Delhi District Court
State vs Dinesh Kumar Etc on 11 March, 2025
IN THE COURT OF MS SAUMYA CHAUHAN,
ASJ (FTC)-02, WEST DISTRICT, TIS HAZARI
COURTS, DELHI
CNR no. DLWT01-000479-2015
SC No.56220/2015
FIR no.561/2018
State Vs. Dinesh Kumar & Ors.
PS: Moti Nagar
Under Section : 397/394/411/34 IPC
Date of commission of offence 09.07.2015
Name of the complainant Raj Kumar
Name of accused persons and 1. Dinesh Kumar S/o Sh.
address Ashok Kumar, R/o
H.No.668, Gali No.1,
Inder Enclave, Phase-1,
Kirari Suleman Nagar,
Delhi.
2. Said Aftab S/o Said Lal,
R/o E-681, Inder Enclave,
Phase-II, Kirari, Suleman
Nagar, Nangloi, Delhi.
3. Sanjeet S/o Siya Ram,
R/o D-309, Inder Enclave,
Phase-1, Nangloi.
Offence complained of or proved 392/394/397/411/34 IPC
Plea of the accused Pleaded not guilty
Final Order Accused Dinesh and
Sanjeet:- Convicted under
Section 392/394/34 IPC
and acquitted under
Section 397 IPC.
Accused Said Aftab-
acquitted under Section
392/394/397/34 IPC.
Date of judgment 11.03.2025
FIR no.561/2015 State Vs. Dinesh & Ors. Page 1 of 26
JUDGMENT
1. The accused persons are facing trial for offence under Section 392/394/397/411/34 IPC on basis of the charge-sheet filed against them in the present FIR for committing robbery of a bag containing cash amount of Rs.9 lakhs from the possession of the complainant Raj Kumar and causing hurt to the complainant.
Prosecution story
2. The case of the prosecution in brief is that on 09.07.2015, the complainant Raj Kumar was going from the petrol pump of his company to the company office on his motorcycle bearing registration no. DL-4SND-5225. He was carrying cash amount of around Rs.5 Lakhs (later on it was stated to be Rs.9 Lakhs) in his bag. It has been alleged that the accused persons came riding on a pulsar bike and followed him with their bike. One of the accused took out a knife and stabbed the complainant on his right thigh. The complainant ran towards the other side of the road with the bag. Two accused followed him and hit him with a helmet and snatched his bag containing Rs.9,06,000/- and other documents. Thereafter, the accused persons fled from the spot.
3. On basis of the statement of the complainant Raj Kumar, the present FIR was registered under Section 394/397/34 IPC.
4. During investigation, accused persons were arrested by police officials of PS Kirti Nagar in FIR no.419/15, PS Kirti Nagar. They disclosed about their involvement in the present case. IO arrested the accused persons and got their Test FIR no.561/2015 State Vs. Dinesh & Ors. Page 2 of 26 Identification Parade (TIP in short) conducted. The accused Dinesh Kumar also got recovered 86 currency notes of Rs.500/- from his house and Rs.4745/- from Muthoot Finance Ltd., which he had deposited out of the looted amount.
5. After completion of the investigation, charge-sheet under Section 394/397/411/34 IPC was filed in the Court of Ld. MM against the accused persons. After completion of proceedings under Section 207 Cr.P.C., Ld. MM committed the case to the Sessions Court. Thereafter, the case was assigned to the Court of Ld. Predecessor and was received by this court by way of transfer.
6. Vide order dated 04.05.2019 charge under Section 392/394/397/34 IPC was framed against all the accused persons and additional charge under Section 411 IPC was framed against accused Dinesh Kumar by Ld. Predecessor. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. To prove the charge against the accused persons, the prosecution has examined 14 witnesses in total.
