 1,200/- (Rupees One Thousand and Two Hundred only), i.e., Ex. PW1/P-1, in the denomination of 01 (one) currency note of Rs. 1,000/- (Rupees One Thousand only) and 01 (two) currency notes of Rs. 100/- (Rupees One Hundred only) each, upon production of MHC(M) in Court, as the same which were recovered from accused, namely, Rajesh @Chuhi.
8.2. PW-2/HC Rajesh deposed that on the intervening night of 11/12.12.2015, he/PW-2 was posted as Constable at PS Kashmere Gate and was on night patrolling duty along with Ct.SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 9 of 74
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:13 +0530 Anil. PW-2 further asserted that at around 11:45 p.m., while they were present in a gali near Shiva Market, Main Road, Mori Gate, they heard some noise and saw that two boys were running. Further, as per PW-2, he/PW-2 apprehended one of the said boys, however, the other (boy) succeeded in running away. As per PW-2, the name of the apprehended person was revealed as Rajesh @ Chuhi and he took formal search of the said accused and recovered, Rs. 1,200/- (Rupees One Thousand Two Hundred only), which were in the denomination of one currency note of Rs.
1,000/- (Rupees One Thousand only) and two currency notes of Rs. 100/- (Rupees Hundred only), each. Further, PW-2 proclaimed that one Ramavtar, who was following the aforesaid boys reached there and told PW-2 that the aforesaid money belonged to him/Ramavtar and that he/Ramavtar had been robbed by the aforesaid two persons. In the meanwhile, as per PW-2, ASI Krishan Pal and Ct. Praveen reached at the spot and they , i.e., he/PW-2 and Ct. Anil, handed over the custody of accused as well as the recovered amount to him and he took over the further proceedings. PW-2 further proclaimed that ASI Krishan Pal sent rukka through Ct. Praveen and made efforts to arrest the co- accused, but he was not found. PW-2 further correctly identified the accused, Rajesh @ Chuhi, in his deposition before this Court. 8.3. PW-3/HC Mahabir Singh deposed that on 11.12.2015, he/PW-3 was posted as Constable at PS Kashmere Gate and, was working as the DD Writer on the said day. PW-3 further asserted that on the said day at around 06:10 a.m., he/PW-3 recorded DD no. 57B, which is Ex. PW3/A. 8.4. PW-4/Ct. Anil deposed that on the intervening night of 11/12.12.2015, he/PW-4 was posted at Constable at PS Kashmere Gate and on that night, he/PW-4 along with constable SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 10 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:16 +0530 Rajesh/PW-3 were on night patrolling duty in the area. It was further proclaimed by PW-4 that at about 11:45 p.m., they reached near roundabout of Mori Gate and heard some noise. As per PW-4 at that point in time, one person approached them and told that he was working in Delhi Authorities and that two persons had robbed his purse. PW-4 further asserted that they followed in the direction told by said person and apprehended one person whose name was later on revealed as Rajesh. It was further proclaimed by PW-4 that they brought him/accused Rajesh at the spot and he/PW-4 made a call to the IO and after some time, the IO reached there as well as formal search of accused, Rajesh was taken and Rs. 1,200/- (Rupees One Thousand and Two Hundred only) were recovered from his possession. Correspondingly, as per PW-4, they handed over the custody of accused to the IO and thereafter, further proceedings were conducted by the IO. PW-4 further asserted that the site plan (Ex. PW1/B), prepared by IO, bears PW-4's signatures at point B and the seizure memo of currency note, i.e., Ex. PW1/C, bears PW-4's signatures at point B. Further, as per PW-4, the said accused was arrested by arrest memo (Ex. PW1/D), bearing PW-4's signatures at point B and his personal search was taken vide memo, Ex.PW1/E. PW-4 further correctly identified accused Rajesh before this Court in his deposition. PW-4 correspondingly expressed his ability to identify the case property, however, it was noted by the Ld. Predecessor Judge that MHC(M) informed that the currency notes had already been deposited in the account of DCP-North during demonetization. 8.5. PW-5/ASI Harpal Singh declared in his testimony that on 12.12.2015, he/PW-5 was posted as Head Constable at PS. Kashmere Gate and was working as duty officer from 01:00 a.m. to 09:00 p.m. Further, as per PW-5, on that night, at around 02:30 SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 11 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:01:20 +0530 a.m. on receipt of rukka from Ct. Praveen, he/PW-5 recorded FIR No. 614/15. PW-5 further produced the original FIR register, copy of which FIR was proved as Ex. PW5/A, bearing PW-5's signatures at point A. PW-5 further proclaimed that he made an endorsement on the rukka which is Ex. PW5/B, bearing PW-5's signature at point A. It was further deposed by PW-5 that the FIR was typed in CIPA by the operator on the computer maintained there in the ordinary course of official duties. Correspondingly, as per PW-5, he also issued a certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') in respect of recording of FIR on the computer, which is Ex. PW5/C, bearing PW-5's signature at point A. 8.6. PW-6/ASI Krishan Kumar deposed that on the intervening night of 11/12.12.2015, he/PW-6 was posted as ASI at PS Kashmere Gate and on that day, he was present in the area of Mori Gate along with Ct. Parveen, in connection with some call.
PW-6 further proclaimed that when he/PW-6 was going towards Bhola Nath Market, at about 11:45 p.m., Ct. Anil and Ct. Rajesh met him and they produced victim Ramavtar Meena and accused Rajesh @ Chuhi, who was correctly identified by PW-6 in Court. Thereafter, as per PW-6, he recorded the statement of Ramavtar Meena as Ex. PW1/A bearing PW-6's signature at point B. Correspondingly, as per PW-6, he made his endorsement Ex. PW6/A, bearing PW-6's signature at point A and, sent Ct. Parveen to get the case registered. Further, as per PW-6, he took formal search of the accused Rajesh @ Chuhi and recovered Rs. 1,200/- (Rupees One Thousand Two Hundred only), which were identified by complainant Ramavtar Meena. PW-6 further deposed that he seized the said amount vide seizure memo (Ex. PW1/C), bearing PW-6's signatures at point C. In the meantime, as per PW-6, Ct.
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Parveen returned to that place and handed over the rukka and copy of FIR to him/PW-6. Correspondingly, as per PW-6, he prepared site plan (Ex. PW1/B), bearing PW-6's signatures at point C. It was further avowed by PW-6 that he arrested accused Rajesh @ Chuhi vide arrest memo (Ex. PW1/D), bearing PW-6's signatures at point C. Further, PW-6 proclaimed that he took personal search of the accused vide memo (Ex. PW1/E), bearing PW-6's signatures at point C. As per PW-6, accused also made his disclosure statement, which is Ex. PW6/B, bearing PW-6's signature at point A. Thereafter, as per PW-6, they returned to police station and recorded the statement of witnesses. PW-6 also asserted that he produced the accused before the concerned court and his police custody remand was taken and thereafter, he/PW-6 made efforts to trace the co-accused, however, no clue was found. PW-6 further proclaimed that thereafter, he was transferred and he handed over the file to MHC(R). PW-6 further expressed his ability to identify the case property, however, it was noted by the Ld. Predecessor Judge that MHC(M) informed that the currency notes had already been deposited in the account of DCP-North during demonetization.
8.7. PW-7/ASI Raghunath Prasad deposed that on 12.12.2015, he/PW-7 was posted as Head Constable at police station Kashmere Gate and on the said day, he was working as MHC(M). As per PW-7, ASI Kishan Kumar deposited him/PW-7, Rs. 1,200/- (Rupees One Thousand Two Hundred only) in denomination of 01 (one) currency note of Rs. 1,000/- (Rupees One Thousand only, old currency) and 02 (two) currency notes of Rs. 100/- (Rupees One Hundred only) each. PW-7 further proclaimed that he/PW-7 deposited the same/said notes in malkhana and made an entry in this regard at serial no. 3083 in SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 13 of 74 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.04.15 17:01:30 +0530 register no. 19. PW-7 further produced the original register no. 19 and the copy of relevant entry is Ex. PW7/A (OSR). Further, as per PW-7, as long as exhibits remained in his custody, same were intact and nobody tampered with them. It was further proclaimed by PW-7 that the said currency notes were deposited in the account of DCP, North District due to demonetization. Further, PW-7 proved the copy of order for depositing the old currency notes in the account of DCP passed by the Ld. Metropolitan Magistrate as Mark PW7/1.
8.8. PW-8/Ct. Ranjan Bansal deposed that on 30.09.2016, he/PW-8 was posted as Constable at PS. Kashmere Gate and on the said day, he/PW-8 had joined the investigation of the present case along with the IO/investigating officer. As per PW-8, accused Sadanand @ Prince was also with them and at the instance of the said accused/accused, Sadanand @ Prince, they conducted raid in the area of Railway Line under Dufrene Bridge. Correspondingly, as per PW-8, the investigating officer tried to recover the case property, however, nothing was recovered. As per PW-8, the IO also recorded his statement. PW-8 further correctly identified the accused Sadanand @ Prince in Court.
8.9. PW-9/ASI Anil deposed that on 21.04.2016, he/PW-9 was posted as Constable at PS Kashmere Gate and on the said day, he/PW-9 joined the investigation of the present case. As per PW-9, he along with SI Manohar Lal went to Court Room No. 150, Tis Hazari Courts, Delhi and that accused, namely, Sadanand @ Prince had surrendered before the Court. It was further proclaimed by PW-9 that there, IO SI Manohar Lal interrogated and arrested the accused, namely, Sadanand @ Prince with the permission of the Court and the arrest memo of the accused, namely, Sadanand @ Prince is Ex. PW9/A, bearing PW-9's SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 14 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:33 +0530 signatures at point A. Further, as per PW-9, the IO carried out personal search of the accused, namely, Sadanand @ Prince vide memo Ex. PW9/B, bearing PW-9's signatures at point A. Correspondingly, as per PW-9, IO/SI Manohar Lal recorded the disclosure statement of accused, Sadanand @ Prince as Ex. PW9/C, bearing PW-9's signatures at point A. IO if further avowed by PW-9 to have produced the accused, Sadanand @ Prince before the Court and that the said accused was sent to judicial custody. Markedly, during the course of deposition of PW-9, exemption of accused Sadanand was allowed subject to the said accused not disputing his identity and recording of evidence in his absence and in presence of his counsel. 8.10. PW-10/HC Praveen Kumar deposed that in the intervening night of 11.12.2015 and 12.12.2015, he/PW-10 was posted as Constable at PS Kashmere Gate and on that night, he/PW-10 along with ASI Krishan Kumar was on emergency duty.
