Delhi District Court
State vs Ashish Barwa on 22 January, 2026
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IN THE COURT OF MS. NIVEDITA ANIL SHARMA
PRINCIPAL DISTRICT AND SESSIONS JUDGE
SOUTH EAST, SAKET COURTS, NEW DELHI
Sessions Case Number : 458 of 2022.
CNR No. : DLSE01-006633-2022.
State
versus
1. Mr. Ashish Barwa
Son of Mr. Ravi Barwa
Resident of House No. 166, Hari Nagar,
Ashram, New Delhi. (facing trial)
2. Mr. Narender Singh
Son of Mr. Surender Pal
Resident of House No. 719, Sunlight Colony-II,
Ashram, New Delhi. (discharged vide order dated 27.10.2022)
FIR No. : 204 of 2022.
Under sections : 392/397/34 of the IPC.
PS : Sunlight Colony.
Date of filing of the charge-sheet : 03.06.2022.
Date of committal of the case : 12.07.2022.
Date of first hearing before the learned : 19.07.2022.
predecessor on committal of the case
Date of first hearing before the undersigned : 28.11.2025.
Date of conclusion of final arguments : 19.01.2026.
Date of judgment : 19.01.2026.
Appearances : Mr. Inder Kumar, Substitute Additional Public
Prosecutor for the State.
Accused Mr. Ashish Barwa on bail with counsel
Mr. Rizwan Ali and Mr. Mohd. Adil.
Accused Mr. Narender Singh has already been
discharged vide order dated 27.10.2022.
**********************************************************
Digitally signed by
NIVEDITA
Sessions Case No. : 458 of 2022. ANIL
NIVEDITA ANIL
SHARMA
FIR No. : 204 of 2022. SHARMA
Date: 2026.01.22
15:42:14 +0530
Under Sections : 392/397/34 of the IPC.
PS : Sunlight Colony.
State versus Ashish Barwa and another. -:: Page 1 of 25 ::-
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JUDGMENT
1. Mr. Ashish Barwa and Mr. Narender Singh, both the accused persons, have been charge sheeted by Police Station Sunlight Colony for the offences under Sections 392/397/34 of the Indian Penal Code (hereinafter referred to as the IPC).
2. On the complaint of one Mr. Shourjendra Nath Mukherjee son of Mr. Somnath Mukherjee, an FIR bearing no. 204/2022 was registered by the police of Police Station Sunlight Colony under Sections 392/397/34 of the IPC.
Chargesheet
3. The requisite investigation culminated into the charge sheet, which was filed against the accused persons in the Court of learned Metropolitan Magistrate-07, South East, Saket Courts, New Delhi on 03.06.2022. After compliance of provisions of section 207 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.), learned Metropolitan Magistrate committed the case to the Court of Sessions under provisions of section 209 of the Cr.P.C. on 12.07.2022 for trial being a sessions triable case for 19.07.2022.
Case of the prosecution
4. Succinctly, the case of the prosecution is that on 23.03.2022 on receipt of GD No. 92A regarding snatching of mobile phone from the caller at Sarai Kale Khan before DND Flyover on the point of knife and the snatchers have fled away, ASI Dinesh Kumar Sessions Case No. : 458 of 2022.
FIR No. : 204 of 2022. NIVEDITA Digitally signed by NIVEDITA Under Sections : 392/397/34 of the IPC. ANIL ANIL SHARMA PS : Sunlight Colony. SHARMA Date: 2026.01.22 15:42:24 +0530 State versus Ashish Barwa and another. -:: Page 2 of 25 ::-
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alongwith Ct. Hari Ram went to the spot i.e. Ring Road, Maharani Bagh, Near Bus Stop towards Noida, Ashram, New Delhi where they met the complainant Mr. Shourjendra Nath Mukherjee. The complainant gave written complaint to ASI Dinesh Kumar. In his statement, the complainant alleged that he was driving his Altroz Car today i.e. 23.03.2022 at around 08:00 pm. At around 09:00 pm, he reached Ring Road Maharani Bagh Ashram, towards Noida. There was a traffic jam and the car was stationary. At that point a person on the right side, started hitting his window and shouted that he (complainant) hit him with his car. As soon as he opened his right side window, that boy put his arm inside the car with a knife stuck to the neck of the complainant. He threatened the complainant to open the left side window. He opened the left side window and the second accomplice spring his hand and picked his I Phone 13 Pro Max (light blue color) from the car of the complainant and both of them ran away. On the basis of his written complaint, an FIR was registered against both the accused persons. After investigation, a charge sheet under section 392/397/34 of the IPC was filed against both of them.