8. PW-2 complainant/Raj Kumar deposed that in the month of July 2015 he was working with Garg Roadlines company as office boy. His job was to collect money from the customers. The office was situated at WZ-14B, Manohar Park, Punjabi Bagh, Delhi. On 09.07.2015 at about 7:30 PM he was going towards his office on a motorcycle from Chandni Chowk after FIR no.561/2015 State Vs. Dinesh & Ors. Page 3 of 26 collecting money to the tune of Rs. 9,06,000/- in a bag. When he crossed Jakhira traffic signal, three boys came there on a motorcycle. One of them attacked him with a knife and stabbed his leg. He fell on the road with motorcycle. He somehow stood up and ran towards other side of the road with the bag containing money. Two boys wearing helmets followed him and one of the said boys removed his helmet and threw the same towards him, which hit on his leg. He again fell on the ground. The other boy also removed his helmet and hit the same on his head and snatched away his bag of money. The passersby lifted him from the road and someone called at 100 number. On his request, one person called his employer from his mobile phone. Within five minutes, his employer Pravin Garg reached the spot and took him to Maharaja Agarsen Hospital. For about 20-25 days he remained admitted in the hospital. In the hospital, police officials made inquiry from him about the incident which was reduced into writing vide his statement Ex.PW2/A. He further deposed that at the time of giving his statement before police he was perplexed and was injured therefore, he stated that the bag was consisting cash of about Rs. 5 lacs. However, the bag was containing cash of Rs. 9,06,000/-.
9. PW-2 further deposed that after about 26-27 days of the incident, his employer informed him that he had received a phone call from PS Kirti Nagar and police official had asked him if he could remember faces of the culprits. He told his employer that he had a glimpse of the faces of two culprits when they removed their helmets. He went to Tihar Jail with police and identified the accused persons in TIP proceedings. The TIP FIR no.561/2015 State Vs. Dinesh & Ors. Page 4 of 26 proceedings are Ex.PW2/B. PW-1 correctly identified accused Sanjeet and Dinesh in the court. However, he failed to identify accused Said Aftab. He also failed to identify which of the three accused had used the knife at the time of incident.
10. PW-2 further deposed that he alongwith police officials and accused Dinesh went to the house of accused Dinesh, from where some cash was recovered vide seizure memo Ex. PW2/C. He correctly identified his pant with belt, which he was wearing at the time of incident as Ex. P-2 (colly). However, he failed to identify the knife allegedly used by the accused persons. Currency notes were already released on superdari.
11. PW-2 was cross-examined by Ld. APP for State on the point of identity of the accused Said Aftab. However, despite being pointed out by Learned public prosecutor, the witness failed to identify him, stating that he could not identify the said accused due to lapse of memory. He also could not tell whether it was accused Dinesh who had stabbed him with the knife.
12. PW-2 was cross examined at length on behalf of the accused persons. The witness stated that money was collected from Kucha Gansi Ram. He could not remember as to how much payment he received from Kucha Ghasi Ram. Similarly, he could not recall which company had given him how much amount. He counted that amount and found same to be Rs.9,06,000/-. He could not tell the denomination of the currency notes. He admitted that there was no specific mark on the currency notes. He could not tell how many currency notes FIR no.561/2015 State Vs. Dinesh & Ors. Page 5 of 26 were recovered. He had gone to Tihar Jail after about one month of the incident.
13. During cross-examination, PW-2 is alleged to have made certain improvements in his statement. He stated that he had told the police that on 09.07.2015 at about 07:30 pm, he was going from Chandni Chowk to his office after collecting money to the tune of about Rs.9.06 lacs in a bag. He had also told the police that when he crossed Zakhira signal, three boys came on a motorcycle and attacked him with a knife; and that on being injured, he fell on the road with motorcycle, but somehow stood up and ran towards other side of the road with the bag of money. He had also told the police that one of the said boys removed his helmet and threw it towards him which hit on his leg. He again fell on the ground. The other boy also removed his helmet and hit his leg and snatched away his bag of money. He had also told the police that the passersby lifted him from the road and someone called the police at 100 number. On his request, a person called his employer from his mobile phone and within 5 minutes, his employer Praveen Garg reached the spot and took him to Maharaja Agrasen Hospital where he stayed for 20-25 days. Police made enquiries from him in the hospital which was reduced into writing. He was confronted with his statement Ex.PW2/A wherein all these facts were not recorded.
