Delhi District Court
State vs Shiv Kumar@Kadwa on 22 January, 2026
THE COURT OF SH. UDBHAV KUMAR JAIN,
JUDICIAL MAGISTRATE FIRST CLASS-04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
STATE v. SHIV KUMAR @ KADWA & ANR.
FIR No. -: 330/2020
Police Station -: Madhu Vihar
Section(s) -: 392/394/411/34 IPC
Cr. Case No. -: 134/2021
1. CIS number : DLSH020000052021
2. Name of the complainant : Sh. Rajesh Kumar Pal
S/o Sh. Ramesh Chand Pal
R/o A-76, Chander Vihar, Madhu
Vihar, Delhi.
3. Name of the accused, : 1. Shiv Kumar @ Kadwa S/o Sh.
parentage & residential Sadhu Ram R/o Gali no. 2, Pandit
address Chowk, Mandawali Fazalpur, East
Delhi.
2. Nitin S/o Sh. Sunil R/o H. No.
357A, Gali no. 23, Pandit Chowk,
Mandawali Fazalpur, East Delhi.
4. Offence complained of or : 392/394/411/34 IPC
proved
5. Date of commission of : 31.10.2020
offence
6. Plea of the accused : Pleaded not guilty and claimed trial.
7. Final Judgment : Convicted: u/s 392/394/34 IPC
Acquitted: u/s 411 IPC
8. Date of judgment/order : 22.01.2026
Date of Institution: 30.12.2020
Date of Reserving Judgment: 07.01.2026
Date of Pronouncement of Judgment: 22.01.2026
Digitally
Duration: signed by 5 years 18 days
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Kumar Jain
Kumar Date:
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FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 1 of 23
Argued by: Sh. Kapil Sharma, Ld. APP for the State.
Sh. Shiva Kaushik, Ld. Assistant LADC for accused Shiv
Kumar.
Sh. Mohd. Rafi, Ld. Counsel for accused Nitin.
JUDGMENT
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 31.10.2020 at about 10.45 PM, when complainant was going towards his house and when he reached outside Hanuman Mandir Street, two persons came and one of them locked his neck from behind and pushed him on the ground while the other person took out his mobile phone make Samsung Model Galaxy J-7 of golden color from the right pocket of the complainant. Complainant immediately caught one person whose name was revealed as Shiv Kumar @ Kadwa S/o Sh. Sadhu Ram and the other person was also caught while he was trying to escape and his name was revealed as Nitin S/o Sh. Sunil. As such, it is alleged that both the accused persons committed the offence under Sections 392/411//34 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 330/2020 was registered at Police Station Madhu Vihar, Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer (hereinafter 'IO') conducted investigation and on culmination of the same, chargesheet against both the accused persons for the alleged commission of offences u/s 392/411/34 IPC was filed. Ld. Predecessor of this Court took cognizance of the offences vide order dated 04.01.2021. After taking cognizance of the offence, accused persons were produced/appeared before the Court and they were supplied the copy of documents relied Digitally FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. signed by Page no. 2 of 23 Udbhav Udbhav Kumar Jain Kumar Date:
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3. Since prima facie offence against the accused persons were made out, Ld. Predecessor of this Court vide order dated 30.05.2022 framed charge against both the accused persons namely Shiv Kumar and Nitin for the offence punishable u/s 392/411/34 IPC, to which accused persons pleaded not guilty and claimed trial. Additionally, vide order dated 06.01.2023, charge u/s 394/34 IPC was also framed against the accused persons to which accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
ORAL EVIDENCE PW1 Sh. Rajesh Kumar Pal PW2 ASI Sanjeev Kumar PW3 HC Chhote Lal Yadav PW4 ASI Vijay Kumar PW5 HC Sonu Dhanger DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant.
Ex.PW1/B Site Plan.
Ex.PW1/C Seizure Memo of mobile phone.
Ex.PW1/D Arrest Memo of accused Nitin.