Charge
5. Vide order dated 27.10.2022 of the learned predecessor of this Court, accused Mr. Narender Singh was discharged.
6. However, charge was framed against accused Mr. Ashish Barwa under section 397 of the IPC that on 23.03.2022 at about 09:00 pm NIVEDITA Digitally signed by NIVEDITA Sessions Case No. : 458 of 2022. ANIL ANIL SHARMA Date: 2026.01.22 FIR No. : 204 of 2022. SHARMA 15:42:33 +0530 Under Sections : 392/397/34 of the IPC. PS : Sunlight Colony.
State versus Ashish Barwa and another. -:: Page 3 of 25 ::-
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at Ringh Road, Maharani Bagh Bus Stop, Ashram towards NOIDA, within the jurisdiction of PS Sun Light Colony, New Delhi, the accused along with his unknown accomplice, in furtherance of their common intention, knocked the door of the car of the complainant Mr. Shourjindra Nath Mukherjee. When the complainant opened the glass from right side, the accused put a knife on the neck of the complainant and threatened him to open the glass of window of the car from left side and when the complainant opened the glass of his car from left side, his unknown accomplice picked up a mobile phone make I-Phone 13 Pro Max Light Blue Colur from the seat of car. Accused Mr. Ashish Barwa pleaded not guilty and claimed trial.
Prosecution evidence
7. In order to prove its case, the prosecution has examined as many as nine (09) witnesses. The chart of the witnesses examined by the prosecution, chart of the exhibited documents and chart of the admitted witness and documents (under section 294 of the Cr.P.C.) alongwith the specified details are hereinbelow:
Chart of the witnesses examined by the prosecution Sr. Prosecution Witness No. Name of Witness Description No.
1. PW-1 SI Sachin IO of another case bearing FIR No. 106/2022 PS Hazrat Nizamuddin.
Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by FIR No. : 204 of 2022. ANIL NIVEDITA ANIL SHARMA Under Sections : 392/397/34 of the IPC. SHARMA Date: 2026.01.22 15:42:42 +0530 PS : Sunlight Colony.
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2. PW-2 SI Sohan Pal Duty Officer
3. PW-3 SI Kulbir Singh Joined the investigation with IO SI Arun Kumar.
4. PW-4 ASI Dinesh Initial IO of the present case
5. PW-5 Ex. Ct. Hari Ram Joined the investigation with IO ASI Dinesh.
6. PW-6 Ct. Yang Tam Joined the investigation of the case with IO SI Arun Kumar.
7. PW-7 Ms. Parul Produced the original record of case bearing FIR No. 106/2022 PS Hazrat Nizamuddin.
8. PW-8 SI Arun Kumar Second IO of the present case.
9. PW-9 Mr. Shourjendra Complainant / Nath Mukherjee victim.
Chart of the exhibited documents Sr. Exhibit No. Description of the Exhibit Proved by No. /Attested by
1. Ex. PW-1/A Arrest memo of accused PW-1 Ashish Barwa in case FIR No. 106/2022 PS Hazrat Nizamuddin Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022.