14. Regarding recovery of currency notes from the house of accused Dinesh, PW-2 was unable to recall the date of visiting the house of the accused, nor could he recall where his house was situated. He stated that he remained standing outside the FIR no.561/2015 State Vs. Dinesh & Ors. Page 6 of 26 house, and did not accompany the police inside the house. He did not know what proceedings were conducted inside the house of accused Dinesh.
15. PW-10 Sh. Praveen Garg, employer of the complainant deposed that in the year 2015, he was carrying on business of Trade Transportation of petroleum products at Punjabi Bagh and the complainant Raj Kumar was his employee. He used to collect payments from various customers on behalf of his office. On 09.07.2015, Raj Kumar had gone to Chandni Chowk and had collected payment from various customers to the tune of Rs.9,06,000/-. He used to go on motorcycle to collect the payment alone. PW-10 received a phone call after the incident, informing him that his employee Raj Kumar has been stabbed and robbed of the aforesaid amount. He went to PS Moti Nagar where police had apprehended 2-3 boys involved in the incident. Police took the said boys in search of co-accused in the area of Prem Nagar, Nangloi. However, he was not available at his house and his father informed the police that his son had gone somewhere and he was not having any information about him. He used to visit the house after several days. He deposed that he had seen the accused Dinesh and accused Aftab while sitting in the PS. He admitted that the recovered currency notes were released to him on superdari.
16. During cross-examination, PW-10 admitted that police had not recovered the currency notes in his presence. He was not aware about the description of currency notes, which were collected by his employee Raj Kumar from different customers.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 7 of 26He admitted that there was no specific mark of identification on the currency notes, which were robbed from his employee Raj Kumar. He could not say whether the recovered currency notes were part of the robbed amount or not.
17. PW-3 ASI Rajesh Kumar deposed that on 09.07.2015, he was on patrolling duty. During patrolling, at about 8.00-8.15 pm, he reached near HIL Gate Service Road, Rohtak Road heading towards Punjabi Bagh. IO ASI Sumer Singh and Ct. Rajbir met him there. IO instructed him to safeguard a motorcycle bearing registration number DL-4SND-5225 and one dagger like knife which were lying there. IO alongwith Ct. Rajbir left for Agarsen Hospital, and returned after about 30-45 minutes.
18. PW-4 HC Rajvir Singh and PW-12/IO SI Sumer Singh deposed that they reached the spot on receiving DD no.36A (Ex.PW12/A) from duty officer. There they found the motorcycle of the complainant and one dagger numa chhuri. As injured had already been taken to the hospital, PW-12 left HC Rajesh, who was on patrolling duty, at the spot and himself alongwith Ct. Rajbir went to the hospital. He collected MLC of injured Raj Kumar from the hospital and recorded his statement Ex.PW2/A. He prepared rukka Ex.PW12/B and handed it over to PW-4 Ct. Rajbir for registration of FIR. After getting the FIR lodged, PW-4 reached the hospital and handed over to copy of FIR and rukka to IO. Thereafter they returned to the spot.
19. PW-12/IO SI Sumer Singh deposed that he prepared sketch of the chhuri vide sketch memo Ex.PW12/C. The knife FIR no.561/2015 State Vs. Dinesh & Ors. Page 8 of 26 was kept in a sealed pullanda and seized vide seizure memo Ex.PW4/A. The motorcycle of the complainant Bajaj Platina was seized vide seizure memo Ex.PW4/B. He prepared the site plan Ex.PW12/D and also collected the pullanda containing clothes of injured vide seizure memo Ex.PW4/C. PW-12 further deposed that the blood sample and sample seal at the hospital were also seized vide Ex.PW4/C. He identified the knife Ex.P1. Photographs of the motorcycle are Ex.P3 (colly). PW-4 HC Rajvir Singh deposed that he had remained present with the IO during the above-said proceedings and had signed the memos Ex.PW4/A to Ex.PW4/C.
20. PW-12/IO further deposed that on 25.07.2015, he received information from PS Kirti Nagar that the accused persons have been apprehended and they have disclosed about the present case. He collected necessary documents from the IO of the PS Kirti Nagar. He arrested the accused persons with court's permission on 27.07.2015 vide arrest memo, Ex.PW12/E, Ex.PW12/F and Ex.PW12/G respectively and recorded their disclosure statements Ex.PW12/H1, Ex.PW12/H2 and Ex.PW12/H3. He moved an application for TIP of accused persons. The accused persons were sent to JC. The motorcycle Pulsar was transferred from PS Kirti Nagar to PS Moti Nagar through Ct. Kamal and was deposited in the Malkhana.