Ex.PW1/E Arrest Memo of accused Shiv
Kumar @ Kadwa.
Ex.P-1 Mobile Phone.
Ex.P-2 to Photographs of the case property.
Ex.P-4
(colly)
Ex.PW3/A Personal search of accused Nitin
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Ex.PW3/B Personal search of accused Shiv
Kumar @ Kadwa.
Ex.PW3/C Disclosure statement of accused
Nitin.
Ex.PW3/D Disclosure statement of accused
Shiv Kumar @ Kadwa.
Ex.PW4/A Tehrir.
Ex.PW4/B Panchnama.
Ex.PW4/C Documents regarding CDR and
(colly) CAF of mobile number.
ADMITTED DOCUMENTS U/S 294 CrPC
Ex. P1 FIR No. 330/2020 PS Madhu Vihar.
Ex. P2 DD No. 0010A, dt. 01.11.2020
Ex. P3 MLC No. 008660, dt. 01.11.2020
Ex. P4 Certificate U/s 65B of Cr.P.C.
5. Rajesh Kumar Pal (PW-1) in his examination-in-chief deposed that he is employed as a driver at Singhla Sweets. On 31.10.2020 at about 10:45 PM, he punched attendance at his office and left for his home. Thereafter, while proceeding towards his house at Chander Vihar, when he reached outside Hanuman Mandir Street, suddenly two persons came there. One person locked his neck from behind and pushed him to the ground, while the other person took out his mobile phone from the right pocket of his trousers. At that time, the witness was carrying a Samsung Galaxy J-7 mobile phone of golden color containing one Jio SIM and one Airtel SIM.
Thereafter, both the persons pushed him onto an iron fencing wire having spikes, due to which he sustained several cut marks on his back. Subsequently, the witness got up and immediately caught hold of one of the assailants and raised alarm. On hearing his hue and cry, two police personnel who were passing by reached the spot and apprehended the other accused who was trying to escape. In the meantime, public persons Digitally signed by FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.
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also gathered at the spot and gave beatings to the accused persons. Thereafter, the Investigating Officer (IO) reached the spot and recorded the statement of the witness, exhibited as Ex. PW-1/A bearing his signature at point A. Meanwhile, the witness came to know the names of the accused persons as Nitin and Shiv Kumar, both of whom were present in court and correctly identified by the witness. Thereafter, the IO got the FIR registered and prepared the site plan at the instance of the witness, exhibited as Ex. PW-1/B bearing his signature at point A. The IO also seized the mobile phone vide seizure memo Ex. PW-1/C bearing the signature of the witness at point A. Both accused persons were arrested in the presence of the witness vide arrest memos Ex. PW-1/D and Ex. PW- 1/E, both bearing his signature at point A. The medical examination of the witness was conducted at LBS Hospital, already Ex. P-3. The witness correctly identified the mobile phone, produced by him, exhibited as Ex. P-1. The three photographs of the case property were also shown to the witness, who correctly identified them as photographs of his robbed mobile phone. The said photographs were exhibited as Ex. P-2 to P-4 (colly).
5.1.On his cross-examination by Ld. Counsels for accused persons, witness deposed that that his duty hours are from 6:00 AM onwards, and sometimes he works till 12 midnight. His duty hours are generally 12 hours, and if required, he works till midnight. He usually commutes on foot between his house and office, which takes approximately 15 minutes. The witness stated that he did not see the face of the accused who locked his neck from behind and therefore cannot say whether it was Nitin or Shiv Kumar; he came to know their names only after their apprehension. He admitted that at the time when the accused pushed him onto the fencing wire, no public persons had gathered at the spot. He stated that he had Digitally signed by FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav Udbhav Page no. 5 of 23 Kumar Jain Kumar Date:
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caught accused Nitin. He further stated that after his neck was locked and he was pushed to the ground, the accused did not beat him, and that he was pushed onto the fencing wire only after his mobile phone was taken. He stated that after taking the mobile phone, the accused lifted him from the ground and pushed him onto the fencing wire before attempting to flee. The witness denied the suggestion that he was deposing falsely or that he has falsely implicated the accused persons.