As per PW-10, during night, he/PW-10 along with ASI Krishan Kumar were returning to PS after attending PCR call and patrolling in Mori Gate. At about 11:55 p.m., as per PW-10, when they reached near Bholanath Market, Ct. Anil, Ct. Rajesh along with the complainant, namely, Ramavtar met them. Further, as per PW-10, IO ASI Krishan Kumar recorded the statement of the complainant and the complainant informed that two boys robbed him/the complainant with the help of knife. As per PW-10, two debit cards, cash of Rs. 1,200/- (Rupees One Thousand Two Hundred only) and driving license were robbed. Further, as per PW-10, Ct. Anil produced the accused, Rajesh @ Chuhi and the complainant identified him as the same person who along with his associate robbed him/the complainant by showing knife. Correspondingly, it was proclaimed by PW-10 that the IO carried SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 15 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:36 +0530 out search of the accused, Rajesh @ Chuhi and 01 (one) bank note of Rs. 1,000/- (Rupees One Thousand only, old currency) and 02 (two) bank notes of Rs. 100/- (Rupees One Hundred only) were recovered from pocket of wearing pant of the accused, namely, Rajesh @ Chuhi. Further, as per PW-10, the complainant identified the bank notes as the same which were robbed by the accused, Rajesh @ Chuhi along with his associate. IO is correspondingly asserted to have prepared tehrir and handed it over to him/PW-10 for the registration of FIR. Thereupon, as per PW-10, he/PW-10 went to the PS Kashmere Gate and handed over the original tehrir to Duty Officer. Subsequently, as per PW-10, the Duty Officer registered FIR No. 614/15 and handed over original tehrir and copy of FIR to him/PW-10 and he/PW-10 went to the spot as well as handed over the said documents to IO. It was further avowed by PW-10 that the IO seized cash of Rs. 1,200/-
(Rupees One Thousand and Two Hundred only) vide seizure memo Ex. PW1/C, bearing PW-10's signatures at point D and as per PW-10, IO also arrest the said accused at about 03:40 a.m. vide arrest memo Ex.PW1/D, bearing PW-10's signatures at point D. IO, as per PW-10, interrogated the accused and recorded his disclosure statement (Ex.PW6/B), bearing signatures of PW-10 at point B. Thereafter, as per PW-10, they went to PS Kashmere Gate and the IO deposited the case property in malkhana as well as put the accused in lock-up. Subsequently, on the following day, the accused was produced before Court and sent to judicial custody, whereupon, PW-10's statement was recorded by the IO. PW-10 correctly identified accused Rajesh @ Chuhi in Court. PW-10 further expressed his ability to identify the case property, however, it was noted by the Ld. Predecessor Judge that MHC(M) informed SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 16 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:01:40 +0530 that the currency notes had already been deposited in the account of DCP-North during demonetization.
8.11. PW-11/SI (Retd.) Manohar Lal deposed on 04.02.2016, he was posted as SI at PS Kashmere Gate and on that day, further investigation of the present case was assigned to him/PW-11. Further, as per PW-11, he received the case file from MHC(R) and he perused the same, as well as found that the accused, namely, Sadanand @ Prince was yet to be arrested. Consequently, as per PW-11, he made search of the accused, namely, Sadanand @ Prince and case property, however, no clue was found. As per PW-11, he prepared the chargesheet against accused, Rajesh @ Chuhi and filed the same before the court. Simultaneously, as per PW-11, on his application, Ld. MM issued non-bailable warrants/NBWs against accused, Sadanand @ Prince, however, the same/NBWs could not be executed against the accused, Sadanand @ Prince. Thereupon, as per PW-11, he filed report before the Court and process under Section 82 Cr.P.C. was issued against the said accused, which PW-11, executed. It was further proclaimed by PW-11 that on 21.04.2014, accused, Sadanand @ Prince surrender before the Court and he/PW-11 interrogated the accused, Sadanand @ Prince and arrested him with the permission of the Court vide arrest memo Ex. PW9/A, bearing signatures of PW-11 at point B. PW-11 further asserted that he carried out personal search of the accused, Sadanand @ Prince vide memo (Ex. PW9/B), bearing PW-11's signatures at point B. Further, PW-11 declared that he recorded the disclosure statement of said accused as Ex. PW9/C, bearing PW-11's signatures at point B. Thereafter, PW-11 asserted that he kept the accused in muffled face and produced him before the Court, as well as applied for TIP vide application Ex. PW11/A, bearing SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 17 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:01:43 +0530 PW-11's signatures at point A. PW-11 further deposed that the TIP of Sadanand @ Prince was scheduled for 28.04.2016, however, the said accused refused to participate in TIP proceedings. Further, as per PW-11, he received copy of TIP proceedings vide application Ex. PW11/B, bearing PW-11's signatures at point A and the copy of TIP proceedings was Ex. PW11/C. PW-11 also asserted that he applied for production warrant of the accused, Sadanand @ Prince on 29.04.2016 vide application Ex. PW11/D and on 30.04.2016, one day police custody remand of the said accused was granted on PW-11's application Ex. PW11/E, both, bearing PW-11's signatures at point A. It was correspondingly deposed by PW-11 that he prepared the pointing out memo Ex. PW11/F of the place of occurrence at the instance of the accused, namely, Sadanand @ Prince, bearing PW-11's signatures at point A. As per PW-11, he produced the accused before the Court and he/said accused was remanded to judicial custody. Thereafter, as per PW-11 on his transfer, he/PW-11 handed over the case file to MHC(R). PW-11 further correctly identified accused, namely, Sadanand @ Prince before this Court.
8.12. PW-12/Gaurav Kumar deposed In the year 2016, he was posted as SI at PS Kashmere Gate and that the present case was assigned to him/PW-12 for further investigation. As per PW-12, he received the case file from MHC (R) and he perused the same. Correspondingly, PW-12 proclaimed that the investigation of the case had already been completed and he/PW-12 prepared supplementary charge-sheet against the accused, namely, Sadanand @ Prince as well as filed the same before Court. 8.13. Notably, all the aforenoted prosecution witnesses were thoroughly examined by/on behalf of the accused persons by the respective Ld. Counsel for the accused persons.
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8.14. Apposite to further note that during the course of recording of evidence of prosecution witnesses, accused, Sadanand @ Prince admitted the TIP proceedings dated 28.04.2016, as Ex. PW11/C on 21.03.2023, in terms of the provisions under Section 294 Cr.P.C. Consequently, the Ld. Predecessor Judge vide his order of the same date, i.e., order dated 21.03.2023, dispensed with the recording of evidence of/deleted from the array of prosecution witnesses, PW Mr. Babru Bhan, Ld. MM.
EXAMINATION OF ACCUSED PERSONS:
9. Apposite to note here that upon conclusion of prosecution evidence, statements of accused persons in terms of the provisions under Section 313 Cr.P.C. were recorded on
22.01.2024, wherein the accused persons denied their involvement in the present case and proclaimed that they have been falsely implicated in the present proceedings/case. Notably, accused, Rajesh @ Chuhi, inter alia denied his involvement as well as recovery from his person as well as proclaimed that he was falsely implicated in the present case owing to some enmity with the police officials of PS Kashmere Gate. Apposite to reproduce the relevant extracts from the statement of accused Rajesh @ Chuhi, recorded under Section 313 Cr.P.C., as under;
"Q. 1: It is in evidence against you that PW-1, Ram Avtar Meena, deposed that he is working as Constable/driver in Delhi Police and at the time of incident, he/PW-1 was posted in Old Police Line. It is further in evidence that as per PW-1, on the intervening night of 11/12.12.2015, he/PW-1 had come from his village and reached at Old Delhi Railway Station at about 11:30 p.m. It is further in evidence that as per PW-1, he was going to Old Police Line on foot from Old Delhi Railway Station. It is further in evidence that as per PW-1, at about 11:40 p.m., he/PW-1 reached near Duffrin Bridge, two persons caught hold of him from behind and that one SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 19 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:01:50 +0530 of them, wrapped his hand around his/PW-1's neck. What do you have to say?
Answer: It is incorrect.
Q. 2: It is in evidence against you that as per PW-1/Ram Avtar Meena, the aforesaid persons put a knife on his/PW-1's back and took him/PW-1 in a gali and took out Rs. 1,200/-, Debit Card of AXIS Bank, HDFC Bank and photocopy of his/PW-1's driving license, from his/PW-1's pocket. It is further in evidence that as per PW-1, he raised an alarm and the police who were patrolling came there and one of the robbers was apprehended, however, the another succeeded in running away. It is further in evidence that as per PW-1, the name of person who was apprehended, was revealed as Rajesh @ Chuhi. It is further in evidence against you that PW-1, on 20.09.2016 correctly identified the accused Rajesh @ Chuhi in Court, who was present in Court on the said day. What do you have to say?
Answer: It is incorrect.
Q. 3: It is in evidence against you that PW-1/Ram Avtar Meena has further deposed that on formal search of the aforesaid accused, Rs. 1,200/- and photocopy of his/PW-1's driving licence was recovered from the accused Rajesh @ Chuhi. What do you have to say?
Answer: It is incorrect.
Q. 4: It is in evidence against you that as per PW-1/Ram Avtar Meena, thereafter, they went to the PS where his/PW-1's statement Ex. PW1/A, was recorded, bearing the signatures of PW-1 at point A. It is further in evidence that as per PW-1, after the registration of FIR, he/PW-1 came to the spot along with the IO and the IO prepared the site plan Ex. PW1/B at his/PW-1's instance, bearing the signature of PW-1 at point A. What do you have to say? Answer: I do not know.
*** *** *** Q. 39: Why was this case registered against you? Answer: I had some dipsute with the police officers of PS Kashmere Gate and they have falsely implicated in the present case.
Q. 40: Why have the PWs deposed against you? Answer: Being police officials, they have deposed against me.
Q. 41: Do you want to lead any evidence in your defence?
Answer: No.
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:01:54 +0530
Q. 42: Do you want to say anything else?
Answer: I am innocent. I have been falsely implicated in the present case as the police officials were having grudge against me..."
(Emphasis supplied) 9.1. In so far as accused, Sadanand @ Prince is concerned, as aforenoted, the said accused also denied his involvement in the present case as well as affirmed about his false implication. In particular, accused, Sadanand @ Prince denied his connection with the co-accused as well as denied of having made any disclosure statement to the police officials. Correspondingly, as per the said accused, reason for his refusal to undergo TIP proceeding was owing to the reason that his photographs (as per the said accused) were shown to the complainant by the concerned police officials. Relevant extracts of accused, Sadanand's @ Prince's statement under Section 313 Cr.P.C. are reproduced as under;
"...Q. 6: It is in evidence against you that PW-1/Ram Avtar Meena has further deposed that once he/PW-1 visited the Tihar Jail for taking part in TIP proceedings of another accused, but he/PW-1 could not remember/recollect the date of his visit to Tihar Jail. It is further in evidence that as per PW-1, the said accused, who was produced for TIP, refused to take part in the TIP proceedings. It is further in evidence that PW-1 correctly identified the accused Sadanand @ Prince on 20.09.2016 in Court, who was present in Court on the said day. It is further in evidence that as per PW-1, the accused Sadanand @ Prince had put knife on his/PW-1's back. What do you have to say?
Answer: It is incorrect. Police had shown my photographs to the aforesaid complainant namely Ram Avtar Meena before applying for my TIP and that is why I refused to participate in TIP proceedings. The complainant has wrongly identified me in the Court.
*** *** *** Q. 22: It is further in evidence that as per PW-6/ASI Krishan Kumar, the aforesaid accused made his disclosure statement Ex. PW6/B, bearing the SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 21 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:01:58 +0530 signatures of PW-6 at point A and thereafter, they returned to the PS. It is further in evidence that as per PW-6, he/PW-6 recorded statement of witnesses; produced the accused before the concerned Court and the police custody remand of the accused was taken. It is further in evidence that as per PW-6, he/PW-6 made efforts to trace the co-accused but no clue was found. It is further in evidence that as per PW-6, thereafter, he/PW-6 was transferred and he/PW-6 handed over the file to the MHC(R). It is further in evidence against you that upon production by the MHC(M) of one unsealed envelope, containing one currency note of Rs. 1000/- and two currency notes of Rs. 100/- each, PW-6 identified the same/said amount and the case property is Ex. PW1/P-1(colly). What do you have to say?
Answer: I am not aware. I have no connection with co accused Rajesh @ Chuhi.
