Delhi District Court
State vs Karan on 5 March, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 133/2014
PS.: Darya Ganj
U/s.: 392/397/411/34 IPC
State Vs. Karan & Anr.
(a) SC Case No. 27581/2016 (Old No. 97/2015)
(b) CNR No. DLCT01-000767-2014
(c) Date of commission 13.03.2014 from 09:30 a.m. to
of offence 10:55 a.m.
(d) Name of the Sonu, S/o. Sh. Ramji Choudhary,
complainant R/o. H. No. D-322, Inderpuri, Delhi;
Permanent Address: Vill. Dundhera,
PS. Kurtha, Dist. Jahanabad, Bihar.
(e) Name of the accused i) Karan, S/o. Sh. Ramesh, R/o.
person(s), parentage 8/78, Geeta Colony, New Delhi;
and residence ii) Kamal @ Sonu, W/o. Sh. Anand
Singh, R/o. 32/394, Trilokpuri,
New Delhi, Also at; C-122, New
Ashok Nagar, Delhi (since
deceased and proceedings abated
on 26.09.2024)
(f) Plea of the accused Not guilty
person(s)
(g) Final Order Accused Karan is convicted of
offence under Sections 392/34 IPC
(h) Date of institution of 14.07.2014
case
(i) Date when judgment 27.01.2025
was reserved
(j) Date when judgment 05.03.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on receipt of PCR Call vide DD No. 11A, pertaining to an incident of robbery of money and mobile phone by brandishing/display of SC No. 27581/2016 State v. Karan & Anr. Page 1 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:36:56 +0530 weapon/knife/chaku, the concerned police officials, namely, HC Virender No. 208/C and Ct. Anil 2041/C reached at the spot , i.e., Rajghat bypass depot, Darya Ganj, Delhi (hereinafter referred to as the 'spot'). Upon reaching there, two cars bearing registration nos. DL-2CG-7621and HR-60A-8888 of Maruti 800 make, white in colour and Honda City make, respectively, are stated to be found in accidental condition. Correspondingly, the complainant, namely, Sonu, S/o. Sh. Ramji Choudhary, R/o. H. No. D-322, Inderpuri, Delhi (hereinafter referred to as the 'complainant') along with his brother (also named) Sonu S/o. Sh. Upender Choudhary, were found present at the spot. It is further proclaimed that the complainant and his brother apprised the concerned police officials of the incident that had transpired with them, besides declared that the persons involved in the commission of the incident had fled towards the forest (तथा अपने साथ हु ई वारदात के बाबत बतलाया तथा बतलाया कि वारदात करने वाले दोनो लडके जंगल की तरफ भाग गये हैं ।). In the meanwhile, SI Jitender Kumar and Ct. Vineet are stated to have reached at the spot in an ERV, while on patrolling duty. Thereupon, HC Virender; Ct. Anil; SI Jitender Kumar and Ct. Vineet commenced search of both the persons/accused persons, who are stated to have fled from the spot. Consequently, upon having made significant endeavour, two persons, whose names and identities were later on revealed as; CCL 'P' 1 S/o. 'R', R/o. 'XYZ' and Karan S/o. Ramesh, R/o. 8/78, Geeta Colony, Delhi, were apprehended by the said police officials. Concomitantly, upon such apprehension, both the said persons were identified by the complainant as the perpetrators of offence. In particular, as per the complainant, the person's whose name was revealed as CCL 'P', was the driver of the vehicle in question, while the other 1 Identity of Child in Conflict with Law/CCL has been deliberately withheld in the instant case, who is asserted to be the driver of the aforenoted Maruti 800 car.
SC No. 27581/2016 State v. Karan & Anr. Page 2 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:37:01 +0530
person, namely, Karan, was asserted by the complainant to be the one who had snatched his/complainant's mobile phone. Further, the person/accused Karan was further declared by the complainant to be the one, who had kept the complainant's money, cumulatively amounting to Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), in an envelope and handed over to their third companion, who had already jumped and fled from the aforenoted car/vehilce (दोनों को देखते ही शिकायतर्ता ने बताया कि यह शख्स जिसका नाम पप्पू है, गाडी चला तथा दूसरा शख्स जिसका नाम करण है, ने मेरा Mobile छीना है तथा इसी करण नामक व्यक्ति ने मेरे पैसे लिफाफे में रखकर जो कु ल 4000+1350 रुपये थे, अपने तीसरे साथी, जो उतर कर भाग गया है, को दे दिये थे।). At that point in time, HC Virender is asserted to have conducted a formal search of the Karan and found one mobile phone of Micromax make, red-black in colour, bearing IMEI No. 911241902540846 from the right side pocket of accused's Karan's wearing pants. The said mobile phone, in turn, is declared to have been identified by the complainant as the one which was snatched from him (जिसे देखकर शिकायतकर्ता ने बतलाया की यह वही फोन है जो करण ने मुझसे छीना है ).
2. Correspondingly, statement of the complainant was recorded at the spot, wherein the complainant inter alia proclaimed that he was residing at D-322, Inderpuri, Delhi at the relevant point in time, along with his cousin, namely, Sonu S/o, Upendra Choudhary, on tenancy basis. Further, as per the complainant, on 13.03.2014, he/the complainant along with his cousin, Sonu were waiting at loha mandi bus stop, Inderpuri for boarding a bus, headed towards Anand Vihar, in order to visit their home on the occasion of Holi (आज दिनांक 13.03.14 को मैं अपने फु फे रे भाई सोनू के साथ होली का उत्सव मनाने के लिये, घर जाने के लिये लोहा मडी बस स्टाप इंद्रपुरी पर आनन्द विहार जाने वाली बस का इन्तजार कर रहे थे।). Further, as per the SC No. 27581/2016 State v. Karan & Anr. Page 3 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:37:06 +0530 complainant, at around 09:00-09:30 am, one person, who was aged around 27-30 years and of strong build-up, is avowed to have reached the complainant and his brother and inquired from them as to where they were headed, upon, which, the complainant responded that they had to go to Anand Vihar, Delhi (समय करीब 9- 9.30 बजे दिन एक शख्स उम्र करीब 27-30 वर्ष के लगभग तथा शरीर मजबूत था, जिसे मैं सामने आने पर पहचान हमारे पास आकर बोला कि कहाँ जाओगे, तो मैने कहा आनन्द विहार दिल्ली जाना है।). Consequently, as per the complainant, the person, who approached them also declared that he also had to go to Anand Vihar. In the meanwhile, as per the complainant, one white colour Maruti car came and stopped there ( जो वह व्यक्ति कहने लगा कि मुझे भी वहीं जाना है। उसी वक्त एक मारुति कार रंग सफे द वहां आकर रूकी). The complainant further proclaimed that the person sitting next to the driver seat in the said vehicle/Maruti car enquired the way to Anand Vihar from them, whereupon, the person standing next to the complainant stated that they were also proceeded towards Anand Vihar and requested the persons sitting in the car to take them in car to Anand Vihar in lieu of Rs. 15/- (Rupees Fifteen only) (जिसमे साथ एक व्यक्ति और मौजूद था. ड्राईवर के साथ वाली सीट पर बैठे व्यक्ति ने पुछा, आनन्द विहार रास्ता किघर से हैं , तो हमारे पास मौजूद व्यक्ति नामालूम ने कहा कि हम भी आनन्द विहार जा रहे हैं हमें भी कार में बैठा लो, 15-15 रुपये ले लेना). Accordingly, the complainant, his brother and the person, who had approached them are affirmed to have boarded the said vehicle/car and all three of them, sat on the rear seat of the vehicle. Correspondingly, after covering some distance, as per the complainant, the person sitting next to the driver seat stated to them that the police would stop them and take their cash on the way. Ergo, the complainant was asked to keep his cash in an envelope and thereafter, to place the same in their drum.
Correspondingly, the said person further cautioned them to tell the SC No. 27581/2016 State v. Karan & Anr. Page 4 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:37:10 +0530 police persons that if any enquiry is made, they should declare that they were proceeding for post office to send out money (थोड़ी देर चलने के बाद रास्ते में ड्राइवर के साथ वाली सीट पर बैठे व्यक्ति ने कहा कि रास्ते में पुलिस पकड़ लेगी, पैसे ले लेगी तुम अपने रुपये लिफाफे में डाल कर डिब्बे में रख दो तथा पुलिस अगर पूछे तो कह देना कि हम डाक घर पैसे भेजने के लिए जा रहे हैं ). Upon this, the complainant's brother is further proclaimed to have handed over the money to the said person, sitting next to the driver, who put the same in an envelope and handed over the envelope to the person sitting next next to the complainant, who then, kept the same in their drum (तो मेरे भाई सोनू ने पैसे ड्राइवर सीट के बगल में बैठे व्यक्ति को दे दिये, जिसने लिफ़ाफ़े में पैसे डालकर हमारी बगल में व्यक्ति को दे दिया तथा उस व्यक्ति ने लिफाफा हमारे ड्रम में डाल दिया). It was further avowed by the complainant that on this, he got suspicious and declared that he wanted to count his money. Whereupon, as the complainant is asserted to have taken out his envelope, the person sitting next to him started beating him, as well as stopped the vehicle at an abandoned place and took out as well as brandished knife/chaku at them. At the same time, the said person is proclaimed to have threatened the complainant to get down from the vehicle, failing which, the complainant was threatened that dire consequences would ensue (जो मुझे शक हु आ तो मैं ने कहा कि मैं अपने रूपये, जो लिफाफे में है गिनूंगा/ तथा मैं ने इम में रखा लिफाफा निकाला तो मेरी बगल में बैठे शख्स ने मेरे साथ मारपीट शुरू कर दी तथा एक सुनसान जगह रोककर मेरे को चाकू दिखाकर कहने लगा कि गाडी से नीचे उतर जाओ नहीं चाकू मार दूंगा). Further, as per the complainant, in the meanwhile, when the complainant took out his mobile phone to call 100 number, the person who brandished knife at the complainant, fled from the spot with the complainant's envelope. Simultaneously, the person sitting next to the driver seat, snatched complainant's mobile phone from his possession (इस दौरान मैने अपना फोन निकाल कर 100 न० पर फोन करने की कोशिश की तो चाकू दिखाने वाला व्यक्ति हमारे लिफाफे लेकर भाग गया तथा ड्राईवर के बगल SC No. 27581/2016 State v. Karan & Anr. Page 5 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:37:14 +0530 वाली सीट पर बैठे व्यक्ति ने मेरा मोबाईल छीन लिया।). The complainant further avowed that they did not get down from the vehicle, while the driver thereof commenced driving the said vehicle in haphazard manner and in the meanwhile, their tussle ensued ( हम गाडी से नहीं उतरे और ड्राईवर गाडी लेकर टे ढी मेठी चलाने लगा, जो चलती गाड़ी में हमारा झगडा होता रहा।). As they were proceeding further around Rajghat depot, as per the complainant, one Honda City car, which was moving adjacent to the aforesaid Maruti car, collided with it and the persons sitting in the front seat from the said car, fled from the spot. Subsequently, some unknown person is proclaimed to have made a call at 100 number, leading to the police officials reaching at the spot.
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 police official/HC Virender prepared tehrir and directed Ct. Anil to have the same taken to the police station for the registration of the FIR. Consequently, the present FIR was registered at PS Darya Ganj on 13.03.2014 for the offences under Sections 394/397/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), which was marked to the concerned SI and the investigation ensued. Upon this, the concerned SI is proclaimed to have reached at the spot and met with HC Virender, SI Jitender, Ct. Vineet, besides the complainant, his brother Sonu, CCL 'P' and Karan.
Correspondingly, on the basis of the declaration of the complainant and HC Virender, site plan was got prepared, and the examination of the vehicles found in accidental condition was conducted. Pertinently, from the aforenoted Maruti car, one yellow colour envelope was found from inside the said car's dashboard.
SC No. 27581/2016 State v. Karan & Anr. Page 6 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:37:18 +0530
Upon seeing the said envelope, the complainant declared that in similar envelope, accused persons had kept his money (DL-2CG-7621 की तलाशी ली जो तलाशी के दौरान कार के Dashboard के बॉक्स के अदर एक पीले रंग का लिफाफा मिला जिसे देखकर शिकायतकर्ता Sonu ने बतलाया कि इसी प्रकार के लिफाफे में मुल्जिमों ने उसके पैसे डाले थे।). Consequently, the concerned police officials are asserted to have seized the said envelope; car bearing registration no. DL-2CG-7621; keys of the said car; and mobile phone recovered from the possession of accused, Karan. Correspondingly, the statement of the driver of vehicle bearing HR-60A-8888, namely, Vishnu Mehto S/o. Chakkan Mehto was recorded, in terms of the provisions under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.').