6. ASI Sanjeev Kumar (PW-2) in his examination-in-chief deposed that on 30.10.2020, he was posted as HC at PS Madhu Vihar. On that day, the witness, along with IO ASI Vijay Kumar, was returning to PS after attending a PCR call. When they reached Hanuman Mandir, they heard some noise. Therefore, the witness, along with IO, went to Gali No. 2, Madhu Vihar, near Hanuman Mandir, and observed that complainant Rajesh Kumar, along with Ct. Chote Lal and Ct. Sonu, had apprehended two persons. Later, it was discovered that the names of the two apprehended individuals were Nitin and Shiv Kumar (both of whom were present in the Court and were correctly identified by the witness). Thereafter, the IO recorded the statement of complainant Rajesh Kumar, exhibited as Ex.PW1/A. The IO also took possession of the mobile phone recovered from the possession of accused Shiv Kumar. The IO then prepared a Tehrir and handed it over to the witness for the registration of the FIR. The witness went to PS for the FIR registration and handed over the Tehrir to the Duty Officer. After the FIR was registered, the Duty Officer handed the witness a copy of the FIR and the original Tehrir. The witness then returned to the spot and handed over the copy of the FIR and the original Tehrir to the IO. The IO included the FIR details on the site plan. Following this, the IO interrogated both accused persons, after which they were arrested. The IO also recorded the statements of both accused.
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The medical examination of both accused was conducted at LBS Hospital, after which the witness and IO returned to the PS. Both accused were placed in Lockup, and the case property was deposited in the Malkhana. The IO then recorded the witness's statement on a laptop. The witness confirmed the ability to identify the mobile phone if shown. Three photographs of the mobile phone, attached to the judicial file, were shown to the witness. After viewing the photographs, the witness correctly identified the mobile phone. The photographs were already exhibited as Ex.P2-Ex.P4.
6.1.On his cross-examination by Ld. Counsels for accused persons, witness could not recall the exact time when they reached the spot. It was confirmed that no PCR call regarding the incident had been received by the IO. The witness stated that there was movement of traffic on the road, and no CCTV cameras were installed at the spot. The witness remained at the spot for about 2.5 to 3 hours. After the incident, the public gathered at the spot, though the street where the incident occurred was not closed. The IO requested 4-5 public persons to join the investigation, but they all refused, citing personal reasons. No written notice could be given to any of them due to time constraints, and the witness could not recall the names of those public persons due to the lapse of time. The IO conducted a cursory search of both accused persons, but the witness could not recall the exact time when this search took place. The phone was recovered from the possession of accused Shiv Kumar. The area where the incident occurred was both residential and commercial. The witness left the spot approximately 3 hours later. On that day, the witness had an Android phone but did not take photographs of the spot. The witness did not remember if the IO had clicked photographs of the spot. It was confirmed that nothing was recovered from the possession of accused Nitin. The Digitally signed by FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav Udbhav Page no. 7 of 23 Kumar Jain Kumar Date:
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witness denied the suggestions that he never joined the investigation of the case, that he never visited the spot, that nothing was recovered from the accused persons, that no such incident had occurred, that all paperwork was done by the IO while sitting at the PS, that the witness was deposing falsely at the instance of the IO to falsely implicate the accused persons in the present case or that the witness was deposing falsely.