*** *** *** Q. 26: It is in evidence against you that PW-9/ASI Anil has deposed that on 21.04.2016, he was posted as Constable at PS Kashmere Gate and that he had joined the investigation of the present case on the said day. It is further in evidence that as per PW-9, he along with SI Manohar Lal went to Court Room No. 150, Tis Hazari Courts, Delhi. It is further in evidence that as per PW-9, the accused, namely, Sadanand @ Prince had surrendered before the Court. It is further in evidence that as per PW-9, there, IO SI Manohar Lal interrogated and arrested the accused, namely, Sadanand @ Prince with the permission of the Court. It is further in evidence that as per PW-9, the arrest memo of the accused, namely, Sadanand @ Prince is Ex.PW9/A, bearing the signatures of PW-9 at point A. It is further in evidence that as per PW-9, the IO carried out personal search of the accused, namely, Sadanand @ Prince vide memo Ex.PW9/B, bearing the signatures of PW-9 at point A. It is further in evidence that as per PW-9, IO SI Manohar Lal recorded disclosure statement of the accused, namely, Sadanand @ Prince, which is Ex.PW9/C, bearing the signatures of PW-9 at point A. What do you have to say?
Answer: It is incorrect. I had surrendered before the Court but I had not made any disclosure statement. Police obtained my signatures on blank paper and used against me.
*** *** *** Q. 34: It is in evidence against you that PW-11/SI (Retd.) Manohar Lal further deposed that on his/PW-11's application, the Court of Ld. MM issued SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 22 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:02:02 +0530 non-bailable warrants against the accused, namely, Sadanand @ Prince, however, the said non-bailable warrants could not be executed against the accused, namely, Sadanand @ Prince. It is further in evidence that as per PW-11, he/PW-11 filed report before the Court. It is further in evidence that as per PW-11, process under Section 82 Cr.P.C. against the accused, namely, Sadanand @ Prince (were issued) and that he/PW-11, executed the said process/process under Section 82 Cr. P.C. What do you have to say? Answer: I am not aware. I have been falsely implicated in the present case. The police officials had never contacted me before and during issue of process under Section 82 Cr.P.C.
*** *** *** Q. 36: It is further in evidence that as per PW-11/ SI (Retd.) Manohar Lal, he kept the aforesaid accused in muffled face and produced him before the Court. It is further in evidence that as per PW-11, he/PW-11 applied for TIP vide application Ex.PW11/A, bearing the signatures of PW-11 at point A. It is further in evidence that as per PW-11, the TIP was fixed for 28.04.2016, however, the accused, namely, Sadanand @ Prince refused to participate in TIP proceedings. It is further in evidence that as per PW-11, he/PW-11 received copy of TIP proceedings vide his/PW-11's application Ex.PW11/B, bearing his signature of PW-11 at point A and the copy of TIP proceedings is Ex. PW11/C. What do you have to say?
Answer: It is incorrect. Police had shown my photographs to the aforesaid complainant namely Ram Avtar Meena before applying for my TIP and that is why I refused to participate in TIP proceedings. The complainant has wrongly identified me in the Court.
*** *** *** Q. 39: Why was this case registered against you? Answer: Some local police officers had enmity with me and that is why I have been implicated in this case.
Q. 40: Why have the PWs deposed against you? Answer: Being police officials, they have deposed against me.
Q. 41: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 42: Do you want to say anything else?
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 23 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:02:05 +0530
Answer: I am innocent. I have been falsely implicated in the present case as the police officials were having grudge against me..."
(Emphasis supplied) DEFENCE EVIDENCE:
10. Significantly, on conclusion of recording of respective statements of the accused persons, in terms of the provisions under Section 313 Cr.P.C., accused, namely, Sadanand @ Prince expressed his willingness to lead evidence/defence witnesses in support of his case. Markedly, accused, Sadanand @ Price, consequently, produced, DW-1/Raj Gautam, who deposed as under;
10.1. DW-1/Shri. Raj Gautam deposed that in the year, 2015, he was working as a property dealer and that he/DW-1 knew the accused, Sadanand since then. Further, as per DW-1, accused, Sadanand used to work with him/DW1- in his office in the name of Om Sai Ram, situated at Bapa Nagar, Karol Bagh. DW-1 further proclaimed that on 11.12.2015, at about 08:00-08:30 p.m., accused Sadanand was in aforesaid office and, had received a phone call from his sister. As per DW-1, Sadanand's sister told him/Sadanand to come to Tirath Ram Hospital as her/Sadanand's sister's husband was not well. Correspondingly, as per DW-1, Sadanand asked him/DW-1 to accompany him/said accused to Hospital for help and he/DW-1 along with Sadanand went to Tirath Ram Hospital and remained there/in the said Hospital for the whole intervening night of 11/12.12.2015. Further, as per DW-1, on next morning, he/DW-1 left the Hospital and went to his/DW-1's house. 10.2. Relevantly, though, accused Sadanand @ Prince, initially expressed an inclination to produce another witness/DW in support of his case, however, despite repeated adjournments on 02.03.2024, 06.04.2024 and 01.05.2024, the accused was unable SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 24 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:09 +0530 to produce any further witness(es). On the contrary, on 27.05.2024, accused Sadanand @ Prince asserted that he would not be in a position to produce any further witness/Ms. Kusum due to some personal difficulty. Ergo, separate statement of accused Sadanand @ Prince was recorded to the said effect and accused's right to lead further defence evidence was closed. CONTENTIONS OF STATE:
11. Ld. Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the testimony of PW-1/Sh. Ramavtar Meena, seen in conjunction with other witnesses, the role, complicity as well as active involvement of both the accused persons in the commission of the offences alleged against them stands proved. As per the Ld. Addl. PP for the State, the complainant/PW-1/Sh. Ramavtar Meena, in his testimony, has specifically deposed about the commission of incident by the accused persons on the intervening night of 11/12.12.2015, as the complainant was on his way to Old Police Lines. Correspondingly, PW-1 specifically asserted that the accused persons, while acting in concert with each other committed robbery on him, while putting him under fear/threat of injury/hurt and accused Sadanand @ Prince had deployed knife at that point in time. Further, as per Ld. Addl. PP for the State, accused, Rajesh @ Chuhi was apprehended at the spot as well as complainant's robbed amount was recovered from his possession.
Correspondingly, upon apprehension, Sadanand @ Prince refused to undergo TIP proceedings, though, both the said accused persons were identified as the perpetrators of offence by the complainant during his deposition before this Court. Ld. Addl. PP for the State further submitted that the apprehension of the accused Rajesh @ Chuhi and recovery from his person is duly corroborated under the SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 25 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:12 +0530 testimonies of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar. Correspondingly, as per Ld. Addl. PP for the State, apprehension of co-accused, Sadanand @ Prince as well as his refusal to undergo TIP, etc., stand proved from the testimonies of PW-9/ASI Anil and PW-11/SI (Retd.) Manohar Lal. It was further contended by the Ld. Addl. PP for the State that despite an extensive and though cross examination of the said witnesses, the defence has not been able to rebut the sterling testimonies of the prosecution witnesses, clearly, indicating towards the only inference of guilt of the accused persons. Further, as per the Ld. Addl. PP for the State, the testimonies of defence witness is not only replete with contradictions and material improvements, rather, does not inspire confidence. As per the Ld. Addl. PP for the defence witness has further not withstood the rigours of cross examination, making his deposition(s), to be outrightly rejected as being false, concocted, and untrustworthy. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making the accused persons to be held guilty for the same.
CONTENTIONS OF DEFENCE:
12. Per contra, Ld. Counsel for the accused persons outrightly submitted that from the material placed on record, the ingredients of offences under Sections 392/397/411/34 IPC are not made out against the accused persons in the instant case. In this regard, Ld. Counsel submitted that the testimony of the complainant and other prosecution witnesses are replete with contradictions and material variations, making the same unreliable, unworthy of credit and insufficient to bring home SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 26 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:16 +0530 charges against the accused persons, levelled against them. As per the Ld. Counsel, on the contrary, the accused persons are entitled to benefit of doubt. In this regard, Ld. Counsel for accused Rajesh @ Chuhi submitted that while PW-1 in his examination-in-chief submitted that the accused persons put his knife on his back and took out Rs. 1,200/- (Rupees One Thousand Two Hundred only), debit cards as well as photocopy of driving license from his pocket, however, in his cross examination, PW-1 proclaimed that the accused persons took out his purse from his pocket, which contained his ticket of the train, which was disposed of by the accused persons. Even otherwise, as per the Ld. Counsel submitted that the complainant nowhere under his initial complaint mentioned about the photocopy of driving license and merely mentioned that his driving license was robbed by the accused. Ld. Counsel further submitted that there is also contradiction in PW-1's deposition regarding him informing the police of the travel ticket in his examination in chief, whilst, no such declaration exists under his complaint. Ld. Counsel further submitted that there is also discrepancy under the testimonies of PW-2 and PW-10 in so far as it relates to the alleged recovery from accused, Rajesh @ Chuhi. In this regard, Ld. Counsel asserted that PW-2 deposed that such recovery was made by him, whereas, as per PW-10 the so called recovery was effected from the said accused by the IO. It was further submitted by the Ld. Counsel that the entire material placed on record would demonstrate gross variance in the version put forth by the witnesses, making their narrative grossly unreliable as well as unworthy of credit. Ergo, it was submitted that the entire story of the prosecution is cooked up, fabricated and has been concocted to falsely implicate the accused persons in the present case. Ld. Counsel further submitted that since complainant SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 27 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:52 +0530 is also a police officer, it is quite easy to frame the accused persons in the present concocted case, especially when the police officials had dispute with accused persons in the past. In this regard, Ld. Counsel further submitted that the falsity in the prosecution case is further accentuated with the fact that despite presence of several public persons, not a single person was joined in the entire investigation process, including, so called recovery, search, seizure and arrest of the accused persons.
13. Ld. Counsel for accused Sadanand @ Prince, while reiterating the submissions made by Ld. Counsel for accused Rajesh @ Chuhi, supplemented that the assertion of PW-1 that they returned to the spot after visiting the police station for the preparation of site plan, demonstrating the fallaciousness in the prosecution case as well as of false implication of the accused persons. It was further submitted by the Ld. Counsel that search and seizure in the instant case was conducted prior to the registration of FIR, therefore, it is not demonstrable from the material on record as to how the FIR number came to be specified under the said memos, where the FIR was subsequent to such search, seizure, etc. Even otherwise, it was submitted by the Ld. Counsel that the complainant never disclosed that accused Sadanand @ Prince has used knife, rather, he confirmed that he/complainant came to know of the role of said accused from disclosure of the co-accused. Ld. Counsel further submitted that, even otherwise, in the absence of recovery of any deadly weapon from/at the behest of said accused, no culpability under Section 397 IPC can be attracted against him. Ld. Counsel further while reiterating the contradictions in the testimony of prosecution witnesses, further, argued that the disclosure statement of the accused was recorded by the IO on the spot and the IO had not SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 28 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:56 +0530 informed the accused that he had a right of legal consultation before being interrogated. Correspondingly, as per Ld. Counsel, IO has deliberately not joined any public persons during the investigation. Ergo, in light of the foregoing, Ld. Counsel vehemently asserted that the prosecution has failed to prove its case beyond a shadow of doubt against the accused persons, entitling the accused persons to be released from the allegations/charges levelled against them. Ld. Counsel further reiterated that the witnesses brought forth have not supported the case of the prosecution, besides the police officials have made no attempt for recovery of the alleged robbed articles, except the 'so called' money and the weapon allegedly used in the offence, belying the story put forth against the accused persons. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused persons be permitted to benefit of doubt and be acquitted of the charges levelled against them. In support of the said contentions, reliance was placed upon the decisions in; Murari v. State, 2011 (2) JCC 1233; Ghanshyam @ Bablu v. State, Crl. Appeal No. 757/2007, dated 05.12.2009 (DHC); and Avdhesh @ Akhlesh v. State, 2010 (1) JCC 240.