4. Markedly, during the ongoing investigation, CCL 'P' and Karan are stated to have been formally arrested, besides their disclosure statements were recorded. Notably, as per the prosecution, both the said accused persons are proclaimed to have declared involvement of another person/accused, namely, Kamal @ Sonu S/o. Anand Singh R/o. 34/397, Trilokpuri, Delhi with them in the commission of incident, who had already fled with robbed money, after jumping from their car, near Indira Gandhi Stadium. Subsequently, on the basis of the said statement and on identification of said accused persons, co-accused, Kamal @ Sonu was apprehended on 13.03.2014 from Indira Market, Trilokpuri, Delhi. Correspondingly, the police officials are stated to have endeavoured to have recovered the knife used in the commission of the incident and the robbed articles. However, accused, Kamal @ Sonu is asserted to have not cooperated in the search proceedings, which the said accused declared, he had thrown in Yamuna river, while fleeing from the spot ( वारदात में शामिल चाकू व SC No. 27581/2016 State v. Karan & Anr. Page 7 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:37:21 +0530 छीने हु ए रुपेय की बरामदगी के लिए मुल्जिमान को 2 दिनका Police Remand हासिल किया परंतु मुल्जिमान के असहयोग के कारण चाकू व 5350/- रुपये बरामद नहीं हो सके । मुलजिम Kamal ने बतलाया उसने कार छोड़कर भागते वक्त चाकू और छीने हु ए रुपेय यमुना में फें क दिया।). Congruently, the police officials tried to get conducted, Test Identification Parade/TIP proceedings of the said accused, to which he refused. Noticeably, during further investigation, age determination proceedings of accused, CCL 'P' and Karan were conducted, whereupon, accused CCL 'P' was determined to be a minor at the time of incident and the proceedings qua him were directed to be transferred to JJB-1 by Ld. MM-05, Central vide order dated 17.04.2014, whilst, accused Karan was determined to be a major at the time of commission of the offence. Apposite at this stage to reproduce the relevant extracts from the order dated 17.04.2014 of Ld. MM-05, Central, Tis Hazari Court, as under;
"...IO has filed the age verification report of the accused [P] s/o. [R]. As per the same, the school record of the accused shows the date of his birth as 10.06.1996. the offence is that on 13.03.2014. Accordingly, at the time of offence accused [P] was a juvenile.
Jail Superintendent is directed to shift the accused [P] to child observation home. Child observation home is directed to produce the accused to JJB-1 on 19.04.2014 at 10.00 am..."
(Emphasis supplied) FILING OF CHARGESHEET AND COMMITTAL:
5. Markedly, upon conclusion of investigation in the instant case, chargesheet was filed by the concerned IO before Ld. MM-05, Central, Tis Hazari Courts under Sections 392/397/411/34 IPC, by placing accused Karan and Kamal @ Sonu (hereinafter collectively referred to as the 'accused persons') under column no. 11 thereof. Markedly, as per the chargesheet, during the investigation, it was further determined that the SC No. 27581/2016 State v. Karan & Anr. Page 8 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:37:24 +0530 complainant had sustained no injuries. Subsequently, on 27.06.2014, cognizance of offence(s) under Sections 392, 397, 411, 34 IPC, was taken by the Ld. MM-05, Central, Tis Hazari Courts on 27.06.2014. Correspondingly, upon conclusion/ compliance of the provisions under Section 207 Cr.P.C., Ld. MM-05 (Central), Tis Hazari Courts vide order dated 08.07.2014, passed an order of committal of the present case before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge (Head Quarter), Tis Hazari Courts.
CHARGE FRAMING:
6. Relevantly, the Ld. Predecessor Judge heard the arguments addressed on behalf of the accused persons as well as by Ld. Addl. PP for the State and upon conclusion of the same, charge(s) under Sections 392/411/34 IPC were framed against accused, namely, Karan and charges under Sections 392/397 IPC were framed against accused, namely, Kamal @ Sonu vide order dated 01.08.2014, to which, both the accused persons pleaded not guilty and claimed trial. Notably, the relevant extract of the said order of charge is reproduced as under;
"...Arguments heard on the point of charge. During course of arguments, counsel for defence concedes that sufficient material is on record before the court for framing the charge against accused Karan and Kamal @ Sonu, therefore, charges may be framed against the accused.
Having heard the submissions and gone through the record, I observe that prima facie case is made out against accused Kamal @ Sonu u/Section 392/397 IPC and against accused Karan u/s. 392/411/34 IPC.
Accordingly, the charges are framed u/Section 392/397 IPC against accused Kamal @ Sonu and u/Sec. 392/411/34 IPC against accused Karan, to which, they both pleaded not guilty and claimed trial..."
(Emphasis supplied) SC No. 27581/2016 State v. Karan & Anr. Page 9 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.05 16:37:28 +0530
7. Further, it is apposite to reproduce the charges, as framed by the Ld. Predecessor Judge, against the accused persons, pursuant to the aforesaid order, as under;
"...I, ***, Additional Sessions Judge, Central/Delhi do hereby charge you accused Kamal @ Sonu S/o. Sh. Anand Singh R/o. 32/394, Trilokpuri, New Delhi as under:-
That on 13.03.2014 between 9.30 to 10:55 am near Raj Ghat Bypass Depot, Darya Ganj, Delhi within the jurisdiction of Police Station Darya Ganj, you robbed one mobile phone make Micromax and Rs. 1350/- from the possession of complainant Sh. Sonu S/o. Sh. Ramji Chaudhary and Rs. 4000/- from the possession of Sonu S/o. Sh. Upender Chaudhary on the point of a deadly weapon i.e. knife and you thereby committed an offence punishable u/s 392/397 IPC and within the cognizance of this court. I therefore direct that you be tried by this court for the aforesaid charge...
*** *** *** "...I, ***, Additional Sessions Judge.
Central/Delhi do hereby charge you accused Karan S/o. Sh. Ramesh R/o. 8/78, Geeta Colony, New Delhi as under:-
That on 13 03 2014 at 9.30 to 10.55 am near Raj Ghat Bypass Depot, Darya Ganj, Delhi within the jurisdiction of Police Station Darya Ganj, you along with co-accused Kamal @ Sonu (charged u/s 392/397 IPC separately framed) and Pappu (since juvenile) in furtherance of your common intention robbed one mobile phone of Micromax and Rs 1350 from the possession of complainant Sh. Sonu s/o. Sh. Ramji Chaudhary and Rs. 4,000/- from the possession of Sonu S/o. Sh. Upender Chaudhary and both of you thereby committed an offence punishable u/s 392/34 IPC and within the cognizance of this court. Alternatively, on the above said date and time at shrub near Raj Ghat bypass, Darya Ganj, you along with co-accused Pappu (since Juvenile) were found in possession of one stolen mobile phone make Micromax of complainant Sh. Sonu S/o. Ramp Chaudhary which we robbed from the possession of the complainant on the same day at aforesaid place and that you thereby committed an offence punishable 411 IPC and within the cognizance of this court.
I therefore direct that you be tried by this court for the aforesaid charge..."
(Emphasis supplied)
SC No. 27581/2016 State v. Karan & Anr. Page 10 of 77
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:37:52 +0530
PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings,
prosecution examined 17 (seventeen) witnesses/prosecution witnesses, who deposed in their respective testimonies as under; 8.1. PW-1/Pramod S/o. Sh. Rishipal Singh deposed that he/PW-1 had purchased one Maruti car bearing registration no. DL-2CG-7621 in the month of December, 2012 from Indra Market Trilokpuri through one dealer, namely, Shamsher and that the said car was got registered in the name of his/PW-1's mother, namely, Raj Kumari. PW-1 further avowed that in the month of February, 2013 the said car was given to accused Kamal @ Sonu in lieu of amount due upon him/PW-1. Notably, PW-1 correctly identified accused, Kamal @ Sonu in the Court on the date of his deposition. 8.2. PW-2/Sonu S/o. Ramji Chaudhary deposed that on 13.03.2014, he/PW-2 along with his cousin brother, namely, Sonu were going to Anand Vihar to board the train, as they had to go to his/PW-2's village. Further, as per PW-2, when they reached Loha Mandi near Inder Puri, one accused, who was correctly identified as accused Kamal before this Court, asked as to where they were going. Consequently, as per PW-2, he told the said accused that they were going to Anand Vihar. PW-2 further proclaimed that the accused further told them that he was also proceeding towards Anand Vihar, while, in the meanwhile, one car reached at the said spot. As per PW-2, accused, Karan, who was correctly identified by PW-2 in Court was sitting next to the driver of the said car and enquired from them as to where they were headed. Upon this, as per the complainant/PW-2, accused Kamal replied that all three of them were going to Anand Vihar. At that point in time, the complainant asserted, accused Karan told them that he was also SC No. 27581/2016 State v. Karan & Anr. Page 11 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:37:56 +0530 going to Anand Vihar and that he could drop them. Further, as per PW-2, accused Kamal told accused Karan they would pay fare of Rs. 15/- (Rupees Fifteen only) and after that, they all boarded the car for Anand Vihar. On the way, PW-2 proclaimed that accused Kamal told them that he was an Army-man as well as, accused Karan told them that he was a government employee and that he used to deposit the money in post office. Correspondingly, it was asserted that accused Karan further told them that in case police officials asked them where they were going, they had to reply that they were going to post office. Simultaneously, accused Kamal is proclaimed to have asked them to keep their money in a yellow colour envelope. Consequently, on asking of accused, Kamal, the complainant/PW-2 and his cousin brother, namely, Sonu kept their money in an envelope and after that, as per PW-2, accused Kamal clandestinely exchanged the envelope of money kept by them and another envelope kept in the drum carried by me. Thereupon, the complainant asked the accused Kamal to let him/PW-2 count the money and when he/PW-2 put his hand in drum to take out the money from the envelope, accused Kamal is avowed to have caught PW-2's hand and he/accused Kamal started beating PW-2 for half an hour. At that time, PW-2 asserted that the associate of accused persons was diving the car and at that point in time, PW-2 tried to make a call by his phone to the police, however, accused, Karan snatched his/PW-2's mobile phone. It was further deposed by PW-2 that the driver of the car stopped the said car in a lonely place and accused Kamal tried to take them out from the car, however, the complainant and his brother did not oblige/did not get down from the car. Concomitantly, PW-2 asserted that accused Kamal took out the knife and proclaimed that in case they did not come out from the car, then, he would cause injury to them. After SC No. 27581/2016 State v. Karan & Anr. Page 12 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:00 +0530 that accused Kamal is declared to have fled with the envelope, where PW-2's money was kept, on the asking the accused. After that, PW-2 is stated to have made a request to the driver of the said car to drop them to some distance and the said driver started the car and covered some distance. Thereafter, as per PW-2, the driver of the car stopped the same on PW-2's asking and accused Karan threw their luggage, whereupon PW-2 and his brother got down from the car. After that driver of the said car is asserted to have started the car and when the car was moving, PW-2 proclaimed that he chased the said car and broke the glass of driver side and removed the key, leading to the car getting stopped. Subsequently, PW-2 asserted that he started running and accused Karan as well as the driver of the said car, chased him/PW-2, however, could not apprehend him. Subsequently, PW-2 asserted that the accused persons returned to the car and the driver thereof, sat on the driver seat and accused Karan pushed the car and started it. While the car was moving, PW-2 asserted that another car collided with the car of accused persons and after that, the accused persons fled away from spot towards bushes. PW-2 further declared that he raised an alarm and asked public persons for help, whereupon public persons apprehended the accused Karan and driver of the car. Meanwhile the police officials are stated to have reached at the spot as someone made a call on 100 number and he/PW-2 handed over the keys of the car to police official. Concomitantly, as per PW-2, his statement was recorded by the police officials as Ex. PW2/A, bearing PW-2's signatures at point A. Further, PW-2 also deposed that at the time of incident, he/PW-2 was carrying a sum of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty only), however, PW-2 expressed his inability to recollect his mobile number, though, proclaimed that the same was of SC No. 27581/2016 State v. Karan & Anr. Page 13 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:04 +0530 Micromax make, black in colour. Relevantly, upon being cross examined by Ld. Addl. PP for the State, PW-2 affirmed that his mobile phone was recovered from the possession of accused, Karan, upon his apprehension and that the seizure memo thereof (Ex. PW2/B), bears his/PW-2's signatures at point A. PW-2 further affirmed the presence of his signatures on the seizure memo of yellow colour envelope (Ex. PW2/C); seizure memo of car (Ex. PW2/D); and arrest memo of accused Karan (Ex. PW2/E). Correspondingly, as per PW-2, the name of the person who was driving the car was determined to be CCL 'P' and that he abetted the accused persons, namely, Karan and Kamal to beat and throw the complainant and his cousin from the car. PW-2 also deposed that accused CCL 'P' was also arrested by the police and that he/PW-2 could not recollect all the facts of the case, due to lapse of time. Noticeably, PW-2 also identified his mobile phone ( Ex. P1) and yellow colour envelope, recovered from the car (Ex. P2), while he/PW-2 expressed inability to ascertain as to who the keys (Ex. P3) belonged to, though, affirmed that the said keys were taken out by him/PW-2 from the car and handed over the police. 8.3. PW-3/Sh. Vishnu Mahto deposed that on 13.03.2014, he was driving a car bearing registration no. HR-60A-8888 and was proceeding from Sarai Kala Khan towards Panipat. PW-3 further deposed that when he reached in front of the power house Raj Ghat, one white colour Maruti Car 800 was standing in start mode and when he/PW-3 reached near the said car, the driver the of the said car, suddenly took turn towards right side. As per PW-3, in order to save himself, he/PW-3 also took a turn on his right hand side due to which, his/PW-3's car hit the divider of the road.