7. HC Chhote Lal Yadav (PW-3) in his examination-in-chief deposed that on 30.10.2020, he was posted at PS Madhu Vihar as Ct. On that day, he had beat patrolling duty from 10:00 am to 11:00 pm. Thereafter, at about 10:30 pm, he, along with Ct. Sonu, was patrolling in the area of PS Madhu Vihar, near Hanuman Mandir. They then heard loud noises. They proceeded to Street No. 2, behind the Hanuman Mandir, from where the noise was coming. Upon reaching there, they saw one person lying on the ground, holding another person by the foot, who was standing. Another person, upon seeing them, tried to escape the spot. He chased and caught him. Subsequently, ASI Vijay, along with HC Sanjeev, who were passing by, stopped upon seeing public persons gathered at the spot. They then learned the names of both the accused persons, Nitin and Shiv Kumar, who were present in Court and were correctly identified by the witness. He handed over the custody of both accused persons to ASI Vijay. Complainant Rajesh also stated that his mobile phone was snatched by the accused persons, and the phone was recovered from the possession of accused Shiv Kumar. The IO recorded the statement of the complainant and prepared the rukka, which was then handed over to HC Sanjeev. HC Sanjeev left for PS. The IO prepared the site plan. HC Sanjeev returned to the spot and handed over the copy of the FIR and original rukka to the IO. After the handover of the FIR and original rukka to the IO, the IO mentioned the FIR details on the site plan. The IO then interrogated both Digitally signed by FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.
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the accused persons and arrested them, as per the arrest memos already exhibited as Ex.PW1/D and Ex.PW1/E, both bearing his signature at point B, respectively. The IO also conducted the personal search of the accused persons, as per the memos, exhibited as Ex.PW3/A and Ex.PW3/B, both bearing his signature at point A, respectively. The IO also recorded the disclosure statements, exhibited as Ex.PW3/C and Ex.PW3/D, both bearing his signature at point A, respectively. The IO seized the mobile phone in his presence. The medical examination of the complainant and both accused was conducted at LBS Hospital, and after the medical examination, they all returned to PS. Both the accused were sent to the lockup. The IO gave a copy of the FIR to complainant Rajesh Kumar and recorded his supplementary statement. The IO also recorded his statement on a laptop. When three photographs of the mobile phone attached to the judicial file were shown to the witness, he correctly identified the mobile phone. The photographs were already Ex.P2-Ex.P4.
7.1.On his cross-examination by Ld. Counsels for accused persons, witness deposed that his duty hours were from 08:00 a.m. to 08:00 p.m. During beat duty, additional beat patrolling duty was assigned to him after regular duty hours. The distance between the place where he was standing and the accused, along with the complainant, was about 50-60 meters. There was movement of traffic on the road where he was standing. He reached the spot at about 10:30 p.m. Witness admitted that he did not make a call to 100-number. There were no CCTV cameras installed at the spot. He remained at the spot for about 2 to 2.5 hours. Witness also admitted that after the incident, public persons gathered at the spot. The street where the incident occurred is not closed. The IO requested 4-5 public persons to join the investigation, but all refused to join, citing personal reasons. However, no written notice could be given to any of them due to a lack of Digitally FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. signed by Page no. 9 of 23 Udbhav Udbhav Kumar Jain Kumar Date:
Jain 2026.01.22 16:34:25 +0530 time. He did not remember the names of those public persons due to the lapse of time. A cursory search of both the accused persons was conducted by the IO. He did not remember the exact time when the cursory search of the accused persons was conducted. Approximately 15 minutes later, the IO conducted the search of the accused persons. The phone was recovered from accused Shiv Kumar. After 01.11.2020, he did not participate in the investigation of this case. The area where the incident took place is both residential and commercial. He left the spot approximately after 3 hours. On that day, he had an Android phone with him. He did not click photographs of the spot. He did not remember whether the IO clicked photographs of the spot or not. Witness admitted that nothing was recovered from the possession of accused Nitin. Witness stated voluntarily that accused Nitin had choked the complainant by his neck. Witness admitted that there is no photograph or video showing Nitin choking the complainant. Witness denied the suggestions that he never joined the investigation of this case, that he never visited the spot, that nothing was recovered from the accused persons, that no such incident had occurred, that all the paperwork was done by the IO while sitting at PS, that he was deposing falsely at the instance of the IO in order to falsely implicate the accused persons in the present case or that he was deposing falsely.