APPEARANCE:
14. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel for the accused persons have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral and documentary evidence) as well as the written submissions/arguments filed on behalf of the accused persons have also been thoroughly perused.SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 29 of 74 Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:02:59 +0530 LEGAL PROVISIONS:
15. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the relevant provisions under law/IPC as under;
"23. "Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully-A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
24. "Dishonestly"-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
*** *** ***
34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
378. Theft-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft...
*** *** ***
383. Extortion-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
*** *** ***
390. Robbery-In all robbery there is either theft or extortion.
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 SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 30 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:03:03 +0530 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.
*** *** ***
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.
*** *** ***
397. Robbery, or dacoity, with attempt to cause death or grievous hurt-If, at the time of commuting 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.
*** *** ***
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."
(Emphasis supplied)
16. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability1 in criminal jurisprudence, attracting culpability against a person for an 1 Suresh v. State of U.P., (2001) 3 SCC 673.
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act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law2 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently3, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 2 Virendra Singh v. State of M.P., (2010) 8 SCC 407.3
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
17. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 33 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:16 +0530 to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention4. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance 4 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 34 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:21 +0530 and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
18. In so far as accountability under Section 390/392 IPC is concerned, this Court deems it pertinent at this stage to make a reference to the decision of the Hon'ble Supreme Court in Mohd. Wajid v. State of U.P., 2023 SCC OnLine SC 951 , wherein the Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC noted as under;
"15. Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 35 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:03:25 +0530 restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."..."
(Emphasis supplied)
19. Conspicuously, in order to convict a person under Section 392 IPC, ingredients of Section 390 IPC 5 must be established, inert alia to the effect that the offender should voluntarily cause or attempts to cause to any person death or hurt or wrongful restrain, or put such persons in fear of instant death or of instant hurt, or of instant wrongful restrain, inter alia in order to commit or while committing theft or extortion, as the case may be.
5Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
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Correspondingly, the Hon'ble Supreme Court in Dilawar Singh v. State of Delhi, MANU/SC/3678/2007, enunciating the ingredients of offence under Section 397 IPC, noted as under;
"22. The essential ingredients of Section 397 IPC are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i) 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 other accused are not vicariously liable under that Section for acts of co-accused..."
(Emphasis supplied)
20. Markedly, in the aforesaid dictate, the Hon'ble Apex Court in unambiguous terms observed that Section 397 IPC can be attracted only against a particular accused/individual, who uses the deadly weapon or does any of the acts mentioned in the said provision. As a corollary, no culpability can be attracted against other accused/co-accused persons, vicariously, under the said provision. Reference in this regard is further made to the decision in Phool Kumar v. Delhi Administration, MANU/SC/0210/1975 , wherein the Hon'ble Apex Court iterated similar sentimentalities in the following terms;
"5. The sentence of imprisonment to be awarded under Section 392 cannot be less than 7 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 SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 37 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:33 +0530 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 no 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 some body 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 P.W. 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."
(Emphasis supplied)
21. Germane for the purpose(s) of the present discourse to make a reference to the decision in Ashfaq v. State (Govt. of NCT of Delhi), (2004) 3 SCC 116, wherein the Hon'ble Supreme Court explicitly noted that mere brandishing of weapon/deadly weapon is enough to attract culpability under Section 397 IPC and that it is not required that such an accused, actually used such a weapon for cutting, stabbing, shooting, as the case may be. Pertinently, the relevant extract from the said dictate is as under;
"8. Thus, what is essential to satisfy the word "uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be."
(Emphasis supplied)
22. Congruently, the Hon'ble High Court of Delhi in Murlidhar v. State, 2018 SCC Online Del. 9401 , while cogitating the ingredients of offence under Section 397 IPC inter alia noted that recovery of the weapon is not a necessary ingredient for a SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 38 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:37 +0530 conviction under Section 397 IPC. In this regard, the Hon'ble Court, remarked as under;
"27. This court is of the opinion that the decision of the Supreme Court in Ashfaq is clear and categorical that recovery of the weapon is not a necessary ingredient for a conviction under Section 397 IPC. The 'Use' of the same to threaten is sufficient. The Accused in the present case clearly USED the knife. The same was within the vision of both the victims as per their testimony. They were terrorised and threatened due to the use of the same. They were made to part with valuables, some of which were even recovered from the house of the accused. This Court is inclined to follow the binding precedents of the Supreme Court in Phool Kumar and Ashfaq, as also followed by Ld. Single Judges of this Court in Seetal and Imran to hold that recovery of the weapon is not needed for a conviction under Section 397 IPC."
(Emphasis supplied)
23. Here, this Court deems it further apposite to refer to the decision in Asif v. State (NCT of Delhi), 2022 SCC OnLine Del 270, wherein the Hon'ble High Court observed in respect of the foregoing, as under;
"9. It is trite law that even if the weapon of offence is shown after snatching had taken place for running away along with snatched article, offence under Section 397 IPC is attracted. Section 390 Cr.P.C. provides that in a robbery, there is either theft or extortion. It is further provided that theft is 'robbery' if, in order to 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 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. Thus, if the offender uses the deadly weapon at the time of committing robbery or dacoity which would include even the fear of instant death or instant hurt or wrongful restrain or an attempt to cause death or hurt or wrongful restraint even while carrying away or attempting to carry away the property obtained by theft, the act of the offender will fall within the four corners of Section 397 IPC. Thus the contention of learned counsel for the appellant that Section 397 IPC is not made out as the blade was allegedly shown after the mobile phone was robbed, deserves to be rejected.
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The decisions relied upon by the learned counsel for the appellant did not consider the necessary ingredients of an offence of robbery which in turn is a necessary ingredient of an offence punishable under Section 397 IPC."
(Emphasis supplied)
24. Quite lucidly, it is observed from above that the Hon'ble Court explicitly remarked that even if a dangerous weapon is deployed/brandished/shown by an accused to a victim, after the incident of snatching had taken place, for running away along with snatched article, offence under Section 397 IPC would be attracted. However, in order for such weapon to fall within the ambit/meaning of dangerous weapon, as specified under Section 392 IPC, prosecution is required to produce convincing evidence that such knife, deployed/used by an accused was, in fact, 'deadly weapon'. Apposite to further note at this stage that the law is settled6, "depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not." However, the superior courts7 have repeatedly avowed that all kinds of knives cannot be graded as 'deadly weapon' within the meaning of Section 397 IPC. In fact, it is the length, shape and the manner of use which makes a knife 'deadly weapon'. Reference in this regard is made to the decision of the Hon'ble High Court in Guddu v. State, MANU/DE/1118/2019, wherein the Hon'ble Court in respect of the foregoing, noted as under;
"11. In Rajender Yadav Vs. The State (NCT of Delhi) MANU/DE/2667/2013: 2013 VII AD (Delhi) 359, this Court has held that where the prosecution case itself is that only vegetable knife was found in the possession of the accused, the knife cannot be considered a 'deadly weapon' to award the sentence of seven years which is a minimum sentence to be given 6 Mathai v. State of Kerala, (2005) 3 SCC 260.7
Sonu v. The State (Govt of NCT of Delhi), MANU/DE/5649/2012.
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with the aid of Section 397 IPC". In Jagdish and etc. Vs. The State MANU/DE/0546/1985: 1985 Crl. L.J. 1621, this Court has held thus:
"Para 9. "A deadly weapon is a thing designed to cause death, for instance, a gun, a bomb, a rifle, a sword or even a knife. A thing not so designed may also be used as a weapon to cause bodily injury and even death. It will be a question of fact in each case whether the particular weapon which may even be a knife can be said to be a deadly weapon. In the instant case, there is evidence to the effect that the knives which the accused were having were small in size. They were ordinary vegetable cutting knives. This renders the possibility of those knives being deadly weapons highly doubtful and as such the appellants shall be entitled to benefit thereof. Consequently it would be unfair to impose the minimum sentence contemplated in Section 397 on the appellants merely because they used those knives in the commission of the crime..."
12. In Rakesh Kumar Vs. State of NCT of Delhi 2005 (1) JCC 334, a Single Judge of this Court has held that there are knives of hundreds of type available in different length and width. All the knives cannot be graded as "deadly weapon" within the meaning of Section 397 IPC. It is the length, shape and the manner of use which makes a knife "deadly weapon". In Charan Singh Vs. State 1998 Crl. L.J. NOC 28 (Delhi), it was held that in order to bring home a charge under Section 397, the prosecution must produce convincing evidence that the knife used by the accused was 'deadly weapon'."
(Emphasis supplied)
25. Pertinently, for culpability under Section 411 IPC to arise, it is not necessary that an accused receives any stolen property with a culpable intention, knowledge or reason to believe, rather, even in the instance of retention of such stolen property with such mens rea or upon the failure of the accused to make enough inquires to comprehend the nature of good(s) procured by him, is sufficient. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Shiv Kumar v. State of M.P., SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 41 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:48 +0530 (2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon'ble Court inter alia observed as under;
"16. 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."
(Emphasis supplied)
26. Correspondingly, reference is further made to the decision in State of U.P. v. Nawab, MANU/UP/1516/2014, wherein the Hon'ble Court noted that conviction under Section 392 and Section 411 IPC cannot be maintained simultaneously 8 against same accused. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"17. When an accused is guilty of robbery he is to be convicted under section 392, I.P.C. When accused is found guilty under section 392 for committing robbery and under section 411 for retaining stolen property, his conviction under section 411 I.P.C. is improper. For considering the language of section 411, dishonest retention is contradistinguished in that section from dishonest reception. The act of dishonest removal within section 379 constitutes dishonest 8 Reference is further made to the decision in Sunil Mashi v. State NCT of Delhi, MANU/DE/3768/2014, wherein the Hon'ble High Court of Delhi, noted; "41. Even as regards offence under Section 379 IPC, the appellant was rightly convicted inasmuch as he was found in possession of the stolen articles immediately after the commission of theft and, therefore, the presumption under Section 114A of Indian Evidence Act, 1872 arises against him.***42. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, MANU/SC/0694/2001: (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:***"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case, illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."***43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside."
(Emphasis supplied) SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 42 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
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reception within section 411 and so the thief does not commit the offence of retaining stolen property merely by continuing to keep possession of the property he stole. The theft and taking and retention of stolen goods form one and the same offence and cannot be punished separately."
(Emphasis supplied)
27. Reference in respect of the foregoing is further made to the decision in Gopi Jaiswal v. State of U.P., MANU/UP/3723/2011, wherein the Hon'ble High Court of Allahabad in an akin situation, carried out the review of the legal provisions and remarked in unambiguous terms, as under, "8. In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under Section 379 IPC. His conviction under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under Section 411 IPC cannot be upheld."