21. PW-5 HC Om Veer and PW-12/IO SI Sumer Singh deposed that accused Dinesh was remanded to Police custody. On 08.08.2015, the accused Dinesh led the complainant, Ct. Kawar Singh and SI Vikas Mudgil alongwith PW-12/IO to his FIR no.561/2015 State Vs. Dinesh & Ors. Page 9 of 26 rented accommodation i.e. C-688, Gali No. 1, Inder Enclave, Phase-1, Suleman Nagar, Kiradi. At his instance, 86 currency notes in denomination of Rs. 500/- each were recovered from a wooden bed. The IO kept the same in a sealed pullanda and seized it. Thereafter they went to Muthoot Finance Company where the manager handed over the relevant documents of loan taken by accused Dinesh to the IO. An amount of Rs.4745/- was handed over by the said manager which was seized vide memo Ex.PW5/A. IO recorded the supplementary disclosure statement of accused Dinesh Ex.PW5/B on the same day. He deposed that no recovery was effected at the instance of accused Sanjeet. Accused Aftab had disclosed that he had handed over some money to the JCL 'M' and at his instance, the said money was recovered from the JCL. After completion of investigation, he filed the charge-sheet before the court.
22. During cross-examination, PW-12 deposed that he had made efforts to enquire from the public persons, who had witnessed the incident but none came forward. The complainant did not mention any mark of identification on the currency notes looted from him. He stated that the complainant who had accompanied them, identified the money which was recovered at the instance of accused Dinesh, and was robbed from him. No specific mark of identification was disclosed by complainant at that time.
23. PW-6 Inspector Devender Singh, Incharge Crime Branch Team, West had inspected the spot. His crime scene report is Ex.PW6/A. PW-1 HC Amit, Photographer, Mobile Crime Team, FIR no.561/2015 State Vs. Dinesh & Ors. Page 10 of 26 West had taken 9 photographs of the spot from different angles. Negative films of the same are Ex.P-1. Since the factum of taking photographs of the spot was not disputed by the Ld. Defence counsel, the production of the said photographs was dispensed with.
24. PW-7 SI Udayveer Singh and PW-11/Inspector Ashok Kumar, police officials of PS Kirti Nagar deposed that they had apprehended the accused persons along with illegal weapons on 24.07.2015. DD no. 34A was marked to PW-11/Inspector Ashok that three persons have been apprehended by police team. Both these witnesses reached at BCD Chowk, Mansarover Garden where they met HC Mahavir, Ct.Raja Ram, Ct. Narender and Ct. Ram Niwas. They had apprehended the accused persons namely Dinesh, Afatb and Sanjeet. Two motorcycles were also apprehended. PW-11 recorded statement of HC Mahavir and endorsed thereupon. PW-7/HC Uday Vir got the FIR registered at PS Kirti Nagar. The motorcycles and weapons recovered from the accused persons were seized vide seizure memo Mark PW11/A to Mark PW11/D. PW-11/Inspector Ashok recorded their disclosure statements Mark PW11/D1 to Mark PW11/D3. All the accused were arrested vide arrest memo Mark PW11/E1 to Mark PW11/E3. On 25.07.2015, he gave information regarding arrest of accused persons to PS Moti Nagar. He had also handed over the copy of documents to ASI Sumer.
25. PW-8 Sh. Ravi Shankar, husband of Smt. Sunita Devi, landlady of accused Dinesh deposed that police had brought the accused to his rented room. He deposed that the Police told him FIR no.561/2015 State Vs. Dinesh & Ors. Page 11 of 26 that accused is involved in a criminal case and they obtained his signatures on a document. He could not read the said document. He denied having made any statement to the police. He deposed that police had called him in the PS and detained him till evening and thereafter he was let off. He admitted his signatures on the seizure memo of currency notes Ex.PW2/C but denied the contents thereof.