8. ASI Vijay Kumar (PW-4) in his examination-in-chief deposed that on 31.10.2020, he was posted at PS Madhu Vihar. On that day, he along with HC Sanjeev, was returning to the PS after attending a PCR call. When they were passing through Gali No. 2, Madhu Vihar, near Hanuman Mandir, he heard a noise from a crowd and went over to investigate. He met the complainant, Rajesh Kumar, who handed over the accused, Nitin and Shiv Kumar, who had been apprehended by the complainant with the help of Ct. Sonu and Ct. Chhotey Lal. He then recorded the statement of Digitally FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav signed Udbhav by Page no. 10 of 23 Kumar Jain Kumar Date:
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the complainant, Rajesh Kumar, as Ex. PW-1/A, bearing his signature at point B. He subsequently prepared the tehrir, exhibited as Ex. PW-4/A bearing his signature at point A, and handed it over to HC Sanjeev for the registration of the FIR. HC Sanjeev went to the PS for FIR registration and returned to the spot after some time with the copy of the FIR and the original tehrir, handing them over to him. He then prepared the site plan at the instance of the complainant. The site plan has already been exhibited as Ex. PW-1/B, bearing his signature at point B. The mobile phone of the complainant was recovered from the accused, Shiv Kumar, and was seized by him vide the seizure memo, already exhibited as Ex. PW-1/C, bearing his signature at point B. ASI then interrogated both the accused separately. Both accused were arrested vide arrest memos, exhibited as Ex. PW-1/D and Ex. PW-1/E, bearing his signature at point C respectively. He also conducted the personal search of the accused as per the personal search memos, already exhibited as Ex. PW-3/A and Ex. PW-3/B, both bearing his signature at point B respectively. He then recorded the disclosure statements of both the accused, exhibited as Ex. PW-3/C and Ex. PW-3/D, bearing his signature at point B respectively. He recorded the statements of witnesses HC Sanjeev, Ct. Sonu, and Ct. Chhotey Lal, as well as a supplementary statement of the complainant, Rajesh Kumar. He arranged for the medical examination of the complainant, Rajesh Kumar. After the medical examination, the accused were sent to the lock-up, and the case property was deposited at the malkhana. He then deposited the case property at the malkhana, and the same was released on Superdari. A panchnama in this regard was prepared, exhibited as Ex. PW-4/B, bearing his signature at point A. He also obtained the CDR and CAF of the mobile number and attached them to the case file. The documents related to this were exhibited as Ex. PW-4/C (colly, running in 5 pages). After Udbhav Kumar Jain FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 11 of 23 Digitally signed by Udbhav Kumar Jain Date: 2026.01.22 16:34:39 +0530 completing the investigation, he filed the charge-sheet before the court. Both accused were present in the Court and were correctly identified by the witness. When three photographs of the mobile phone attached to the judicial file were shown to the witness, he correctly identified the mobile phone. The photographs were already Ex. P2 to P4.
8.1. On his cross-examination by Ld. Counsel for accused Nitin, witness deposed that he did not remember the PCR call number attended on that day and had not attached the PCR call to the charge-sheet. He reached the spot at about 10:50-11:00 PM. He confirmed that, apart from the complainant, there were many public persons present at the spot. He requested public persons to join the investigation, but all refused and left the spot without providing their names and addresses. No written notice could be given to them due to time constraints. He was not carrying a smartphone that day and did not recall whether HC Sanjeev had one. He searched for a CCTV camera but found none at the spot. He remained at the spot for about 3 hours and left around 03:30-04:00 AM on 01.11.2020. He admitted that nothing was recovered from accused Nitin during his personal search. He confirmed there were shops near the spot but did not examine the shopkeepers, as the shops were closed at the time. He denied the suggestion that they never went to the spot, did not arrest the accused from the spot, or did all the paperwork while sitting in the police station. He further denied that they falsely implicated the accused at the instance of the complainant.