(Emphasis supplied) APPRECIATION OF EVIDENCE:
28. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel for the accused, this Court would now proceed with the determination on merits of the instant case. In particular, and outrightly to the effect as to; '(i) whether from the material placed on record, culpability under Section 392/34 IPC can be attracted against the accused persons, namely, Rajesh @ Chuhi and Sadanand @ Prince? (ii) whether the facts and material brought forth are sufficient to demonstrate commission of offence under Section 397 IPC (additionally) by Sadanand @ Prince?; and (iii) whether SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 43 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:54 +0530 culpability for the offence under Section 411 IPC can be attracted against accused, Rajesh @ Chuhi in the instant case?' Conspicuously, in order to deal with the said aspect, this Court deems it apt to incipiently reiterate that the complainant/PW-1/Sh. Ramavtar Meena explicated the manner of commission of offence in the instant case as well as duly identified both the accused persons in his deposition before this Court. As aforenoted, PW-1 unambiguously declared that on the intervening night of 11/12.12.2015, he had returned from his village and reached at Old Delhi Railway Station at about 11:30 p.m. As per PW-1, as he was proceeding towards Old Police Line on foot from Old Delhi Railway Station and at around 11:40 p.m., had reached near Dufferin Bridge, two persons caught hold of him from behind. Correspondingly, as per PW-1 one of the said persons, wrapped his hand around his neck. Further, as per PW-1, the said persons put a knife on his/PW-1's back and took him in a gali where they took out Rs. 1,200/- (Rupees One Thousand Two Hundred only), Debit Card of AXIS Bank and HDFC Bank as well as photocopy of his/PW-1's driving license, from PW-1's pocket. It was further asserted by PW-1 that he raised an alarm, and the police, who were on patrolling duty reached there and one of the said robbers was apprehended on the spot, whilst the other succeeded in evading from there. PW-1 further deposed that the name of the person, who was apprehended, was revealed as Rajesh @ Chuhi. It was further asserted by PW-1 that on formal search of the said accused, Rs. 1,200/- (Rupees One Thousand Two Hundred only) and photocopy of PW-1's driving license was recovered from the possession of accused Rajesh @ Chuhi. Subsequently, as per PW-1, they went to the police station, where his/PW-1's statement (Ex. PW1/A) was recorded and as per PW-1, after the registration SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 44 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:03:58 +0530 of FIR, he/PW-1 came to the spot along with the IO and the IO prepared the site plan (Ex. PW1/B) at his instance. PW-1 further proclaimed that Rs. 1,200/- (Rupees One Thousand Two Hundred only) was seized by the IO vide seizure memo (Ex. PW1/C), as well as the accused Rajesh @ Chuhi was arrested vide memo Ex.
PW1/D. It was further asserted by PW-1 that accused Rajesh's @ Chuhi's personal search was conducted vide memo Ex. PW1/E. PW-1 also deposed that he, once, visited Tihar Jail for taking part in TIP proceedings of another accused, however, the said accused, who was produced for TIP, refused to take part in the said proceedings, however, PW-1 correctly identified the said accused person as accused Sadanand @ Prince in his deposition before this Court. Correspondingly, as per PW-1, accused Sadanand @ Prince had put a knife on his/PW-1's back. PW-1 further identified the currency notes of Rs. 1,200/- (Rupees One Thousand and Two Hundred only), i.e., Ex. PW1/P-1, in the denomination of 01 (one) currency note of Rs. 1,000/- (Rupees One Thousand only) and 01 (two) currency notes of Rs. 100/- (Rupees One Hundred only) each, in Court as the same which were recovered from accused, namely, Rajesh @Chuhi. Needless to mention, the complainant further duly identified accused Rajesh @ Chuhi before Court as one of the perpetrators of offence.
29. Markedly, upon being cross examined on behalf of the accused, Rajesh @ Chuhi, PW-1 asserted as under;
"XXXXXXX by ******, counsel for accused Rajesh @ Chuhi.
I had purchased the rail ticket from Rajgarh to Old Delhi Railway Station. I had come by Pooja Express. The said ticket was in my purse, which was robbed by the accused persons and the purse could not be recovered. I had told the IO about the purse, but IO did not mention about the purse in my statement, however, he had mentioned the contents of the purse.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 45 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:02 +0530
It is wrong to suggest that I did not tell any fact about the purse to the police nor I was having any rail ticket with me. The scheduled arrival time of the train was 9.55 p.m. and the train was late by one and half hours. I do not remember the number of truck behind which accused persons came out. When accused persons pulled me from behind, I saw their faces. The incident took place around 11.45 p.m. I had told in my examination in chief the time of my reaching as 11.40 p.m, by approximation and I had not seen the watch at that time. It is wrong to suggest What I do not remember the exact time of incident as no such incident had ever taken place with me. Accused Rajesh inserted his hand in my pocket in order to take out the money. The police officials on patrolling came to me within 2-3 minutes. As soon as I raised alarm, the police officials came to me on motorcycle. I did not see them from any distance, while coming. I did not apprehend any of the accused. Police officials apprehended one of the accused. I do not remember the number of debit cards. It is correct that word 'photocopy is not mentioned in my statement anywhere. I do not remember the time when I left the spot. I had gone to the police station twice in respect of the investigation of this case. The formal search of the accused was taken at the spot itself. I do not remember the time of arrest of the accused. It is wrong to suggest that no such incident of robbery had taken place with me or that none of the accused was involved in any such incident. It is wrong to suggest that I had falsely implicated the accused persons at the instance of the police. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
30. Correspondingly, upon being cross examined by/on behalf of the accused, Sadanand @ Prince, the complainant, declared as under;
"XXXXXX by ******, Ld. Counsel for accused Sadanand @ Prince.
I had joined my duty on 12.12.2015 at 8.00 a.m. 1 used to go to my village during my rest days of duty. On 11.12.2015, I travelled in train on a general ticket. I had not handed over my ticket to the IO as same was in the wallet which was dropped by the accused persons. I had stated to the IO that my wallet was also taken away by the accused persons. (Confronted with statement Ex.PW1/A where it is not so recorded). It is correct that in my statement before the court on SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 46 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:05 +0530 20.9.2016, I had specifically not mentioned that accused persons took out my wallet containing Rs.1200/- Debit Cards of Axis Bank, HDFC Bank, and photo copy of driving licence from my pocket. I had stated to the IO that photo copy of driving licence was taken away by the accused persons. (Confronted with statement Ex.PW1/A where photo copy is not mentioned). I had stated to the IO that on formal search of accused Rajesh Chuhi copy of my driving licence was also recovered. (Confronted with statement Ex.PW1/A where it is not so recorded). Robbed money was recovered from accused Rajesh @ Chuhi by police officials who were patrolling, so far as I remember, Ct. Anil and Ct. Praveen. Robbed money was recovered by the IO of this case. Today I do not remember whether the aforesaid amount was taken into sealed pulanda or not. There was no specific mark of identification on the robbed money but the money robbed from me was one currency note was in the denomination of Rs.1000/- and two currency notes were in the denomination of Rs.100/-. It is correct that if the robbed amount is mixed with other currency notes of same denomination, I will not be able to identify the robbed currency notes. I had signed my statement after going through the same. It is correct that co-accused ran away while taking benefit of darkness. (Vol. Accused Rajesh Chuhi was having problem in his leg i.e, why he could not escape). We reached at the PS at 12.00 midnight. My statement was recorded by the IO. After registration of the case, I went to Old Police lines. After registration of the case, I never visited PS Kashmere Gate and I was not called by the IO. I had mentioned the name of accused Sadanand as I had come to know about the same during the interrogation of accused Rajesh @ Chuhi that accused Sadanand had put his knife on my back. It is wrong to suggest that I did not mention statement that accused Sadanand had put knife. On my back as he had not done the alleged act. It is wrong to suggest that I falsely implicated accused Sadanand in the present case or that I am deposing falsely."
(Emphasis supplied)
31. Strikingly, it is seen from a conscientious perusal of the cross examination of PW-1 that even upon being rigorously questioned, PW-1 consistently affirmed that during the incident, the accused persons committed the offence of robbery upon him at the fateful date and time, besides duly identified the accused SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 47 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:04:08 +0530 persons in Court. Here, it is further pertinent to refer to the testimonies of PW-2/HC Rajesh and PW-4/Ct. Anil, who were both members of patrolling party and had, both, asserted that they reached at the spot, where accused accused, Rajesh @ Chuhi was apprehended as well as, further asserted about recovery of a sum of Rs. 1,200/- (Rupees One Thousand and Two Hundred only) from the possession of the said accused, while the co-accused was able to escape from the spot. Markedly, both the said witnesses further proclaimed that the IO had reached at the spot, whereupon the custody of accused Rajesh @ Chuhi was handed over to him/IO. Correspondingly, the witnesses also consistently declared regarding the IO's undertaking the remaining proceedings, thereafter. Relevantly, the factum of handing over of accused, Rajesh @ Chuhi by PW-2/HC Rajesh and PW-4/Ct. Anil to the IO as well as of the recovery of the sum of Rs. 1,200/- (Rupees One Thousand Two Hundred only) from the said accused stands duly corroborated from the testimonies of PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar.