26. Since PW-8 failed to support the prosecution story, he was cross-examined by Ld. Chief Prosecutor for the State. He denied having made the statement under section 161 C.r. P.C, Mark PW8/A dated 08.08.2015 to the police. He denied having stated to the police that on 08.08.2015, police had brought accused Dinesh to his house or that accused Dinesh got recovered 86 currency notes of 500/- denomination from the wooden box/diwan kept in his house and told the police in his presence that the said currency notes are part of robbed amount, which he committed on 09.07.2015 along with his friends; or that the said currency notes were kept by police in a cloth parcel and appended the seal on the said parcel.
27. PW-9 Dr. N. D. Tiwari had prepared the MLC of complainant Raj Kumar on 09.07.2015 which is Ex.PW9/A. He had a Stab wound 5cm X 2cm X 7cm on his right thigh. The nature of injury was simple injury with sharp object.
28. PW-13 Sh. Mukesh Kumar from Muthoot Finance Company deposed that Sh. Shyam Sunder Arora was working as Manager with the complany in the year 2015. On 08.08.2015, FIR no.561/2015 State Vs. Dinesh & Ors. Page 12 of 26 notice under Section 91 Cr.P.C. was received by Sh. Shyam Sundar Arora, as issued by the ASI Sumer Singh, PS Moti Nagar to produce the loan record and the cash amount deposited by accused Dinesh. Same is Ex.PW13/A. In reply to the said notice, Sh. Shyam Sunder Arora had written a letter to the IO mentioning the details of the gold loan taken by Dinesh and the installment paid by him to the company. The said letter is Ex.PW13/B. He identified the seizure memo of Rs.4745/- handed over by Sh. Shyam Sunder Arora to the IO.
29. PW-14 ASI Raj Singh proved the different entries vide which case properties of the present case were deposited in the malkhana. On 09.07.2015, ASI Sumer Singh deposited one motorcycle bearing registration no. DL-4SND-5225 make Bajaj alongwith one chhuri in the shape of dagger, one pant, one belt, blood sample and sample seal vide entry no. 3188 Ex. PW-14/A (OSR). On 08.08.2015, ASI Sumer Singh deposited a sealed pullanda with the seal of 'HOS' and cash amount of Rs. 4745 vide entry at serial no. 3288 Ex.PW-14/B (OSR). On 07.11.2015, an amount of Rs.47,745/- was released on superdari on court's order to Praveen Kumar vide entry in the Mud No. 3288. He further deposed that on 26.09.2015, Ct. Kamal deposited one motorcycle bearing registration no. DL-11SE-8342 make Pulsar of Blue colour vide entry at serial no. 3411. Photocopy of the same is Ex.PW-14/C (OSR). On 06.11.2015, the said motorcycle was released on superdari to its registered owner i.e. Sangeeta Rani.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 13 of 2630. Vide separate statement of their counsel under Section 294 Cr.P.C, the accused persons admitted the factum of recording of FIR (Ex.AD-1) and DD No. 36-A. They also admitted the TIP proceedings conducted by Ld. MM.
31. After conclusion of Prosecution Evidence, statement of accused persons was recorded under Section 313 Cr.P.C. The accused persons denied the entire prosecution evidence and stated that they have been falsely implicated in the present. The police officials had badly beaten them and falsely implicated them in various matters. They were not even present at the spot as alleged and they were not involved in the alleged incident in any manner.
32. The accused did not lead any defence evidence despite opportunity and case was listed for final arguments. Detailed oral submissions have been made by Learned APP for state as well as by Learned defence counsel.
33. Ld. Counsels for accused Dinesh and Said Aftab and Sanjeet have submitted that the accused persons have been falsely implicated in the present case. Further, the prosecution has failed to prove its case beyond reasonable doubt. It has been submitted that the complainant/PW-2 has failed to identify the accused Said Aftab. He also failed to identify who had stabbed him with the knife. It has been argued that the photo of the accused persons were shown to the witness before TIP proceedings. Hence, the testimony of PW-2 is unreliable. Further, various contradictions and improvements have been FIR no.561/2015 State Vs. Dinesh & Ors. Page 14 of 26 made by PW-2 in his testimony. It has also been alleged that the currency notes were planted on the accused Dinesh.