Under Sections : 392/397/34 of the IPC. ANIL SHARMA Date: 2026.01.22 PS : Sunlight Colony. SHARMA 15:42:53 +0530 State versus Ashish Barwa and another. -:: Page 5 of 25 ::-
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2. Ex. PW-1/B Arrest memo of accused PW-1 Narender Singh in case FIR No. 106/2022 PS Hazrat Nizamuddin
3. Ex. PW-1/C Personal search memo of PW-1 accused Ashish Barwa in case FIR No. 106/2022 PS Hazrat Nizamuddin
4. Ex. PW-1/D Personal search memo of PW-1 accused Narender Singh in case FIR No. 106/2022 PS Hazrat Nizamuddin
5. Ex. PW-1/E Sketch of the knife in case FIR PW-1 No. 106/2022 PS Hazrat Nizamuddin
6. Ex. PW-1/F Seizure of the knife in case PW-1 FIR No. 106/2022 PS Hazrat Nizamuddin
7. Ex. PW-1/G Disclosure statement of PW-1 accused Ashish Barwa in case FIR No. 106/2022 PS Hazrat Nizamuddin
8. Ex. PW-1/H Disclosure statement of PW-1 accused Narender Singh in case FIR No. 106/2022 PS Hazrat Nizamuddin
9. Ex. PW-2/A Certificate under section 65-B PW-2 of the Indian Evidence Act
10. Ex. PW-2/B Copy of the FIR PW-2
11. Ex. PW-3/A Arrest of the accused Ashish PW-3 Barwa in the present case
12. Ex. PW-3/B Disclosure statement of PW-3 accused Ashish Barwa in the present case Sessions Case No. : 458 of 2022.
FIR No. : 204 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL Under Sections : 392/397/34 of the IPC. ANIL SHARMA Date: 2026.01.22 PS : Sunlight Colony. SHARMA 15:43:04 +0530 State versus Ashish Barwa and another. -:: Page 6 of 25 ::-
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13. Ex. PW-4/A DD No. 92-A PW-4
14. Ex. PW-4/B Written complaint of the PW-4 complainant
15. Ex. PW-4/C Endorsement of the IO ASI PW-4 Dinesh on the rukka
16. Ex. PW-5/A Site plan PW-5
17. Ex. PW-6/A Pointing out memo by the PW-6 accused persons of the place of incident
18. Ex. PW-6/B Disclosure statement of PW-6 accused Ashish Barwa
19. Ex. PW-6/C Disclosure statement of PW-6 accused Narender Singh
20. Ex. PW-8/A Arrest memo of accused PW-8 Narender Singh in the present case.
21. Ex. PW-8/B Disclosure statement of PW-8 accused Narender Singh in the present case.
22. Ex. PW-8/C Application for obtaining PW-8 police custody remand of accused Ashish Barwa
23. Ex. PW-9/A TIP proceedings of accused PW-9 Narender Singh
24. Ex. PW-9/B Statement of complainant PW-9 during TIP proceedings of accused Narender Singh
25. Ex. PW-9/C Supplementary statement dated PW-9 11.04.2022 of the complainant NIVEDITA Digitally signed by NIVEDITA ANIL Sessions Case No. : 458 of 2022. ANIL SHARMA FIR No. : 204 of 2022. Date: 2026.01.22 SHARMA 15:43:13 +0530 Under Sections : 392/397/34 of the IPC. PS : Sunlight Colony.
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Chart of the admitted witness and documents (under section 294 of the Cr.P.C.) Sr. Admitted Witness / Description of Proved No. Document the Exhibit by/Attested by
1. Ld. MM (Reliever), South- TIP proceedings Admitted by East District, Saket Courts, of accused accused Ashish New Delhi Ashish Barwa Barwa
8. As Mr. Shourjendra Nath Mukherjee (PW-9), who is the complainant and victim, had retracted from his previous statement and was hostile to the prosecution case, he was cross examined at length on behalf of the State. However, nothing material for the prosecution could be brought forth. The accused has preferred not to cross examine him.
The statement under section 313 of the Cr.P.C. of the accused
9. The statement under Section 313 Cr.P.C. of the accused Mr. Ashish Barwa is dispensed with as there is nothing incriminating on record against him, more importantly as Mr. Shourjendra Nath Mukherjee (PW-9) who is the complainant and victim, has not identified accused Mr. Ashish Barwa as the culprit who committed the offence against him.