32. Conspicuously, as aforenoted, Ld. Counsel for the accused persons have vehemently asserted that there are material contradictions and variance in the testimonies of PW-1 and other prosecution witnesses, in respect to their assertion on the person by whom recovery was undertaken, apprehension of accused, articles allegedly recovered, presence of the complainant on the spot, etc. However, in order to unerringly appreciate the contention, raised by the Ld. Counsel for the accused persons in this regard, this Court deems it pertinent to outrightly iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness. In this regard, this Court deems it apt to incipiently make a reference to the decision of the Hon'ble SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 48 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:04:12 +0530 Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied)
33. Analogously, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
"24. When an eyewitness is examined at length it SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 49 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:15 +0530 is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
(Emphasis supplied)
34. Evidently, from the conspectus of the above, it is clearly deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, cannot be permitted to be annexed with any undue weight. In fact, it is trite law9, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its 9 Appabhai v. State of Gujarat, 1988 Supp SCC 241 SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 50 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:19 +0530 opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied)
35. Ergo, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession to marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
36. Consequently, being cognizant of the foregoing revered principles, when the testimonies of prosecution witnesses in the instant case are conscientiously analyzed, this Court finds itself difficult to be convinced with contention of Ld. Counsel for the accused persons that the 'so called' contradictions/variations in the testimonies of the said witnesses/prosecution witnesses, are sufficient enough to discredit the entire prosecution case. Needless to reiterate PW-1 has consistently deposed about the commission of incident in question by the accused persons, while acting in concert/common intention with each other, as well as of the factum SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 51 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:22 +0530 of accused persons inter alia robbing him of a sum of Rs. 1,200/- (Rupees One Thousand Two Hundred only), whilst he/PW-1 was put under fear of instant death, instant hurt/injury or of wrongful restraint; accused persons attempting fleeing from the spot immediately after such occurrence; him/PW-1's raising an alarm and of the police officials reaching there and apprehending of the said perpetrators, who was identified as accused Rajesh @ Chuhi; recovery of his robbed amount of Rs. 1,200/- (Rupees One Thousand Two Hundred only) from the possession of said accused; and subsequently, upon apprehension of co-accused, the said co- accused's refusing to undergo TIP proceedings. Correspondingly, PW-1 also duly identified both the accused persons as the perpetrators of offence against him. Here, it is pertinent to note that Ld. Counsel for the accused persons have questioned the presence on the spot of occurrence by asserting that the witness has not produced his travel ticket, besides has been inconsistent in his deposition as to exact time of alleged occurrence. However, in this regard, this Court outrightly notes that PW-1/complainant, under cross examination by/at the behest of accused, Rajesh @ Chuhi provided the particulars of the train that he had travelled from on the date of occurrence, i.e., Pooja Express as well as the scheduled time of its arrival as 09:55 p.m., which was further asserted by the complainant/PW-1 to have been delayed by one and half hour on the said date. Correspondingly, though, PW-1 failed to produce the ticket of his travel, however, asserted that the same was in his purse, which was robbed by the accused persons. Undoubtedly, there appears to be contradiction in the assertion of the complainant/PW-1 regarding the robbing of his purse and ticket being present in the same, as proclaimed by him under his said cross-examination, in variance to such assertion under his SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 52 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:26 +0530 examination in chief. However, in the considered opinion of this Court, same would not be sufficient to belie the presence of the complainant at the spot of commission of offence. On the contrary, this Court unambiguously notes in this regard that the presence of the complainant on the spot as well as of the apprehension and recovery from accused Rajesh @ Chuhi at the fateful moment and place, stands corroborated from the testimonies of other prosecution witnesses, i.e., from the conscientious analysis of the depositions of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar. Needless to mention that despite the complainant's asserting with precision, the mode of transport, i.e., particulars of the train and scheduled time of arrival, no suggestion or further cross examination/question has been put forth to the complainant by the accused persons, to deny the said asseveration of the complainant. Correspondingly, PW-3/HC Mahabir Singh specifically proved DD No. 57B as Ex. PW-3/A, recoding the factum of departure entry of PW-2/HC Rajesh and PW-4/Ct. Anil on the said date. However, except for a general assertion that PW-2 and PW-4 were not present on the spot, nothing else is forthcoming under the deposition of any of the witnesses to belie declaration of the complainant in the instant case. Needless to mention, PW-3 was not cross examined by/at the behest of the accused persons, despite being afforded an opportunity to the accused persons. In fact, even under his cross examination, PW-4 affirmed his presence on the spot and of having making departure entry in this regard. Apposite to reproduce the relevant extracts of cross examination of PW-4, as under;
"XXXXXX by ******, Ld. Counsel for accused Rajesh @ Chuhi.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 53 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:31 +0530
I was posted in the beat of that area and I was performing night patrolling duty. I heard the noise from the distance of 50 meters. At that time, I was in the gali in Bhola Nath Market. When I reached near the victim, the incident had already taken place. At that time, victim was alone. It was around 11.45 p.m. I was patrolling in the area on government motorcycle. I do not remember the registration number of the motorcycle. I had left the police station at around 11.00 p.m. My departure entry was made in the roznamcha by the DO. I do not remember the DD entry number. I was not the beat constable of that area where incident took place. It is wrong to suggest that I was not on patrolling duty on that day or that no person met me in Bhola Nath Market. The distance between Bhola Nath Market and Mori Gate round about is 150 yards. The said place from where the sound was coming was not visible from the place where I was present. Complainant did not meet me at round about. Complainant met me on the corner of gali in Bhola Nath Market. I do not know the property number of the market. I immediately followed the accused persons. Rajesh was apprehended after chasing 100 meters. Site plan was not prepared at my instance. However, I was present at that time. It is wrong to suggest that accused Rajesh was lifted from his house or that no recovery was effected from him. It is wrong to suggest that accused did not make any disclosure statement or that the amount of Rs. 1200/- is planted on him at the instance of complainant. It is wrong to suggest that I was not present in the market on that night or that no complainant met me in the manner as stated by me above. It is wrong to suggest that I am deposing falsely at the instance of the IO. It is wrong to suggest that I am deposing falsely or that all the papers were prepared at the police station."
(Emphasis supplied)
37. Additionally, in the considered opinion of this Court, not much import can be accorded to the deposition of the complainant regarding the incident having taken place at around 11:45 p.m., in distinction to the declaration of the complainant that the scheduled time of arrival of the train was 09:55 p.m. as contended by Ld. Counsel for the accused. In particular, Ld. Counsel for the accused fervently argued that the IO did not verify the reasons of presence of the complainant at the spot, despite SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 54 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:34 +0530 passage of two hours from 09:55 p.m., when the alleged time of incident is asserted to be 11:40-11:45 p.m. However, in this regard, this Court decidedly notes that the complainant in his cross examination has specifically declared that though the scheduled time of arrival of the train was 09:55 p.m., however, the same got delayed by one and half hour. Correspondingly, PW-1 also declared under his said cross examination that he had told under his examination in chief, the time of his reaching as 11:40 p.m., by approximation and he had not seen the watch at that time. Clearly, in light of the said avowal, not only has the complainant explained his presence on the spot at the time of occurrence in the instant case, belying the submission that the prosecution has not been able to explain his presence for more than two hours at the spot, rather, this Court is also cognizant of the repeated avowal of the superior courts10 inter alia to the effect that in respect of the exact time of an incident, or the time duration of an occurrence lasted, "usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person." Needless to reiterate that the presence of the complainant on the spot as well as of the apprehension and recovery from accused Rajesh @ Chuhi at the fateful moment and place, stands further corroborated from the testimonies of other prosecution witnesses, i.e., from the conscientious analysis of the depositions of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar. Correspondingly, the complainant even under his cross examination by/at the behest of accused, Rajesh @ Chuhi affirmed/reiterated that accused 10 Reference is made to the decision in; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 55 of 74 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.04.15 17:04:37
Rajesh had inserted his hand in his/complainant's pocket in order to take out the money. At the same time, PW-1 confirmed that the police official, who were on patrolling duty reached the spot as soon as he raised and alarm and that accused Rajesh @ Chuhi was apprehended by them on the spot itself.
38. Relevantly, as aforenoted, Ld. Counsel for the accused persons have further strenuously contended that the complainant did not declare in his complaint that a photocopy of his driving license was also being carried by him in the aforesaid purse and that the same was also recovered from the possession of accused, Rajesh @ Chuhi. Needless to mention, the complainant was duly confronted with such assertion for the first time under his cross examination, in variance to the absence thereof under his complaint to the concerned police officials. However, as aforenoted, law is trite that court(s), while appreciating the evidence, cannot accord undue importance to minor discrepancies, which do not shake the basic version of the prosecution case. Clearly, as aforenoted, discrepancies which are due to normal errors of perception or observation should not be given importance and that minor errors due to lapse of memory may be given due allowance. Ergo, in light of the said understanding, in the considered opinion of this Court, the factum of complainant's assertion that a photocopy of his driving license was recovered from the possession of accused Rajesh @ Chuhi upon his apprehension cannot be accorded much weightage as minor variation, which is bound to occur due to lapse in time from the commission of incident in question to the time when the deposition of the complainant was finally recoded before this Court. Concomitantly, for the same reason not much import can be accorded to the deposition of PW-2/HC Rajesh on one hand, SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 56 of 74 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:41 +0530 asserting that recovery from accused, Rajesh @ Chuhi was affected by him, in contrast to the assertion of PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar that the recovery was effected by IO/PW-6 from the said accused in the instant case. Needless to mention that it is not the case of the prosecution that the incident in question occurred in presence of the police officials, rather, all the said formal witnesses/police officials asserted that they were informed of the incident by the complainant and it is only upon the complainant's raising an alarm, PW-2/HC Rajesh and PW-4/Ct. Anil reached at the spot, whereupon accused, Rajesh @ Chuhi was apprehended and recovery effected from the said accused.
39. In so far as the contention of Ld. Counsel for the accused persons regarding the absence of specific identification mark on the recovered notes to establish their ownership to the said notes/recovered notes to the complainant is concerned, this Court deems it pertinent to note that the accused Rajesh @ Chuhi was immediately apprehended on the spot by the members of the patrolling staff, i.e., PW-2/HC Rajesh and PW-4/Ct. Anil, besides the recovery was effected from him at the spot. Correspondingly, on the personal search of the accused, Rajesh @ Chuhi (Ex. PW1/E), nothing other than the said money, asserted to be the robbed amount, was recovered from his possession. Needless to mention, even the complainant in his cross examination specifically asserted that the money robbed from him was one currency note, in the denomination of Rs. 1,000/- (Rupees One Thousand only) and two currency notes were in the denomination of Rs.100/- (Rupees One Hundred only), which corresponds with the denomination of the amount so recovered. Concomitantly, accused Rajesh @ Chuhi has not claimed ownership of the said SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 57 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:45 +0530 amount. Ergo, under such circumstances, as per the mandate of Section 114(a)11 of the Evidence Act, it was obligated on accused Rajesh @ Chuhi to explain his possession of the said amount/recovered amount by tendering any plausible explanation/reasons thereof, which he failed to do in the instant case. Even otherwise, for the sake of argument presuming that the amount so recovered was not the robbed amount, in view of the consistent stand of the complainant/PW-1 and other witnesses, regarding the occurrence of robbery by the accused persons, mere factum of non-recovery of the amount involved, would not be sufficient to belie the case of the prosecution. In this regard, it is pertinent to make a reference to the decision of the Hon'ble High Court of Delhi in Mohd. Usman v. State (NCT) of Delhi, MANU/DE/0531/2011, wherein the Hon'ble Court, while confounded with a situation of akin kind, remarked as under;
"18. I am not impressed with the above contention. There is no law which provides that in a case of theft or robbery, recovery of the weapon of offence or stolen goods is sine qua non for proving the guilt of the accused person. If, for any reason whatsoever, the accused, after committing the offence has been able to dispose of, destroy or conceal the stolen property or the weapon of offence, it cannot be taken as a reason to disbelieve the testimony of the victim if it is otherwise found reliable. No doubt, as per the version of Head Constable Ramesh Chand(PW2), he found injured Satish Kumar surrounded by a group of people but, this by itself, does not mean that the aforesaid public persons had actually witnessed the occurrence. A possibility cannot be ruled out that those public persons reached at the spot after the occurrence."
(Emphasis supplied) 11
114. Court may presume existence of certain facts-"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.***The Court may presume
--***(a) That a man who is in possession of stolen goods soon after the theft is either the theft or has received the goods knowing them to be stolen, unless he can account for his possession;..." (Emphasis supplied) SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 58 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.04.15
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+0530
40. Clearly, in light of the aforenoted dictate, however, even working on a presumption that the amount so recovered from the possession of accused, Rajesh @ Chuhi was not the robbed amount, this Court reiterates that the law is settled that the mere factum of non-recovery of robbed amount, would not work to the advantage of the accused persons, in view of the consistent deposition of PW-1/complainant declaring the commission of incident of robbery by the accused persons on the aforenoted date and time, while acting in connivance, concert and common intention with each other. Here, this Court deems it pertinent to observe that it finds no credence in the contention of Ld. Counsel for the accused persons that the conviction of the accused persons cannot be based on the testimony of sole witness, in the absence of any corroboration or joining of independent witnesses in the instant case. In fact, in this regard, this Court unambiguously records that it is cognizant of the repeated avowals of superior courts12, declaring that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness, if his version is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. ... This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle 12 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
41. Congruently, this Court unambiguous observes that mere fact that the prosecution opted not to produce the other public persons, asserted to be present or would have been present at the spot of occurrence would not be sufficient to create a dent in the prosecution case in the instant case, in light of the decision of the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, wherein the Hon'ble Court in a similar situation, held as under;
"34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
(Emphasis supplied)
42. In as much as the contention of the Ld. Counsel for Sadanand @ Prince regarding the factum of him refusing to undergo TIP proceedings cannot be read against him as his photographs had already been shown to the complainant by the concerned police officials by the time his TIP proceedings were proposed, does not find favour with this Court. In the instant case, from a scrupulous analysis of the material placed on record, it is observed that not only did accused Sadanand @ Prince was able to evade from the scene of crime, rather, was eventually arrested only after he had surrendered, post initiation of proceedings under SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 60 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:04:56 +0530 Section 82 Cr.P.C. against him. However, even thereafter, the accused refused to undergo TIP proceedings, yet, was duly identified as one of the perpetrators of offence by the complainant before this Court during his deposition. In fact, as per PW-11/SI (Retd.) Manohar Lal, upon his formal arrest, pointing out memo (Ex.PW11/F) of the place of occurrence, was got prepared by him/PW-11 at the instance of the accused, Sadanand @ Prince. Apposite in this regard to refer to cross examination of PW-11 at this stage, as under;
"XXXXXX by ******, Advocate for both the accused persons, namely, Rajesh @ Chuhi and Sadanand @ Prince.
