Delhi District Court
State vs Jugraj on 16 September, 2025
IN THE COURT OF SHRI SANJAY SHARMA-I:
PRINCIPAL DISTRICT & SESSIONS JUDGE
SHAHDARA DISTRICT
KARKARDOOMA COURTS: DELHI
SC No. 444/2019
State Vs. Jugraj
FIR No. 119/2017
PS Shahdara
Under Section 328/392/34 IPC
CNR No.: DLSH01-005917-2019
State Versus Jugraj
S/o Ramratan
R/o H. No. 393, Gali No. 2,
Sewa Nagar, Meerut, Ghaziabad, U.P.
Date of institution : 06.09.2019
Date of reserving judgment : 18.08.2025
Date of judgment : 16.09.2025
JUDGMENT:
1. The present FIR was registered on the complaint of Nand Kishore S/o Sh. Chote Lal, who stated that he used to sell soil in his bullock cart. On 08.04.2017 at about 8.00-8.30 a.m., when complainant was present at Gali No. 13, Brahampuri Road, one boy met him and told him that one person was calling him for the purpose of purchasing soil. Thereafter, complainant met that person, who gave his mobile number 9319089530 to him and asked him to deliver one cart of soil at Samuday Bhawan, Shastri Park. When complainant reached at Samuday Bhagwan Digitally signed SC No. 444/2019, FIR No.119/2017 State Vs. Jugraj, PS Shahdara Page 1 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:22:03 +0545 with one cart of soil and called at the given number from his mobile number 9211634127, that person told him that he had asked to deliver the soil at Shahdara. Complainant told him that he would be able to deliver the soil, on next day. On 09.04.2017, at about 4.30 p.m., complainant received a call from that person, who told him not to bring the soil, on that day, as someone had expired in the family of Bablu Thekedar and he will inform the date to deliver the soil. On the same day, at about 8.00 p.m., that person again called him and asked him to deliver the soil on 10.04.2017. On 10.04.2017, when the complainant was delivering the soil, one person met him by introducing himself as Bablu Thekedar and asked him that you are a cheater, you have not delivered the soil here "Tum Toh Dhokhebaj Ho, Hamare Yahan Mitti Nahi Dali Hain". On which complainant asked him to go and he will bring the soil. On the same day, at about 11.00 a.m., complainant reached at Old Police Station Shahdara alongwith one cart of soil and contacted at the abovesaid given mobile number. After 15 minutes, two persons reached there. One of them was the person, who introduced himself as Bablu Thekedar and he was fat, short having wheatish complexion. Second person was thin, having blackish complexion with the height of about 5'-7". Both of them took the complainant towards the side of Rohtash Nagar near Hanuman Temple and asked him to stop the bullock cart there. They asked him that that Babuji will reach soon and he will tell the exact place of delivery. Thereafter, one person out of those two persons, went on a motorcycle and second stayed there with the complainant. After sometime, that person returned with a Pepsi alongwith two glasses and poured the same into two glasses. He kept the Pepsi bottle having some pepsi in the SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 2 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:22:14 +0545 dickey of motorcycle. Second person told the first person to give some Pepsi to the complainant also. But complainant refused. However, first person took out the Pepsi from his dickey and on his instigation, complainant drank the same. He asked the complainant to wait for half an hour. Thereafter, complainant made call to his wife and those two boys talked to her. Thereafter, they took the complainant near Gandhi Memorial School and on their asking, he dropped/delivered the soil in front of gate of said school. After that, Bablu Thekedar tried to leave the place on motorcycle. Complainant asked for his payment. Blackish complexion person stopped there and told him that his associate had gone to arrange money. Thereafter, complainant became unconscious and regained his consciousness only on 12.04.2017 at 4.30 a.m. He noticed that cash amount of Rs.4300/-, his mobile phone make Tata bearing no. 9211634127, keys of his house and his bullock cart were missing. Complainant alleged that he was robbed by those two assailants, who gave him Pepsi having stupefying substance in it. Thereafter, complainant reached his house. On the same day, he alongwith his wife reached Police Station Shahdara and narrated the entire incident to the police. Police took him to GTB Hospital, where he was got medically examined. 