Final arguments
10. I have heard final arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022. ANIL SHARMA Date: 2026.01.22 Under Sections : 392/397/34 of the IPC. SHARMA 15:43:24 +0530 PS : Sunlight Colony.
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11. The Substitute Additional Public Prosecutor for the State has argued that from the evidence and other material on record, the prosecution has been able to successfully prove its case. Accused Mr. Ashish Barwa had refused to participate in the TIP proceedings (Ex. A-1). It is prayed that the accused Mr. Ashish Barwa may be convicted for the alleged offence.
12. The counsel for the accused Mr. Ashish Barwa has argued that the accused has been falsely implicated in the present case. The complainant / victim has not supported the case of the prosecution.
There is no evidence on record to connect the accused with the alleged offences. It is prayed that as the prosecution has failed to prove its case, the accused Mr. Ashish Barwa may be acquitted.
Discussion, analysis and observations
13. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence, in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022. ANIL SHARMA SHARMA Date: 2026.01.22 Under Sections : 392/397/34 of the IPC.
15:43:32 +0530 PS : Sunlight Colony.
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conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that part of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concertized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
14. Under this sphere, I now proceed to test the submissions of both the sides in respect of the case against accused Mr. Sohail @ Sohil (proceedings have abated against accused Shubham).
Evidence of victim and eye witness
15. The following judicially evolved principles for appreciation of Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022. ANIL SHARMA Date: 2026.01.22 Under Sections : 392/397/34 of the IPC. SHARMA 15:43:41 +0530 PS : Sunlight Colony.
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ocular evidence in a criminal case have been enumerated by Hon'ble Supreme Court of India in the case of Rajan v. The State of Haryana, 2025 INSC 1081:
i. 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.
ii. 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.
iii. When eye-witness is examined at length it is quite possible for him to make some discrepancies. 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 jettisonning his evidence. iv. 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 Sessions Case No. : 458 of 2022. Digitally signed by FIR No. : 204 of 2022. NIVEDITA NIVEDITA ANIL SHARMA ANIL SHARMA Date: 2026.01.22 Under Sections : 392/397/34 of the IPC. 15:43:49 +0530 PS : Sunlight Colony.
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whole.
v. 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. vi. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
vii. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. viii. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
ix. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. x. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
xi. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
xii. A witness, though wholly truthful, is liable to be Sessions Case No. : 458 of 2022. Digitally signed by NIVEDITA FIR No. : 204 of 2022. ANIL NIVEDITA ANIL SHARMA Under Sections : 392/397/34 of the IPC. SHARMA Date: 2026.01.22 15:44:01 +0530 PS : Sunlight Colony.
State versus Ashish Barwa and another. -:: Page 12 of 25 ::-
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overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
xiii. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)"
16. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
a. The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
b. Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
c. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.Digitally signed by
NIVEDITA NIVEDITA ANIL
Sessions Case No. : 458 of 2022. ANIL SHARMA
Date: 2026.01.22
FIR No. : 204 of 2022. SHARMA 15:44:12 +0530
Under Sections : 392/397/34 of the IPC. PS : Sunlight Colony.
State versus Ashish Barwa and another. -:: Page 13 of 25 ::-
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d. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
e. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. f. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
17. Also was held therein that in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing NIVEDITA Digitally signed by NIVEDITA Sessions Case No. : 458 of 2022. ANIL ANIL SHARMA FIR No. : 204 of 2022.
Under Sections : 392/397/34 of the IPC. SHARMA Date: 2026.01.22 15:44:23 +0530 PS : Sunlight Colony.
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the value of the prosecution evidence. {Balu Sudam Khalde and Another v. State of Maharashtra, (2023) 13 SCC 365}.
18. It is very relevant to elaborate the evidence of the most material witness i.e. complainant/victim Mr. Shourjendra Nath Mukherjee (PW-9).
