Delhi District Court
State vs Rakesh Kumar Etc on 14 May, 2026
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 27573/2016 CNR No. DLCT01-000315-2012
FIR No. 60/2012
U/Sec. 395/397/365/120-B IPC &
Section 25/54/59Arms Act
P.S. Kotwali
STATE VERSUS RAKESH KUMAR AND ORS.
(i) SC No. of the case : 27573/2016
(ii) Date of commission of offence : 15.03.2012
(iii) Name, parentage and address : 1. Rakesh Kumar
S/o Sh. Bhim Singh
R/o House No.113, Palla
Colony, Delhi-36.
2. Pardeep Kumar
S/o Late Sh. Hari Ram
Deshwal
R/o C-7/51-52, IIIrd floor,
Sector-7, Rohini, Delhi.
3. Surjeet Singh
S/o Sh. Khajoor Singh
R/o 18-D U&V Block-B,
Shalimar Bagh, Delhi.
4. I.B. Goel @ Vimal
Parkash
S/o Sh. Banarshi Dass
Goel
R/o Asstt Director Income
Tax Deptt. Ministry of
Finance, Q.N. Type 4 Flat
SC No. 27573/2016
FIR No. 60/2012
State Vs. Rakesh Kumar & Ors. Page 1 of 74
No. 558, Income Tax
Tower Central Revenue
Colony, Barodara,
Gujarat.
5. Pawan Kumar
S/o Vishnu @ Bishan
Singh
R/o H. No. 230 Vill.
Akbarpur Mazra PS
Alipur, Delhi.
6. Billu
S/o Not Known
(NOT ARRESTED)
7. Madan Lal
S/o Dharam Pal
R/o H. N. 762 Vikas
Nagar, Nangal Khera,
Panipat, Haryana.
8. Subhash Chand
S/o Jai Lal
R/o H.No. 133 Khera
Khurd Near SBI Bank
Delhi.
(iv) Offence complained of : U/Sec. 395/397/365/120B
IPC & Section 25/54/59
of Arms Act
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL of accused
no. 1 to 5, 7 and 8
U/Sec. 395/397/365/120B
IPC &Section 25/54/59
of Arms Act.
SC No. 27573/2016
FIR No. 60/2012
State Vs. Rakesh Kumar & Ors. Page 2 of 74
Date of Institution : 07.09.2012
Date of Judgment reserved on : 15.04.2026
Date of Judgment : 14.05.2026
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case is filed on the complaint of Brijesh Kumar Verma on which FIR exhibit Ex. PW-3/A was lodged. The complainant has shop no. 1167, second floor, new building Kucha Mahajani, Delhi who is doing business of selling silver and gold jewellery on commission basis. On 15.03.2012 between 03:00-03:30 PM he was present outside his shop. At that time three person came and entered in his shop. They had got switched off mobile phone and inter phone in the shop. They had removed complainant from his Gaddi and noted down his name and address. One of the accused has pistol on his belt who was telling himself as Chief Commissioner of Income Tax and the two other accused person were telling themselves as CBI Inspector. The accused with pistol had asked to put the money in their bag. They claimed that they came from Income Tax Department and if need be they will also shot a bullet. Then the accused person 3 to 4 in number took the complainant Brijesh Kumar Verma PW-1 alongwith them. It is mentioned in Ex. PW-1/A the complaint that while passing through the shop Shalab Goel/PW-2 then they attend him and also kept his money in their bag. They had written the name and address of PW-
2 on a paper and got signature from PW-2. Both PW-1 and PW-2 fearing for their life went alongwith accused person outside towards the Gali. The SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 3 of 74 PW-1 and PW-2 had asked the accused person that where they are taking them? Why their money was taken? One of them had replied that they are from Income Tax Department and if PW-1 and PW-2 do not go quietly alongwith them then accused person will shoot them with pistol. To save their life the PW-1 and PW-2 continue to walk with accused person.
2. When the accused and PW-1 and PW-2 had reached outside the Gali then accused person asked them to sit in vehicle no. HR06Y2606. When the PW-1 and PW-2 had resisted then accused person under the threat of pistol had made PW-1 and PW-2 to sit in the car. The PW-1 and PW-2 had raised alarm then the accused person had shown pistol to them while asking to keep quiet otherwise they will be shot. Hearing the noise many public person had gathered there. The Police Person were standing there who saved PW-1 and PW-2. With the help of public person and police the accused having pistol, and bag having currency notes robbed from the PW- 1 and PW-2 was seized, and accused person were over powered. Taking benefit of the crowd four of the accused person had successfully ran away and they had took alongwith them one bag filled with currency notes. Around 04:30 PM when ASI Abdul Wahid/PW-22 First IO had reached at the spot to whom the PW-1 and PW-2 handed over the apprehended accused no. 3 Surjeet Singh. One pistol was recovered from him alongwith a bag filled with currency notes. It is stated in the complaint Ex. PW-1/A that PW-1 can identify the co-accused person ran away from the spot. The complaint is dated 15.03.2012.
3. The ASI Abdul Wahid/PW-22 while on patrolling duty had reached at main gate Chandni Chowk where the PW-1 had handed over accused no.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 4 of 743 Surjeet Singh. One pistol, one currency filled notes bag of military colour, 4 live cartridge in the magazine and in the holster of the pistol 6 live cartridge were recovered. On all the cartridge KF7565 is written. FIR Ex. PW-3/A was recorded after sending the rukka through Ct. Rajvir/PW-
10. The DO HC Jainder Singh/PW-3 had made endorsement on rukka as Ex. PW-3/B and registered the FIR. The computer generated copy of FIR is Ex. PW-3/A. PW-3 has not produced departure entry of Ct. Rajvir, Ct. Sourabh, Ct. Vinod Paswan. However it is deposed that they are registered in register no. B which contained DD No. 51B. Register No. A is written by DO/PW-3 and register no. B is written by DD writer which happens to be Constable. After Checking register no. B, PW-3 has deposed that vide DD No. 36 at about 10:20 AM on 15.03.2012 there is a DD entry where name of Vinod Paswan is appearing who had departed for an arrangement of Palki Yatra and Bhim Rath Yatra. However there is no such corresponding entry in register no. B in respect of above police officials.
4. After registration of the case charge-sheet was filed. Charge was given to all the accused u/s 395/120B IPC and u/s 365/120B IPC to which all the accused have pleaded not guilty and claimed trial. Accused no. 3 is charged under Section 397 IPC to which he pleaded not guilty and claimed trial. Accused no. 3 Surjeet Singh is separately charged u/s 25 of Arms Act 1959 to which he had pleaded not guilty and claimed trial.
5. Prosecution has led PW-1 to PW-23 as entire evidence against all the accused person. The statement of accused no. 1 Rakesh Kumar u/s 313 Cr.P.C was recorded on 18.01.2024. He has preferred not to lead evidence in defence. The statement of accused no. 2 Pradeep Kumar u/s 313 Cr.P.C SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 5 of 74 was recorded on 22.02.2024. He has preferred to lead evidence in defence. The statement of accused no. 3 Surjeet Singh u/s 313 Cr.P.C was recorded on 21.03.2024. He has preferred to lead evidence in defence. The statement of accused no. 4 I.B. Goel u/s 313 Cr.P.C was recorded on 18.01.2024. He has not preferred to lead evidence in defence. The statement of accused no. 5 Pawan Kumar u/s 313 Cr.P.C was recorded on 21.03.2024. He has preferred not to lead evidence in defence. Accused no. 6 Billu could not be arrested. The statement of accused no. 7 Madan Lal u/s 313 Cr.P.C was recorded on 21.03.2024. He has preferred not to lead evidence in defence. The statement of accused no. 8 Subhash Chand u/s 313 Cr.P.C was recorded on 21.03.2024. He has preferred not to lead evidence in defence. The accused has got evidence in defence as DW-1 to DW-5. The accused no. 2 has closed his evidence through his Ld. Counsel vide separate statement dated 12.02.2025. The separate statement of accused no. 7 Madan Lal dated 31.072012 is recorded who is owner of Vento Car HR06Y2606 and he has no objection if the above vehicle is released on superdari in favour of his wife Ms. Sunita.
6. Final arguments are heard from both the parties and record perused.
7. The relevant citation under Section 120B IPC is reproduced hereasunder:
In Criminal Appeal No. 1066 of 2010; August 25, 2022 Ram Sharan Chaturvedi versus The State of Madhya Pradesh from Hob'ble Supreme Court of India has laid down as under:
22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial evidence. Court SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 6 of 74 has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P. Sugathan and Anr.2, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:
12. ...As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ...A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...
13. ...The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..." (emphasis supplied)
23. The charge of conspiracy alleged by the prosecution against the Appellant must evidence explicit acts or conduct on his part, manifesting conscious and apparent concurrence of a common design with A-1 and A-2.
Iof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)" (emphasis supplied)
24. In accepting the story of the prosecution, the Trial Court, as well as the High Court, proceeded on the basis of mere suspicion against the Appellant, which is precisely what this Court in Tanviben Pankajkumar Divetia v. State of Gujarat, had cautioned against:
"45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 7 of 74 clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It haof the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa (1991) 3 SCC 27)" (emphasis supplied)
25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI4 , this Court had held:
"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."
26. In view of the clear enunciation of law on the criminal conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement.
27. For the reasons stated above we are of the opinion that the prosecution failed to establish the circumstances in which the Appellant, being the custodian of only one set of the keys for the dual lock system functional in the Bank, could alone be made responsible for providing access to the strong room and the safe in the Bank. We are also of the clear opinion that the prosecution failed to establish the existence of any agreement between the Appellant, A-1 and A-2, which is quintessential for a charge under Section 120B of the IPC. In the absence of such an agreement, even by inference through circumstantial evidence, the Appellant is entitled to be acquitted of the charge of criminal conspiracy.n State (NCT of Delhi) v. Navjot Sandhu, this Court held:
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 8 of 74 approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution." (emphasis supplied)
8. The prosecution has to prove that there was an agreement between the accused person and it must surface in evidence through some physical manifestation. A few bits here and a few bits there cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. They become conspirators if there are pursuing the same end or they have come together to pursue unlawful object. There must be explicit act or conduct and the danger of allowing suspicion in place of legal proof has to be avoided. There is long mental distance between may be true and must be true. The evidence can be direct or circumstantial. The cumulative effect of the proved circumstance should be taken into account rather than isolated approach. The act and conduct of the accused must be conscious and clear enough to give the inference.
9. The case of prosecution is that the accused person had conspired to commit the dacoity of two bags of currency notes on the point of pistol on the person Brijesh Kumar Verma/PW-1 and Shalabh Goel/PW-2 on 15.03.2012 at about 3/3:30 PM at shop no. 1167, 2nd floor, new building Kucha Mahajani, Chandni Chowk, Delhi. To establish the above case the prosecution first has to prove the identity of all the accused person.