I used to be on emergency duty for 12 hours. However, I do not remember what was my duty hours on 04.02.2016. It is wrong to suggest that the accused, namely, Sadanand @ Prince had not given any disclosure statement. It is wrong to suggest that I obtained signature of the accused, namely, Sadanand @ Prince on blank paper and converted it into his disclosure statement. It is wrong to suggest that I had shown the photographs of the accused, namely, Sadanand @ Prince to the complainant before TIP of the accused, namely, Sadanand @ Prince. It is wrong to suggest that the accused, namely, Sadanand @ Prince had not pointed out any place of occurrence. It is wrong to suggest that I had not conducted the investigation proper and in fair manner.
It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
43. Markedly, it is seen from above that though Ld. Counsel for the accused suggested to PW-11 that he had shown photographs of accused Sadanand @ Prince to the complainant, prior to his TIP proceedings, which was denied by the said witness, however, no such suggestion was ever placed to the complainant in the instant case. In fact, no such cross examination on the aspect of identification of accused Sadanand @ Prince by the complainant is forthcoming under the deposition of PW-1, except to the extent SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 61 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:05:00 +0530 that the complainant had not specifically named the said accused under his complaint. Ergo, under such circumstances, it is reiterated that mere assertion that the photographs of accused were shown to the complainant by the IO and consequently, the TIP refusal cannot be read against the accused in the instant case, would not, in the considered opinion of this Court enure to the benefit of the said accused. Correspondingly, this Court is further not convinced with the submission of Ld. Counsel for the accused persons that the complainant could not have, even otherwise, identified the accused persons as the perpetrator of offence in the instant case, in view of his/complainant's own declaration that he was held from behind at the time of commission of offence. On the contrary, in this regard, this Court deems it pertinent to note that the complainant, upon being cross examined by/on behalf of accused Rajesh @ Chuhi, specifically avowed that when the accused persons pulled him/the complainant from behind, he saw their faces. However, despite such avowal, neither any suggestion that the complainant could not have seen the faces of the perpetrators of offence or any further cross examination on this aspect is forthcoming in the deposition of PW-1, except to a general suggestion that the accused persons were falsely implicated in the present case by the complainant, at the instance of the concerned police officials, which again, in the considered opinion of this Court, not work to the advantage of the accused in the instant case.
44. Correspondingly, this Court is further not convinced with the submission of Ld. Counsel for the accused persons that both the accused persons have been falsely implicated in the present case due to some prior enmity with the police officials. In this regard, this Court deems it pertinent to outrightly note that the SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 62 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:05:03 +0530 said defence has come forth for the first time under the statements of accused persons, recorded in terms of the provision under Section 313 Cr.P.C., without there being any basis thereof under the cross examination of any of the prosecution witnesses. In fact, from a conscientious perusal of the records it is seen that nowhere under the cross examination of any of the prosecution witnesses, factum of such past enmity or the particulars thereof are forthcoming. In fact, even the name of the concerned police officials or the reasons thereof to falsely implicate the accused persons in the instant case are emanating from the material placed on record. In fact, in this regard, this Court deems it apposite here to make a reference to the decision of the Hon'ble High Court of Madhya Pradesh in Suresh Chandra Gupta v. State of Madhya Pradesh, Crl.M.C. No. 5117/2021, dated 26.10.2021, wherein the Hon'ble Court, confronted with a similar conundrum, responded as under;
"...It is basic principle of the trial that accused has to establish his defence by cross examination of the prosecution witness and it cannot be termed that the accused defence shall start only at the stage of defence evidence. By confronting the prosecution witness with evidence and rebutting them by cross examination is the defence of the accused at the stage of prosecution evidence also. For free and fair trial, the trial court is bound to allow the accused to furnish all relevant documents for his defence at any stage. The impugned order is per-se illegal and arbitrary. Hence, he prayed that this petition should be allowed and impugned order should be quashed and the application filed by the petitioner under Section 91 of Cr.P.C. for taking documents on record be also allowed."
(Emphasis supplied)
45. Clearly, in light of the aforesaid dictate, under such a situation where neither any of the prosecution witnesses have been cross examined nor any affirmative evidence forthcoming from SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 63 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:05:07 +0530 the accused persons' end regarding their assertion of past enmity with the police officials of PS. Kashmere Gate, in the considered opinion of this Court, not much credence can be accorded to the accused persons' said defence, basis/foundation of which was neither laid down in the accused persons' cross examination of the prosecution witnesses nor any affirmative evidence in this regard forthcoming on the record. On the contrary, this Court deems it apposite at this stage to note that it is wary of the persistent avowals of various courts, declaring the police officials to be competent witness in criminal trials/cases and 13 that evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation. Relevant in this regard, to further make a reference to the decision of the Hon'ble Supreme Court in Govindaraju v. State, (2012) 4 SCC 722, wherein the Hon'ble Court, in an akin context observed as under;
"30. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness."
(Emphasis supplied)
46. At this stage, this Court deems it further pertinent to note that, though, accused, Sadanand @ Prince produce DW-1/Raj Gautam in support of his case, who inter alia asserted that on the intervening night of 11/12.12.2015, the accused Sadanand and 13 Baldev Singh v. State of Haryana, MANU/SC/1268/2015.
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he/DW-1 were present in Tirath Ram hospital as Sadanand's sister's husband was not well and admitted in the said Hospital. In fact, DW-1 specifically asserted that accused Sadanand and he/DW-1 remained in the hospital for the whole intervening night of 11/12.12.2015. However, in the considered opinion of this Court, DW-1 failed to face the rigours of cross examination by/on behalf of the State. Apposite at this stage to reproduce the extracts of cross examination of DW-1/Raj Gautam as under;
"XXXXXXXX by Ld. Addl. PP for the State.
I have studied upto 9th standard in UP. I along with my family shifted to Delhi in the year 2000 and since then I have been residing in Karol Bagh. I am engaged in the work of property dealing since 2010. Earlier I was working in the office of some other property dealer. The office situated in Bapa Nagar, Karol Bagh is owned by Kartar Singh and I am working there since the year 2010. My job profile includes showing of the properties to the clients. I was married seven years back. Sadanand started working in the said office in the year 2014 and he was working as my colleague. I can not tell the exact date when Sadanand joined the aforesaid job, due to lapse of long time. I do not know what was the health issue to the brother in law of Sadanand when he was admitted in Tirath Ram Hospital in intervening night of 11/12.12.2015. I do not remember whether the brother in law of Sadanand was in general ward or ICU or emergency ward. I can not tell on which floor the brother in law of Sadanand was admitted in the said hospital. (Vol. Sister of Sadanand met us at the ground floor and we were indulged in bhaga daudi).
Q. What was the cause of bhaga daudi?
Ans. To carry the file and to get the tests done. Other family members of Sadanand were also present in the hospital, but I do not know about their details. I had not seen the brother in law of Sadanand in hospital. (Vol. 1 was with Sadanand). I had entered the hospital. No visiting pass was made. I do not know since when the brother in law of Sadanand was admitted in the said hospital. I do not know as to when the brother in law of Sadanand was discharged from the hospital, neither I asked from the accused Sadanand, nor he told me about the same. The accused Sadanand left the job from the office of property SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 65 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:05:14 +0530 dealer after 1-1½ months of the aforesaid date. I do not know the reason of leaving the job by the accused Sadanand (Vol. It may be due to low salary or harassment by the employer). I left the said job in the year 2017. (Vol. My employer died in year 2017 and thereafter I left the job). I cannot produce any document showing that I was working in the aforesaid office of Mr. Kartar Singh, who has now expired. I do not remember the exact date when I left my job from the said office in the year 2017. I do not remember the exact date when I joined the said office. Presently, I am working as courier boy. I do not remember the exact date when Mr. Kartar Singh expired. I have no knowledge about the facts of the present case. It is wrong to suggest that I remember the exact date of intervening night of 11/12.12.2015, however, I do not remember the exact date of my joining the office, my leaving the job or the date of death of my employer as I have been tutored to depose falsely in respect of intervening night of 11/12.12.2015 to save the accused Sadanand. It is wrong to suggest that I was not present with Sadanand on 11.12.2015 or the intervening night of 11/12.12.2015 as stated by me in my examination in chief. It is wrong to suggest that I had deposed a false and fabricated story in my examination in chief. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
47. Clearly, from the above it is noted that, though, DW-1 asserted that he was present in the Hospital during the entire intervening night of 11/12.12.2015 till morning, however, failed to disclose the heath issues of accused, Sadanand's @ Prince's heath issues or whether the said patient was admitted in the general ward or the ICU or the emergency ward of the said Hospital. Correspondingly, DW-1 expressed inability to disclose the floor on which the accused's brother-in-law or of the details of the other family members of accused Sadanand @ Prince, who are asserted to be present there. Ergo, it is seen from above that except to the deposition that the accused and he were present in the Hospital, the witness has failed to disclose any other particular of such visit, casting a doubt in the version out forth by him. Even otherwise, as SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 66 of 74 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.04.15 17:05:17 +0530 aforenoted, the accused Sadanand @ Prince, despite being afforded ample opportunities, failed to produce any other witness, in particular, the so called brother in law or his sister or even the records of admission of his brother in law in the Hospital in the said intervening night. Needless to further mention, no visitation card or any other document demonstrating the accused's presence in the said Hospital as asserted by him is wanting, leaving this Court with no option than to reach a conclusion that the assertion of DW-1 is not worthy of credence and a possibility of the said witness being tutored cannot be ruled out.
48. Notwithstanding the foregoing, this Court is cognizant in the instant case the evidence regarding the commission of offence under Section 397 IPC is grossly wanting. Needless to reiterate that for the provisions Section 397 IPC to be involved and applied it is inter alia incumbent to prove the use/brandishing of any deadly weapon by an accused. Further, as aforementioned, recovery of such weapon is not necessary to attract conviction in all case. However, it is incumbent for the prosecution to prove that the weapon so deployed was in fact a deadly weapon. Correspondingly, as noted in Guddu v. State, (Supra.) mere assertion of deployment of knife by an accused is not sufficient at attract the said provision against such an accused, as all the knives cannot be graded as "deadly weapon" within the meaning of Section 397 IPC. In fact, it is the length, shape and the manner of use which makes a knife "deadly weapon". As a corollary, in the instances, where recovery of weapon of offence is not possible, it is expected of the prosecution 14 to prove from the testimony of eyewitness/victim that weapon deployed/brandished, feel within the definition and ambit of 'deadly weapon'. However, 14 Panneer & Ors. v. State (17.09.1986 - MADHC) : MANU/TN/0400/1986.