1.1 Firstly, wife of complainant has lodged a missing complaint on 10.04.2017 at about 10.00 p.m. which was recorded vide DD no. 12A. Thereafter, on 12.04.2017, on the complaint of Nand Kishore, present FIR was got registered for the offences under Section 328/379/34 IPC by SI Rajeshwar. After registration of FIR, case was marked to IO/SI Manish, who has obtained CDR of mobile of complainant bearing no. 9211634127 in which mobile no. 9319089530 of accused persons was Digitally signed SC No. 444/2019, FIR No.119/2017 SANJAY by SANJAY SHARMA State Vs. Jugraj, PS Shahdara Page 3 of 20 SHARMA Date: 2025.09.16 16:22:20 +0545 reflecting. After analyzing the CDR of above said mobile number of accused persons, one mobile no. 8745924276 was detected and after obtaining CDR of mobile number 8745924276, IO came to know that frequent calls were made on 8285178845 which was in the name of one Rahul S/o Jugraj and on inquiry from Rahul, IO came to know that mobile no. 8745924276 was used by his father Jugraj. On inquiry, location of the said mobile was found to be in Naveen Shahdara, on the date of incident. On 23.05.2017, accused Jugraj had himself surrendered before the Court and with the permission of the Court, IO interrogated him. Jugraj confessed his involvement in the present case and he was formally arrested in the present case. On 29.05.2017, accused has refused to participate in the TIP. On 01.06.2017, 2 days PC remand of the accused was obtained and when he was interrogated in the police station, complainant came there and identified the accused Jugraj as the person, who had introduced himself as Bablu Thekedar, brought the Pepsi and insisted him to drink the same. Associate of accused namely Dilshad and one other associate could not be traced (as per charge-sheet, supplementary charge-sheet in respect of those two assailants would be filed, as and when they would be traced). Further investigation of this case was marked to IO/SI Amit Chaudhary, who obtained opinion on the MLC of complainant in which doctor opined the nature of injury as 'simple'. Thereafter, IO added Section 392 IPC in place of Section 379 IPC, in the present case. On completion of investigation, charge-sheet was filed against the accused Jugraj for the offences punishable under Section 328/392/34 IPC.
2. Copies were supplied to the accused as required under Digitally signed SC No. 444/2019, FIR No.119/2017 SANJAY by SANJAY SHARMA State Vs. Jugraj, PS Shahdara Page 4 of 20 SHARMA Date: 2025.09.16 16:22:27 +0545 Section 207 Cr.P.C. and case was committed to the Sessions Court. After hearing arguments, charge for the offences punishable under Section 328/392/34 IPC, was framed against the accused Jugraj @ Babloo Thakedar, vide order dated 07.03.2020.
3. At the trial, the prosecution examined 10 witnesses in all.
(i) PW1 Nand Kishore was the complainant/victim. He proved his complaint as Ex.PW1/A and site plan as Ex.PW1/B. He has identified the accused in the Court, as assailant.
(ii) PW2 Dr. Susheel Bansotra is the doctor, who examined the victim on 12.04.2017. He proved the MLC of the complainant as Ex.PW2/A.
(iii) PW3 Smt. Madhu Gupta is the wife of the accused and she deposed that on 10.04.2017, at about 11.45 a.m., her husband telephonically informed her that the person who asked for delivery of soil, is harassing him. She deposed that she lodged a complaint regarding missing of her husband and her husband returned after two days i.e. on 12.04.2017 in bad condition.
(iv) PW4 Shyamu also used to ply bullock cart to deliver the soil. He narrates an another similar incident happened with him in which accused Jugraj asked him also, to deliver the soil and offered him cold drink to consume and a Bidi to smoke (in which he inserted something), but he refused.
(v) PW5 ASI Harwinder Singh was the Duty Officer and he proved the computerized copy of FIR and certificate under Section 65-B of the Indian Evidence Act, as Ex.PW5/A and Ex.PW5/C respectively. He also proved endorsement made on rukka as Ex.PW5/B. Digitally signed by SC No. 444/2019, FIR No.119/2017 SANJAY SANJAY SHARMA State Vs. Jugraj, PS Shahdara Page 5 of 20 SHARMA Date: 2025.09.16 16:22:35 +0545
(vi) PW6 SI Amit Chaudhary was the 2nd IO of this case. He has collected the certified copies of CDRs of phone numbers, obtained result on MLC of complainant, added Section 392 IPC in the present case and after completion of investigation, filed the charge-sheet before the Court.