10. PW-1 Brijesh at 2nd page of his examination-in-chief dated 16.01.2013 has correctly identified accused no. 3 Surjeet. He cannot identify the other accused person present in the Court who accompanied SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 9 of 74 accused Surjeet due to lapse of time. In his further examination in chief dated 12.03.2015 PW-1 has deposed at 1st page that after 1-2 days of the incident he was called by the Police at the PS. At the PS he saw one person who had appeared to him as one of the offenders. He has deposed further that the said person is not present among the accused person present in the Court. On 12.03.2015 accused Surjeet had not appeared before the Court during the proceeding. Hence, by such going to the PS one or two day after the incident and seeing person which appeared to PW-1 as accused has rightly created apprehension in the mind of the accused that before his identification before the Court the accused no. 3 Surjeet was already shown to PW-1 at the PS. At page 2 of cross-examination by Ld. APP for the State dated 12.03.2015 it is deposed by PW-1 as correct that he came to Tis Hazari Courts no. 16 on 02.05.2012 where he saw accused no. 3 Surjeet produced in Court alongwith 4 other accused person. There he had identified accused no. 3 Surjeet who had come to his shop on 15.03.2012. At page 3 of same cross-examination it is deposed as correct that on 31.05.2012 he went to Police Post, Lal Kuwan to inquire about his case and there he had identified one of the offender. He has denied that there he had identified accused no. 4 I.B. Goel @ Vimal Parkash. Accused I.B. Goel had refused to participate in TIP proceedings on the ground that his photo must be shown to the public person. It is admitted as correct that on 03.07.2012 police person alongwith one accused came to his shop, it is deposed as correct that he had identified the said person as one of the offenders involved in the present incident. The Police might have told him the name of the said accused as accused no. 2 Pardeep Kumar. It is noted that the procedure as to correct identification of the accused in TIP Proceeding is laid down in citation titled the State of Assam vs. Moinul SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 10 of 74 Haque @ Monu 2026 INSC 386 where Hon'ble Supreme Court of India has laid down at para no. 29 to 32. One of the mandate is that the identification procedure must have been done before the Ld. Magistrate and that process is not followed in the present case. This creates doubt in the case of the prosecution regarding correct identification of the accused person. First the PW-1 has only identified accused no. 3 Surjeet Singh and the way the PW-1 went to PS and Police Post several times and he had seen the accused like person there creates doubt in the case of the prosecution which makes the identification of accused no. 3 Surjeet Singh before the Court unreliable. It is deposed in cross-examination dated 26.11.2019 at page 3 by PW-22 that accused no. 5 Pawan himself came to police station. At page 4 it is deposed as correct that no incriminating article/case property was recovered from accused Pawan. It is submitted by the ld. Counsel for the accused that accused no. 5 was arrested at the police station on his surrender on 16.03.2012. Accused no. 1 was arrested from Azadpur park on 17.03.2012. Accused no. 8 was also arrested from Azadpur on 03.04.2012. It is submitted that in Ex.PW4/B dated 03.04.2012 accused no. 8 is shown to be arrested at 9 PM. Ld. Counsel for accused has submitted that accused no. 8 Subhash Chand was arrested from Azadpur on 03.04.2012. The prosecution in Ex.PW4/B the arrest memo mentions that accused no. 8 was arrested at about 9 PM on 03.04.2012 near Azadpur bus stand Delhi. Whereas PW-22 at third page of his examination-in-chief dated 26.11.2019 mentions that accused Subhash was not found in his house. Accused Subhash on information given by secret informer was arrested at about 8:45 AM from Azadpur terminal where his disclosure statement Ex.PW4/A was recorded. Hence there is contradictory deposition if accused Subhash was arrested in the morning or in the evening. The SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 11 of 74 arrest of accused no. 1 Rakesh, accused no. 5 Pawan and accused no. 8 Subhash was on disclosure of accused no. 3 Surjeet. It is submitted that prosecution has not submitted any call detail between the above accused person to connect them in reference to Section 120B IPC.
10.1 The prosecution has to prove that there exist conspiracy which is in the agreement between the accused person to do an unlawful act or to do a lawful act by unlawful means. The agreement may be express or implied. The above offence is an independent offence and therefore its ingredient must be proved independently by the prosecution than the other offence with which the accused person are charged. In the present case the prosecution has proved that there was agreement between accused person to commit the offence of dacoity. Only accused no. 3 Surjeet was apprehended at the spot. None of the remaining accused are identified by PW-1 and PW-2 before the Court who are public witness. Hence the presence of accused other than accused no. 3 has become doubtful for the purpose of commission of dacoity. PW-6 has deposed that one of the accused person had ran away from the spot. The said other accused person who ran away from the spot is not identified by PW-6. PW-6 has claimed that he was the first person to reach at the spot when the accused person were apprehended by public person at the spot. PW-5 has claimed that he was first person to reach at the spot. PW-5 HC Birender does not talk about PW-6 Ct. Rohtash and PW-6 Ct. Rohtash does not talk about HC Birender and their presence at the spot. PW-5 has deposed that 3-4 accused person were present at the spot and only one of the accused person was caught and remaining accused person had ran away. Hence the above deposition is contrary to the deposition of PW-6. To the contrary PW-1 has deposed that SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 12 of 74 many police official had reached at the spot and the said police official had caught accused no. 3 Surjeet. The name of said police official is not disclosed by PW-1 who had caught accused no. 3 Surjeet at the spot. PW-2 has deposed that public person had gathered there and they have saved PW-1 and PW-2 from the accused person which were 2-3 in number. Police had apprehended one of the accused. Hence the deposition of prosecution witness as to number of accused is doubtful. Whether PW-1 and PW-2 had caught the accused Surjeet or public person had caught the accused no. 3 Surjeet or PW-5 had caught accused no. 3 or PW-6 had caught accused no. 3 Surjeet is not clear and therefore it has become doubtful that accused no. 3 Surjeet was caught at the spot at point C in site plan Ex.PW22/B. No statement of gathered public person was recorded nor they are joined as witness which further makes arrest of accused no. 3 Surjeet doubtful at the spot.
10.2 PW-22 has deposed that he recorded disclosure statement of accused no. 5 Pawan vide Ex.PW9/C. The supplementary disclosure statement of accused no. 3 is Ex.PW9/E. Accused no. 3 Surjeet on 17.03.2012 had pointed out accused no. 7 Madan and accused no. 1 Rakesh sitting on a bench claiming that they are involved in the offence whose disclosure statement was recorded as Ex.PW10/E and Ex.PW10/F. The arrest of accused Subhash has already become doubtful as discussed in above paras. Accused no. 2 Pardeep who was working as Malkhana Moharar posted at Kashmere Gate Metro was found absent from his duty on the day of occurrence. Hence there is no evidence in respect of the accused person that they were in agreement with each other to commit the offence of dacoity. Even the mobile phone call location details are not proved on SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 13 of 74 record. Even if the prosecution has relied on disclosure statement of the accused person then also only such part of such disclosure statement is admissible which is inculpatory and it is settled law that the exculpatory part of statement cannot be admitted in evidence. Further, it is settled law in case titled Manoj Kr. Soni Vs. State of M.P. 2023 SCC Online SC 984 at para no. 24 that disclosure statements of co-accused are used merely to support the conviction to lend assurance to other evidence against a co- accused. The proper approach is to consider the other evidence against the such accused person and if the said evidence appears to be satisfactory and the Court is inclined to hold that the evidence may sustain the charge framed against the said accused person then only Court turns to the confession with a view to assure itself to derive the conclusion. The disclosure statement of one accused cannot be accepted as proof of common knowledge between them. In absence of other evidence in the present case regarding conspiracy between the accused person it cannot be said that the prosecution has satisfied the ingredients of Section 120B IPC. There is no evidence of formation of unlawful agreement between the accused person. It is not necessary that each member of conspiracy must know all details of conspiracy. However the necessary ingredients of the conspiracy in evidence is absent. There is no evidence that accused person before the alleged commission of dacoity have been connected in any manner for the said purpose. Though active participation is not necessary. However the sequence or change of circumstance is not proved to connect the accused person for the commission of offence under Section 120B IPC. TIP is a weak type of evidence and it is settled law that merely on the basis of TIP proceeding accused cannot be convicted. Therefore some other corroborative evidence must have been produced by the prosecution. It was SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 14 of 74 laid down in case titled Ramesh Vs. State of Karnataka from Hon'ble Supreme Court of India in Criminal Appeal No. 629 of 2005 on 27 July, 2009 Equivalent citations: AIR 2009 SC (SUPP) 2189, 2009 (15) SCC 35 that only one identification cannot eliminate the possibility of pointing out being purely through chance and for this reason it is insufficient to establish the charge. The relevant para are reproduced hereasunder:
17. We have noticed hereinbefore the respective dates of arrest of accused No.5 and accused No.3 respectively. It is difficult to conceive that accused No.5 would still be available so that the Investigating Officer could ask the witnesses to come to the police station. There is nothing to show that she was in custody of the police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same.
18. Mr. Chaudhary would submit that in all cases, it is not necessary to hold test identification parade. That may be so. In a case of this nature, the test identification parade would have been meaningless as appellant were shown to PW3 in the police station.
Appellant was shown to PW3 at the police station. He was identified in court also. Reliance has been placed by Mr. Chaudhary on Malkhansingh & Ors. v. State of M.P. [JT 2003 (5) SC 323 : 2003 (5) SCC 746], wherein this Court opined:
'The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 15 of 74 parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.' 18.1. It was furthermore held:
'It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.'
19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy.
19.1. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. v. The State [AIR 1961 All. 153], wherein it was held that identification by only one person may not be relied upon stating:
'Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge.' 19.2. In Heera & Anr. v. State of Rajasthan [JT 2007 (9) SC 175 :
2007 (10) SCC 175], a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable.
19.3. In Ravindra Laxman Mahadik v. State of Maharashtra [1997 Criminal Law Journal 3833] in a case involving Section 395 of the Code of Criminal Procedure, it was opined:
'I find merit in Mr. Mooman's submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 16 of 74 learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to identify the appellant.' 19.4. The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein.
19.5. In Kanan & Ors. v. State of Kerala [AIR 1979 SC 1127], this Court held:
'It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. Parade to test his powers of observations. The Idea of holding T. I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.'
20. As identification of PW3 is highly doubtful, in our opinion, having regard to the nature of other evidences brought on record by the State, i.e., purported recovery of a tarpaulin by itself cannot be said to be sufficient to convict the appellant for a charge of such grave offence.
Accordingly accused no. 1 to 5, 7 and 8 stands acquitted for the offence under Section 120B IPC.
11. The relevant citation under Section 365 IPC is reproduced hereasunder:
Yakub Khan -Appellant Versus State of Chhattisgarh Through - Station House Officer, Police Station - AJK, Korba, District - Korba (C.G.)