Consequently, as per PW-3, half portion of his/PW-3's car remained stuck on the divider and he/PW-3 as well as his/PW-3's SC No. 27581/2016 State v. Karan & Anr. Page 14 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:08 +0530 employer, namely, Pankaj Gupta also got out of the said car. It was further asserted by PW-3 that the persons siting in the white colour Maruti car also got down from the said car and some of them fled away towards Yamuna side. Public persons are further deposed by PW-3 to have made search of the said persons who fled towards Yamuna side and two persons were apprehended. Subsequently, as per PW-3, Police officials reached there and started their proceedings, as well as took the photographs. PW-3 however, expressed his inability to identity or recollect the names of the persons who were apprehended and brought at the spot by public persons.
8.4. PW-4/Master Sonu deposed that on 13.03.2014, he/PW-4 along with my cousin brother, namely, Sonu was going to Anand Vihar from Inderpuri and they were on the way bus stand Loha Mandi. Further, as per PW-4, accused, namely, Kamal, who was correctly identified by PW-4 before Court, asked his/PW-4's brother that he was also going to Anand Vihar. In the meantime, PW-4 proclaimed, one car of white colour reached there and accused, Karan, who was correctly identified by PW-4 in Court, was sitting at the adjacent seat of the driver. It was further deposed by PW-4 that accused Karan asked the route for Anand Vihar from accused, namely, Kamal. Whereupon, as per PW-4, accused Kamal told accused Karan that they were also proceeded to Anand Vihar and in case they would pay Rs. 15/- (Rupees Fifteen only), then they would drop them to Anand Vihar. Thereupon, PW-4 asserted that they agreed and sat in the said car. However, in the way, accused, Kamal is proclaimed to have asked them to keep their money in an envelope from their drum. Thereupon, PW-4's cousin Sonu took out the money from the drum and put the same into an envelope and subsequently, kept the envelope into their SC No. 27581/2016 State v. Karan & Anr. Page 15 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:12 +0530 drum, after taking out the money from the envelope. At that point in time, as per PW-4, his cousin Sonu wanted to count the money, however, accused Kamal started beating him as well as threatened to stab him/PW-4's cousin with a knife. Correspondingly, as per PW-4, both the accused persons gave fist blows to his/PW-4's cousin and that they got very scared. PW-4 further asserted that the driver of the car, then, slowed down the car and accused Kamal got down from the same. Further, it was asserted that at that time, cap of PW-4's drum fell down from the car and his/PW-4's cousin, Sonu, broke the window glass the car as well as removed the keys of the car. Immediately thereafter, the said car is proclaimed to have met with an accident and after the accident, accused Karan as well as the driver thereof are asserted to have run away. PW-4 further declared that one sardarji, who was present at the spot, came forward for help and the police officials are also avowed to have reached there after some time. Further, as per PW-4, the said police persons took his brother, besides, two accused, Karan and the driver of the said car, who were apprehended. Subsequently, PW-4 asserted that they went to the police station. Further, it was deposed that total robbed amount was Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand only) were PW-4's and remaining amount of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty only belonged to PW-4's cousin, namely, Sonu. 8.5. PW-5/Mr. Israr Babu, Alternate Nodal Officer produced the summoned record(s), i.e., Original Customer Application Form (hereinafter referred to as the 'CAF') of mobile no. 9711812902, issued in the name of Sh. Ramji Chaudhary, photocopy of which is Ex. PW5/A (OSR). PW-5 further produced the Call Detail Records (hereinafter referred to as 'CDRs') of the SC No. 27581/2016 State v. Karan & Anr. Page 16 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.05 16:38:16 +0530 said mobile phone number for the period from 01.01.2014 to 13.03.2014 (Ex. PW5/B(Colly.), running into 16 pages). PW-5 also asserted that he issued a certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') regarding CDR (Ex.PW5/C), bearing PW-5's signatures and stamp at point A. 8.6. PW-6/Asha Ram, Record Keeper, Authority, IP Estate (New Delhi Zone) produced the record of vehicle No. DL-2CG-7621 (Maruti Car). Further, it was asserted by PW-6 that as per the record, the said vehicle was earlier in the name of Girdhari Lal Sharma, R/o. 35/11, Extn. Himmat Puri, Delhi and was sold to Raj Kumari, W/o. Sh. Rishi Pal Singh, R/o. B-234, Block B, Harijan Basti, Kondli, Delhi-96. PW-6 further proved the copy of Form Nos. 29 and 30 as Ex.PW6/A (Original seen and returned). Further, PW-6 proved the computer generated copy of vehicle detail as Ex.PW6/B, bearing stamp of the authority at point A. As per PW-6, due to inadvertence and typographical error, under Ex.PW6/B, name of the existing owner was typed as Raj Kumar instead of Raj Kumari.
8.7. PW-7/SI Anil deposed that on 13.3.2014, he/PW-7 was posted at PS Darya Ganj as a Constable and that on the said day, he/PW-7 was on emergency duty. As per PW-7, on that day, on receipt of DD No.11A, he/PW-7 along with HC Virender reached the spot near ITO U-turn Rajghat. Further, as per PW-7, there, the complainant Sonu S/o. Ramji Chaudhary met and informed them that two persons had robbed mobile and cash, as well as left the spot. PW-7 further asserted that at the spot, two vehicles i.e. one Maruti 800, bearing registration no.
DL-2CG-7621 and Honda City car, bearing registration no. HR-60A-8888 were also found in accidental condition. ERV Staff SC No. 27581/2016 State v. Karan & Anr. Page 17 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:19 +0530 i.e. SI Jitender Kumar was also found present at the spot and he/SI Jitender disclosed the entire incident to HC Virender. PW-7 further deposed that they made efforts to search the accused person near the bushes and that near the bushes, two persons were found who disclosed their names as; Karan and CCL 'P'. It was further avowed that on a formal search, one mobile phone of Micromax make was recovered from the possession of Karan, which was identified by the complainant, Sonu as the one, robbed from him. PW-7 further correctly identified accused Karan before the Court as well as further deposed that HC Virender recorded the statement of complainant, Sonu and prepared rukka which, he/PW-7 took to the PS for getting the case FIR registered. After getting the case FIR registered, as per PW-7, he/PW-7 returned to the spot along with SI Parveen and copy of FIR and rukka were handed over to SI Parveen, to whom further investigation was marked. Further as per PW-7, the mobile phone of Micromax make, recovered from accused Karan, was also seized and the IO also seized both the accidental vehicles. It was further asserted that one yellow colour envelope was also recovered from inside the Maruti 800 car, which was also seized by the IO. During the course of investigation, as per PW-7, accused Karan and JCL 'P' disclosed that their associate, namely, Kamal @ Sonu managed to escape from the spot and thereafter, they went in search of Kamal @ Sonu and the said accused was apprehended at Indira Market, Trilok Puri. PW-7 further correctly identified accused Kamal @ Sonu before Court, who was also avowed to be arrested by the IO. Lastly, as per PW-7, the IO recorded his statement in the aforesaid regard.
SC No. 27581/2016 State v. Karan & Anr. Page 18 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:23 +0530
8.8. PW-72 (again wrongly numbered as PW-7)/Arvinder Singh, Mechanical Expert, C-17, DDA Market, Vivekanand Puri, Delhi-7 deposed that on 14.03.2014, he conducted the mechanical inspection of vehicle bearing registration no. DL-2CG-7621 (Maruti 800 Car) at PS Darya Ganj at the request of IO. PW-7 further proved his detailed report as Ex. PW7/A, bearing his signature at point A. 8.9. PW-8/HC Ramesh Chander deposed that on 13.03.2014, he was posted at PS. Darya Ganj as HC and was working as duty officer from 08:00 a.m. to 04:00 p.m. On that day, as per PW-8, at around 10:55 a.m., a call qua snatching of money and mobile from children at knife point at Raj Ghat Bus Depot, New Road, in front of Yamuna was received. Further, as per PW-8, the said information was reduced into writing vide DD No. 11A and same was handed over to HC Virender, who left the police station and proceeded to the spot along with Ct. Anil. PW-8 further proved the DD as Ex. PW8/A, asserted to be in his/PW-8's handwriting. PW-8 further asserted that on the said day, Ct. Anil Kumar came at the PS along with rukka at about 02:40 p.m., sent by HC Virender. On the basis of rukka, as per PW-8, case FIR was registered, computer generated copy of which is Ex. PW8/B, bearing PW-8's signatures at point A (OSR). PW-8 further deposed that he made an endorsement on the rukka as Ex. PW8/C, bearing PW-8's signatures at point A. PW-8 further proved the certificate under Section 65 B of the Evidence Act as Ex. PW8/D, bearing PW-8's signatures at point A. Further, as per PW-8, after registration of case FIR, copy of FIR and rukka were handed over 2 Perusal of the records reveal that the witnesses, commencing from Arvinder Singh, Mechanical Expert, C-17, DDA Market, Vivekanand Puri, Delhi-7 have been wrongly numbered/labelled as PW-7, PW-8, etc., so on, whereas the said witness should be labelled/numbered as PW-8 as SI Anil had already been adduced as PW-7. Nevertheless to avoid any confusion, between the records and the finding in the present judgment, this Court has deliberately opted not to change/re-number the witnesses herein. Rather the same are specified as per the record, with the observation in respect of such typographical/inadvertence as herein.
SC No. 27581/2016 State v. Karan & Anr. Page 19 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:28 +0530
to Ct. Anil and that further investigation was marked to SI Parveen Barshara.