34. Ld. Counsel for accused Sanjeet has argued that prosecution has failed to prove the allegations against the accused. He submitted that the complainant/PW-2 has failed to identify the accused Sanjeet as the assailants/robbers who had robbed him or the persons who had assaulted him with knife or helmet. Nothing has been recovered from the instance of accused Sanjeet. Hence, there is no incriminating evidence on record against him.
35. Per contra, Learned Additional PP for the State has submitted that the prosecution has proved its case beyond reasonable doubts. PW-2/injured has given a trustworthy and reliable account of the incident. He identified the accused persons in the TIP and thereafter before the court also. However, it would be difficult for him to pin point which of the accused did what during the incident as he was shocked due to fall from the motorcycle and suddenness of the incident. She has submitted that there are no material contradictions in the testimony of PW-2. The recovery of cash i.e. currency notes from the accused Dinesh have also been duly proved.
Court findings
36. I have heard the final arguments addressed on behalf of the accused persons and the State and perused the entire record carefully.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 15 of 2637. The accused persons have been charged for offence of committing robbery and voluntarily causing hurt to the victim during commission of the said robbery, in furtherance of their common intention, and using deadly weapon during robbery, punishable under Section 392/394/397/34 IPC. Additionally, accused Dinesh has been charged for offence of receiving or retaining stolen goods in his possession, punishable under Section 411 IPC.
38. The offence of robbery is defined under Section 390 IPC. Theft or extortion is robbery if in order to commit of the said theft, or in committing the theft, or in carry away or attempting to carrying away property obtained by theft, the offender for that end, voluntarily causes or attempts to cause to any person, death or hurt or wrongful restraint, or fear of instant death or instant hurt or instant wrongful restraint. To prove a robbery under Section 390 IPC, prosecution has to establish that :
i) in order to commit theft, or while committing the theft, or in carrying away or attempting to carry away the property obtained by theft;
ii) The accused voluntarily causes or attempt to cause to any person death, or hurt, or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
39. The offence of theft is defined under Section 378 IPC as per which whoever, intending to take dishonestly any movable FIR no.561/2015 State Vs. Dinesh & Ors. Page 16 of 26 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.
40. Section 394 IPC and Section 397 IPC are aggravated forms of offence of robbery. This section is attracted when hurt is caused voluntarily in committing robbery or while attempting to commit robbery. This section is applicable to the person who has actually caused the hurt as well as the other accused persons who have not actually caused the hurt but were jointly concerned in causing hurt. Hence, the perpetrator of hurt as well as to the others who were jointly concerned in committing or attempting to commit robbery are constructively liable under this section.
41. Section 397 IPC prescribes punishment for use of deadly weapon or causing grievous hurt to a person, or attempt to cause death or grievous hurt while committing robbery. Unlike Section 394 IPC, the concept of vicarious/constructive liability is not applicable to Section 397 IPC. Section 34 has no application to a case covered by Section 397 IPC. Section 397 IPC relates only to the offender who actually uses the deadly weapon. Guilt of the accused under this section can be attributed only to that offender who uses deadly weapons or causes grievous hurt to anyone during the course of commission of robbery. To prove the charge under Section 397 IPC, the prosecution is required to prove that the accused had used a deadly weapon while committing the robbery as alleged.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 17 of 2642. As per Section 34 IPC, 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.
43. Accused Dinesh is further charged for offence under Section 411 IPC, as it has been alleged that the currency notes robbed from the possession of the complainant were recovered from his house, at his instance. To bring home the guilt of the accused under Section 411 IPC, the prosecution must prove that the property recovered from the possession of accused Dinesh was dishonestly received or retained by him knowing or having reason to believe the same to be stolen property.
44. In the present case, the star witness of the prosecution is PW-2/complainant Raj Kumar. This witness has given a lucid and detailed account of the incident of robbery. There are no major contradictions in his testimony. He had identified the accused persons during TIP and had identified the accused Dinesh and Sanjeet before the court also. He also identified his pant with belt (Ex.P2) which he was wearing at the time of the incident. However, he failed to identify the accused Said Aftab.