19.Mr. Shourjendra Nath Mukherjee (PW-9) has deposed in his examination in chief as follows:
"1. On 23.03.2022 at about 8-8.30 pm, I was going towards the railway station when I reached at the Ashram Flyover, there was a traffic and my car was stopped due to traffic. In the meantime, someone came from my right side and knocking the car window very violently. When I opened the window of my car and in the meantime, another person came from left side and started knocking the window of my car. I opened the window and the person on my right side suddenly put a knife on my throat. I also opened the window of left side of my car, the person who was at my left side took out mobile from the dash board of my car. Make of my mobile phone was I-Phone 13 Promax light blue colour. After committing robbery of my above said phone, both the accused persons ran away from the spot.
2. After that, I kept on driving to find police PCR because I did not have phone to call. Then, I found a police / PCR about 3-5 Kms away from the incident. After seeing the police official, I stopped my car and told them about the incident happened with me. Thereafter, they provided a phone and I called at my home and the police officials also informed to police control room. Thereafter, I reached my home from where I also called the police at no. 100.
3. I received a call on my father's number and they asked me to come to the place of occurrence.
4. In the same night, at about 11:00 pm, I reached at spot. Sessions Case No. : 458 of 2022. FIR No. : 204 of 2022.
Under Sections : 392/397/34 of the IPC. NIVEDITA ANIL SHARMA Digitally signed by NIVEDITA ANIL SHARMA Date: 2026.01.22 15:44:32 +0530 PS : Sunlight Colony.
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Then, I met the police officials of PS Sunlight Colony. I was enquired by the police officials about the incident happened with me. I had informed about the incident with the police officials and informed them that my above stated mobile phone was robbed by the accused persons after putting knife on my neck. At the time of incident, I used mobile bearing no. 9999905275 of Vodafone. I along with police officials were tacking the location of my above said mobile phone as well as accused persons. As per location, we reached at Faridabad highway. The accused persons threw the SIM. On that night, the accused persons were not traced. Thereafter, I along with police officials reached at PS Sunlight Colony. I gave a written complaint to the police regarding the incident happened with me that accused persons put knife on my neck and robbed my mobile phone. My written complaint is already exhibited as Ex.PW4/B bearing my signature at point C and I had mentioned alternate mobile number of my father as 8860752692 in the complaint at point B (already marked).
5. On 07.04.2022, I had joined the TIP proceedings but I could not identify the accused during TIP because all were looking similar and standing behind the glass. At the time of incident, I had seen them only for a few seconds. Due to night, I could not see them properly. At the time of incident, the accused persons were having beard but at the time of their TIP proceedings, the persons shown to me were not having beard.
6. Today, I can not identify the accused persons due to lapse of time of about four years and I had seen them only for a few seconds and it was dark.
7. At this stage, accused Ashish Barwa is shown to the witness. After seeing the accused Ashish Barwa witness stated that he cannot identify the accused whether he was present at the time of incident or not.
8. I had joined the TIP proceedings of accused Narender Singh Ex.PW9/A. My statement during the said TIP is which is Ex.PW9/B bearing my signature at point A. During TIP, I had wrongly identified the accused Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA FIR No. : 204 of 2022. ANIL ANIL SHARMA Under Sections : 392/397/34 of the IPC.
PS : Sunlight Colony.
SHARMA Date: 2026.01.22 15:44:44 +0530 State versus Ashish Barwa and another. -:: Page 16 of 25 ::-
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Narender Singh.
9. Site plan was prepared by the IO at my instance which is already Ex.PW5/A bearing my signature at point B.
10. I along with the police officials had checked the CCTV installed near the place of incident but no CCTV footage covering the incident or accused persons was found.
11. On 11.04.2022, the IO SI Arun Kumar called me at PS Sunlight Colony. Thereafter, we went to Ashram bus stand. There, the IO shown me one accused and asked me to identify the accused. I had seen the accused whose name I do not remember today. I was confused and I told the police that the person shown to me may be the same person who was involved in the incident but I cannot confirm whether he was the same person. Later on, police disclosed his name as Narender. The same person is not present in the Court today."