10. Section 365 of the IPC reads as under :-SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 17 of 74
"365. Kidnapping or abducting with intent secretly and wrongfully to confine person.-
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
11. The essence of the offence under Section 365 of the IPC embodies an aggravated form of offence of kidnapping as defined in Sections 360 and 361 and of abduction as defined in Section 362 IPC. Section 365 is attracted when the kidnapping or abduction is committed with intent to secretly and wrongfully confine the victim. Section 365 of the IPC lays down that where a person was abducted in order to that he might be held to ransom by his abductors, it was held that this section is applicable. The prosecution must prove:
(i) Kidnapping or abduction by the accused.
(ii) The accused thereby intended that the person kidnapped or abducted should be kept in wrongful or secret confinement.
12. To prove the ingredients of Section 365 of the IPC, it is essential that there should be abduction, if no abduction is there; the offence under Section 365 of the IPC is not made out. To prove charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind if the accused as to create a reasonable apprehension in the mind of the victim. The intention can be inferred from the subsequent acts and conduct of the kidnapper or abductor.
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12. It is deposed by PW-1 that on 15.03.2012 at about 3-3:30 PM 3-4 person came at his shop and introduced themselves as member of Income tax and IDB, CBI. It is incumbent on the part of PW-1 that which of the accused has stated from which of the department which is not stated either by PW-1 or by PW-2. PW-1 is aged about 48 years and PW-2 is aged about 37 years in the year 2013 and therefore by standard of reasonable person one cannot be from all the three departments together at the same time. PW-2 has deposed that the said 2-3 person had SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 18 of 74 told him that they are from Income tax department. PW-1 has deposed that the accused person had asked him to open his Tijori in which cash of Rs.1 lakh was lying and on asking of that one accused he had put Rs.1 lakh in the bag brought by the accused. After that the accused person had threatened not to speak much or they will shoot PW-1 with gun. When he was going with the accused person then the shop of PW-2 was adjacent. Similarly accused person after seeing PW-2 had told him that they are from Income tax department and asked to hand over money in his cash box. PW-2 has deposed that he handed over whatever money he had in his cash box to those 2-3 person. PW-1 does not depose that the accused person had also collected money from PW-2 though both were together at the same time. PW-1 has deposed that only one accused had went inside the shop of PW-2. Whereas PW-2 has deposed that the 2-3 accused had asked him to hand over the money and not only one accused. Hence there is contradiction in deposition of PW-1 and PW-2 whether that 3-4 accused person together went inside of shop of PW-2 to collect the money. Thereafter all the accused, PW-1 and PW-2 came downstairs. PW-2 has deposed that those person forcibly took him downstairs alongwith PW-1. While they were going then some shopkeepers asked them that what was the matter on which they replied that they knew nothing. As per PW-1 he was threatened by accused no. 3 in his shop to put the money in his bag. PW-2 had seen pistol with accused no. 3 Surjeet. He cannot tell the make of the pistol. He does not remember the time when the said pistol was recovered. Accused no. 3 has suggested to PW-1 that he alone came to the shop of PW-1 for purchase of jewellery. The PW-1 and PW-2 are not consistent regarding the number of accused person that is whether there are 2-3 accused or 3- SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 19 of 74 4 accused. PW-1 and PW-2 had remained with the accused for the time spent inside their shop, coming together with the accused out of the shop and going downstairs with the accused person then it is a sufficiently long time in which PW-1 and PW-2 had seen the correctly the number of accused person and which should not be variable as it was not a momentary interaction and therefore above deposition is in the nature of material contradiction. Other than this when the accused person were taking PW-1 and PW-2 alongwith them from the stairs towards the car then public person had gathered there who are nearby shopkeepers and asked them that what had happened. Those public person are not joined as witness in this case by the prosecution who are disinterested person and could have thrown light on the fact that whether the PW-1 and PW-2 were in the position of abduction. Further, even the employee of PW-1 Sunny was not joined as witness who was present at the time of taking of cash and alleged abduction of PW-1 from his shop. All the above facts creates doubt in the case of the prosecution that the accused person had kidnapped PW-1 and PW-2. Public witness when available and not joined creates doubt in the case of the prosecution in view of contradiction in the evidence of prosecution witness. It is not clear that for what purpose the accused person will kidnap PW-1 and PW-2 when the money is already robbed by them. In case of abduction there has to be some intent on the part of the accused person. The mens rea has become important. When the money is already robbed then there is no mens rea with the accused person to abduct PW-1 and PW-2. Further, PW-1 and PW-2 while walking down were freely talking with public person/shopkeepers gathered and met in their way. Hence it cannot be said that accused person had intended to kidnap the PW-1 and PW-2.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 20 of 7413. PW-1 was in a position to raise noise so that other public person and shopkeeper could gather. The police official nearby can also reached there by hearing their noise. Further, there is doubt that the accused person were saved whether by public person or by police person in view of contradictory deposition of PW-1, PW-2, PW5 and PW-6. It is doubtful even about police person whether PW-5 or PW-6 have saved PW-1 and PW-2. The PW-5 has deposed that two person were sitting locked in the car and public person had gathered there. One person was apprehended by public and remaining person had fled away. It creates doubt about the presence of PW-5 at the spot as he had reached there and he is there immediately after hearing cries and he did not apprehend the accused person one of which had fled. Similarly PW-6 had seen that one of the accused has fled away from the spot and one was apprehended by the public hence those public person were most material witness to depose regarding illegal confinement of PW-1 and PW-2 in car HR06Y2606. Non joining of the same creates doubt in the case of the prosecution if PW-1 and PW-2 were at all taken into wrongful confinement in a car. Neither PW-1 nor PW-2 has deposed that they were shown gun by accused no. 3 Surjeet. The PW-1 and PW-2 did not apprehend to have a talk with public person during their alleged abduction and they could have raised voice and gather public person. In such view of the matter their abduction has become doubtful. The accused person has probabilised that there was marriage of Ms. Sandhya. The marriage card of which is Ex.PW4/A and accused no. 3 Surjeet was Fufa of Ms. Sandhya. Accused no. 3 Surjeet has reason to visit the said place for purchase of jewellery. The same is probabilised by DW-4.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 21 of 74Further, the PW-1 has alleged that money was looted from his shop which was a bundle of currency notes of Rs.100/-. To support that collection of cash he was required to prove that from where this cash was collected. PW-1 does not know the make/model of the car in which he was allegedly abducted. It is deposed at page 4 of cross-examination dated 26.02.2020 as correct that prior to reaching of police at the spot PW-1 had altercation/discussion with the accused, other shopkeepers and executives members of the market. The employee of PW-1 Mr. Sunny though material witness was not joined. The above facts does not point towards the guilt of the accused and this creates doubt in the case of the prosecution. Hence it is held that prosecution has failed to prove the abduction and intention for wrongful confinement by accused person of PW-1 and PW-2. Hence all the accused stands acquitted for the offence under Section 365 IPC.
14. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 22 of 74 imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read 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 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.
391. Dacoity.--When five or more persons conjointly commit or SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 23 of 74 attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 24 of 7412.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in 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, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC 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.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 25 of 7412.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 26 of 74 cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon"
and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz.
"uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 27 of 74
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 28 of 74 of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253]."
15. The prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v.
State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 29 of 74
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
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 theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt 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 put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 30 of 74 perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
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16. The first ingredient the prosecution has to prove is that accused person have committed theft.
17. In cross-examination dated 07.11.2016 by Ld. APP for the State of PW-2 Shalabh Goel he did not remember that accused no. 1 Rakesh, SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 31 of 74 accused no. 5 Pawan and accused no. 7 Madan were standing near car on 15.03.2012 who were identified by him when they were produced before THC on 02.05.2012. He could not identify the above accused due to lapse of time.
18. Accused no. 2 Pardeep has taken the plea of alibi during course of final arguments. PW-1 in his examination-in-chief dated 16.01.2013 has deposed that he cannot identify any other person/accused present in the Court due to lapse of time and hence he could not identify any other accused except accused no. 3 Surjeet. PW-2 in his cross-examination by Ld. APP for the State dated 07.11.2016 at 1st page does not remember the identity of accused no. 1 Rakesh, accused no. 5 Pawan and accused no. 7 Madan. The TIP proceeding of accused no. 2 Pardeep is Ex. PW-2/C where PW-2 has identified his signature at point A. It is admitted in cross examination by PW-2 as correct that he had identified one person during TIP at Tihar Jail on 02.07.2012. However he has failed to identify the accused before the Court. He has deposed that due to lapse of time he does not remember. He has also failed to identify accused no. 4 I.B. Goel @ Vimal Parkash before the Court. PW-2 does not remember that why he had signed the pointing out memo of accused no. 4 I.B. Goel Ex. PW- 2/D and another pointing out memo of accused no. 2 Pardeep Ex. PW- 2/E. He is not aware about the contents of the same. No date is mentioned in Ex. PW-2/D.
19. Accused no. 5 Pawan Kumar has refused to participate in TIP proceeding Ex. PW-11/B dated 17.03.2012 for the reason that his photographs were taken at the PS. The onus of proof of taking of such SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 32 of 74 photographs has therefore shifted on accused no. 5 Pawan Kumar. Similarly, accused no. 4 I. B. Goel @ Vimal Parkash did not participate in TIP proceeding and he did not want to state any reason for non- participation in TIP proceeding Ex. PW-11/H dated 29.07.2012. Hence, regarding TIP proceeding the onus has shifted on accused no. 4 I.B. Goel @ Vimal Parkash. Accused no. 8 Subhash Chand did not participate in TIP proceeding Ex. PW-11/E dated 04.04.2012 for the reason that the witness has seen him at the PS. Accused no. 2 Pardeep was correctly identified in TIP proceeding Ex. PW-2/C by witness PW-2 Shalab Goel dated 02.07.2012 and the same accused could not be identified by PW-1 in TIP proceeding Ex. PW-11/C dated 02.07.2012.