8.10. PW-9/Ct. Vineet deposed that on 13.03.2014, he/PW-9 was posted as constable in PS Darya Ganj and on the said day, he was deputed as driver of the ERV Gypsy No. DL-1CM-4577. PW-9 further proclaimed that SI Jitender (in- charge of said ERV Gypsy), Ct. Hakesh and he/PW-9 were on patrolling duty and during patrolling, they reached at Rajghat bye- pass near Rajghat Bus depot U-turn where they saw two cars i.e. one Maruti 800 and one Honda City, in an accident condition. HC Virender and Ct. Anil are further asserted to be found present at the spot, as per PW-9, who told SI Jitender that two boys involved in the incident were hiding themselves in the bushes. Thereafter, they all searched for the said boys and CCL 'P' as well as accused Karan were apprehended. PW-9 further correctly identified accused, namely, Karan in the Court, whilst CCL 'P' was proclaimed to be a juvenile. Further, as per PW-9, on the random search of accused Karan, two mobile phone instruments were recovered; one was of make Micromax black and red in colour, which was identified by the complainant Sonu as his/Sonu's mobile. Further, as per PW-9, HC Virender recorded the statement of the complainant Sonu and sent Ct. Anil to the police station to get the case registered after making endorsement. As per PW-9, Ct. Anil thereupon, went to the PS and got the case registered. It was further proclaimed that the recovered mobile phone of the complainant Sonu was converted into pulanda and sealed with the seal 'DRGNJ-II' by the IO and seized vide seizure memo. 8.11. PW-10/SI Jitendra Kumar deposed that on 13.03.2014, he/PW-10 was posted as SI in PS Darya Ganj and on the said day, he/PW-10 was on ERV Gypsy No. DL-1CM-4577 SC No. 27581/2016 State v. Karan & Anr. Page 20 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:33 +0530 with Ct. Rakesh and driver Ct. Vinit, while on patrolling duty. PW-10 further proclaimed that he/PW-10 was the in-charge of ERV gypsy and during patrolling, they reached Rajghat bye-pass near Rajghat Bus depot U-turn where they saw two cars i.e. one Maruti 800 and one Honda City in an accident condition. PW-10 further asserted that HC Virender and Ct. Anil were found present at the spot, who told him/PW-10 that two boys involved in the incident were hiding themselves in the bush. Thereafter, they all searched for the those boys and one CCL 'P' and accused Karan were apprehended. PW-10 correctly identified accused Karan in the Court. Further, as per PW-10, CCL 'P' was a juvenile and that on a random search of accused Karan, two mobile phone instruments were recovered, one of which was of Micromax make, black and red in colour, which was identified by the complainant, Sonu to be his mobile. It was further asserted by PW-10 that HC Virender recorded the statement of the complainant Sonu and sent Ct. Anil to PS to get the case registered after making endorsement. Thereupon, Ct. Anil went to the police station and got the case registered. Subsequently, as per PW-10, IO/SI Parveen reached at the spot along with Ct. Anil, to whom the further investigation was entrusted. Further, as per PW-10, the recovered mobile phone of complainant Sonu was converted into pulanda and sealed with the seal 'DRGNJ-II', by the IO and seized vide seizure memo. 8.12. PW-11/Ms. Ambika Singh, Ld. Metropolitan Magistrate (Central), Tis Hazari Court, Delhi deposed that on 01.04.2014, she was posted as Metropolitan Magistrate in Tis Hazari Court, Delhi and working as Link MM to the Court of Sh.
Sachin Sangwan, Ld. MM, Central, Delhi. Further, as per PW-11, an application for conducting TIP ( Ex. PW11/A) of the accused Kamal was marked to her, being Link MM, on the said date, which SC No. 27581/2016 State v. Karan & Anr. Page 21 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:36 +0530 was moved by the IO/SI Parveen Badsara. It was further asserted by PW-11, since the accused was not produced from judicial custody, the application was adjourned to 02.04.2014 and production warrant was ordered to be issued against the accused Kamal. Subsequently, on 02.04.2014, as per PW-11, accused Kamal was produced from judicial custody in a muffled face and identified by IO. Thereafter, as per PW-11, accused was asked whether he desired to participate in the TIP proceedings, however, he/accused Kamal refused to participate in the TIP proceedings stating that he had already been shown to the witness. Correspondingly, as per PW-11, accused Kamal was warned that his refusal to participate in the TIP proceedings would draw adverse inference against him during the trial, however, the accused is asserted to have persisted in his refusal. Further, as per PW-11, the TIP proceedings is Ex. PW11/B and the statement of accused Kamal is Ex. PW11/C, bearing the signatures of accused Kamal at point A. Further, as per PW-11, she appended her signatures at point X and X-1. Further, as per PW-11, the copy of the above TIP proceedings was supplied to the IO on the application which is Ex. PW11/D and thereafter the above proceedings were sent to the concerned Court in a sealed cover under PW-11's seal; 'AS'.
8.13. PW-12/HC Ramesh Chander deposed that on 13.03.2014, he/PW-12 was posted in PS Darya Ganj and was assigned the duty of duty officer in PS Darya Ganj. Further, as per PW-12, his duty hours were from 08:00 a.m. to 04:00 p.m. PW-12 further deposed that a call was received about the person running away after robbing and that he/PW-12 reduced the call at serial no. 11, in register A and PW-12 produced the original register containing the said call as Ex. PW12/A. Further, as per PW-12, the SC No. 27581/2016 State v. Karan & Anr. Page 22 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:40 +0530 said call was given to HC Virender for enquiry and thereafter at about 02:15 p.m., HC Virender sent a written tehrir through Ct. Anil for registering the case. Further, as per PW-12, on the basis of the written tehrir, case was registered. PW-12 further produced the register, containing the said FIR (OSR), copy of which is Ex. PW12/B. 8.14. PW-13/HC Virender deposed that on 13.03.2014, he/PW-13 was posted as HC at PS Darya Ganj and on that day, he/PW-13 was on emergency duty in the PS. PW-13 further proclaimed that on receipt of DD no. 11A, he/PW-13 along with Ct. Anil went to the spot i.e., near U-Turn of Rajghat Bus Depot, Bypass where he/PW-13 found complainant, Sonu along with his associate whose name was also Sonu and two cars, in an accidental condition. As per PW-13, one Maruti Car bearing registration no.
DL-2C***7621 of white colour was stationed in the middle of the road and one Honda City car bearing registration HR-60A-8888 was stationed near the divider and one wheel of the car had climbed over the divider. Further, as per PW-13, the complainant Sonu told him/PW-13 that the persons who had robbed him had run towards bushes near Rajghat Dept and in the meantime, patrolling ERB comprising of SI Jitender and Ct. Vineet reached at the spot and joined them. Further, as per PW-13, he along with Ct. Anil, SI Jitender and Ct. Vineet searched in the bushes and two persons were found in the bushes. On interrogation, as per PW-13, their names were revealed as Karan and CCL 'P'. PW-13 correctly identified accused Karan in Court. Further, as per PW-13, on further enquiry, CCL 'P' was found JCL and proceedings qua him were conducted, separately. Further, on formal search of accused Karan, one Micromax mobile phone of black and red colour was recovered from him, which was identified by the complainant as SC No. 27581/2016 State v. Karan & Anr. Page 23 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:44 +0530 his mobile phone. PW-13 further avowed that he recorded the statement of the complainant Sonu, S/o. Ramji which is Ex. PW-2/A, bearing PW-13's signatures at point B and also made his/PW-13's endorsement vide Ex. PW-13/A, bearing PW-13's signature at point A. PW-13 further deposed that he got the case registered through Ct. Anil and after registration of the FIR, the investigation was assigned to SI Parveen who reached at the spot along with Ct. Anil. PW-13 further deposed that he handed over the custody of accused Karan and CCL 'P' along with the mobile phone to SI Parveen and the IO prepared the site plan. Further, as per PW-13, the mobile phone was seized by the IO vide seizure memo Ex. PW 2/B, bearing PW-13's signature at point B. It was further asserted by PW-13 that on the formal search of Maruti car, one yellow colour envelope was found, which was also seized by the IO vide seizure memo Ex. PW-2/C, after converting the same in a sealed parcel and the memo of the said seizure bears PW-13's signatures at point B. PW-13 further deposed that the cars were also taken into possession and that the Maruti car was taken into possession vide seizure memo Ex. PW-2/D, bearing PW-13's signature at point B. PW-13 further deposed that as per the version of accused persons the money had been taken by their other associate, namely Kamal. PW-13 further avowed that the keys of Maruti car was also seized vide seizure memo Ex. PW-13/B, bearing PW-13's signature at point A and accused Karan was arrested, whose disclosure statement was recorded as Ex. PW-13/C, bearing PW-13's signatures at point A. Further, PW-13 proved the copy of disclosure statement of CCL 'P' as Mark P-13/1, bearing PW-13's signatures at point A. PW-13 also deposed that pursuant to the disclosure statement of the accused, namely, Karan, they went to the area of Trilok Puri in search of his SC No. 27581/2016 State v. Karan & Anr. Page 24 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:47 +0530 associate Kamal and accused Kamal, who was correctly identified by PW-13 in Court, was apprehended from Indira Market, Trilokpuri at the instance of accused Karan. Further, as per PW-13, accused Kamal was interrogated and arrested vide arrest memo Ex. PW-13/D, bearing PW-13's signature at point A. Further, Kamal's personal search was conducted vide memo Ex. PW-13/E, bearing PW-13's signature at point A and Kamal's disclosure statement is Ex. PW-13/F, bearing PW-13's signature at point A. PW-13 also correctly identified accused Kamal before the Court. PW-13 also identified the Micromax mobile phone of red and black colour, as recovered from the possession of accused Karan, as Ex. Р-1. Further, PW-13 also identified one yellow colour envelope, recovered from the box of the car, as Ex. P-2. Further, PW-13 also identified the keys of car, as seized in his/PW-13's presence, as Ex. P-3.
8.15. PW-14/S.B. Dabas deposed that on 13.03.2014, he/PW-14 was going from his residence to his office at Kashmere Gate via ITO bypass at about 10:30 a.m., and noticed that two vehicles were stationed in accidental condition as well as two boys aged between 20-21 years were weeping, while standing on the road. PW-14 further deposed that on enquiry the said boys told him that someone had robbed them. PW-14 further asserted that he made a call on 100 number from his mobile phone number 9811219092 and thereafter, he/PW-14 went to his office. Later on, as per PW-14, police recorded his statement. 8.16. PW-15/SI Parveen Badsara deposed that on 13.03.2014, he/PW-15 was posted as SI at PS Daryaganj and the investigation of this case was assigned to him. Further, as per PW-15, Ct. Anil handed over the original rukka and the copy of the FIR to him/PW-15 and he along with Ct. Anil went to the spot i.e. SC No. 27581/2016 State v. Karan & Anr. Page 25 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:51 +0530 bypass near Rajghat Depot. It was further deposed by PW-15 that HC Virender, SI Jitender and Ct. Vineet met him/PW-15 there and HC Virender handed over the custody of accused Karan and CCL 'P' as well as also produced the complainant Sonu and his cousin brother. Further, as per PW-15, HC Virender apprised him of the facts of the present case, besides the Maruti car bearing No. DL-2CG-7621 of accused persons and another car no. HR-60A-8888 make Honda City were found stationed there in accidental condition. HC Virender is further asserted to have produced one mobile phone of Micromax make of complainant, which was recovered from accused Karan and the same was seized by PW-15 vide seizure memo already Ex. PW2/B, bearing PW-15's signatures at point C. Further, as per PW-15, the complainant Sonu produced the key of Maruti car and he/PW-15 seized the keys of Maruti car vide seizure memo Ex. PW13/B, bearing PW-15's signatures at point X. Thereafter, as per PW-15, he took the search of Maruti 800 car and right front side glass window was found to be broken. PW-15 further asserted that he also checked the box under dash board and found one yellow colour envelope. As per PW-15, after seeing the envelope, complainant told him/PW-15 that the accused persons had put the money in such type of envelope. Thereafter, as per PW-15, he seized the envelope vide seizure memo Ex. PW2/C, bearing PW-15's signatures at point C. PW-15 further asserted that he interrogated the accused persons and arrested accused Karan vide arrest memo Ex. PW2/E, bearing PW-15's signatures at point B and I took his personal search vide memo Ex. PW-15/A, bearing PW-15's signatures at point A. It was further avowed that the accused made his disclosure statement, which is Ex. PW13/C, bearing PW-15's signatures at point B. PW-15 further proved the SC No. 27581/2016 State v. Karan & Anr. Page 26 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:55 +0530 arrest memo of CCL 'P' as Ex. PW-15/B, bearing PW-15's signatures at point A and his disclosure statement was proved as Ex. PW-15/C bearing PW-15's signatures at point B. PW-15 further deposed that he also prepared the site plan as Ex. PW-15/D, bearing PW-15's signatures at point A. PW-15 further proclaimed that he recorded the supplementary statement of the complainant and also recorded the statement of complainant's cousin, besides the statement of SI Jitender, Ct. Vineet and Ct. Anil. PW-15 further declared that he seized the Maruti car vide seizure memo Ex. PW2/D, bearing PW-15's signatures at point C. Further, as per PW-15, he also recorded the statement of driver of Honda City car namely Vishnu and thereafter, they returned to the police station and the case property was deposited with MHC(M). Subsequently, as per PW-15, he along with accused Pawan, CCL 'P', HC Virender and Ct. Anil left to the police station in search of the third associate of the accused persons and the accused persons are asserted to have taken them to the house and work place of their associates. PW-15 correctly identified accused Kamal in Court, asserted to be arrested vide arrest memo Ex. PW-13/D, bearing PW-15's signatures at point C and his personal search was taken vide memo Ex. PW13/E, bearing PW-15's signatures at point X. PW-15 further deposed that the accused Kamal made his disclosure statement Ex. PW13/F, bearing PW-15's signatures at point B. Further, as per PW-15, he also recorded the statement of HC Virender. PW-15 also proclaimed that on the following day, all the accused persons were produced before concerned Magistrate and the police custody remand in respect of accused Kamal was taken. Further, as per PW-15, during police custody remand, efforts were made to trace the knife and money, however, nothing could be recovered. Thereafter, on the following day, PW-15 SC No. 27581/2016 State v. Karan & Anr. Page 27 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:38:58 +0530 asserted that he got the mechanical inspection of Maruti car conducted. Further, as per PW-15, accused Kamal was produced before Ld. MM and he was remanded to judicial custody and thereafter, PW-15 moved an application for TIP, however, accused Kamal refused to take part in TIP proceedings. PW-15 further deposed that he also collected the proof of ownership of Maruti car from transport authority and as per details received from RTO, it was determined that the said car was registered in the name of Raj Kumar, however, the name of registered owner was Raj Kumari as well as that her son namely Pramod had sold the said car to accused Kamal. PW-15 further asserted that he recorded the statement of Pramod as well as he/PW-15 telephonically contacted Mr. S.B. Dass, who had made 100 number call. Further, as per PW-15, he also collected the CDR of the mobile phone of the complainant and got recorded, statements of the witnesses. Thereafter, as per PW-15, on completion of investigation, he/PW-15 prepared the chargesheet and filed the same in the Court. 8.17. PW-16/HC Anil Kumar deposed that on 13.03.2014, he/PW-16 was posted as HC at PS Daryaganj and was working as MHC(M). On that day, as per PW-16, SI Praveen had deposited with him, two sealed parcels; one key ring with keys and one Maruti Car No. DL-2CG-7621. Further, as per PW-16, he deposited the same in the malkhana vide entry No. 1779 in register No. 19. PW-16 further produced the original entry, copy of which is Ex.PW16/A. 8.18. Notably, all the aforenoted prosecution witnesses were thoroughly examined by/on behalf of the accused persons by their Ld. Counsel.