(vii) PW7 Rajeev Ranjan is the Nodal Officer of Tata Tele Services and he has proved the certificate u/s 65-B of Evidence Act regarding call details of mobile no. 9211634127 as Ex.PW7/A, call details as Ex.PW7/B, print out of customer application form as Ex.PW7/C and ID proof of the customer as Ex.PW7/D.
(viii) PW-8 Pawan Singh is the Nodal Officer of Vodafone-Idea Ltd. He has stated that a fire took place in their warehouse and all records were burnt and he proved complaint in this regard as Ex.PW8/A, report of the fire department as Ex.PW8/B. He has brought the scanned copy of customer application form and proved the same as Ex.PW8/C, scanned copy of ID proof of the customer as Ex.PW8/D, print outs of call details of phone number with certificate u/s 65-B Indian Evidence Act as Ex.PW8/E and certificate issued by him as Ex.PW8/F.
(ix) PW-9 Retired Rajeshwar is the 1st IO of this case. He has proved DD no. 12A regarding missing report regarding missing of her husband Nand Kishore as Ex.PW9/A. He has recorded the statement of the complainant Nand Kishore and proved the same as Ex.PW1/A. He has also proved rukka as Ex.PW9/B and present FIR as Ex.PW5/A. After registration of FIR, ace was assigned to SI Manish.
(x) PW-10 Inspector Manish Kumar was the IO and he deposed about the investigation conducted by him and proved the relevant documents.
4. Statement of the accused was recorded u/s 313 Cr. PC and SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 6 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:22:41 +0545 the entire incriminating evidence was put to him which he denied and pleaded innocence. He took the defense that he has been falsely implicated in the present case by the complainant at the instance of the IO. Accused chose not to lead any evidence in his defence.
5. I have heard Mr. Mohd. Iqrar - Ld. Chief PP for the State, Shri Rajesh Kumar - Ld. Counsel for accused and have carefully gone through the records of the case. I have also considered the written submissions filed by Ld. Defense Counsel.
6. It was submitted by Ld. Chief PP for the State that the case against the accused has been duly proved. The complainant had identified the accused in the Court since the accused himself refused to participate in the TIP. It was further submitted that the complainant duly deposed that it was the accused, who had given him Pepsi laced with some stupefying substance as a result of which, he got conscious and the accused took away the bullock cart, cash and mobile phone fo the complainant and fled away. Thus, it was argued that the charges have been duly proved against the accused.
7. Countering the arguments of the State, Ld. Defence Counsel submitted that the prosecution has miserably failed to prove the charges against the accused. It was submitted that there is no medical evidence to substantiate the charge for the offence punishable u/s 328 IPC. It was pointed out that as per the testimony of the complainant, the accused was shown to the complainant at the police station before the TIP was organized and therefore, the accused rightly refused to participate in the TIP. It was further argued that none of the articles allegedly, robbed by the accused including bullock cart, cash or mobile phone of the SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 7 of 20 SANJAY by SANJAY SHARMA SHARMA 16:22:49 Date: 2025.09.16 +0545 complainant was recovered from the accused. Hence, it was prayed that the accused may be acquitted.
8. I have considered the rival submissions and I have perused the records of the case.
8.1 The entire case of the prosecution rests on the sole testimony of the complainant/PW-1. He alleged that he is dealing with soil business. On 08.04.2017 an associate of the accused asked him that some person is in need of soil and took him to the accused. He deposed that the accused confirmed if the bullock cart belong to him to which he admitted. The accused then asked him to deliver the soil at Samuday Bhawan Shastri Park. On 10.04.2017, he went to deliver the soil on the telephonic instructions on his mobile and reached the spot at about 11.00 a.m., where he met the accused with one more person, who took him to Rohtash Nagar, where he was asked to wait for half an hour. He further deposed that after some time, accused returned on his motorcycle with a bottle of pepsi and two glasses. He poured the Pepsi in two glasses and firstly, served it to his associate and then on the asking of his associate, he offered another glass of pepsi to him which he consumed after much insistence. He deposed that he then called his wife and told her that party is harassing him. Thereafter, on the asking of the accused, he delivered the soil near Gandhi Memorial School at Service Road. When he asked for charges from the accused, he left on his motorcycle and his associate informed him that he had gone to arrange for money. Thereafter, he became unconscious and came to senses only on 12.04.2017 and found his cart, buffalo, cash Rs.4300/- and his mobile phone missing. He then reached his house and later, informed the police.