20. PW-18 at 1st page of his examination in chief has deposed that accused no. 2 Pardeep was kept in muffled face when his application of TIP was moved before Ld. MM. However in cross-examination it is admitted as correct that when permission from Ld. MM was obtained for formally arresting the accused then he was not in muffled face. The accused was interrogated outside the Court and thereafter his face was muffled. Hence not producing the accused no. 2 Pardeep in muffled face creates doubt in correct identification of accused no. 2 Pardeep in TIP proceeding as he could have been seen by the witness before being produced before the Court. It is argued by the Ld. Counsel for the accused no. 2 Pardeep that he had surrendered before the Court. Hence reliance on TIP proceeding of accused no. 2 could not be placed. PW-2 in his examination in chief dated 12.03.2015 has deposed that he it cannot identify the person before the Court who he had identified at Tihar Jail.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 33 of 7421. DW-2 Sh. Madan Lal Senior Assistant at Sh. Mata Devi Shrine Board had got register pertaining to Shakti Bhawan Dormitory and Niharika AC/Non-AC complex. As per his record dated 11.03.2012 late entry of Yatri Pardeep Kumar is recorded at point serial no. 4 and relevant page of register of Ex. DW-2/A. The register records yatri Pardeep Kumar at serial no. 10 for date 12.03.2012 which is Ex. DW-2/B. In cross-examination it is deposed that time of arrival or departure of Yatri is not mentioned. He has also not got copy of ID of accused no. 2 Pardeep who occupy the said room. The time of arrival or departure is also not mentioned in the register. However it is noted that the accused Pardeep has stayed at the Shrine on 11.03.2012 and 12.03.2012 whereas the incident is dated 15.03.2012 and therefore the evidence of DW-2 Sh. Madan Lal does not help the case of accused no. 2 Pardeep Kumar.
22. DW-3 who is initially recorded as DW-2 and to avoid duplicacy in recording of numbering of witness he was recorded as DW-3 vide order dated 22.01.2025 and his exhibits are recorded as Ex. DW-3/A and Ex. DW-3/B. It is deposed by DW-3 Sh. Subash Chand that accused no. 2 Pardeep is his maternal uncle's son. The father of DW-3 had expired on 11.03.2012 at Delhi and the death certificate in the name of Sh. Raghubir Singh is Ex. DW-2/A. The Aadhar Card of DW-3 is Ex. DW-3/B. It is deposed by DW-3 that the accused had gone to Mata Vaishno Devi Shrine on 10.03.2012 and returned on 13.03.2012 when a message was sent to accused no. 2 Pardeep regarding death of Sh. Raghubir Singh. On which accused no. 2 Pardeep went to house of DW-3 Sh. Subhash Chand SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 34 of 74 on 14.03.2012. All of them had went for the ritual ceremonies to Haridwar. It is further deposed by DW-3 that accused no. 2 Pardeep had returned in the night of 15.03.2012 and remained in their house till 16.03.2012 to attend Tervi ceremony of Sh. Raghubir Singh. In cross- examination it is deposed by DW-3 that accused no. 2 having a mobile phone with him. He does not know mobile no. of accused no. 2 Pardeep. The information was given to accused Pardeep by younger brother of DW-3. DW-3 does not know mobile no. of his younger brother. He does not know if the accused Pardeep had taken leave from his service for performing ritual ceremony at Hardiwar. Accused Pardeep is working at Delhi Police who was working as Malkhana Mohrer at PS Kashmere Gate and he was absent on his duty on the date of incident. Again said, he does not understand the question and answered it inadvertently. He does not know at which PS the accused Pardeep is working. The deposition of DW-3 are merely oral statements which is not supported by any independent evidence. DW-3 is an interested witness and his testimony has to be read with caution. He has not furnished even the mobile number at which accused was intimated about the death of Sh. Raghubir Singh nor he was aware about mobile number of accused no. 2 Pardeep. No other evidence is produced on record to show that accused no. 2 had went from Mata Vaishno Devi Shrine to the last rituals of Sh. Raghubir Singh. They had went to Haridwar and usually in last ritual ceremony at Haridwar signatures are taken which are also not produced on record. Hence, material corroborative evidence to the satisfaction of plea of alibi is not produced by accused no. 2 Pardeep. The plea of alibi is a rule of evidence u/s 11 of Indian Evidence Act 1872. the said plea is to be considered subsequent to the prosecution having discharged SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 35 of 74 satisfactorily the burden levied upon it and only after which the burden to establish the plea of alibi shifts on the accused. In the present case the PW-1 has failed to identify the accused no. 2 in TIP proceeding. PW-2 has correctly identified the accused no. 2 in TIP proceeding however TIP is a weak kind of evidence and it is settled law that mainly on TIP proceeding no conviction can be granted. Accused no. 2 Pardeep was produced unmuffled face before the Court. PW-2 could not identify accused no. 2 Pardeep before the Court whom he had identified at Tihar Jail. Hence, it is held that the prosecution has failed to establish the identity of accused no. 2 Pardeep during prosecution evidence and therefore in absence of discharge of such initial burden of proof by the prosecution the occasion has not arisen with the accused no. 2 Pardeep to raise the plea of alibi and to discharge burden of proof on it.
23. Accused no. 4 I.B. Goel @ Vimal Parkash could not be identified by PW-1 at page 2 of his examination-in-chief dated 16.01.2013. Further PW-2 had seen on 31.05.2015 at Police Post, Lal Kuwan one person identified by him as one of the offenders and it is so deposed at page no. 3 of cross-examination by Ld. APP for the State dated 12.03.2012. Further the age, physical description were not disclosed by PW-1 and PW-2 so that it can be noticed if he has correctly seen the accused person during commission of offence. Hence the identification by prosecution witness could not be relied upon. There is no description of accused in the FIR.
24. PW-1 during his cross-examination dated 12.03.2015 at second page has deposed that he does not remember if the accused no. 1 Rakesh, SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 36 of 74 accused no. 5 Pawan and accused no. 7 Madan were identified by him on 02.05.2012 before Tis Hazari Courts, Delhi. He does not remember if on 02.05.2012 he had identified accused no. 1 Rakesh and accused no. 7 Madan that they were standing near the car. PW-2 at first page of cross- examination dated 07.11.2016 does not remember and does not identify accused no. 1 Rakesh, accused no. 5 Pawan and accused no. 7 Madan. PW-2 in his examination-in-chief dated 01.03.2013 at first page has deposed that 2-3 person has come to his shop with PW-1 Brijesh. His shop is adjacent to PW-1 Brijesh. The door of his shop was open. Those 2-3 persons had told them that they are from Income Tax department and asked PW-2 to hand over whatever money PW-2 had in his cash box. PW-2 had asked PW-1 about the matter on which PW-1 had replied that he knew nothing. PW-2 had handed over whatever he had in the cash box to those 2-3 persons. They forcibly took PW-1 and PW-2 downstairs. When they were passing from market then some shop keepers asked about that what was the matter on which PW-1 and PW-2 replied that they knew nothing. The said 2-3 accused forced them to sit in car stationed outside the market. PW-1 and PW-2 raised noise on which public had gathered there and saved them. Thereafter the police came and apprehended one of the accused identified as accused no. 3 Surjeet. PW-2 has identified the accused no. 3 Surjeet before the Court as the person who was apprehended at the spot. Due to lapse of time he cannot identify the other accused person. PW-2 during cross-examination dated 12.03.2015 by ld. APP for the State could not identify the accused no. 8 Subhash. PW-1 has deposed that there were 3-4 person whereas PW-2 has deposed that there were 2-3 person. During cross-examination dated 12.03.2015 PW-2 has deposed that he saw 3-4 person.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 37 of 74NUMBER OF PERSON/ACCUSED
25. Ld. Counsel for the accused has argued that in complaint Ex.PW1/A it is mentioned that 3-4 person came at the shop of PW-1. PW-1 in his examination-in-chief dated 16.01.2013 has deposed that 3-4 person came to his shop and told that they come from Income Tax department, IB and CBI. PW-2 in his examination-in-chief at first page dated 01.03.2013 has deposed that 2-3 person came at his shop between 3:30 PM to 3:45 PM on 15.03.2012. It is submitted by the ld. Counsel for the accused that for the offence of commission of dacoity there has to be five or more person. The accused has relied on citation titled Ram Lakhan Vs. State of U.P dated 02.02.1983 in Crl. Appeal no. 541/1976 from Hon'ble Supreme Court of India wherein it is laid down that dacoity must involve five or more person. In that case appellant was sole convicted individual and the presence of atleast five person was mandatory ingredient of the present offence and the conviction under Section 395 IPC was set aside. Another citation relied upon by the accused Ganesan Vs. State represented by SHO in Crl. Appeal no.904/2021 dated 29.10.2021 from Hon'ble Supreme Court of India wherein at para no. 16 it is laid down that what is required to be considered is involvement and commission of robbery by five person or more. Once the above ingredient is found then the case under Section 391 IPC will fall within the definition of dacoity. It was further held at para no. 17 that mere acquittal of some of the accused on the same evidence by itself does not lead to a conclusion that all deserve to be acquitted. In that case the accused was convicted under Section 391 IPC SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 38 of 74 and his conviction under Section 397 IPC was set aside. Ld. Counsel for accused has submitted that PW-2 has deposed that he had handed over cash to 3-4 person. Whereas in his statement under Section 161 Cr. PC he has stated that number of accused person are 2-3 in number.
26. Hence identity only of accused no. 3 Surjeet is consistently deposed by prosecution witness and no other accused is identified by prosecution witness. The accused no. 3 Surjeet was allegedly apprehended at the spot. It is suggested by accused to PW-1 during cross-examination dated 26.02.2020 that accused Surjeet alone came to the shop of PW-1 for purchase of jewellery on occasion of marriage of his niece. It is further suggested that when PW-1 told him that he will arrange the jewellery from neighbouring shop on which accused Surjeet had asked for his trade licence for which altercation has taken place on which neighbouring shopkeepers and Trade Association executives gathered at the spot and apprehended accused Surjeet till police arrived. The above suggestion is denied by PW-1. However it is deposed as correct that police has accidentally arrived at the spot who is IO in the case. It is suggested by the accused that IO had not accidentally arrived but called by Trade Association executives. It is denied by PW-1. It is further deposed by PW-1 that when accused Surjeet came to his shop then his employee Sunny was present at the shop whose statement was not recorded by the police nor he made as a witness. It is noted that the case of the prosecution is that the accused person had kidnapped/abducted PW-1 from his shop. In the complaint Ex.PW1/A it is not mentioned that the employee Sunny of PW-1 was present at the spot from where PW-1 was kidnapped. This is material omission on the SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 39 of 74 behalf of PW-1 which is in the nature of material contradiction. It must have find mention in Ex.PW1/A. Mr. Sunny the employee of PW-1 is material witness to the case and non disclosure of his name by PW-1 goes to the root of the case of the prosecution. It creates serious doubt about kidnapping/abduction of PW-1 from his shop. If Mr. Sunny the employee was present at the spot then he was not taken alongwith by the accused person which is not the normal course if accused person were kidnapping PW-1 knowing that if they will leave Mr. Sunny the employee at the shop of PW-1 then he will raise alarm. Further, Mr. Sunny the employee did not raise any alarm is also another circumstance to create doubt in the case of the prosecution if PW-1 was kidnapped. Non joining of Mr. Sunny as witness of prosecution is withholding the material evidence who must have seen such kidnapping.