EXAMINATION OF ACCUSED PERSONS:
SC No. 27581/2016 State v. Karan & Anr. Page 28 of 77 Digitally signed by ABHISHEKABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:03 +0530
9. Apposite to note here that upon conclusion of prosecution evidence, statement of accused persons in terms of the provisions under Section 313 Cr.P.C. was recorded, wherein the accused persons denied their involvement in the present case and proclaimed that they have been falsely implicated in the present proceedings/case. Notably, accused, Karan denied the recovery of robbed mobile phone from his possession, besides it was asserted by the said accused that he was falsely implicated in the present case upon the occurrence of an accident on the said date and upon the person involved in the said accident quarrelling with them in relation thereto. Further, accused, Karan, while denying his involvement in the present case, asserted that he could not specify the reason of his false implication by the concerned police officials in the instant case. Notably, the relevant extracts from accused, Karan's statement, recorded under Section 313 Cr.P.C., are reproduced as under;
"...Q. 12: It is in evidence against you that PW-2/Sonu upon being cross examined by Ld. Addl. PP for the State asserted that point A of Ex. PW2/B bore his signature. It is further in evidence that as per PW-2, his mobile phone was recovered from accused Karan, when he apprehended. PW-2 further asserted that his said mobile phone was sealed by the police officials and that at that time, Ex. PW2/B was made by the police and he/PW-2 signed the same at point A. What do you have to say?
Answer: It is incorrect.
*** *** *** Q. 79: Why was this case registered against you? Answer: In the month of March, 2014, I was going to meet my cousin brother, namely, Kapil, who was residing at Samaipur Badli. Since, I did not know the route so I made a call to my friend, namely, Pappu and requested him to arrange a car for me because my friend Pappu is a driver by profession. Pappu came along with a car at Geeta Colony and we left for Samaipur Badli. We were going through Rajgarh Flyover and suddenly, our car had met with an accident. At that time, two persons were crossing the SC No. 27581/2016 State v. Karan & Anr. Page 29 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:07 +0530 road and kyuki hamara accident hua tha to unke gaadi lagte hue bachi and due to this reason those persons started quarreling and abusing us. We tried to keep our car at side of the road. In the meanwhile, some police officials came there and took us to the PS. We were under impression that police officials had taken us to PS in regard of our accident. I do not know anything about the present FIR.
Q. 80: Why have the PWs deposed against you? Answer: I do not know.
Q. 81: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 82: Do you want to say anything else?
Answer: I am innocent and I have been falsely implicated in the present case..."
..."
(Emphasis supplied) 9.1. In so far as accused, Kamal is concerned, as aforenoted, the said accused also denied his involvement in the present case as well as affirmed about his false implication. Relevant extract of accused, accused, Kamal's @ Sonu's statement under Section 313 Cr.P.C. is reproduced as under;
"...Q. 53: It is in evidence against you that PW-11/Ms. Ambika Singh, Metropolitan Magistrate, Central, THC has further deposed that on 02.04.2014, the accused Kamal was produced from JC in muffled face and identified by the IO. It is further in evidence that as per PW-11, accused was asked if he wished to participate in the TIP proceedings, but the accused Kamal refused to participate in the TIP proceedings stating that he had already been shown to the witness. PW-11 further deposed that accused Kamal was warned that his refusal to participate in the TIP proceedings would draw adverse inference against him during the trial, but the accused persisted in his refusal. TIP proceeding is Ex. PW11/B, Statement of accused Kamal is Ex. PW11/C which bears the signature of accused Kamal at point A. It is further in evidence that as per PW-11, she/PW-11 appended her signature at point X and X-1. What do you have to say?
Answer: It is incorrect.
*** *** *** SC No. 27581/2016 State v. Karan & Anr. Page 30 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:39:15 +0530
Q. 65: It is in evidence against you that PW-13/HC Virender further deposed that in pursuance of disclosure statement of accused Karan, they went to the area of Trilok Puri in search of his associate Kamal. PW-13 further deposed that accused Kamal, present in the Court (correctly identified), was apprehended from Indira Market, Trilokpuri at the instance of accused Karan. He was interrogated and was arrested vide arrest memo Ex. PW13/D, bearing his/PW-13's signature at point A. His/said accused's personal search was taken vide memo Ex. PW13/E, bearing his/PW-13's signature at point A. PW-13 further deposed that accused Kamal made disclosure statement Ex. PW13/F, bearing his/PW-13's signature at point A. What do you have to say?
Answer: It is incorrect.
*** *** *** Q. 79: Why was this case registered against you? Answer: I do not know anything about the incident in question as I was not present at the spot at the time of incident. I have been falsely implicated in the present case.
Q. 80: Why have the PWs deposed against you? Answer: I do not know.
Q. 81: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 82: Do you want to say anything else?
Answer: I am innocent and I have been falsely implicated in the present case..."
(Emphasis supplied)
10. As aforenoted, both the accused persons, in their respective statements recorded under Section 313 Cr.P.C. proposed to lead evidence in their support. However, during the course of proceedings held on 06.09.2024, it was proclaimed by/on behalf of accused, Kamal that he would not lead any defence evidence and that the matter may be listed for arguments, leading to the closure of defence evidence qua the said accused. Correspondingly, during the course of present proceeding, it was brought to the attention of this Court that accused, Kamal @ Sonu, since left for heavenly abode on 15.07.2024. Consequently, upon SC No. 27581/2016 State v. Karan & Anr. Page 31 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.05 16:39:19 +0530 verification report in this regard, having been filed/received from concerned IO, proceedings qua accused, namely, Kamal @ Sonu were abated vide order dated 26.09.2024.
CONTENTIONS OF STATE:
11. Learned Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the testimonies of PW-2 and PW-4, the role, complicity as well as active involvement of the accused persons in the commission of the offences alleged against them stands proved. As per the Ld. Addl. PP for the State, the complainant/PW-2, in his testimony, has specifically deposed about the commission of incident by the accused persons, while acting in concert with CCL 'P' that on 13.03.2014, when the complainant and his brother were proceeded to Anand Vihar, they were induced to board the aforenoted Maruti car, whereupon from the possession of the complainant, his mobile phone as well as money were robbed. Further, as per Ld. Addl. PP for the State, the complainant and his brother before this Court. It was further submitted that as per the complainant and his brother, PW-4, accused persons, namely, Karan and CCL 'P' were apprehended at the spot and subsequently, accused Kamal was apprehended at the instance of the said accused. Correspondingly, Ld. Addl. PP for the State submitted that accused, Kamal, deliberately opted not to participate in the TIP proceedings despite being warned, necessitating raising of adverse inference against the said accused. Ld. Addl. PP for the State further submitted that the apprehension of the accused persons is duly corroborated under the testimonies of various police officials/formal witnesses, who were a part of the raiding team. Ld. Addl. PP for the State, while further referring to the testimony of PW-2/Sonu, fervently professed that the driving the vehicle in question/Maruti car by SC No. 27581/2016 State v. Karan & Anr. Page 32 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:22 +0530 CCL 'P' of accused Kamal sitting next to him, besides of Kamal's fleeing from the said car with the complainant's and his brother's money, at the time of incident stands duly proved from the testimony of the said witness/PW-2. It was further contended by the Ld. Addl. PP for the State that despite an extensive and though cross examination of the said witnesses/prosecution witnesses, the defence has not been able to rebut the sterling testimonies of the prosecution witnesses, clearly, indicating towards the only inference of guilt of the accused persons. Further, as per the Ld. Addl. PP for the State, the accused persons, despite being afforded an opportunity to lead evidence, deliberately opted not to belie the case of prosecution. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making them liable for the offences/charges levelled against them.
CONTENTIONS OF DEFENCE:
12.1. Per contra, Learned Counsel for the accused, Karan, outrightly submitted that from the material placed on record, the ingredients of offence under Section 392/397/411 IPC are not made out in the instant case. In this regard, Ld. Counsel vehemently asserted that there are material improvements, contradictions and variations in the statements of various prosecution witnesses, belying their allegations against the accused persons. Ld. Counsel further submitted that there is no MLC of the complainant and no recovery of the so called robbed amount or knife allegedly used by accused Kamal at the time of incident was effected by the prosecution in the instant case. In fact, as per the Ld. Counsel, during the course of investigation in the present case, the concerned police officials noted that there were SC No. 27581/2016 State v. Karan & Anr. Page 33 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:26 +0530 no injuries upon the complainant, leading to the filing of chargesheet under Sections 392/397/411/34 IPC. Further, even the alleged apprehension of the accused, namely, Karan and CCL 'P' at the spot, as per the Ld. Counsel, is not without a pale of doubt in the instant case. In this regard, Ld. Counsel further vehemently contended that the testimonies of the complainant and his brother are replete with contradictions and unreliable, entitling the accused to benefit of doubt. Ld. Counsel further submitted that the depositions of PW-2 and PW-4 are uninspiring and do not appeal to the senses of reasonable man, in particular, the factum of said witnesses, continuing to stay in the Maruti car even after the alleged incident, besides there is discrepancy on the factum of complainant's breaking the glass of the said car. Accordingly, Ld. Counsel reiterated that in view of the contradictions in various prosecution witnesses in respect of the alleged incident; arrest and apprehension of the accused persons; and the so called recovery, possibility of accused being falsely implicated in the present case cannot be ruled out. Lastly, it was submitted by the Ld. Counsel that the investigation in the present case has not been properly conducted as neither any endeavour made to join independent witnesses in recovery process, nor any attempts made to retrieve CCTV footage of the vicinity of the alleged place of occurrence. 12.2. Learned Counsel for the accused further vehemently asserted that there are several contradictions in so far as the initial record/DD No. 11A records the particulars of alleged robbed amount as Rs. 4,500/- (Rupees Four Thousand Five Hundred only), while as per the prosecution story, the alleged robbed amount was Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only). It was further submitted that while, PW-2 in examination-in-chief asserted that accused, Karan enquired from SC No. 27581/2016 State v. Karan & Anr. Page 34 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:29 +0530 them as to where they were proceeded, however, as per the prosecution story, such enquiry was made by accused Kamal. Further, as per PW-2, it was accused Karan, who asked the complainant/victim to keep their amount in an envelope, in contradistinction to the story of the prosecution, asserting that such request was made by accused, Kamal. Ld. Counsel further vehemently contended that there is contradiction in the Maruti car being pushed by accused, Karan, as deposed by PW-2, while the prosecution story declared that the accused Karan and CCL 'P' were attempting to flee from the spot in the said car. It was further iterated that there is variance in the factum of apprehension of the accused person from spot by public persons or by the police officials, as variedly contended by the victim/complainant, at different stages of trial. Correspondingly, it was asserted that while, PW-2 declared that he was beaten up and had obtain medical assistance, however, no such MLC or medical report has been placed on record by the prosecution. It was further submitted that PW-3 and PW-4 have not supported the case of the prosecution, besides the police officials have not recovered the alleged looted amount as well as 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 be permitted to benefit of doubt and be acquitted of the charges levelled against him. APPEARANCE:
13. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel for the accused, namely, Karan have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral SC No. 27581/2016 State v. Karan & Anr. Page 35 of 77 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.03.05 16:39:33 +0530 and documentary evidence) as well as the written arguments filed on behalf of the accused namely, Karan, thoroughly perused. LEGAL PROVISIONS:
14. 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.