Digitally signedSC No. 444/2019, FIR No.119/2017 SANJAY by SANJAY SHARMA State Vs. Jugraj, PS Shahdara Page 8 of 20 SHARMA Date: 2025.09.16 16:22:55 +0545 8.2 In the cross-examination, he deposed that the IO never asked for the ownership of his buffalo and cart but volunteered that he has description deed of buffalo. There was no questioning on the said description deed on part of the accused and therefore, it is deemed to be an admitted document. He further admitted that the police also did not ask for the ownership proof of his mobile phone. He also deposed that he was unaware if the bill of the mobile phone was available with him or not. He failed to provide the registration number of the motorcycle of the accused nor the mobile number used by him. He also failed to recollect the mobile number of his wife.
8.3 In his further cross-examination, PW-1 admitted that the accused and his associate neither gave any beatings to him nor they threatened him in any manner. It was also deposed by him that on 23.05.2017, he was called at the PS by the IO where he was making inquiry with the accused and therefore, he had seen the accused with the IO. He could not remember if his stomach wash or urine sample was taken by the doctor.
8.4 PW-3 Smt. Madhu was the wife of the complainant who only deposed that on 10.04.2017, her husband had gone to deliver soil at Shahdara at about 10.00 a.m. and at about 11.45 a.m., she received a call from him complaining that the persons were harassing him by asking to deliver the soil here and there. She further deposed that later, when her husband did not reach home till 1.00 p.m., she alongwith her son searched for him and when she failed to find him, she lodged a complaint with the police. She further deposed that complainant returned after two days in a bad condition.
SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 9 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:03 +0545 8.5 PW-4 Shyamu deposed that a similar incident also took place with him and the accused in the present case had asked him to deliver soil at Lohiya Nagar Ghaziabad. He deposed that when he reached the place, the accused offered him a cold drink and when he refused despite his insistence, he offered a bidi, wherein he had inserted something so he also refused to smoke. Thereafter, the accused left the place asking him to wait, but never returned.
8.6 It is clear from the testimonies of the above witnesses that PW-3 i.e. the wife of the complainant is neither eye witness nor eve an hear say witness. She has never deposed about the incident or even the fact that the complainant informed her or told her that accused met him or gave pepsi and after consuming it, he became unconscious. Thus, she cannot be considered to be a material witness or even a link witness and therefore, her testimony is of no use to the prosecution. 8.7 Similarly, PW-4 came from no where just to depose a similar kind of incident having taking place with him. There is nothing in his testimony or even in the testimony of the IO / PW-10 as to how he contacted PW-4 or came to know that any similar incident took place with him. Alternatively, PW-4 also never deposed as to how he was contacted by the IO or if he had lodged any complaint with the police of Ghaziabad about the incident which took place with him, wherein the accused was similarly, involved. In any case, he too, is not a witness to the alleged incident but has been roped in only to show the conduct of the accused or to suggest that he had been committing such kind of crimes. However, considering the aforesaid and the fact that there is no link as to how PW-4 was joined in the investigation, without any previous record of the accused SC No. 444/2019, FIR No.119/2017 Digitally signed by State Vs. Jugraj, PS Shahdara Page 10 of 20 SANJAY SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:09 +0545 of such nature, the testimony of this witness is also not reliable. 8.8 The prosecution has relied solely on the oral testimony of PW-1 to prove the charge under Section 328 IPC. Admittedly, there is no medical evidence on record to prove that any poisonous or stupefying, intoxicating or unwholesome drug was administered to the complainant with intend to cause hurt to him. It is a matter of record that neither the bottle of Pepsi or its contents allegedly administered to the complainant were ever seized during investigation or sent for chemical examination. Even the glasses in which the said Pepsi was offered were seized from the spot. The complainant was also not subjected to any forensic or other medical examination to conclude that any such substance was consumed by him. Neither his blood sample nor his stomach wash was taken and referred to Chemical / FSL examination. PW 2 Dr. Susheel Bansotra also admitted in his cross-examination that no sample of the complainant was taken.