45. It is a settled law that ocular evidence of the injured witness is the best evidence. In the case titled as "Abdul Sayeed v. State of M.P." 2010 SCC OnLine SC 1027, it was held by Hon'ble Supreme Court that where a witness to the occurrence has himself been injured in the incident, the testimony of such a FIR no.561/2015 State Vs. Dinesh & Ors. Page 18 of 26 witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. It was observed, "Convincing evidence is required to discredit an injured witness." Similarly, in the case titled as "State of U.P. v. Naresh"
2011 SCC OnLine SC 450, it was held by Hon'ble Supreme Court as under, "27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] and Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262])"
46. It has been argued by Ld. defence cousnel that there are various contradictions in the testimony of PW-2 and he had made various improvements in his testimony, which were not recorded in his earlier statement Ex.PW2/A. It has submitted that PW-2 stated in his cross-examination that after being injured, he fell on the road with motorcycle and somehow stood up and ran towards FIR no.561/2015 State Vs. Dinesh & Ors. Page 19 of 26 other side of the road with money bag. Further, he stated that one of the boys removed the helmet and threw on it which hits on his legs, he again fell on the ground and that the boy who had removed his helmet also hit his legs and snatched away bag of money. These facts are not mentioned in his statement Ex.PW2/A.
47. It is a settled law that minor discrepancies are bound to appear in the witness's testimony. However, not all such discrepancies are material enough to discredit the witness. In the case titled as "Birbal Nath v State of Rajasthan" Crl. Appeal no.1587/2008 date of decision 30.10.2023, it was held by Hon'ble Supreme Court that statements recorded under Section 161 Cr.P.C are 'previous statements' and can be used to cross examine a witness, but only to contradict him. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in the two statements would result in totally discrediting the witness. It would not be out of place to refer to the case titled as "Vijay @ Chinee v State of M.P.(2010) 8 SCC 191" wherein it was observed by Hon'ble Supreme Court of India, "19. It is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety.
20.In State of Rajasthan v. Om Prakash [(2007) 12 SCC 381], while dealing with a similar issue, this Court held that: (SCC p. 384, para 12) "12. ... Irrelevant details which do not in any way corrode the credibility of a witness cannot be levelled as omissions or contradictions."
FIR no.561/2015 State Vs. Dinesh & Ors. Page 20 of 2648. Hon'ble Supreme Court referred to the case titled as 'State of U.P. v. M.K. Anthony' (1985) 1 SCC 505 wherein certain guidelines were laid down by Hon'ble Supreme Court. The same are reproduced verbatim as below;
"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 scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer."
49. Similarly, in the case titled as "Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra" (2010) 13 SCC 657, Hon'ble Supreme Court observed, "30. While appreciating the evidence, the court has FIR no.561/2015 State Vs. Dinesh & Ors. Page 21 of 26 to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial.
Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC152]) Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh [(2009) 11 SCC 106])
50. Coming to the case at hand, the discrepancies pointed out by learned defence counsel are minor ones and do not strike at the root of the prosecution story. PW-2 has merely elaborated the details of the incident. He has not added anything new to the original version, nor has he made any contradictory statement in his testimony before the court. The improvements made by PW-2 are only explanatory ones.
51. In view of the above discussion and in light of the aforementioned judgments, this court is of the considered opinion that the contradictions or improvements pointed out by defence counsel in the testimony of PW-2 are minor ones and do not strike at the root of the prosecution case.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 22 of 2652. The complainant/PW-2 Raj Kumar, who is the sole eye- witness, has given a trustworthy and reliable account of the incident of robbery as alleged. He has duly identified two of the accused persons i.e .Dinesh and Sanjeet as the assailants who had hurt him and robbed him of his bag containing cash. He had earlier identified the accused persons in TIP proceedings Ex.PW2/B (colly) also. There are no major discrepancies in the testimony of PW-2 to create a doubt on his testimony. There is no reason for the complainant to falsely implicate the accused persons. It is not the case of the accused persons that the complainant had any previous enmity with them. Then why would the complainant falsely implicate the accused persons and let the real culprits go scot-free.