*** *** ***
39. "Voluntarily"-A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
*** *** ***
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 SC No. 27581/2016 State v. Karan & Anr. Page 36 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:36 +0530 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 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)
SC No. 27581/2016 State v. Karan & Anr. Page 37 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:41 +0530
15. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability3 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law4 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 evidently5, 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) 3 Suresh v. State of U.P., (2001) 3 SCC 673.4
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
5Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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"26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence.
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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)
16. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention6. 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 6 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. 27581/2016 State v. Karan & Anr. Page 40 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:39:53 +0530 intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
17. 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 SC No. 27581/2016 State v. Karan & Anr. Page 41 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
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Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC noted as under;
"15. Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."..."
(Emphasis supplied) SC No. 27581/2016 State v. Karan & Anr. Page 42 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:40:00 +0530
18. Conspicuously, in order to convict a person under Section 392 IPC, ingredients of Section 390 IPC 7 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. 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)
19. 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 7 Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
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ABHISHEK GOYAL
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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 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)
20. 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 SC No. 27581/2016 State v. Karan & Anr. Page 44 of 77 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.03.05 16:40:07 +0530 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)
21. 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 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)
22. 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 SC No. 27581/2016 State v. Karan & Anr. Page 45 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:40:11 +0530 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. 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)
23. 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 settled8, "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 courts9 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 8 Mathai v. State of Kerala, (2005) 3 SCC 260.
9Sonu v. The State (Govt of NCT of Delhi), MANU/DE/5649/2012.
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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 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)
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24. 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., (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)
25. 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 10 10 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."
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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 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)
26. 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 akin terms, remarked 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:
27. 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 (Emphasis supplied) SC No. 27581/2016 State v. Karan & Anr. Page 49 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:40:27 +0530 merits of the instant case. In particular, and outrightly to the effect as to, 'whether from the material placed on record, culpability under Section 392/34 IPC can be attracted against the accused namely, Karan?' Conspicuously, in order to deal with the said aspect, this Court deems it apt to incipiently reiterate that the complainant, PW-2/Sonu explicated the manner of commission of offence as well as duly identified both the accused persons in his deposition before this Court. As aforenoted, PW-2 unambiguously declared that on 13.03.2014, when he/PW-2 along with his brother PW-4 were present at Loha Mandi, near Inderpuri, accused Kamal approached them and inquired as to where they were headed.
Subsequently, as per PW-2, one car reached the spot in which, accused Karan was present, who enquired from them as to where they were headed. Upon this, accused Kamal replied that all three of them were going to Anand Vihar and in response, accused Karan told them that he was also going to Anand Vihar and that he could drop them. Further, as per PW-2, accused Kamal told accused Karan they would pay fare of Rs. 15/- (Rupees Fifteen only) and after that, they all boarded the car for Anand Vihar. On the way, PW-2 proclaimed that accused Kamal told them that he was an Army-man as well as, accused Karan told them that he was a government employee and that he used to deposit the money in post office. Correspondingly, it was asserted that accused Karan further told them that in case police officials asked them where they were going, they had to reply that they were going to post office. Simultaneously, accused Kamal is proclaimed to have asked them to keep their money in a yellow colour envelope. Consequently, on asking of accused, Kamal, the complainant/PW-2 and his cousin brother, namely, Sonu kept their money in an envelope and after that, as per PW-2, accused Kamal SC No. 27581/2016 State v. Karan & Anr. Page 50 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:40:31 +0530 clandestinely exchanged the envelope of money kept by them and another envelope kept in the drum carried by him/PW-2. Thereupon, the complainant asked the accused Kamal to let him/PW-2 count the money and when he/PW-2 put his hand in drum to take out the money from the envelope, accused Kamal is avowed to have caught PW-2's hand and he/accused Kamal started beating PW-2 for half an hour. At that time, PW-2 asserted that the associate of accused persons was diving the car and at that point in time, PW-2 tried to make a call by his phone to the police, however, accused, Karan snatched his/PW-2's mobile phone. It was further deposed by PW-2 that the driver of the car stopped the said car in a lonely place and accused Kamal tried to take them out from the car, however, the complainant and his brother did not oblige/did not get down from the car. Concomitantly, PW-2 asserted that accused Kamal took out the knife and proclaimed that in case they did not come out from the car, then, he would cause injury to them. After that accused Kamal is declared to have fled with the envelope, where PW-2's money was kept, on the asking the accused. After that, PW-2 is stated to have made a request to the driver of the said car to drop them to some distance and the said driver started the car and covered some distance. Thereafter, as per PW-2, the driver of the car stopped the same on PW-2's asking and accused Karan threw their luggage, whereupon PW-2 and his brother got down from the car. After that driver of the said car is asserted to have started the car and when the car was moving, PW-2 proclaimed that he chased the said car and broke the glass of driver side and removed the key, leading to the car getting stopped. Subsequently, PW-2 asserted that he started running and accused Karan as well as the driver of the said car, chased him. Thereafter, the said car is asserted to have met with an accident/collided with SC No. 27581/2016 State v. Karan & Anr. Page 51 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:40:37 +0530 another car, whereupon both the accused persons fled form the spot, however, were apprehended lateron by public persons. Further, as aforenoted, PW-2 also proclaimed that police officials reached at the spot and took the statement of PW-2. Markedly, upon being cross examined by Ld. Addl. PP for the State, PW-2 proclaimed as under;
"XXXXXX by Ld. Addl. PP for State.
It is correct that at point A on Ex.PW2/B is my signatures. It is correct that my mobile phone was recovered from the accused Karan when he apprehended. It is correct that the said mobile phone was sealed by the police officials. It is correct that at that time Ex.PW2/B was made by the police and I signed at point A. It is correct that one yellow colour envelope was also recovered from the car. It is correct that yellow colour envelope was kept in a plastic container and it was sealed by the police and the same was taken into possession vide Ex.PW2/C which bears my signature at point A. It is correct that police also seized the car but I do not remember the registration of number of said car. It is correct that on point A on Ex.PW2/D is my signature. It is correct that Ex PW2/D was made by the police at the time of seizure of the said car. It correct that the person who was driving the car, his name was revealed as Pappu and he abated the accused persons namely Karan and Kamal to beat and throw us from the car.
It is correct that I pointed the place to the police It is correct that accused Karan was arrested vide arrest memo Ex PW2/E which bears my signature al point A. It is correct that driver of the car namely Pappu was also arrested by the police. It is correct that I could not recollect all the fact of the case due in lapse of the time..."
(Emphasis supplied)
28. Significantly, in his cross examination at the behest of State, PW-2 inter alia affirmed that his mobile phone was recovered from the possession of accused Karan, when he was apprehended and that the said mobile phone was seized vide seizure memo Ex. PW2/B, bearing PW-2's signatures at point A. SC No. 27581/2016 State v. Karan & Anr. Page 52 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:40:41 +0530 Correspondingly, PW-2 expressed his inability to recollect the entire factual scenario in the instant case, due to lapse of time. Noticeably, in the cross examination of PW-2 by/at the behest of the accused persons, nothing material is forthcoming so as to belie the case put forth by the complainant/PW-2. On the contrary, even during his cross examination conducted on 12.11.2014, PW-2 specifically affirmed that when he reached at bus stop, Loha Mandi at around 09:05/09.10 a.m., he met with accused Kamal and that in the meanwhile, accused Karan also reached there with the car with its driver, whereupon they all boarded the car at the bus stop Loha mandi. At the same time, PW-2 asserted that at the time of incident, he was carrying a drum of 50 lts. wherein he/PW-2 had kept a sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand only) belonged to his/PW-2's cousin/PW-4/Sonu, eatable items, one mobile phone make Micromax of black colour and one bag where he/PW-2 had kept his clothes. PW-2 further proclaimed in his cross examination that he had kept 10 (ten) currency notes of Rs. 500/- (Rupees Five Hundred only) denomination; 3 (three) currency notes of Rs. 100/- (Rupees One Hundred only) denomination; and one currency note of Rs. 50/- (Rupees Fifty only) in the drum. Concurrently, on 01.12.2014, in his said cross examination, PW-2 explicated the particulars of the knife in question, inter alia by iterating as under;
"...I cannot tell the length of the knife. Probably, the length of knife was 8 to 12 inch. I cannot tell the further description of the knife. Perhaps the knife which was shown to me was vegetable knife. I did not see whether the handle of the knife shown to me was made of either any metal or wooden. It is correct that during the incident my mobile phone was on and with me. (vol. when I was trying to make call by my mobile phone, the person sitting next to the driver snatched my mobile phone). I do not remember on the which SC No. 27581/2016 State v. Karan & Anr. Page 53 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:40:44 +0530 side Honda city car hit the white color Maruti car. It is correct that at the time of the said accident I was not sitting in the said white color Maruti var. 8/9 public persons apprehended the accused who fled away in the brushes and police official did not apprehend the person who fled away towards brushes. Police official reached at the spot within 5-6 minutes again said within 10 minutes. I was standing at the spot with the police when the 8/9 persons went away to apprehend the accused who fled away towards brushes. (Vol. Police was busy to make inquiry regarding the accident between Honda and White Color Maruti Car).
*** *** *** There was only one envelop in the car. It is correct that the envelop shown to me by the police was empty.
My mobile phone and its battery was make of Micromax. After the incident I had seen my mobile phone in the possession of the accused Karan but I can not tell at this moment whether it was kept in the pocket of pant or shirt. At the time of the recovery my mobile phone was found with battery and its cover. I do not remember the description of the seal put on the pullanda of my mobile phone. I can not say whether the seal on the pullanda of my mobile phone was put in my presence or not. The SIM card used by me was in the name of my father.
It is wrong to suggest that no knife was used by the accused in the said incident happened with me or that I was going in the car of the Vishano Mehanto along with my cousin brother on the day of the incident or that I did not visit the Inderpuri Bus stand on the day of the incident or that I along with my cousin brother did not board in white color Maruti car with the accused person or that I am deposing falsely..."
(Emphasis supplied)
29. Strikingly, it is seen from a conscientious perusal of the cross examination of PW-2 that even upon being rigorously questioned, PW-2 consistently affirmed that during the incident, his/PW-2's mobile phone was on him and that while, he/PW-2 was trying to make a call using the said mobile phone, the person sitting next to the driver, snatched the said phone. Needless to mention, PW-2 earlier explicated that accused Karan had reached at the spot with the driver of the car and that even subsequent to the SC No. 27581/2016 State v. Karan & Anr. Page 54 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:40:48 +0530 incident PW-2's mobile phone was found in the possession of accused, Karan. Here, this Court further deems it apposite to refer to the testimony of PW-4, who also identified the accused persons, namely, Karan and Kamal before this Court during his deposition, besides PW-4 declared that Kamal met them at bus stand Loha Mandi and that accused Karan was present in the white colour car along with a driver thereof. PW-4 further asserted that accused Kamal threatened to stab his/PW-4's cousin, i.e., PW-2/complainant with a knife. Simultaneously, even as per PW-4, accused Kamal got down from the car and fled from the spot, while when the said vehicle met with an accident, Karan and the driver of the said vehicle fled therefrom. Correspondingly, PW-4 proclaimed that both the said accused persons were apprehended later on and PW-4 also proclaimed that the total robbed amount was Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand only) belonged to him/PW-4 and the remaining amount of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty only) was that of PW-2. Significantly, upon being cross examined by Ld. Addl. PP for the State, PW-4 further asserted that when his/PW-4's cousin was trying to call police using his mobile phone, same was snatched by the accused. Concurrently, upon being cross examined by/at the behest of the accused persons, PW-4 inter alia denied the suggestion that the driver and accused Karan were not apprehended from the spot.