8.9 It is not safe to rely upon the oral testimony of the witness to accept the charge for the offence punishable under Section 328 IPC. Reference can be made to the judgment in State vs Chandeshwar @ Sunil on 28 September, 2024 wherein the Hon'ble Court observed as under :
"13) The ingredients of Section 328 IPC and the nature of evidence required to establish an offence under the said provision was explained by the Hon'ble Supreme Court in Joseph Kurian Philip Jose v. State of Kerala (1994) 6 SCC 535. The relevant portion of the decision is reproduced herein-under:
"10. In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., that the accused SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 11 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:16 +0545 administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another. In other words, the accused may accomplish the act by himself or by means of another. In either situation direct, reliable and cogent evidence is necessary."(Emphasis supplied)
18. A co-ordinate Bench of this Court in Mahinder Kumar v. State 2017 SCC OnLine Del 8327, in an appeal, had expressed that it was difficult to uphold the conviction under Section 328 IPC merely on the basis of oral evidence. The relevant portion of the decision is extracted as under:
"20. In view of the aforesaid discussion, scrutiny of testimonies of prosecution as well as defence witnesses and the MLC of the victim, it is clear that the findings rendered by the learned Trial Court are based only on the testimony of injured witness. But in the absence of any medical evidence corroborating the allegation of the injured, convicting the appellants for the offence under Section 328 of IPC does not seem to be justified in the facts of the present case, especially when the prosecution has not seized any liquid/substance for taking expert opinion so as to know the substance was poisonous, stupefying, intoxicating or unwholesome drug. Prosecution has also not produced any witness to rebut the plea of alibi on behalf of the appellants except that of the injured witness. However, the appellants have produced two witnesses in their defence and merely because they did not prove the presence of the appellants at the spot, therefore, they were declared hostile.
"21. Surprisingly, no chemical report about the "stomach wash" has been proved on record. It is well settled that in order to prove Section 328 IPC, the prosecution is required to prove that the substance in question was a poison." (Emphasis supplied)
20. In Santosh Kumar v. State 2008 (4) JCC 2919 also, this Court while stressing upon the importance and relevancy of medical evidence to establish guilt SC No. 444/2019, FIR No.119/2017 SANJAY by Digitally signed SANJAY State Vs. Jugraj, PS Shahdara Page 12 of 20 SHARMA SHARMA Date: 2025.09.16 16:23:22 +0545 under Section 328 IPC, had held as under: "...From the above quoted observations of the learned trial Judge it is very much clear that the findings rendered are not sustainable at all because of being conjectural. Simply on the basis of the statement of PW-5 alone it could not be concluded that he had become unconscious because of eating the biscuit or drinking tea offered to him by the accused. There had to be medical evidence to the effect that PW-5 had, in fact, become unconscious because of consuming any drug or intoxicating substance etc. mixed in tea or biscuit..." (Emphasis supplied)"
8.10 Thus, it is clear that prosecution has failed to prove that the Pepsi allegedly offered by the accused contained any poisonous, stupefying or intoxicant. In the absence of any medical evidence, the charge for the offence under Section 328 IPC cannot be sustained against the accused. Hence, accused Jugraj is accordingly, acquitted of the said offence.
8.11 The accused has also been charged for the offence under Section 392 IPC read with Section 34 IPC alleging that he alongwith co- accused Dilshad (since not arrested) committed the robbery of Rs.4300/-, a mobile phone having SIM No. 9211634127, house keys, a bullock cart with buffalo from the person of the complainant. Section 392 IPC provides punishment for the offence of robbery. The offence of robbery has been defined in Section 390 IPC which can be either theft or extortion. The said section is reproduced as under :
"390. Robbery.--
In all robbery there is either theft or extortion.When theft is robbery.-- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person Digitally signed SC No. 444/2019, FIR No.119/2017 SANJAY by SANJAY SHARMA State Vs. Jugraj, PS Shahdara Page 13 of 20 SHARMA Date: 2025.09.16 16:23:29 +0545 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."