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Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:05:21
+0530
in the instant case, except for the complainant's assertion that the accused persons put a knife on his back, no description of such knife is forthcoming on record so as to bring the same within the purview of 'deadly weapon'. Correspondingly, PW-1 asserted that he came to know that it was accused Sadanand @ Prince who had put a knife on his back, during the interrogation of accused, Rajesh @ Chuhi. Accordingly, under such circumstances, it would not be safe to reach a conclusion of guilt of accused Sadanand @ Prince for the offence under Section 397 IPC (additionally). However, in conspectus of above and being cognizant of the arguments addressed as well as the judicial dictates specified herein, this Court unambiguously reaches a conclusion that the prosecution has been able to prove, 'beyond reasonable doubt', commission of offence under Section 392 read with Section 34 IPC by accused persons, namely, Rajesh @ Chuhi and Sadanand @ Prince in the instant case. In this regard, it is reiterated as under;
a) PW-1 has consistently deposed about the commission of incident in question by the accused persons, while acting in concert/common intention with each other, as well as of the factum of accused persons inter alia robbing him of a sum of Rs. 1,200/- (Rupees One Thousand Two Hundred only), whilst he/PW-1 was put under fear of instant death, instant hurt/injury or of wrongful restraint; accused persons attempting fleeing from the spot immediately after such occurrence; him/PW-1's raising an alarm and of the police officials reaching there and apprehending of the said perpetrators, who was identified as accused Rajesh @ Chuhi; recovery of his robbed amount of Rs. 1,200/- (Rupees One Thousand Two Hundred only) from the possession of said accused; and subsequently, upon apprehension of co-accused, the said co-accused's refusing to undergo TIP proceedings. Correspondingly, PW-1 also duly identified both the accused persons as the perpetrators of offence against him;
b) Correspondingly, PW-2/HC Rajesh and PW-4/Ct. Anil, who were both members of patrolling party and had, both, asserted that they reached at the spot and apprehended accused, Rajesh @ Chuhi at the spot as SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 68 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 17:05:24 +0530 well as asserted about recovery of a sum of Rs. 1,200/- (Rupees One Thousand and Two Hundred only) from the possession of the said accused, while the co-accused of said person was able to escape from the spot. Markedly, both the said witnesses further proclaimed that the IO had reached at the spot, whereupon the custody of accused Rajesh @ Chuhi was handed over to him/IO. Correspondingly, the witnesses also consistently declared regarding the IO's undertaking the remaining proceedings, thereafter. Relevantly, the factum of handing over of accused, Rajesh @ Chuhi by PW-2/HC Rajesh and PW-4/Ct. Anil to the IO as well as of the recovery of the sum of Rs. 1,200/- (Rupees One Thousand Two Hundred only) stands corroborated from the testimonies of PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar;
c) The alleged discrepancies, contradictions, improvements in the version of the prosecution witnesses are not material. Non mentioning of photocopy of complainant's driving license or of variance in the recovery by PW-2 or by PW-6/PW-10 cannot be given undue weightage in view of repeated avowals of superior courts (State of U.P. v. M.K. Anthony, (1985) 1 SCC 505; Rammi v. State of M.P., (1999) 8 SCC 649; and State of U.P. v. Naresh, (2011) 4 SCC 324);
d) Presence of the complainant on the spot as well as of the apprehension and recovery from accused Rajesh @ Chuhi at the fateful moment and place, stands corroborated from the testimonies of other prosecution witnesses, i.e., from the conscientious analysis of the depositions of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI Krishan Kumar and PW-10/HC Praveen Kumar. Needless to mention that despite the complainant's asserting with precision, the mode of transport, i.e., particulars of the train and scheduled time of arrival, no suggestion or further cross examination/question has been put forth to the complainant by the accused persons, to deny the said asseveration of the complainant;
e) PW-3/HC Mahabir Singh specifically proved DD No. 57B as Ex. PW-3/A, recoding the factum of departure entry of PW-2/HC Rajesh and PW-4/Ct. Anil on the said date. However, except for a general assertion that PW-2 and PW-4 were not present on the spot, nothing else is forthcoming under the deposition of any of the witnesses to belie declaration of the complainant in the instant case. Needless to mention, PW-3 was not cross examined by/at the behest of the accused persons, despite being afforded an opportunity to the accused persons;
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f) Complainant in his cross examination specifically declared that though the scheduled time of arrival of the train was 09:55 p.m., however, the same got delayed by one and half hour. Correspondingly, PW-1 also declared under his said cross examination that he had told under his examination in chief, the time of his reaching as 11:40 p.m., by approximation and he had not seen the watch at that time. Clearly, in light of the said avowal, not only has the complainant explained his presence on the spot at the time of occurrence in the instant case. Even otherwise, law does not demand a witness to depose of the time or longevity of occurrence with exactitude (Ref.:
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217);
g) Rajesh @ Chuhi was immediately apprehended on the spot by the members of the patrolling staff, i.e., PW-2/HC Rajesh and PW-4/Ct. Anil, besides the recovery was effected from him at the spot.
Correspondingly, on the personal search of the accused, Rajesh @ Chuhi (Ex. PW1/E), nothing other than the said money, asserted to be the robbed amount, was recovered from his possession. Needless to mention, even the complainant in his cross examination specifically asserted that the money robbed from him was one currency note, in the denomination of Rs. 1,000/- (Rupees One Thousand only) and two currency notes were in the denomination of Rs.100/- (Rupees One Hundred only), which corresponds with the denomination of the amount so recovered. Concomitantly, accused Rajesh @ Chuhi has not claimed ownership of the said amount. Ergo, under such circumstances, as per the mandate of Section 114(a) of the Evidence Act, it was incumbent on the accused to explain his said possession, which he failed to do;
h) For the sake of argument presuming that the amount so recovered was not the robbed amount, in view of the consistent stand of the complainant/PW-1 and other witnesses, regarding the occurrence of robbery by the accused persons, mere factum of non-recovery of the amount involved, would not be sufficient to belie the case of the prosecution (Ref.: Mohd. Usman v. State (NCT) of Delhi, MANU/DE/0531/2011);
i) Though, Ld. Counsel for the accused suggested to PW-11 that he had shown photographs of accused Sadanand @ Prince to the complainant, prior to his TIP proceedings, however, no such suggestion was ever placed to the complainant in the instant case. In fact, no such cross examination on the aspect of identification of accused Sadanand @ Prince by the complainant is forthcoming under the deposition of SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 70 of 74 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.04.15 17:05:32 +0530 PW-1, except to the extent that the complainant had not specifically named the said accused under his complaint. Ergo, under such circumstances, it is reiterated that mere assertion that the photographs of accused were shown to the complainant by the IO and consequently, the TIP refusal cannot be read against the accused in the instant case, would not, in the considered opinion of this Court enure to the benefit of the said accused;
j) This Court is further not convinced with the submission of Ld. Counsel for the accused persons that the complainant could not have, even otherwise, identified the accused persons as the perpetrator of offence in the instant case, in view of his/complainant's own declaration that he was held from behind at the time of commission of offence. On the contrary, in this regard, this Court deems it pertinent to note that the complainant, upon being cross examined by/on behalf of accused Rajesh @ Chuhi, specifically avowed that when the accused persons pulled him/the complainant from behind, he saw their faces. However, despite such avowal, neither any suggestion that the complainant could not have seen the faces of the perpetrators of offence or any further cross examination on this aspect is forthcoming in the deposition of PW-1, except to a general suggestion that the accused persons were falsely implicated in the present case by the complainant, at the instance of the concerned police officials;
k) Basis of defence raised by accused persons under his statement recorded under Section 313 Cr.P.C. has nowhere been laid under the cross examination of any of the prosecution witnesses. In fact, from a conscientious perusal of the records it is seen that nowhere under the cross examination of any of the prosecution witnesses, factum of such past enmity or the particulars thereof are forthcoming. Correspondingly, even the name of the concerned police officials or the reasons thereof to falsely implicate the accused persons in the instant case are emanating from the material placed on record, making such defence unworthy of credence (Ref.:
Madhya Pradesh in Suresh Chandra Gupta v. State of Madhya Pradesh, Crl.M.C. No. 5117/2021, dated 26.10.2021);
l) Police officials to be competent witness in criminal trials/cases and the evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation. (Ref: Baldev Singh v. State of Haryana, SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 71 of 74 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.04.15 MANU/SC/1268/2015; and Govindaraju v. State, (2012) 4 SCC 722);
m) Accused, Rajesh @ Chuhi was apprehended on the spot, identified by the complainant as one of the perpetrators and got arrested at the instance of the complainant as well as there was recovery from him at that point in time. Correspondingly, co-accused Sadanand @ Prince was identified by the complainant in Court, post his refusal to undergo TIP proceedings, besides as per PW-11/SI (Retd.) Manohar Lal, upon his formal arrest, pointing out memo (Ex.PW11/F) of the place of occurrence, was got prepared by him/PW-11 at the instance of the accused, Sadanand @ Prince;
n) DW-1 is not worthy of credence and a possibility of the said witness being tutored cannot be ruled out; and
o) Lastly, law is settled that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness if the version of said witness is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted (Ref; Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367; and Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680).
49. Lastly, in as much as the allegations/charges under Section 411 IPC is concerned, this Court unambiguously notes that in light of the aforementioned dictates, in particular, in terms of the decisions in State of U.P. v. Nawab (Supra.) and Gopi Jaiswal v. State of U.P. (Supra.), once a finding of guilt of accused persons for the commission of offence under Section 392/34 IPC has been reached by this Court, it would not be proper to convict accused, Rajesh @ Chuhi for the offence under Section 411 IPC in the instant case. Correspondingly, for the reasons, aforestated, finding of guilt of accused Sadanand @ Prince for the offence under Section 397 IPC cannot be reached beyond reasonable doubt in the instant case. Apposite at this stage to lastly note that, though, this Court holds highest regard for the decisions relied upon by Ld. Counsel for the accused, however, the same would not, in the considered opinion of this Court come to the aid/rescue of the SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 72 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.15 accused persons, in the manner as prayed for the facts and circumstances of the said cases/dictates are clearly, distinguishable.
CONCLUSION:
50. Conclusively, in light of the foregoing, it is reiterated that from the material placed on record and arguments addressed on behalf of the State as well as by/on behalf of the accused persons, in the considered opinion of this Court, the prosecution has been able to prove its case 'beyond reasonable doubt' against the accused persons, namely, Rajesh @ Chuhi and Sadanand @ Prince for the offence under Section 392 read with Section 34 IPC, is so far as it relates to the commission of offence of robbery from the complainant/PW-1/Sh. Ramavtar Meena. However, it is reiterated that the allegations/charges under Section 411 IPC cannot sustain against Rajesh @ Chuhi and allegation/charges under Section 397 IPC cannot sustain against accused Sadanand @ Prince, in view of the aforenoted discussion.
51. Accordingly, accused persons namely, Rajesh @ Chuhi and Sadanand @ Prince are convicted of the charge(s)/offence under Sections 392/34 IPC. However, accused Rajesh @ Chuhi and Sadanand @ Prince are acquitted of charges under Section 411 IPC and Section 397 IPC, respectively. Consequently, let the accused persons be heard on the aspect of sentence.
52. In the meanwhile, issue notice to SHO, PS Kashmere Gate to submit report of antecedents/previous involvements of the convict persons, Rajesh @ Chuhi and Sadanand @ Prince. Also, issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the said convict persons. Further, a copy SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 73 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:05:47 +0530 of the present judgment be given dasti to the convict persons, namely, Rajesh @ Chuhi and Sadanand @ Prince.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:05:55 +0530 Announced in the open Court (Abhishek Goyal)
on 15.04.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 74 of 74