53. The testimony of PW-2 is further corroborated by DD entry no.36A dated 09.07.2015 Ex.PW12/A, vide which the information regarding incident of robbery was received at PS Moti Nagar from the control room. The factum of PW-2 having being stabbed with a knife during the alleged robbery is proved by the MLC Ex.PW9/A. As per the said MLC dated 09.07.2015, the complainant Raj Kumar had received a stabbed wound on his right thigh which is 5cm X 2cm X 7cm in dimension. The nature of injury was 'simple'. The incident had taken place at around 07:30 PM and the MLC is prepared at around 08:30 PM. Hence, it is proved that the MLC was prepared soon after the alleged incident of robbery. The complainant/PW-2 Raj Kumar has duly identified the accused persons namely Dinesh and Sanjeet.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 23 of 2654. Hence, this court is of the considered view that the testimony of PW-2 inspires confidence and is wholly reliable, and when read with the other corroborative evidence, leave no room to doubt the involvement of the accused Dinesh and Sanjeet in the alleged incident of robbery and voluntarily causing hurt to the complainant/PW-2. The prosecution has successfully proved that the accused persons namely Sanjeet and Dinesh, acting in furtherance of their common intention, caused hurt to the complainant/PW-2 Rajkumar and committed robbery of his bag containing currency notes. Hence, the accused Dinesh and Sanjeet are liable to be convicted for offence under Section 392/394/34 IPC.
55. However, as far as section 397 IPC is concerned, it has not been specified by PW-2 Raj Kumar which of the accused had used the knife while committing the robbery in question. Since the complainant/PW-2 Raj Kumar has failed to specify which of the accused persons had used the deadly weapon i.e. knife at the time of alleged incident of robbery and since Section 397 IPC does not contemplate vicarious liability, it has not been proved that the accused persons had used a deadly weapon while committing the alleged incident of robbery. Hence, the prosecution has failed to prove the charge for offence under Section 397 IPC. All the accused persons are entitled to be acquitted for offence under Section 397 IPC.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 24 of 2656. As far as accused Said Aftab is concerned, the injured/PW-2 has failed to identify him before the court. Learned public Prosecutor had even pointed out the accused Said Aftab and asked PW-2 if he was one of the robbers. Despite that, PW-2 failed to identify the accused Said Aftab. There is no incriminating evidence against the said accused. No recovery has been made at his instance. Hence, accused Said Aftab is entitled to be acquitted.
FINAL DECISION
57. In view of the above discussion, accused Said Aftab s/o Said Lal is acquitted for offence punishable under Section 392/394/397/34 IPC.
58. The accused namely Dinesh S/o Sh. Ashok Kumar and Sanjeet S/o Siya Ram are convicted for offence punishable under Section 392/394/34 IPC. However, the accused Dinesh S/o Sh. Ashok Kumar and Sanjeet S/o Siya Ram are acquitted for offence punishable under Section 397 IPC.
59. The accused Dinesh S/o Ashok Kumar has also been charged with offence under Section 411 IPC. However, he should have been charged under the said Section in alternative. Be that as it may, since the accused Dinesh has already been convicted under Section 392/394 IPC, he cannot be separately convicted for offence under Section 411 IPC with respect to the recovery of robbed currency notes.
FIR no.561/2015 State Vs. Dinesh & Ors. Page 25 of 2660. Ordered accordingly.
61. Now to come up for arguments on the point of sentence on 18.03.2025 at 02:00 PM.
62. Copy of this judgment be given free of cost to the accused alongwith coversheet as per practice direction by Hon'ble High Court of Delhi contained vide no.124/Rules/DHC dated 10.12.2024. Digitally signed by SAUMYA SAUMYA CHAUHAN CHAUHAN Date: 2025.03.18 14:37:11 +0530 Announced in the open court (Saumya Chauhan) today i.e. 11th day March, 2025 ASJ (FTC)-02, West Tis Hazari Courts, Delhi Certified that this judgment contains 26 pages and each page Digitally signed by bears my signatures. SAUMYA SAUMYA CHAUHAN CHAUHAN Date: 2025.03.18 14:37:15 +0530 (Saumya Chauhan) ASJ (FTC)-02, West Tis Hazari Courts,Delhi 11.03.2025 FIR no.561/2015 State Vs. Dinesh & Ors. Page 26 of 26