8.2. Ld. LAC for accused Shiv Kumar adopted the cross-examination conducted by the Ld. Counsel for accused Nitin. On his further cross- examination by Ld. LAC for accused Shiv Kumar, he deposed that on that day, he had attended the PCR call at Chander Vihar while on their personal Digitally signed by FIR No.330/2020 Udbhav Udbhav State vs. Shiv Kumar @ Kadwa & Anr. Page no. 12 of 23 Kumar Jain Kumar Date:
Jain 2026.01.22 16:34:44 +0530 bike. He handed over the tehrir to HC Sanjeev at about 11:55 PM, and HC Sanjeev went to the PS on his motorcycle. HC Sanjeev returned to the spot with the copy of the FIR and the original tehrir at about 12:40 AM. Witness arrested the accused persons around 02:30 AM. Ct. Sonu and Ct. Chhotey Lal left the spot for the medical examination of the complainant and accused before the witness left. He returned within 20-25 minutes after completing the medical examination. Witness arrested the accused persons in the presence of the complainant, Ct. Sonu, Ct. Chhotey Lal, and HC Sanjeev. Witness called an ERV from the PS to transport the accused persons to the PS but did not remember the ERV registration number or the driver's name. He confirmed that he did not cite the ERV driver as a witness. Witness denied the suggestion that nothing was recovered from the possession of accused Shiv Kumar or that a false recovery was made at the instance of the complainant to falsely implicate the accused. Witness also denied that he never went to the spot or failed to arrest the accused persons, that all the paperwork while sitting in the police station or falsely implicating the accused at the instance of the complainant. When questioned as to why he attached the CDR and the CAF of the mobile phone, he replied that he attached the CDR and CAF of the mobile phone to ascertain to whom the mobile phone belonged, but he did not remember when they received the CDR.
9. HC Sonu Dhanger (PW-5) in his examination-in-chief he deposed that on 31.10.2020, he was posted as Constable at PS Madhu Vihar. On that day, they were on Beat Patrolling Duty along with Ct. Chhote Lal, and their duty hours were from 08:00 am to 12:00 midnight. During the patrolling, at about 10:25 pm to 10:35 pm, they reached near Hanuman Mandir, Madhu Vihar, and heard loud noises. The witness, along with Ct.
Udbhav Kumar Jain FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 13 of 23 Digitally signed by Udbhav Kumar Jain Date: 2026.01.22 16:34:51 +0530 Chhote Lal, went to Gali No. 2, Madhu Vihar, and saw two persons holding one person who had fallen on the ground. Upon seeing them, both the persons attempted to escape from the spot. One of them was apprehended by the complainant, Rajesh Kumar, while the other was overpowered by the witness and Ct. Chhote Lal. This led to a crowd gathering, and in the meanwhile, HC Sanjeev, along with ASI Vijay Kumar, arrived at the spot. The witness and Ct. Chhote Lal handed over the person, Nitin (whose name they learned later), to HC Sanjeev, and the person, Shiv Kumar, apprehended by Rajesh Kumar, was also handed over to HC Sanjeev. Rajesh Kumar also handed over his robbed mobile phone to HC Sanjeev. Afterward, ASI Vijay Kumar recorded the statement of the complainant, Ex.PW1/A, and handed it over to HC Sanjeev for registration of the FIR. ASI Vijay Kumar also prepared a site plan at the instance of the complainant, Rajesh. Meanwhile, HC Sanjeev returned to the spot with the FIR and the original tehrir and handed them over to ASI Vijay Kumar. ASI Vijay Kumar mentioned the FIR number on the site plan. Subsequently, ASI Vijay Kumar seized the mobile phone vide seizure memo, already exhibited as Ex.PW1/C, bearing the witness's signatures at point C. ASI Vijay Kumar then arrested both accused persons vide arrest memos, already exhibited as Ex.PW1/D and Ex.PW1/E, both bearing the witness's signatures at point D, respectively. The personal search of both accused persons was also conducted, and the personal search memos, already exhibited as Ex.PW3/A and Ex.PW3/B, bear the witness's signatures at point C, respectively. The disclosure statements of both accused persons were recorded and exhibited as Ex.PW3/C and Ex.PW3/D. Following this, the medical examination of the complainant and both accused persons was conducted, after which all of them returned to the PS. The accused persons were placed in the lockup, and the case Udbhav Kumar Jain FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 14 of 23 Digitally signed by Udbhav Kumar Jain Date: 2026.01.22 16:34:56 +0530 property was deposited in the Malkhana. The investigating officer (IO) also recorded the supplementary statement of the complainant and the witness's statement in this regard. Both the accused persons present in court were correctly identified by the witness. When three photographs of a mobile phone, attached to the judicial file, were shown to the witness, he correctly identified the case property in the photographs. The photographs were already exhibited as Ex.P2 to P4.