27. During cross-examination by ld. APP for the State dated 12.03.2015 at page 2 it is deposed by PW-2 that the police had recorded his statement on 10.05.2012 in which he had told that the person who came to his shop were accused no. 3 Surjeet and accused no. 8 Subhash Chand. The PW-2 had also identified accused no. 2 Pardeep in TIP proceedings Ex.PW2/C at Tihar Jail. He is not able to identify accused no. 1 Rakesh, accused no. 5 Pawan and accused no. 7 Madan who were standing near the car on the date of incident on 15.03.2012. He has not identified accused no. 4 I.B. Goel as one of the assailants.
27.1 PW-2 in his cross-examination dated 26.02.2020 has deposed that there are 8-10 shops on the second floor of their building where his shop was also situated. He did not call police at 100 number. He does not SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 40 of 74 remember if he had seen accused no. 3 Surjeet and pistol before arrival of police. It is deposed that pistol was recovered from accused Surjeet but he does not remember the time of recovery of pistol. He cannot tell the make of pistol. At page 2 of the above cross-examination it is deposed that there were 2-3 person with accused Surjeet and they had brought PW-1 Brijesh at his shop. PW-1 complainant and PW-5 HC Birender has deposed that he reached at the spot hearing cries and two person were locked in the car by 3-4 accused person. Whereas as per deposition of PW-1 and PW-2 if read together three person were already standing near the car and 3-4 person were accompanying the PW-1 and PW-2 when they were abducted from their shop which means there has to be 6-7 person near the car and not 3-4 accused person. The identity of all the accused person has not been proved by the prosecution witness except accused no. 3 Surjeet.
SEIZURE OF CAR
28. PW-6 in his cross-examination dated 12.04.2023 has deposed that he was only one police official posted at Kucha Mahajani police picket. PW-6 HC Rohtash at page no. 390 of the document file and the page no. 2 of the cross-examination has deposed that public person has apprehended two accused person behind main entry gate on the road going to Lal Quila from Fatehpuri. It is deposed at page no. 3 of cross- examination dated 12.04.2023 that on 15.03.2012 no traffic police official was on duty on road going towards Lal Quila road from Fatehpuri side. Whereas PW-21 ASI Kishori Lal has deposed that on 15.03.2012 he was posted in traffic circle Kotwali. On that day he had SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 41 of 74 challaned vehicle no. HR06Y2606 under Section 112/177 of MV Act as the said vehicle was found parked in no parking area. The name of the person who was challaned was accused no. 1 Rakesh Kumar who was correctly identified before the Court and the copy of challan is Ex.PW21/A. In cross-examination it is deposed that accused has paid the challan at the spot itself. The challan Ex.PW21/A is perused and the place at which the challan was made is not mentioned in the challan. When the place of challan is not mentioned in the challan itself then it cannot be said that the car was so parked. Further, the identification of accused no. 1 Rakesh having paid the challan at the spot has become doubtful who was so identified by PW-21 before the Court as the challan was made at the spot on 15.03.2012 and it is difficult to believe that PW-21 will remember the face of the person paying the challan after about seven years when he had deposed before the Court on 26.11.2019. PW-21 has not deposed the exact place where the accused no. 1 Rakesh Kumar was challaned. No document of challaning the vehicle was seized by PW-21 as it was paid at the spot. However the nature of document is not even mentioned in the challan if seen by him.
29. PW-2 has deposed that at first page of his examination-in-chief dated 19.07.2013 that one white colour Haryana number car was seized by the police from the spot. He has identified correctly the white colour car in his examination-in-chief dated 12.03.2015 Ex.P6. PW-1 in his examination-in-chief dated 16.01.2013 at page 2 has deposed that he was asked to sit down in one white colour car but he cannot tell its registration number. The seizure memo of car is Ex.PW1/F. In the examination-in-chief dated 15.03.2012 of PW-1 the car HR06Y2606 was SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 42 of 74 produced by accused no. 7 Madan Lal which was got released by his wife on superdari. PW-1 has identified the car as the same car used by the offenders during commission of offence. Hence the car did not belong to accused no. 1 Rakesh to whom the alleged challan was issued by PW-21. PW-1 in cross-examination dated 12.03.2015 has deposed that he does not know name of the company or model of the car but it was of white colour. He had identified the car on the basis of white colour and its number begin from Haryana number. He had seen the car on the date of incident at Kucha Mahajani, Chandni Chowk. The car was seized by police in his presence on the date of incident. He has deposed again that he does not know on which date the car was seized. The seizure memo of car is Ex.PW1/F dated 15.03.2012 which is date of incident on which PW-1 and PW-2 had become witness. PW-5 HC Birender at page 3 of his cross-examination dated 19.08.2015 has deposed that the vehicle/car was found parked outside the gate. He does not remember about the make and colour of vehicle. Two public person were found in the car. He does not know if anything is lying in the car. PW-5 has deposed that he saw the car parked near the main gate at Kucha Mahajani. He heard some noise/cries coming from the said car. He immediately reached near the car and saw two person locked in the car by 3-4 person. Public person had also gathered there. With the help of public person the said two person were rescued. One person was apprehended by the public and other person has successfully fled away. PW-6 Ct. Rohtash in his examination-in-chief dated 07.11.2016 has correctly identified the car Ex.P6 which was recovered from the spot. He cannot tell the make or model of the car. Ld. Counsel for accused has submitted that the car was of make Volkswagen and model was Vento.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 43 of 74PW-6 has deposed at page 3 of his cross-examination dated 12.04.2023 that the make of the car was Swift car. He has deposed that public person have already apprehended two person behind main entry gate. It is deposed as correct by him that no police person was found at the spot before he reached at the spot where the public person had apprehended two accused person. After him SI Abdul Wahid has arrived at the spot. He had handed over custody of accused Surjeet to SI Abdul Wahid/PW-
22. The car was searched in his presence. Though he specifically remember the number of the car. He had also identified Ex.P7 the rexin pouch recovered alongwith cartridges from the back seat of the car. Hence the above testimony of PW-6 creates doubt that he was present at the spot for the reason that though he had seen the car and not only seen but he was also present during search of the car from inside then also he has deposed incorrectly about the model/make of the car.
NON-JOINING OF PUBLIC PERSON AS WITNESS
30. PW-5 has deposed that when he reached at the spot hearing cries then public person were also gathered there. Only with the help of those public person the person locked in the car were rescued and the accused no. 3 Surjeet was apprehended at the spot by the public person and remaining person have succeeded to fled away. Hence when the public person were present at the spot then it was incumbent on the IO to record their name and address and also to join them as witness which will also show impartiality and independence in the investigation which is not so done by the IO in the case. It therefore creates doubt in the case of the prosecution if the accused no. 3 Surjeet was so apprehended near the car SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 44 of 74 while standing with 3-4 accused person as per deposition of PW-5, 6-7 accused were present near the car also as per deposition of PW-1 and PW-2 if read together. As per deposition of PW-5 during cross- examination accused Surjeet was apprehended at 4:30 PM when SI Abdul Wahid/PW-22 had reached at the spot after about 20-25 minutes. 15 minutes prior to apprehending the accused Surjeet PW-1 and PW-2 were rescued from the car by public person. PW-5 has deposed that after 5-7 minutes of rescue of PW-1 and PW-2 SI Abdul Wahid/PW-22 had reached at the spot. PW-6 has also deposed that he had reached at the spot only after hearing cries from car. It was about 4:15 PM public person were gathered there. He found that two person were detained by public person. One person ran away from the spot. Thereafter SI Abdul Wahid had arrived at the spot.
31. PW-22 has deposed that he had left for patrolling duty vide DD no. 51B. While he was patrolling at about 4:30 PM at Kucha Mahajani Chandni Chowk he saw public person were gathered. PW-1 and PW-2 had produced accused Surjeet before him. Hence as per deposition of PW-22 only two public person were there who apprehended the accused Surjeet. Whereas as per PW-5 two person namely PW-1 and PW-2 were sitting in the car locked by 3-4 accused person and they were rescued by public person. Therefore the public person who rescued PW-1 and PW-2 must be other than the PW-1 and PW-2 themselves. PW-5 has deposed that SI Abdul Wahid alongwith Ct. Rajbir/PW-10 had reached at the spot while public person had apprehended the accused no. 3 Surjeet and both public person were other than PW-1 and PW-2. Hence deposition of PW- 5 and PW-22 is contradictory that who had handed over accused no. 3 SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 45 of 74 Surjeet to SI Abdul Wahid. It is deposed by PW-21 that he had met PW-5 HC Birender/HC Virender and PW-6 Ct. Rohtash at the picket.
32. PW-5 has deposed that he reached at Kucha Mahajani main gate at about 4-4:15 PM and the car used by the accused was at the main gate. When he reached there two person were locked in the car who were PW- 1 and PW-2. The offenders were 3-4 in number and PW-22 SI Abdul Wahid had arrested the accused no. 3 Surjeet at 4:30 PM. PW-6 has deposed that he reached at the spot at about 4:15 PM which is main gate of Kucha Mahajani, Chandni Chowk and he found two accused person were detained and one of them had ran away from the spot. However other accused was apprehended by the police. To the contrary PW-5 has deposed that one of the accused person was apprehended by the public person and remaining accused person had fled away from the spot. In the meanwhile PW-22 SI Abdul came at the spot with Ct. Rajbir and the public person had handed over accused no. 3 Surjeet to PW-22 and Ct. Rajbir/PW-10. Hence PW-6 has not handed over the custody of accused no. 3 to PW-22. Further, to the contrary PW-6 HC Rohtash in his cross- examination dated 12.04.2023 has deposed that no police official was present at the spot before PW-6 had reached at the spot. Public person had already apprehended two accused person and SI Abdul Wahid had arrived at the spot after half an hour of apprehension of accused no. 3 Surjeet. PW-6 has deposed that it is not the public person but he had handed over the custody of accused person to PW-22. Other than this it is deposed contrary to PW-22 that SI Abdul Wahid did not conduct any proceeding at the spot and he took accused no. 3 Surjeet to the PS directly. The then SHO PS Kotwali had also arrived at the spot when SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 46 of 74 called on phone by PW-6. Behind SHO, SI Abdul Wahid came at the spot. Whereas PW-5 does not talk about coming of SHO at the spot and PW-22 in his examination-in-chief not talks about coming of SHO at the spot. PW-5 has deposed that public person had handed over accused no. 3 Surjeet to SI Abdul Wahid. PW-6 to the contrary has deposed that police person had apprehended the accused and other accused had ran away. PW-6 HC Rohtash has deposed that he had handed over the custody of accused no. 3 Surjeet to SI Abdul Wahid and further to the contrary he has deposed that another accused already apprehended by the public person had fled away from the spot before he reached at the spot. It is deposed by PW-6 as correct that he was first police official who reached at the spot where public person had apprehended two accused person. Hence he deposed contradictorily that when he reached at the spot then two of the accused were already apprehended and at other time he deposed that one of the accused had already fled from the spot before he reached there. PW-5 HC Birender has deposed that he was first police official who reached at the spot after which SI Abdul Wahid and Ct. Rajbir came. He does not talk about Ct. Rohtash/PW-6 reaching at the spot. Whereas PW-6 has deposed that no police official was present at the spot before he reached there. PW-6 has admitted at page 4 of his cross-examination dated 12.04.2023 as correct that before PW-22 SI Abdul Wahid arrived at the spot then accused Surjeet was in his custody and he had handed it over to SI Wahid. Whereas PW-22 at first page of his examination-in-chief has deposed that PW-1 and PW-2 had produced accused no. 3 Surjeet before him and he does not talk about handing over of accused no. 3 Surjeet to him by PW-6. Hence there are serious infirmities in the evidence of prosecution that how the accused no. 3 SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 47 of 74 Surjeet was apprehended and it creates doubt in the case of the prosecution that accused no. 3 Surjeet was so apprehended from the spot.