20. The Chief Public Prosecutor for the State has cross-examined Mr. Shourjendra Nath Mukherjee (PW-9) as he has resiled from his previous supplementary statement given to the police on 11.04.2022. In his cross examination, Mr. Shourjendra Nath Mukherjee (PW-9) has deposed as follows:
"1. At this stage, the previous supplementary statement dated 11.04.2022 now Ex.PW9/C is read over and explained to the witness. The witness denied the same being given to the IO. It is wrong to suggest that on 11.04.2022 I went to PS Sunlight Colony to know the progress of my case where two accused persons were present in the police station who committed robbery with me on 23.03.2022 or that their name were revealed as Narender Singh and Ashish or that I had identified accused Ashish that he was the same person who came from the right side of my car and knocked the window of my window and put knife on my neck or that accused Narender is the same person who came from the left side Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022. ANIL SHARMA Under Sections : 392/397/34 of the IPC. SHARMA Date: 2026.01.22 15:44:53 +0530 PS : Sunlight Colony.
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of my car and took out my mobile phone from the dash board of my car. (Confronted with the statement Ex.PW9/C portion A to A1 where it is so recorded). It is wrong to suggest that I told to police in my supplementary statement that accused Narender who was beard face at that time and at the time of TIP conducted on 07.04.2022, accused Narender was clean shaved due to which I was confused and I could not identify him during the TIP but both accused were the same persons who involved in the incident of the present case and committed robbery with me on 23.03.2022 or that I correctly identified both of them in PS Sunlight Colony on 11.04.2022. (Confronted with the statement Ex.PW9/C portion A1 to A2 where it is so recorded). It is wrong to suggest that I have been won over by the accused present in Court today that is why I deliberately not identify him. It is wrong to suggest that on 11.04.2022 my supplementary statement was recorded by the police. It is wrong to suggest that I am deposing falsely."
21.Accused Mr. Ashish Barwa has preferred not to cross examine Mr. Shourjendra Nath Mukherjee (PW-9).
22. It is clear from the record that nothing material for the prosecution came forth in the lengthy cross examination on behalf of the State of Mr. Shourjendra Nath Mukherjee (PW-9) as he has failed to identify accused Mr. Ashish Barwa as the culprit who committed the offences against him and he has failed to assign any criminal role to him. He has not deposed an iota of evidence against the accused that he had stuck/put a knife to the neck of the complainant, threatened the complainant and picked his I Phone 13 Pro Max (light blue color). In fact, in his examination in chief as well as the cross examination on behalf of the State, he has very Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA ANIL FIR No. : 204 of 2022. ANIL SHARMA Under Sections : 392/397/34 of the IPC. Date: 2026.01.22 SHARMA 15:45:06 +0530 PS : Sunlight Colony.
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categorically absolved him by deposing that he is not the culprit and failed to identify him.
23. Although accused Mr. Ashish Barwa had refused to participate in the TIP proceedings (Ex. A-1) on the ground that his photographs had been taken by the Investigation Officer and may have been shown to the witness but the same is not helpful to the prosecution as Mr. Shourjendra Nath Mukherjee (PW-9) has failed to identify him during trial. Also nothing incriminating has been recovered from the possession or at the instance of accused Mr. Ashish Barwa.
24. The evidence of the other prosecution witnesses is not sufficient for establishing the prosecution case or for convicting the accused Mr. Ashish Barwa as they are the police witnesses of investigation and recording of FIR, etc. SI Sachin (PW-1) is the investigation officer of the case bearing FIR No. 106/2022 PS Hazrat Nizamuddin. SI Sohan Pal (PW-2) is the duty officer. SI Kulbir Singh (PW-3) and Ct. Yang Tam (PW-6) have joined the investigation with the IO SI Arun Kumar (PW-8). ASI Dinesh (PW-4) is the initial investigation officer of the present case. Ex- Constable Hari Ram (PW-5) has joined the investigation with initial IO ASI Dinesh (PW-4). Ms. Parul, Assistant Ahlmad posted in the Court of Mr. Arul Varma, learned ASJ-04 (Special NDPS), South-East District, Saket Courts, New Delhi (PW-7) had brought the original record of case bearing FIR No. 106/2022 PS Hazrat Digitally signed Sessions Case No. : 458 of 2022. NIVEDITA by NIVEDITA FIR No. : 204 of 2022. ANIL ANIL SHARMA Date:
Under Sections : 392/397/34 of the IPC. SHARMA 2026.01.22 15:45:16 +0530 PS : Sunlight Colony.