8.12 In both the cases, i.e. either theft or extortion, it is mandatory that the accused while committing the act, voluntarily causes or attempts to cause to any person death, hurt, wrongful restraint, fear of instant death, of instant hurt, or instant wrongful restraint. Without any such of the acts, on part of the accused, the offence of robbery remains incomplete i.e. to say that if there is no act on the part of the accused to cause or attempt to cause death, hurt or wrongful restraint or fear of any such acts, no offence of robbery can be said to have been committed by the accused.
8.13 In the case of State of Maharashtra vs. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom.), it was observed as under :
"An analysis of section 390 I.P.C. would show that in order that theft may constitute robbery, prosecution has to establish :---
(a) if in order to the committing of theft; or
(b) in committing the theft;
or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c) SC No. 444/2019, FIR No.119/2017 Digitally signed SANJAY by SANJAY State Vs. Jugraj, PS Shahdara Page 14 of 20 SHARMA SHARMA Date: 2025.09.16 16:23:35 +0545
(e) 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 instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
If the end does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery.
We wish to emphasise that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d) and (e) would theft amount to robbery."
8.14 In the instant case, as already held above, the prosecution has failed to prove that the accused administered any stupefying, poisonous or intoxicating substance to the complainant. In the cross-examination, the complainant/PW-1 himself admitted that neither the accused nor his associate ever gave any beatings to him or extended any threats to him. There is nothing in the testimony of this witness to even remotely suggest that either he was wrongfully restrained or any threat to cause his death or hurt was ever given to him. Thus, the Charge of Robbery can also not be sustained against the accused.
8.15 According to the complainant, his cart with buffalo, mobile phone and cash Rs.4300/- was found missing, when he came to his senses. As per his complaint, as also his deposition, he never stated that they were taken by the accused. It is the case of the prosecution that one more person was present with the accused at the time of the alleged incident SC No. 444/2019, FIR No.119/2017 Digitally signed by State Vs. Jugraj, PS Shahdara Page 15 of 20 SANJAY SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:41 +0545 namely Dilshad, who has not been arrested till date and his identity is also not established. It is a matter of record that the IO sought two days' police remand of the accused, after his arrest but despite that nothing could be recovered from the accused. It can be understood that mobile and cash could have been disposed off but it is not easy to dispose off the bullock and the cart. The incident took place on 10.04.2017 and the accused was arrested on 23.05.2017. Even if, the accused would have disposed off the bullock cart and the buffalo, that could have been easily traced as there would have been a limited number of purchasers of such things but still there was no trace of either of them. 8.16 Apart from the aforesaid, the identity of none of the alleged total stolen articles could be established on record. The complainant/PW-1 deposed in his cross-examination that he had a description deed of the buffalo but it was neither seized during investigation nor was produced by the witness during the entire trial. Similarly, the complainant failed to give the description of the alleged stolen mobile phone, that is to say, its make, IEMI number, colour etc. so that it could have been identified. He also failed to produce any bill of its purchase and deposed that it was an old mobile and was not sure if its bill was available with him. He deposed that he was using a SIM with number 9211634127. However, PW-7 Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd., who brought the record of the said SIM deposed that it was issued in the name of one Radhey Shyam S/o Narayan Singh Saini as per his records. The identity of said Sh. Radhey Shyam could also not be proved and there is nothing on record to suggest as to how the number registered in the name of Radhey Shyam was being used by the SC No. 444/2019, FIR No.119/2017 Digitally signed by State Vs. Jugraj, PS Shahdara Page 16 of 20 SANJAY SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:47 +0545 complainant, without disclosing his relationship with the said person. 8.17 Same is the case regarding the cash. According to the profession and status of the complainant, an amount of Rs.4300/- was a big amount but he never explained as to why he was carrying that much amount that too, when he had come only to deliver the soil. The source from where he had brought the said amount and even the description of the currency notes has also not been proved, what to say about the serial number of the said currency notes. Thus, the identity of none of the alleged stolen articles and their relationship with the complainant could be proved on record.