33. PW-1 at first page of cross-examination dated 26.02.2020 has deposed as correct that there is only single gate for entry and exit for Kucha Mahajani market. It is deposed that only few shopkeepers have CCTV camera. It is deposed at page 3 that police come on its own seeing the crowd gathered in the market at the gate. He does not remember the name of police official who visited the spot. Again said may be his name was Abdul Wahid. There were two police official. Police had left the spot at 6:30-7 PM. PW-1 at page 4 of his same cross-examination has deposed that he does not remember if arrest memo was signed at the spot or at police station by accused no. 3 Surjeet. It is admitted by PW-1 at page five of his cross-examination dated 12.03.2015 that the complaint Ex.PW1/A is not in his handwriting. He has deposed that 7-8 papers some of which were regarding recovery of revolver, cartridge, bag and documents pertaining to the vehicle/car seized were got signed from him by the police. He does not remember that on which date he was called at PS Kotwali. In complaint Ex.PW1/A has not described the physical feature of the accused who ran away from the spot. He did not disclose about their age, physique and other description on their body to see if he could have identified the accused with such description. At page four of cross-examination dated 12.03.2015 it is deposed by him that he had identified some of the offenders on 02.05.2012 at Tis Hazari Courts. The TIP proceeding of accused Pardeep was recorded on 02.07.2012. The refusal TIP of accused Pawan Kumar is dated 17.03.2012 and the refusal TIP of accused I.B. Goel is dated 29.05.2012. The refusal TIP of accused SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 48 of 74 Subhash is dated 04.04.2012.
34. PW-1 in his cross-examination dated 16.01.2013 at page 2 has deposed that when they raised alarm then other public person and shopkeepers had gathered there after hearing the noise. Police official who were present in the gali were also present there. The police official had caught accused no. 3 Surjeet. PW-2 at first page of his examination- in-chief dated 01.03.2013 has deposed that when they were passing through the market with the accused then some shopkeeper asked them about the matter on which they had replied that they knew nothing. Accused had forced PW-1 and PW-2 to sit in a car and they had raised alarm. Public person had gathered there to save them from accused person. PW-6 in his cross-examination dated 12.04.2023 has deposed as correct that no police official was present at the spot before he/HC Rohtash had reached at the spot. Public person already apprehended two accused person. One of the accused apprehended by the public person had fled away before reaching of PW-6 at the spot. Hence the fact of apprehension of another of accused with accused no. 3 Surjeet is merely heresay evidence deposed by PW-6 and he had not seen the other accused allegedly apprehended by the public person. It is deposed by PW-6 that SI Abdul Wahid/IO/PW-22 did not conduct any proceeding at the spot and he took the accused no. 3 Surjeet directly to the police station. He has deposed twice that SI Abdul Wahid took the accused to the police station and the SHO PS Kotwali had also arrived at the spot on phone call made by PW-6. PW-2 Sh. Shalabh Goel at page no. 3 of his cross-examination dated 26.02.2020 has deposed contrary to PW-6 in that police arrived there after about half an hour of his leaving the shop SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 49 of 74 with accused no. 3. He does not remember that when accused no. 3 was arrested by the police. Though he had signed the arrest memo. He does not remember the time of arrival of the police. It is deposed that some police official are available at main gate of Kucha Mahajani market where one police official used to sit at the main entrance gate. PW-1 at fifth page of his cross-examination dated 12.03.2015 has deposed that police had taken his signatures on 7-8 papers some of which are regarding recovery of revolver, cartridge, bag and documents pertaining to the seized vehicle. The relevant citation titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 in this regard is reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 50 of 74 principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 51 of 74
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession.
Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.
CCTV FOOTAGE
35. PW-22 at page 5 of his examination-in-chief has deposed that he had obtained the CCTV footage of the spot and recorded statement of witnesses. During cross-examination dated 26.11.2019 at second page it SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 52 of 74 is deposed by PW-22 that many CCTV camera were installed in and around Kucha Mahajani. PW-22 cannot tell if 85 CCTV cameras were installed there at that time. He cannot tell if 33 CCTV cameras were installed on the road on which the occurrence has taken place. It is deposed voluntarily that many CCTV cameras were installed. It is also deposed that he did not send the seized CCTV footage to FSL. He had not obtained certificate under Section 65B of Indian Evidence Act from the concerned person who handed him over the CCTV footage. He had not examined nor cited the person as witness from whom he had received the CCTV footage. It is deposed as correct that he has provided the CCTV footage in CD form. He did not see original DVR during investigation. PW-23/A.K. Singh, Joint CP, Delhi has deposed that IO has not shown him any CCTV footage, photographs, video clip while granting sanction Ex.PW23/A to prosecute under Section 25 of Arms Act. PW-6 at first page of his cross-examination dated 12.04.2023 has deposed as correct that CCTV camera were installed at Kucha Mahajani market and the said camera could capture the person who entered into Kucha Mahajani market from the main entry gate after walking 10-12 steps towards market. It is admitted as correct that the said camera would capture the person who made exit from the main entry gate of Kucha Mahajani market. At page 3 it is deposed that some shops of Kucha Mahajani market were having CCTV camera installed. PW-22 at second page of his cross-examination dated 26.11.2019 has deposed as correct that many CCTV cameras were installed in and around Kucha Mahajani. Hence the best evidence available in the present case regarding the identity of accused person and such abduction of PW-1 and PW-2 by the accused person is the CCTV camera which is not produced in evidence SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 53 of 74 by the prosecution. Not only CCTV camera were available but some of were seized by PW-22/IO which were not even produced in evidence. It was a strong piece of evidence which could very well indicate that whether the accused person have so kidnapped PW-1 and PW-2. It would also have indicated the number of accused person and whether they are responsible for the commission of the crime. Hence it was a crucial piece of evidence and best piece of evidence. Omission to produce the same raises serious doubt about the case of the prosecution. It amounts to withholding best evidence from the Court. Hence adverse inference is drawn against the prosecution under Section 114(g) of Evidence Act, 1872 for withholding the best evidence which throw light on the controversy if had been produced then it would have gone in favour of the accused. The same is seen to be material in view of contradiction and omission in the evidence of prosecution witness that how the accused person were apprehended. PW-1 had omitted to state even the name of his servant to the prosecution during investigation and withheld the relevant witness and evidence. The burden of proof lies on the prosecution and the best evidence which is CCTV footage ought to have been produced by the prosecution. Hence it is held that had such evidence being produced then it would have gone against the case of the prosecution. The relevant para of case titled Tomaso Bruno and Anr. Vs. State of U.P. dated 20.01.2015, 2015(7) SCC 178 at relevant para no. 22, 24 to 29 are reproduced hereasunder:
Tomaso Bruno & Anr vs State of U.P on 20 January, 2015 Equivalent citations: 2015 CRI. L. J. 1690, 2015 (7) SCC 178, AIR 2015 SC (SUPP) 412
22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 54 of 74 present in the hotel room at the relevant time. PW-1 Ram Singh-
Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.
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24. The trial court as well as the High Court ignored this crucial aspect of non-production of CCTV footage. The trial court as well as the High Court relied on the oral testimony of PW-1-Ram Singh, hotel manager, that no one entered Room No. 459 between the relevant period on the intervening night of 3.2.2010 and 4.2.2010 which is based on the CCTV footage. Courts below accepted the version of PW-1 and PW-13 to hold that there was no relevant material in the CCTV footage to suggest that a third person entered the hotel room. The trial court and the High Court, in our view, erred in relying upon the oral evidence of PW-1 and PW-13 who claim to have seen the CCTV footage and they did not find anything which may be of relevance in the case.
25. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 55 of 74 document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.
26. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Mohammad Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1, wherein production of transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused. Similarly, in the case of State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers.
27. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non- production of CCTV footage, non- collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility toEven if we were to accept that the death was due to strangulation which was caused by an object, the non-recovery of alleged object weakens the prosecution case. the party concerned, all of which have to be taken into account. It is only when all these SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 56 of 74 matters are duly considered that an adverse inference can be drawn against the party.
29. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.
xxxxxxxxxxxxxxxxxxx DELAY IN RECORDING OF FIR
36. Ld. Counsel for the accused has argued that there is delay in recording of FIR. It is deposed by PW-6 Ct. Rohtash at second page of his cross-examination dated 12.04.2023 that he had informed the then SHO PS Kotwali about the incident telephonically at about 4:20 PM. The incident had occurred between 3-3:30 PM and FIR in the matter Ex.PW3/A was recorded at 7:20 PM as the information was received at the PS at that time vide GD entry no. 27A. It is argued that there is delay in recording of FIR for about four hours. PW-3 HC Jainder Singh has deposed at second page of his cross-examination that there is no departure entry in respect of Ct. Rajbir, Ct. Saurabh and Ct. Vinod Paswan in register B containing DD no. 51B. It is deposed that there are two register namely register A which is written by Duty Officer and register B is written by DD writer who happens to be a Constable. The SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 57 of 74 departure entry of Ct. Vinod Paswan vide DD no. 36 about 10:20 AM dated 15.03.2012 is for arrangement Palki Yatra and Bhim Rath Yatra and not for the present case. There is no entry in register B in respect of Ct. Rajbir, Ct. Saurabh and Ct. Vinod Paswan. It took 4 minutes to PW-3 to record Kayami entry and FIR entry is recorded by computer operator. The FIR was sent to PW-3 by computer operator after about 40-45 minutes of receipt of information which was handed over by him to Ct. Rajbir.