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Nizamuddin. SI Arun Kumar (PW-8) is the second investigation officer of the present case.
25. From the testimonies of the prosecution witnesses, no conclusive evidence has been come forth which would prove that on 23.03.2022 at about 09:00 pm at Ring Road, Maharani Bagh Bus Stop, Ashram towards NOIDA, within the jurisdiction of PS Sun Light Colony, New Delhi, accused Mr. Ashish Barwa along with his unknown accomplice, in furtherance of their common intention, knocked the door of the car of the complainant/victim Mr. Shourjindra Nath Mukherjee. When the complainant opened the glass from right side, the accused put a knife on the neck of the complainant and threatened him to open the glass of window of the car from left side and when the complainant opened the glass of his car from left side, his unknown accomplice picked up a mobile phone make I-Phone 13 Pro Max Light Blue Colur from the seat of car.
26. In the light of the aforesaid nature of deposition of Mr. Shourjindra Nath Mukherjee (PW-9) who is the complainant/ injured/victim, who is the star witness and the most material witness of the prosecution, I am of the considered view that the case of the prosecution cannot be treated as trustworthy and reliable as the witness has retracted from his earlier statement and turned hostile. Nothing material for the prosecution has come forth in his cross examination on behalf of the State. He has, in fact, deposed that he Digitally signed Sessions Case No. : 458 of 2022.
NIVEDITA by NIVEDITA
ANIL SHARMA
FIR No. : 204 of 2022. ANIL Date:
Under Sections : 392/397/34 of the IPC. SHARMA 2026.01.22
15:45:26 +0530
PS : Sunlight Colony.
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cannot identify accused Mr. Ashish Barwa due to lapse of time and as he had seen the culprits only for a few seconds and it was dark. Nothing material for the prosecution came forth in the lengthy cross examination on behalf of the State wherein he denied making previous statement to the police. Reliance can also be placed upon the judgment reported as Suraj Mal versus The State (Delhi Admn.), AIR 1979 S.C. 1408, wherein it has been observed by the Hon'ble Supreme Court as:
"Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness."
27. Similar view was also taken in the judgment reported as Madari @ Dhiraj & Ors. v. State of Chhattisgarh, 2004(1) C.C. Cases 487.
28. In the judgment reported as Namdeo Daulata Dhayagude and others v. State of Maharashtra, AIR 1977 SC 381, it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
29. If one integral part of the story put forth by a witness was not believable, then entire case fails. Where a witness makes two Sessions Case No. : 458 of 2022. NIVEDITA Digitally signed by NIVEDITA FIR No. : 204 of 2022. ANIL ANIL SHARMA Under Sections : 392/397/34 of the IPC. SHARMA Date: 2026.01.22 15:45:42 +0530 PS : Sunlight Colony.
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inconsistent statements in evidence either at one stage or both stages, testimony of such witness becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on such evidence. (Reliance can be placed upon the judgment of the hon'ble Delhi High Court reported as Ashok Narang v. State, 2012 (2) LRC 287 (Del).
30. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and "must be true" so essential for a Court to cross, while finding the guilty of an accused, particularly in cases where once the star witness namely Mr. Shourjindra Nath Mukherjee (PW-9) has himself not deposed anything incriminating against accused Mr. Ashish Barwa. Even otherwise, no useful purpose would be served by adopting any hyper technical approach in the issue.
31. Consequently, no inference can be drawn that accused Mr. Ashish Barwa is guilty of the charged offence punishable under section 397 of the IPC that on 23.03.2022 at about 09:00 pm at Ring Road, Maharani Bagh Bus Stop, Ashram towards NOIDA, within the jurisdiction of PS Sun Light Colony, New Delhi, accused Mr. Ashish Barwa along with his unknown accomplice, in furtherance of their common intention, knocked the door of the car of the complainant/victim Mr. Shourjindra Nath Mukherjee . When the complainant opened the glass from right side, the accused put a knife on the neck of the complainant and threatened him to open Digitally signed by NIVEDITA NIVEDITA ANIL Sessions Case No. : 458 of 2022. ANIL SHARMA Date:
SHARMA FIR No. : 204 of 2022. 2026.01.22 15:45:57 Under Sections : 392/397/34 of the IPC. +0530 PS : Sunlight Colony.