8.18 It is also matter of record that as per the statement of the complainant, the accused was not known to him prior to the incident. He saw him for the first time on 08.04.2017 and had thereafter, seen him on 10.04.2017 with another person (since not arrested). It was also stated by the complainant that he had become unconscious on that day and came to his senses after two days. In such circumstances, it was not easy to identify a person easily. The IO organized the TIP proceedings to fix the identity of the accused but the accused refused to participate in the TIP which was conducted on 29.05.2017. The ground for refusal as recorded in the TIP proceedings is that the accused came to know that police officials had already shown his photographs to the accused. 8.19 In the cross-examination, PW-1 / complainant deposed that on 23.05.2017, he was called by the IO in the police station, where he was making inquiries from the accused and at that time, he had seen the accused. Thus, it is very much clear that the accused was shown to the complainant before the TIP of the accused could be conducted and SC No. 444/2019, FIR No.119/2017 Digitally signed by State Vs. Jugraj, PS Shahdara Page 17 of 20 SANJAY SANJAY SHARMA SHARMA Date: 2025.09.16 16:23:54 +0545 therefore, he rightly, refused to participate therein. Thereafter, the accused was identified by the complainant in the Court for the first time on 16.12.2021 i.e. after about four years. In such circumstances, the identification of the accused by the complainant becomes highly doubtful. 8.20 The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in test identification parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court. In the case of Vaikuntam Chandmppa and Ors. v. State of Andhra Pradesh, AIR (1960) SC 1340 which is a three Judge Bench decision of the Hon'ble Apex Court, Wanchoo, J., with whom A.K. Sarkar and K. Subba Rao, JJ. agreed, speaking for the Court, observed that :
"The substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence. The law laid down in the aforesaid decision has been reiterated in the cases of Budhsen and Anr. v. State of U.P., [1970] 2 SCC 128, Sheikh Hasib alias Tabarak v. The State of Bihar, [1972] 4 SCC 773, Bollavaram Pedda Narsi Reddy and Ors. v. State of Andhra Pradesh, [1991] 3 SCC 434, Ronny alias Ronald James Alwaris and Ors. v. State of Maharashtra, [1998] 3 SCC 625 and Rajesh Govind Jagesha v. State of Maharashtra, [1999] 8 SCC 428. It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been involved in the offence. Such SC No. 444/2019, FIR No.119/2017 Digitally signed State Vs. Jugraj, PS Shahdara Page 18 of 20 SANJAY by SANJAY SHARMA SHARMA Date: 2025.09.16 16:24:00 +0545 tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits. Reference in this connection may be made to the decisions of this court in the cases of Budhsen, (supra), Sheikh Hasib (supra), Rameshwar Singh v.
State of Jammu & Kashmir [1972] l SCR 627 and Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and Ors., [1998] 6 SCC 609."
8.21 In view of the above observations of the Hon'ble Supreme Court, it can be safely said that there was no corroboration of the testimony of complainant/PW-1 regarding the identity of the accused in Court. When the accused was already shown to him at the PS before his TIP could be held, the said identification parade lost its relevance. Thereafter, the identification of the accused in the Court after four years is not worth reliance. Hence, it can be safely held that the prosecution failed to fix the identity of the accused as the person, who had committed the alleged offences with the complainant, that too, when as per the prosecution case itself, there was another person alongwith the accused and who had lastly remained with the complainant before he became unconscious, since even as per the complainant the accused had left the spot while his associate remained there.
8.22 In light of the above discussion, there is no hesitation in holding that the prosecution has failed to prove its case against the accused beyond reasonable doubt and as such, the accused is entitled for benefit of doubt. Accordingly, the accused is hereby acquitted of the SC No. 444/2019, FIR No.119/2017 Digitally signed by State Vs. Jugraj, PS Shahdara Page 19 of 20 SANJAY SANJAY SHARMA SHARMA Date: 2025.09.16 16:24:05 +0545 offences punishable under Section 328/392/34 IPC and is set at liberty. His personal bond and surety bond are discharged. File be consigned to Record Room, after necessary compliance.
Digitally signed byANNOUNCED IN OPEN COURT SANJAY Date: 2025.09.16 SANJAY SHARMA ON 16th day of September, 2025 SHARMA 16:24:11 +0545 (SANJAY SHARMA-I) PRINCIPAL DISTRICT & SESSIONS JUDGE SHAHDARA DISTRICT KARKARDOOMA COURTS, DELHI SC No. 444/2019, FIR No.119/2017 State Vs. Jugraj, PS Shahdara Page 20 of 20