30. Conspicuously, as aforenoted, Ld. Counsel for the accused, Karan, vehemently asserted that there are material contradictions and improvements in the testimony of PW-2 from his earlier complaint/statement given to the police officials and that as per the Ld. Counsel, said discrepancies are sufficient to cast SC No. 27581/2016 State v. Karan & Anr. Page 55 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:40:52 +0530 a dent in the version put forth by the said witness. However, the said contentions of the Ld. Counsel, in the considered opinion of this Court, fail on both counts. In this regard, this Court outrightly notes that the 'so called' contradictions in the testimony of PW-2 as to who asked PW-2 and PW-4 to sit in the car or who asked PW-2/PW-4 to handover the money to be kept in the envelope, i.e., whether it was accused Karan or Kamal or that pertaining to the accused being outside or inside the car at the time of its alleged accident are not material, as aforenoted, so as to belie the otherwise consistent stand of the said witness pertaining to the manner of commission of incident in question. Needless to mention that PW-2 unequivocally remarked during the course of his deposition that due to significant lapse of time since the incident, he was not in a position to recollect the entire sequence of events in, exactitude. Nonetheless, in order to unerringly appreciate the contention, raised by the Ld. Counsel for the accused, this Court deems it further pertinent to iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness, at this stage. In this regard, this Court deems it apt to outrightly make a reference to the decision of the Hon'ble 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 SC No. 27581/2016 State v. Karan & Anr. Page 56 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:40:57 +0530 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)
31. 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 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) SC No. 27581/2016 State v. Karan & Anr. Page 57 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:01 +0530
32. 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 law11, 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 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 11 Appabhai v. State of Gujarat, 1988 Supp SCC 241 SC No. 27581/2016 State v. Karan & Anr. Page 58 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:05 +0530 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)
33. 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.
34. Consequently, being cognizant of the foregoing revered principles, when the testimonies of prosecution witnesses in the instant case, in particular that of PW-2 and PW-4, are conscientiously analyzed, this Court finds itself difficult to be convinced with contention of Ld. Counsel for the accused that the so called contradictions in the testimonies of the prosecution witnesses, are sufficient enough to discredit the entire prosecution case. Needless to reiterate PW-2 has consistently deposed about the occurrence of incident in question by the accused persons, while acting in concert/common intention with each other along with CCL 'P', as well as of the factum of accused Karan snatching/robbing him of his mobile phone, whilst he/PW-2 and his cousin/PW-4 were put under fear of instant death, instant hurt/injury or of wrongful restraint; factum of sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand only) belonged to his/PW-2's cousin, being snatched by accused Kamal by putting the complainant and his cousin under fear of instant death, instant SC No. 27581/2016 State v. Karan & Anr. Page 59 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.03.05
16:41:11
+0530
hurt/injury or of wrongful restraint, and fleeing post that with the envelope containing the said amount; commission of accident in question; and of accused Karan being apprehended on the spot from the bushes as well as being found in possession of the robbed mobile phone. Even otherwise, another striking feature in the instant case is that nowhere under his deposition/cross examination by/at the behest of the accused, PW-2 was ever confronted with his earlier statement/complaint to demonstrate the alleged improvements/variations in the version put forth by the said witness earlier. Clearly, law is trite that in the absence of compliance of the provisions under Section 161/162 Cr.P.C. read with Section 145 of the Evidence Act, the so called contradictions in the earlier statement of the complainant cannot be considered by this Court at this stage. Apposite at this stage, to reproduce the relevant provision under law/Sections 161/162 Cr.P.C., for the purpose of present discourse, as under;
"161. Examination of witnesses by police-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
*** *** *** (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:...
162. Statements to police not to be signed:Use of statements in evidence-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when SC No. 27581/2016 State v. Karan & Anr. Page 60 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:15 +0530 such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination..."
(Emphasis supplied)
35. Quite lucidly12, it is observed from a conjoint reading of the aforesaid provisions that a statement recorded by the police during the investigation is not admissible as evidence and the proper recourse under such circumstances, is to confront the witnesses with the contradictions when they are examined and, subsequently, to ask the Investigating Officer regarding those contradictions. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein the Hon'ble Court, after duly considering various provisions under law, in particular that under Section 161/162 Cr.P.C. and Section 145 of the Evidence Act, observed as under;
"16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the 12 Pedda Narayana v. State of A.P., (1975) 4 SCC 153.
SC No. 27581/2016 State v. Karan & Anr. Page 61 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:19 +0530
leave of the Court; and (iii) the re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
*** *** ***
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that SC No. 27581/2016 State v. Karan & Anr. Page 62 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:22 +0530 is, by drawing attention to the parts intended for contradiction."
(Emphasis supplied)
36. Ergo, it is palpable from above that in case a witness is not confronted with that part of the statement with which, the defence wanted to contradict him, then, even the Court cannot suo motu make use of statements to police, not proved in compliance with Section 145 of the Evidence Act. As a corollary, it is the duty of the defence to prove all the major contradictions in the form of material omissions, variance, etc., in accordance with the procedure, as envisaged under Section 145 Evidence Act and place them on record, without which such variance cannot be considered by the Court/would not come to the aid and rescue of an accused. Therefore, reverting to the facts of the present case, as aforenoted, the so called contradictions in the testimony/deposition of PW-2 cannot be considered by this Court in the absence of confrontation of the said witness with his earlier statement. Even otherwise, as aforenoted, the so called improvements in the deposition of PW-2, in the considered opinion of this Court, are not material so as to belie the prosecution's case. As aforenoted, both, PW-2 and PW-4 duly identified accused persons, Karan and Kamal as the perpetrators of offence before this Court. Further, both, PW-2 and PW-4 affirmed that they met with accused Kamal at the Loha Mandi bus stop and that subsequently, they proceeded in the car, where accused Karan was sitting next to the driver seat. Further, PW-2 also explicated that he was put in fear, whilst being threatened with a knife by accused Kamal, while accused Karan snatched PW-2's mobile phone from his possession. Further, both, PW-2 and PW-4 affirmed that accused Kamal fled from the spot, while the driver of the car as well as accused Karan were apprehended from the spot. Undoubtedly, this Court is conscious SC No. 27581/2016 State v. Karan & Anr. Page 63 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:26 +0530 of the fact that there do appear to be certain embellishment in the testimony of PW-2 so far as they pertain to the said accused running behind the car/vehicle in question or of pulling out of keys thereof. However, same also would not, in the considered opinion of this Court, be sufficient to belie the case put forth against the accused. Needless to mention that the law is settled13 that witnesses tend to exaggerate the prosecution story and that the superior courts have persistent avowed that under such circumstances, if the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. Reference in this regard is further made to the decision in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors., MANU/SC/0677/2003, wherein the Hon'ble Apex Court, while iterating similar sentiments, noted as under;
"27. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extend the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witnesses, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr.
v. The state of Madhya Pradesh, MANU/SC/0254/1972: 1972CriLJ1302 and Ugar Ahir and Ors. v. The State of Bihar, MANU/SC/0333/1964: AIR1965SC277. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, 13 Sheesh Ram & Ors. v. State of Rajasthan, MANU/SC/0063/2014.
SC No. 27581/2016 State v. Karan & Anr. Page 64 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:30 +0530
truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh, MANU/SC/0093/1952: AIR1954SC15 and Balaka Singh and Ors. v. The State of Punjab, MANU/SC/0087/1975: 1975CriLJ1734 . As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., MANU/SC/0254/1981: 1981CriLJ1012, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc., MANU/SC/0327/2002:
2002CriLJ2645, Gangadhar Behera and Ors. v. State of Orissa, MANU/SC/0875/2002: 2003CriLJ41 and Rizan and Anr. v. State of Chhattisgarh, MANU/SC/0036/2003: 2003CriLJ1226..."
(Emphasis supplied)
37. Here, it is further pertinent to refer the testimony of PW-3/Sh. Vishnu Mahto. Markedly, though, PW-3 does not corroborate the case of the prosecution in its entirety, however, he confirmed in his testimony that on the date of the incident, i.e., on 13.03.2014, his car bearing no. HR-60A-8888 met with an accident with white Maruti car. Correspondingly, PW-3 affirmed that after the said accident, persons siting in the white colour Maruti came also got out from the said car and some of them fled away towards Yamuna side, who were subsequently apprehended. Correspondingly, PW-7/Arvinder Singh proved the mechanical inspection report of the Maruti 800 car bearing no. DL-2CG-7621 SC No. 27581/2016 State v. Karan & Anr. Page 65 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:34 +0530 (Ex. PW7/A) inter alia recording the nature of damage thereon as;
"Front bumper broken and dislocated; right side head light broken; right side body finder damage; right side rear view mirror broken; right side front door window glass broken; vehicle was found fit for road test." Pertinently, PW1/Pramod deposed before this Court that the vehicle bearing DL-2CG-7621 was purchased by him and subsequently, registered in the name of his mother, namely, Raj Kumari, which was thereafter, given to accused, Kamal in the year 2013, though, without executing any formal document(s). Needless to mention, nothing material has come forth in the cross examination of the said witnesses so as to demolish the version, declared by them in their respective examination in chief.
38. Germane for the purpose of present discourse to refer to the deposition of PW-7/SI Anil who affirmed before this Court that on 13.3.2014, upon receipt of DD No.11A, he/PW-7 along with HC Virender reached the spot near ITO U turn Rajghat, where the complainant/PW-2/Sonu S/o. Ramji Chaudhary met and informed them that two persons had robbed mobile and cash, as well as left the spot. PW-7 further asserted that at the spot, two vehicles i.e. one Maruti 800, bearing registration no. DL-2CG-7621 and Honda City car, bearing registration no. HR-60A-8888 were also found in accidental condition. PW-7 further deposed that they made efforts to search the accused person near the bushes and that near the bushes, two persons were found who disclosed their names as; Karan and CCL 'P'. It was further avowed that on a formal search, one mobile phone of Micromax make was recovered from the possession of Karan, which was identified by the complainant, Sonu as the one, robbed from him. Appositely, PW-7/SI Anil, even under his cross examination by/at the behest of the accused re-affirmed that the mobile phone was SC No. 27581/2016 State v. Karan & Anr. Page 66 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:38 +0530 recovered from the possession of accused Karan. Significantly, PW-13/HC Virender deposed on the same lines as PW-7/SI Anil by inter alia reiterating that when he/PW-13 and PW-7/SI Anil went to the spot i.e., near U-Turn of Rajghat Bus Depot, Bypass where he/PW-13 found complainant, Sonu along with his associate whose name was also Sonu and two cars, in an accidental condition. As per PW-13, one Maruti Car bearing registration no. DL-2C***7621 of white colour was stationed in the middle of the road and one Honda City car bearing registration HR-60A-8888 was stationed near the divider and one wheel of the car had climbed over the divider. Further, as per PW-13, the complainant Sonu told him/PW-13 that the persons who had robbed him had run towards bushes near Rajghat Dept and in the meantime, patrolling ERV comprising of SI Jitender and Ct. Vineet reached at the spot and joined them. Further, as per PW-13, he along with Ct. Anil, SI Jitender and Ct. Vineet searched in the bushes and two persons were found in the bushes. On interrogation, as per PW-13, their names were revealed as Karan and CCL 'P'. Further, as per PW-13, on formal search of accused Karan, one Micromax mobile phone of black and red colour was recovered from him, which was identified by the complainant as his mobile phone. Pertinent to note here that nothing material has been brought forth under the cross examination of PW-7 and PW-13 to belie the version put by them in their examination in chief. Strikingly, PW-9/Ct Vineet and PW-10/SI Jitender, who are asserted to have reached at the spot in EVR and assisted in apprehension of accused, Karan and CCL 'P' corroborated the stand of PW-7 and PW-13 and nothing significant has been brought forth in their respective cross examination to belie their version of occurrence/events that transpired. Similarly, PW-15/SI Parveen Badsara inter alia deposed of the presence of SC No. 27581/2016 State v. Karan & Anr. Page 67 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:42 +0530 Maruti car bearing No. DL-2CG-7621 of accused persons and another car no. HR-60A-8888 of Honda City make being found stationed at the spot in an accidental condition. Concomitantly, as per PW-15, upon him reaching the spot, HC Virender handed over the custody of accused Karan and CCL 'P' as well as produced the complainant Sonu and his cousin before him/PW-15, besides apprising him/PW-15 of the facts of the present case. Further, as per PW-15, HC Virender produced one mobile phone of Micromax company of the complainant, which was recovered from accused Karan, which was seized by PW-15 vide memo Ex. PW2/B, bearing PW-15's signatures at point C. Relevantly, nothing significant has emerged even under the cross examination of PW-15 by/at the behest of accused.