37. PW-10 Ct. Rajbir does not remember the DD number of their departure from the PS. Rukka Ex.PW3/B mention about DD no. 27A dated 15.03.2012. There is delay of about three and a half hour in registration of FIR. It is argued that accused no. 3 Surjeet has retired as DIG, Indian Coast Guard. Accused no. 4 I.B. Goel was not named in the FIR. However the accused person were not known to the victim PW-1 and PW-2 beforehand therefore not naming in FIR does not harm the case of the prosecution. It is argued for accused no. 4 I.B. Goel that his name was not I.B. Goel but his name is Vimal Parkash Goel. Accused no. 3 has argued that there was no dacoity. It is suggested to PW-1 at page four of his cross-examination dated 26.02.2020 that accused no. 3 Surjeet alone had come at the shop of PW-1 for purchase of some jewellery on the occasion of marriage of his niece which is denied by PW-1. It is denied that accused Surjeet alone came at his shop to place orders for jewellery when PW-1 told that he would arrange the same from the neighbouring shop. On asking of trade licence by accused no. 3 an altercation has taken place and neighbouring shop Trade Union Executive gathered at the shop who kept hold of accused Surjeet till SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 58 of 74 police arrived. It is admitted by PW-1 as correct that police/IO has accidentally arrived at the spot and it is denied that the IO was called by Traders Association executives. It is deposed by PW-1 that he does not deal in jewellery. PW-2 has deposed that he have a commission agent shop and therefore he does not directly deals in jewellery. The accused no. 3 Surjeet has relied on DW-4 Tigmanshu Rajpoot. DW-4 has deposed that he alongwith his uncle/Fufaji/accused no. 3 went via metro to Chandni Chowk around 10-10:30 AM. They reached at Chandni Chowk. When he went to Dariba then he visited 2-3 jewellery shops for purchase of some jewellery required in the marriage of his sister fixed for 03.04.2012. The marriage card is Ex.DW4/A. Two photographs are Ex.DW4/B(colly). Around 2-2:15 PM father of DW-4 had called him on his mobile phone with the instruction to collect wedding card at Pitampura where he went away. He runs business of car seat cover. His mobile number is 8882488823 and mobile number of his father is 9811233379. He did not purchase jewellery on 15.03.2012 as accused no. 3 Surjeet had to purchase it. He cannot tell the jewellery shops by name where he had visited. In the evening his father told that accused no. 3 Surjeet was arrested by the police. Hence DW-4 has probabilised the fact by preponderance of probability that on such date and accused no. 3 Surjeet has valid reason to go to Chandni Chowk for purchase of jewellery and thereby another view is possible that accused no. 3 Surjeet has visited Chandni Chowk not for the purpose of robbery but for the purpose of purchase of jewellery for the marriage of Ms. Sandhya. Marriage card of which is Ex.DW4/A. DW-4 is Fufaji of Ms. Sandhya.
38. The FIR was registered within three hours of reporting the matter SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 59 of 74 at the PS. The FIR was sent to PW-3 the computer operator after about 40-45 minutes. Some time is taken in preparing the Rukka and carrying the Rukka to the police station. Further, the accused has not shown that what prejudice was caused to him by so recording the FIR. There is presumption that police officer being public servant were doing their duty fairly and impartially. The accused merely counted the difference in time taken between giving of the information at the PS and the registration of FIR. No efforts are made to elicit reason from prosecution witness for taking of such time in registration of FIR. Even distance between the spot and the police station and the time to travel going to be taken in such distance is not elaborated in evidence. Hence the plea regarding the delay in registration of FIR could not be sustained and therefore the same is dismissed.
RECOVERY OF CASH AND BAG FROM THE ACCUSED PERSON
39. PW-2 Shalabh Goel at first page of his examination-in-chief dated 19.07.2013 has deposed that some cash amount and mobile phone was recovered from accused Surjeet. Personal search memo of accused is Ex.PW2/B. Seizure memo of military colour bag is Ex.PW1/E. At second page it is deposed that the military colour bag containing 10 packets of Rs.100/- denomination allegedly looted from his shop is Ex.P- 3 and the 10 packets of Rs.100/- denomination are collectively Ex.P-4. PW-5 at second page of his cross-examination dated 19.07.2015 has deposed that he does not remember in which hand the accused was having pistol and in which hand he was having bag. He does not remember if there was specific mark on the Wads of currency notes or SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 60 of 74 not. PW-6 came to know from public person that accused was fleeing with the money of shopkeepers of market of Kucha Mahajani. Accused has relied on citation titled State of Rajasthan Vs. Netrapal dated 27.02.2007;2007(4) SCC 45 from Hon'ble Supreme Court of India wherein it is laid down that the recovery of articles was doubtful because prior to arrest of accused person and before their giving information under Section 27 of the Evidence Act the articles were already recovered by the police and therefore they are not admissible under Section 27 of Indian Evidence Act.
40. PW-1 at first page of his examination-in-chief dated 19.07.2013 has identified the bag containing currency notes of 10 packets of Rs.100/- denomination at Ex.P-3. The ten packets of Rs.100 denomination are collectively recorded as Ex.P-4. PW-2 has deposed that the said money was looted from his shop.
41. In Ex.PW1/A in the complaint the PW-1 has stated that he does the business of selling silver and gold on commission basis. Hence PW-1 himself does not sell the silver and gold jewellery but he does the business of selling the said jewellery on commission. The accused no. 3 Surjeet had went at the place for purchase of jewellery for marriage in his family. The PW1 has not brought any evidence by which he show that currency amount Ex.P3 and Ex.P4 were earned by him during course of the day while selling jewellery nor he has produced any other evidence of rightful possession of such currency notes. The accused no. 3 Surjeet was already caught with the bag of military colour with the alleged currency notes. One of the accused had ran away with another SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 61 of 74 bag filled with currency notes. Hence it was incumbent on the part of the prosecution that to bring on record how much money was available with PW-1 and PW2 and from what source to see that whether the PW-1 and PW-2 could have possessed this amount of money or that it rightly belongs to them. It has also come on record that public witness already caught the accused person before the arrival of the police and the public person had caught the accused with the said bag of military colour filled with currency notes. Hence the recovery is not under Section of 27 of Evidence Act, 1872. In the complaint Ex.PW1/A at third page it is stated that in the military colour bag was found 10 Wads of Rs.100/- currency notes and each Wad has 100 notes of Rs.100/-. It means that each Wad has Rs.10,000/- and in total Rs.1 lakh was recovered. Now the question arises whether this money belongs to PW-1. The seizure memo of bag of military colour is Ex.PW1/E which is signed by PW-1, PW-2 and Ct. Rohtash. The PW-1 has deposed that the accused person had asked him to put the money in the bag but he did not state that which of the accused had so asked him. PW-1 had thereafter put the money in the bag. The complaint Ex.PW1/A is also not in the handwriting of PW-1 and he has deposed as correct that it was written at the PS by the police person. He went to police station on 15.03.2012 the date of incident when police had obtained his signature on 7-10 papers. The best evidence of CCTV footage of recovery of such military colour bag and currency notes are also not proved on record. PW-1 has deposed at last page of cross- examination dated 26.02.2020 that he does not deal in jewellery. The employee of PW-1 Mr. Sunny is the best evidence to depose about the alleged robbing of money from shop of PW-1 is withheld. PW-2 has also deposed that he has handed over cash to the 2-3 person who came into SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 62 of 74 his shop. Whereas PW-1 has deposed that only one person had entered in the shop of PW-2 and not 2-3 person. PW-2 has also failed to prove any rightful account of money in his possession and what was that amount which was allegedly stolen from him. Hence the necessary ingredient of ownership of notes is not proved on record by the prosecution in the evidence of PW-1 and PW-2. In his statement under Section 313 Cr. PC accused no. 3 has stated that he had went to Kucha Mahajani to purchase jewellery for marriage of his niece scheduled for 04.04.2012. He went to shop of PW-1 and inquired about hallmark jewellery. PW-1 had stated to accused no. 3 that he will arrange jewellery from other shops. Hence the statement of accused corroborates the testimony of PW-1 that PW-1 is not dealing with jewellery and he is dealing in jewellery on commission basis. As per accused no. 3 when PW-1 was asked about his trade licence and the difference between 22/24 carat gold which PW-1 could not explain about and started quarreling with accused no. 3 then PW-1 called police by sending his servant and did not allow accused no. 3 to leave from there. Hence it is held that prosecution has failed to prove that the accused person had committed theft of currency notes of Rs.1 lakh in denomination of Rs.100/- from the shop of PW-1.
42. The second ingredient the prosecution has to prove is that the accused person has caused or attempted to cause hurt or wrongful restraint or death or instant fear of the above. As per the case of the prosecution the threat was extended to PW-1 and PW-2. Accused no. 3 Surjeet was carrying the pistol. However in his entire deposition PW-1 and PW-2 have not stated that accused no. 3 had shown them pistol or any other accused has shown them pistol. However it is deposed by PW-
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 63 of 741 that accused person had stated not to talk rubbish and come alongwith them failing which the PW-1 and PW-2 will be shot down by the gun. Similarly PW-2 is commission agent in bullion and he does not sell silver and gold jewellery directly. He has deposed that accused person had forcibly took him and PW-1 downstairs. Both PW-1 and PW-2 had identified accused no. 3 Surjeet. PW-1 does not say that he was threatened with gun by the accused person. PW-1 does not depose that which of the accused had threatened him to be shot by pistol. It is settled law that under Section 395/397 IPC only the offender/person who committed robbery or voluntarily cause hurt or attempt to commit such robbery and used deadly weapon or causes any grievous hurt to any person or to commits to cause death or grievous death on any person at the time of committing of robbery or dacoity can be punished. The liability is not constructive liability. Hence in the absence of pointing out of the accused person who has allegedly extended threat or produce an expression upon the mind of PW-1 to part with his property or to accompany the accused person under threat then it cannot be held that the necessary threat of the second ingredient referred above is proved on record by the prosecution. Hence it is held that the prosecution has failed to prove the second ingredient of Section 395/397 IPC.
43. All the ingredients of Section 395/397 IPC have to be proved co- jointly and even in the absence of proof of one of the ingredient it cannot be said that the offence is complete. Hence in the absence of proof of first ingredient, the third ingredient is also held not proved that while committing the alleged offence the accused person were carrying away the property obtained by theft. Hence accused no. 1 to 5, 7 and 8 stands SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 64 of 74 acquitted for the offence under Section 395 IPC and accused no. 3 is also stands acquitted for the offence under Section 397 IPC.
44. The accused no. 3 Surjeet is separately charged under Section 25 of Arms Act having found in possession of one pistol and 10 cartridges without permit and licence in contravention of notification issued by Govt. of NCT of Delhi. The relevant provision of Section 25 of Arms Act, 1959 is reproduced hereasunder for ready reference:
25. Punishment for certain offences.―1[(1) Whoever--(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6;
or 2** * * *
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
3[(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
(1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.] SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 65 of 74 4[(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2[three years, but which may extend to seven years] and shall also be liable to fine.
(1B) Whoever--(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub- section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 66 of 74 or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3[one year] but which may extend to three years and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3[one year].