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the glass of window of the car from left side and when the complainant opened the glass of his car from left side, his unknown accomplice picked up a mobile phone make I-Phone 13 Pro Max Light Blue Colour from the seat of car.
32. From the above discussion, it is clear that the claim of the prosecution is neither reliable nor believable and is not trustworthy and the prosecution has failed to establish the offences against accused Mr. Ashish Barwa. The most material witness i.e. complainant/victim Mr. Shourjindra Nath Mukherjee (PW-9) has not deposed an iota of evidence that accused Mr. Ashish Barwa has committed the charged offence.
33. Therefore, in view of above discussion, the conscience of this Court is completely satisfied that the prosecution has failed to bring home the charge against accused Mr. Ashish Barwa for the offence punishable under sections 397 of the IPC, which primarily rested on the testimony of its material witness i.e. complainant/victim Mr. Shourjindra Nath Mukherjee (PW-9) who has turned hostile. Despite being cross-examined on behalf of the State, the star witness of the prosecution has not supported the prosecution case at all.
34. Considering the fact that the star witness of the prosecution has not uttered a single word against accused Mr. Ashish Barwa, which could support the prosecution story, the prosecution has fallen Digitally signed by NIVEDITA NIVEDITA ANIL SHARMA ANIL Sessions Case No. : 458 of 2022. Date:
SHARMA 2026.01.22 FIR No. : 204 of 2022. 15:46:03 +0530 Under Sections : 392/397/34 of the IPC. PS : Sunlight Colony.
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short of the expectations and failed to prove its case against him.
35. Consequently, accused Mr. Ashish Barwa is hereby acquitted of the charge for the offence punishable under section 397 of the IPC that on 23.03.2022 at about 09:00 pm at Ring Road, Maharani Bagh Bus Stop, Ashram towards NOIDA, within the jurisdiction of PS Sun Light Colony, New Delhi, accused Mr. Ashish Barwa along with his unknown accomplice, in furtherance of their common intention, knocked the door of the car of the complainant/victim Mr. Shourjindra Nath Mukherjee. When the complainant opened the glass from right side, the accused put a knife on the neck of the complainant and threatened him to open the glass of window of the car from left side and when the complainant opened the glass of his car from left side, his unknown accomplice picked up a mobile phone make I-Phone 13 Pro Max Light Blue Colour from the seat of car.
36. Compliance of section 437-A of the Cr.P.C. is made in the order sheet of even date.
37. Case property, if any, be confiscated and be destroyed after expiry of period of limitation of appeal.
38. One copy of the judgment be given to the Substitute Public Prosecutor for the State, as requested.
Digitally signed by NIVEDITA NIVEDITA ANIL ANIL SHARMA Sessions Case No. : 458 of 2022. SHARMA Date:
FIR No. : 204 of 2022. 2026.01.22 15:46:08 Under Sections : 392/397/34 of the IPC. +0530 PS : Sunlight Colony.
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39. After the expiry of the period of limitation for appeal and completion of all the formalities, the file be consigned to record Digitally signed room. NIVEDITA by ANIL NIVEDITA ANIL SHARMA Date:
SHARMA 2026.01.22 15:46:14 +0530 Announced in the open Court (NIVEDITA ANIL SHARMA) on this 19th day of January, 2026.
Principal District & Sessions Judge, South East, Saket Courts, New Delhi. 19.01.2026.
*********************************************************** Sessions Case No. : 458 of 2022. FIR No. : 204 of 2022.
Under Sections : 392/397/34 of the IPC. PS : Sunlight Colony.
State versus Ashish Barwa and another. -:: Page 25 of 25 ::-