39. Undoubtedly, as aforenoted, Ld. Counsel for the accused/accused has(ve) been unable to rebut the case put forth by the aforesaid police officials. On the contrary, Ld. Counsel for the accused has merely contended that the testimony of said officials cannot be relied as they are police officials. However, the said contention, too, does not find any favour with this Court in light of the persistent avowals of various courts, declaring the police officials as competent witness in criminal trials/cases and 14 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 14 Baldev Singh v. State of Haryana, MANU/SC/1268/2015.
SC No. 27581/2016 State v. Karan & Anr. Page 68 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:46 +0530
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)
40. Accordingly, when the testimonies of the aforesaid witnesses, i.e., PW-3/Sh. Vishnu Mahto; PW-7/Arvinder Singh; PW1/Pramod; PW-7/SI Anil; PW-13/HC Virender; PW-9/Ct Vineet and PW-10/SI Jitender are read in conjunction with each other, the factum of occurrence of accident on the date of accident between the Maruti car bearing DL-2CG-7621 and Honda City car bearing HR-60A-8888 at the spot; the said vehicles being found in an accidental state upon the police officials reaching there; apprehension of accused Karan and CCL 'P' from the nearby forest; and of recovery of the mobile phone from the possession of accused, Karan of Micromax make red and black in colour at that point in time, which was identified on the spot itself by the complainant/PW-2 as his mobile phone, stand duly proved. In fact, the accused, despite extensively cross examining the said witnesses has been unable to confute the version/narration of the said witnesses. Apposite reiterate at this stage that accused Karan, under his statement recorded in terms of the provisions under Section 313 Cr.P.C. endeavoured to lead a defence that on the date of alleged incident, he was on his way to meet his cousin, Kapil, who was residing at Samaipur Badli at the relevant point in time and had asked his friend CCL 'P', who was a driver by profession, to arrange for a car. Thereupon, as per accused Karan, CCL 'P' reached there with a car and while they were proceeding through SC No. 27581/2016 State v. Karan & Anr. Page 69 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:50 +0530 Rajgarh Flyover, their car met with an accident. Correspondingly, as per accused Karan, two persons were crossing the road and since they had escaped injury in the process ( kyuki hamara accident hua tha to unke gaadi lagte hue bachi ), said persons started quarrelling and abusing them. Thereupon, police officials reached at the spot, took them to police station and falsely implicated them in the present case. However, it is observed that despite such a defence no basis thereof is led by the accused, anywhere under the cross examination of any of the prosecution witnesses. In fact, suggestion to the effect of occurrence of accident, of two persons escaping injury in the process or of quarrel, etc., were neither put to PW-2 or PW-4 or even to PW-3 in their respective cross examination. Needless to mention, nothing is forthcoming on record on the part of the accused persons/accused, Karan to indicate in the slightest, reasons for false implication of the accused persons by the complainant/victim as well as police officials in the instant case. Concomitantly, accused, Karan further deliberately opted, not to lead any defence witness in support of his case, leading to the closure of his said right on 06.09.2024. Clearly, under such a situation, in the considered opinion of this Court, not much credence can be accorded to the accused's defence, basis/foundation of which was neither laid down in the accused's cross examination of the prosecution witnesses nor any affirmative evidence in this regard forthcoming on the record. Correspondingly, this Court unambiguously observes that the accused, Karan was found in possession of complainant's mobile phone at the spot, immediately upon his apprehension and that he has failed to rebut the presumption envisaged under Section SC No. 27581/2016 State v. Karan & Anr. Page 70 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:41:53 +0530 114(a)15 of the Evidence Act by tendering any plausible explanation/reasons thereof. In this regard, reference is made 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)
41. At this stage, this Court deems it further pertinent to reiterate that both, PW-2 and PW-4 detailed the amount carried by them on the date of occurrence as well as of the accused Kamal robbing the said amount from their possession, while acting in concert/common intention with his other associates, Kamal and CCL 'P'. In fact, as aforementioned, PW-2 even explicated the particulars of the notes carried by him at that point in the instant case. Ergo, under such consistent stand of the complainant/PW-2 and his cousin/PW-4 mere not recovery of the amount involved in the occurrence, would not be sufficient to belie the case of the prosecution. In this regard, it is pertinent to make a reference to the 15
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. 27581/2016 State v. Karan & Anr. Page 71 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:41:58 +0530 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)
42. Clearly, in light of the aforenoted dictate, the mere factum of non-recovery of robbed amount, in the considered opinion of this Court, be not of much significance in the present case, considering that PW-2 and PW-4 have been consistent in respect of robbery of the amount carried by them on the date of incident by the accused persons, along with CCL 'P'. Needless to reiterate, nothing significant has been brought under the cross examination of said witnesses to belie their consistent stand. However, notwithstanding the foregoing, this Court is conscious of the fact that in the instant case, except for a slight indication of the weapon/nature of weapon under the cross examination of PW-2 and with PW-2 declaring therein that the knife was probably a vegetable knife and around 8 to 12 inches long, no further description of the nature/type of the weapon is forthcoming on record. Quite lucidly, under such circumstances, in the considered SC No. 27581/2016 State v. Karan & Anr. Page 72 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:42:02 +0530 opinion of this Court, it would not be safe to reach a conclusion that the weapon stated to be brandished by accused Kamal was in fact, a dangerous weapon, in light of the decision in Guddu v. State, (Supra.). Needless to reiterate that the said accused, namely, Kamal @ Sonu has since left for heavenly abode on 15.07.2024 and the proceedings qua him have already abated pursuant to order dated 26.09.2024.
43. Consequently, 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 Karan , i.e., the said accused/accused Karan, while acting in concert and common intention with his associates/co-accused persons committed the offence of robbery of one mobile phone of Micromax and Rs 1,350/- (Rupees One Thousand Three Hundred and Fifty only) from the possession of complainant/PW-2/Sh. Sonu, S/o. Sh. Ramji Chaudhary and of Rs. 4,000/- (Rupees Four Thousand only) from the possession of PW-4/Sonu S/o. Sh. Upender Chaudhary. In this regard, it is reiterated as under;
a) PW-2 consistently deposed about the occurrence of incident in question/offence under Section 392/34 IPC by the accused persons, while acting in concert/common intention with each other along with CCL 'P':
b) PW-2 and PW-4 duly identified accused persons, Karan and Kamal as the perpetrators of offence before this Court. Further, both, PW-2 and PW-4 affirmed that they met with accused Kamal at the Loha Mandi bus stop and that subsequently, they proceeded in the car, where accused Karan was sitting next to the driver seat;
c) PW-2/complainant further consistently deposed of the factum of accused Karan's snatching/robbing him of his mobile phone, whilst he/PW-2 and his SC No. 27581/2016 State v. Karan & Anr. Page 73 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:42:06 +0530 cousin/PW-4 were put under fear of instant death, instant hurt/injury or of wrongful restraint; factum of sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand only) belonged to his/PW-2's cousin, being snatched by accused Kamal by putting the complainant and his cousin under fear of instant death, instant hurt/injury or of wrongful restraint, and fleeing post that with the envelope containing the said amount; commission of accident in question; and of accused Karan being apprehended on the spot from the bushes as well as being found in possession of the robbed mobile phone;
d) PW-4 also declared that Kamal threatened to stab his/PW-4's cousin, i.e., PW-2/complainant with a knife. Simultaneously, even as per PW-4, accused Kamal got down from the car and fled from the spot, while when the said vehicle met with an accident, Karan and the driver of the said vehicle fled therefrom;
e) PW-2 that even upon being rigorously questioned, consistently affirmed that during the incident, his/PW-2's mobile phone was on him and that while, he/PW-2 was trying to make a call using the said mobile phone, the person sitting next to the driver, snatched the said phone;
f) PW-2 also explicated that accused Karan had reached at the spot with the driver of the car and that even subsequent to the incident PW-2's mobile phone was found in the possession of accused, Karan;
g) PW-3 confirmed in his testimony that on the date of the incident, i.e., on 13.03.2014, his car bearing no.
HR-60A-8888 met with an accident with white Maruti car. Correspondingly, PW-3 affirmed that after the said accident, persons siting in the white colour Maruti came also got out from the said car and some of them fled away towards Yamuna side who were subsequently apprehended;
h) Conjoint reading of testimonies of PW-3/Sh. Vishnu Mahto; PW-7/Arvinder Singh; PW1/Pramod;
PW-7/SI Anil; PW-13/HC Virender; PW-9/Ct Vineet and PW-10/SI Jitender demonstrate that the factum of occurrence of accident on the date of accident between the Maruti car bearing DL-2CG-7621 and Honda City car bearing HR-60A-8888 at the spot; the said vehicles being found in an accidental state upon the police officials reaching there; apprehension of accused Karan and CCL 'P' from the nearby forest; and of recovery of the mobile phone from the possession of accused, Karan of Micromax make red and black in colour at that point in time, which was identified on the spot itself by the complainant/PW-2 SC No. 27581/2016 State v. Karan & Anr. Page 74 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:42:10 +0530 as his mobile phone, stand duly proved. Needless to mention that it is settled law that police officials are competent witnesses, and the evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation;
i) Further, the accused, despite extensively cross examining the prosecution witnesses, accused has been unable to confute the version/narration of the said prosecution witnesses;
j) The alleged discrepancies, contradictions, improvements in the version of the prosecution witnesses are not material. Even otherwise, there is no confrontation of prosecution witnesses (PW-2/PW-4) with their earlier statements in terms of the provisions under Section 145 of the Evidence Act read with Sections 161/162 Cr.P.C.;
k) Basis of defence raised by accused Karan 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, suggestion to the effect of occurrence of accident, of two persons escaping injury in the process or of quarrel, etc., were neither put to PW-2 or PW-4 or even to PW-3 in their respective cross examination;
l) Accused, Karan was found in possession of complainant's mobile phone at the spot, immediately upon his apprehension and that he has failed to rebut the presumption envisaged under Section 114(a) of the Evidence Act by tendering any plausible explanation/reasons thereof;
m) Nothing is forthcoming on record on the part of the accused persons/accused, Karan to indicate in the slightest, reasons for false implication of the accused persons by the complainant/victim as well as police officials in the instant case; and
n) PW-2 and PW-4 detailed the amount carried by them on the date of occurrence as well as of the accused Kamal robbing the said amount from their possession, while acting in concert/common intention with his other associates, Kamal and CCL 'P'. PW-2 even explicated the particulars of the notes carried by him at that point in the instant case. Ergo, under such consistent stand of the complainant/PW-2 and his cousin/PW-4 mere not recovery of the amount involved in the occurrence, would not be sufficient to belie the case of the prosecution; 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 SC No. 27581/2016 State v. Karan & Anr. Page 75 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.05 16:42:15 +0530 (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).
44. 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, Karan for the commission of offence under Section 392/34 IPC has been reached by this Court, it would not be proper to convict the said accused for the offence under Section 411 IPC in the instant case. CONCLUSION:
45. 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 the accused, in the considered opinion of this Court, the prosecution has been able to prove its case 'beyond reasonable doubt' against the accused, namely, Karan for the offence under Section 392/34 IPC is so far as it relates to the commission of offence of robbery of one mobile phone of Micromax and Rs 1,350/- (Rupees One Thousand Three Hundred and Fifty only) from the possession of complainant/PW-2/Sh. Sonu, S/o. Sh. Ramji Chaudhary and of Rs. 4,000/- (Rupees Four Thousand only) from the possession of PW-4/Sonu S/o. Sh. Upender Chaudhary by accused Karan, while acting in concert and common intention with his associates/co- accused persons. However, it is reiterated that the allegations/conviction under Section 411 IPC cannot sustain in view of the aforenoted judicial dictates, under such circumstances. Needless to reiterate that Kamal @ Sonu has since left for heavenly abode on 15.07.2024 and the proceedings qua him have already abated pursuant to order dated 26.09.2024 of this Court.
SC No. 27581/2016 State v. Karan & Anr. Page 76 of 77
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:42:18
+0530
46. Accordingly, accused, namely, Karan is convicted of the charge(s)/offence punishable under Sections 392/34 IPC and acquitted of the charges under Section 411 IPC. Consequently, let accused, namely, Karan be heard on sentence.
47. In the meanwhile, issue notice to SHO, PS Darya Ganj to submit report of antecedents of the convict, Karan. Also, issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the said convict. Correspondingly, issue notice to the probation officer to file a report in terms of the provisions under Sections 3/4 of the Probation of Offenders Act, returnable for the next date of hearing. Copy of the present judgment be annexed along with the notice. Further, a copy of the present judgment be given dasti to the convict, Karan.
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:42:23 +0530
Announced in the open Court (Abhishek Goyal)
on 05.03.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 27581/2016 State v. Karan & Anr. Page 77 of 77