[(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.―For the purposes of this sub-section, "disturbed area"means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. 1[(3) Whoever sells or transfers any firearm, ammunition or other arms
--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 67 of 74 to surrender a licence to the appropriate authority under sub-
section(10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
RECOVERY OF PISTOL AND GUN
45. The seizure memo of pistol is Ex.PW1/C. PW-2 in his cross- examination dated 19.07.2013 has deposed that the pistol is Ex.P1 and the live cartridge 8-09 in number recovered by the police in his presence are collectively Ex.P-2. From Malkhana a pistol cover was produced duly sealed with the seal of AW identified by PW-2 as Ex.P-5. 10 cartridges were produced from Malkhana wrapped with pistol out of which 09 were in live condition and one was empty cartridge. PW-6 in his cross-examination dated 12.04.2023 at page 5 has deposed that accused Surjeet was carrying pistol when he was apprehended by public person. He does not remember in which hand he was carrying pistol. Six live cartridges were found in Holster and four live cartridges were found in magazine of the pistol. PW-6 in his cross-examination dated 12.04.2023 at page 3 has deposed that accused no. 3 Surjeet was carrying pistol when he was apprehended by public person. He does not know in which hand he was carrying the pistol. During search of white colour car six live cartridges were recovered from beneath the rear seat of the car which was told to PW-6 by IO/SI Abdul Wahid/PW-22. PW-6 has SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 68 of 74 deposed that white car was not searched in his presence. Number RP148299 was engraved on the said pistol.
46. PW-13 Sh. Puneet Puri from FSL had received two sealed parcel on 26.04.2012 brought by Ct. Saurabh. In one parcel a pistol of 7.65 mm caliber bearing no. RP148299 marked as Ex.F1 and 107.5 mm cartridge were recovered marked as Ex.A1 to A10. In the second parcel there were Ex.A11 to A16. The pistol was found in working order and the cartridge Ex.A1 to A11 was successfully test fired and therefore the pistol was a fire arm and cartridge was ammunition under Arms Act, 1959. The report is Ex.PW13/A. Ex.F1 the pistol is not a countrymade pistol.
47. PW-1 in his examination-in-chief dated 19.07.2013 has correctly identified pistol Ex.P1. He has identified 8-09 cartridge which were recovered by police in his presence and collectively Ex.P2 (10 cartridge). 9 cartridge are in live condition and one is empty cartridge. PW-2 in his cross-examination dated 26.02.2020 at second page has deposed that police had conducted the proceedings near the main gate of he market pertaining to the arrest of the accused, recovery of mobile, money and pistol. He does not remember whether he had seen pistol with accused no. 3 Surjeet prior to arrival of police. He does not remember the time when the said pistol was recovered from the possession of accused Surjeet. He cannot tell the make of the pistol. PW-5 at second page of his cross-examination dated 19.08.2015 has deposed that he does not remember in which hand the accused Surjeet was having pistol and in which hand he was having bag containing currency notes. PW-6 at first page of his examination-in-chief dated 29.10.2015 has deposed that PW-
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 69 of 7422 SI Abdul Wahid had checked the recovered pistol which was found loaded with four live cartridge and the holster was containing six live cartridges. The sketch of pistol, magazine and one live cartridge is Ex.PW1/B.
48. PW-22 SI Abdul Wahid/IO has Court observation in his evidence that after perusal of judicial record there is no sanction under Section 39 of Arms Act nor the ballistic division result. Further, the perusal of proceedings of ld. MM confirmed that no copies of the same were ever supplied to the accused. Hence in absence of such sanction to prosecute the accused no. 3 Surjeet the prosecution is found in lacking in necessary ingredients. Further, the copies of the sanction and ballistic division is not supplied to the accused during recording of proceedings by ld. MM. The notification vide which the possession of said pistol is barred is also not proved on record. In absence of which it cannot be said that whether this pistol could be possessed or could not be possessed by the accused under law. In case titled Madan Lal. Vs. State (Delhi Administration) 70 (1997) DLT 595 has laid down that when the article of offence was not used during commission of offence then Section 27 of Arms Act would not be attracted and therefore benefit of doubt is liable to be extended to the accused. It was held in case 1991 Crl. LR (Rajasthan) 531 (DB) it was laid down that where the fire arm expert has not taken micro photographs of some of the individual marks on the test cartridge and the evidence cartridge and thereafter submitted only conclusions without assigning any reason would not be sufficient to fasten the liability of the guilt on the accused.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 70 of 7449. PW-2 has deposed that cartridge in 8-9 number was recovered in his presence. The ballistic division report is Ex.PW23/A and the order of sanction prosecution is also Ex.PW23/A. It is deposed by PW-23 that IO had not placed any finger report on the pistol before him. He cannot depose about the make of the alleged pistol. However he had given sanction under Section 25 of Arms Act vide Ex.PW23/A. He cannot tell if any serial number was written on FSL report or not. He has personally not verified about the alleged pistol/weapon. His statement under Section 161 Cr. PC is also not placed on record. In his examination-in-chief he has not deposed that the pistol in question was produced before him. The sanction order is Ex.PW23/A. In the sanction order reliance is placed on ballistic expert report, copies of other documents relied upon by police including seizure memo. However the sanction order does not mention that the pistol was produced before PW-23 at the time of grant of sanction. It was held by Hon'ble High Court of Madhya Pradesh in case titled Ratan Singh Vs. State of M.P. dated 30.08.2022 wherein it is laid down that unless there is previous sanction of District Magistrate a person cannot be prosecuted in respect of any offence under Section 3. The relevant para are reproduced hereasunder:
Hon'ble High Court of Madhya Pradesh at Indore in case titled Ratan Singh vs The State of M.P. Through Police Station - Ingoriya, District- Ujjain (Madhya Pradesh) in Criminal Appeal No. 1059 of 1999 dated 30 August, 2022 15 The Coordinate Bench of this Court in case of Chunta Vs. State of MP reported in 1999 Cr.L.R. (MP) 80 has held that seized arms were not produced in court and no evidence had been brought on record to indicate where the arms were kept after seizure, therefore, prosecution has failed to prove the charge under section 25 and 27 of Arms Act. This citation is completely applicable in this present case and the seizure of fire arms from possession of SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 71 of 74 appellant is doubtful.
16 So far as the question of grant of sanction is concerned, counsel for appellant placed reliance upon judgment of this Court in the case of Sukhlal Banshi Lodhi Vs. State of MP reported in 1998(1) MPLJ 288 wherein this court has held as under:- Section 39 of the Arms Act provides that previous sanction of the District Magistrate is necessary for the prosecution against any person in respect of any offence under Section 3. Section 3 provides for license for acquisition and possession of firearms and ammunition. Thus, unless there is a previous sanction of the District Magistrate a person cannot be prosecuted in respect of any offence under section 3. Sanction is not a mere formality. It has to be proved that it was granted by the authority after applying his mind. It must be shown that the firearm or weapon with respect to which sanction was prayed was actually taken to the authority concerned and after looking to it the relevant papers, understanding and after applying his mind sanction was granted."
17 In the instant case Arms Clerk Manoharlal (PW-3) admitted in his deposition that he has no personal knowledge that case diary was produced before the District Magistrate or not. He did not state anything that the seized arms were produced before the District Magistrate prior to sanction. As per seizure memo (Ex.P-14) allegedly arms license has been recovered from possession of appellant but same was not produced before the District Magistrate during examination of investigating officer and seizure witnesses.
18 In this context I may profitably refer to the decision in the case of Satyanarayan Patidar Vs. State of MP reported in 1980 JLJ 367 wherein it has been held as under:- Mere filing of a document alongwith other papers at the time of police report was submitted, cannot be said to be a proper compliance of giving evidence to prove the requirement of Section 39 of the Arms Act.
19 In the present case, the investigating officer has only stated that he had asked for sanction which was given by the District Magistrate. Nothing else has been brought on record to suggest that the weapons were made available to the sanctioning authority.
In absence of any other supporting material. I am of the considered view that prosecution has to fail for lack sanction, therefore, appellant deserves acquittal of this case.
20 I, therefore, conclude that the order of conviction and sentence recorded by the trial court under Section 506 Part B and under section 25(1-B)(a) of Arms Act cannot be sustained and has to be set aside.
SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 72 of 7450. In the present case during deposition of PW-22 there is Court observation during trial that the sanction order under Section 39 of Arms Act not ballistic result was placed in the judicial file till the IO/PW-22 was examined. However the result of ballistic division report is Ex.PW13/A which was available on record during such examination of PW-22. The result of examination is that cartridge Ex.A1 to A16 are live ones and they can be fired through 7.65 mm caliber firearm. Cartridge Ex.A1 to A11 were test fired from the pistol mark Ex.F1. The exhibit F1 is the pistol and the cartridge A1 to A16 were found fire arm/ammunition as defined in Arms Act, 1959. Hence the prosecution has successfully proved that the pistol and cartridge were fire arm and ammunition in the present case.
51. However the sanction order is not shown in the list of documents filed in the final report/chargesheet. The sanction order is dated 20.07.2012 and the chargesheet was filed on 14.05.2012. Cognizance of the offence was taken on 15.05.2012. Hence sanction was not granted till the chargesheet was filed and on this account there was no previous sanction at the time of filing of chargesheet and taking of cognizance against the accused. On this account the prosecution of accused is bad under law and on this account alone accused is entitled to acquittal. Further, in the citation referred above titled Ratan Singh Vs. State of M.P. (supra) it is laid down that the fire arm or weapon with respect to which the sanction was prayed was actually taken to the authority concerned. Whereas in the entire sanction order Ex.PW23/A it does not mention that the fire arm was taken before the concerned authority/PW- 23 for grant of sanction. Hence it is held that prosecution case failed for SC No. 27573/2016 FIR No. 60/2012 State Vs. Rakesh Kumar & Ors. Page 73 of 74 lack of sanction and for the reason discussed above accordingly accused no. 3 Surjeet stands acquitted for the offence under Section 25/54/59 of Arms Act, 1959.
52. In such view of the matter, it is held that prosecution has failed to prove the charges levelled against accused no.1 to 5, 7 and 8. Hence the accused namely Rakesh Kumar, Pardeep Kumar, Surjeet Singh, I.B. Goel @ Vimal Parkash, Pawan Kumar, Madan Lal and Subhash Chand stands acquitted for the offence under Section 120B/395/365 r/w Section 120B IPC. Accused Surjeet Singh stands acquitted for the offence under Section 397 IPC and also stands acquitted for the offence under Section 25/54/59 of Arms Act. In terms of Section 481 of BNSS/437A Cr. P.C, all the accused no. 1 to 5, 7 and 8 have furnished their bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 14.05.2026. PRAKASH PRAKASH NAHAR
Date: 2026.05.14
NAHAR 15:55:42 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 27573/2016
FIR No. 60/2012
State Vs. Rakesh Kumar & Ors. Page 74 of 74