9.1. In his cross-examination by Ld. Counsel for accused Nitin, he clarified that, during the patrolling, they were on a bike, but he did not remember the bike's number. They were at a distance of 40-50 meters from the spot, where some vehicles were present on the street. The incident occurred around 11:00 pm in a commercial as well as residential area. The witness did not know whether any CCTV cameras were installed at the location. They remained at the spot for about three to three and a half hours, and it was dimly lit due to darkness. The case property was recovered from Shiv Kumar, and no recovery was made from accused Nitin. The IO had requested four or five public persons to join the investigation, but all refused, citing personal reasons, and left the spot without providing their names or addresses. Due to time constraints, no notices could be issued to them. No videography or photography of the spot was conducted in the witness's presence. The witness denied the suggestion that accused Nitin was not holding the complainant, Rajesh. Furthermore, he clarified that he never revisited the spot in connection with the case and denied the suggestion that he did not join the investigation. He denied the suggestions that no such incident occurred in his presence, that no site plan was prepared in his presence, or that the accused persons were not arrested in his presence, that all the paperwork was done by the IO while sitting at the PS, or that he falsely implicated the accused persons at the instance of the Digitally FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. signed by Page no. 15 of 23 Udbhav Udbhav Kumar Jain Kumar Date:
Jain 2026.01.22 16:35:00 +0530 complainant, that he was deposing falsely as a police witness at the instance of the IO.
9.2. Ld. LAC for accused Shiv Kumar adopted the cross-examination conducted on behalf of accused Nitin. On his further cross-examination by Ld. LAC for accused Shiv Kumar @ Kadwa, he confirmed that on that day, they were patrolling the Madhu Vihar Market area. The witness confirmed that the mobile phone was recovered from the accused Shiv Kumar in his presence, from the pocket of accused Shiv Kumar. The witness denied the suggestion that the mobile phone was not recovered from the possession of accused Shiv Kumar or that the complainant handed over the mobile phone to them.
10. Thereafter, prosecution evidence was closed on 12.09.2025.
STATEMENT AND DEFENCE OF ACCUSED
11. On 13.12.2025, whatever incriminating evidence were available on record and brought forth by the prosecution, were put to the accused persons and statements of accused persons u/s 313 CrPC were recorded whereby accused persons chose not to lead evidence in his defence.
ARGUMENTS
12. Ld. APP for the State submitted that the guilt of the accused persons is duly proved and there is no contradiction or material discrepancy in the case of the prosecution rather the presence of the accused persons on the spot is also admitted. Further, in their statements u/s 313 CrPC they have tried to put blame on each other but that does not prove the innocence of accused persons rather the case of prosecution is duly proved.
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13. Ld. LADC for the accused Shiv Kumar submitted that the case of the prosecution is not proved beyond reasonable doubt as there are material contradictions in the statement of witnesses. It is not clear from the testimonies of all the witnesses as to which accused was allegedly apprehended bythe complainant and which accused by the police officials. There are different versions in this regard. No injury was caused by the accused and hence, at the most an offence of theft is made out in the present case. Even the recovery is also not proper and not duly proved.
14. Ld. Counsel for accused Nitin submitted that the guilt of accused persons is not proved beyond reasonable doubt. Further, accused in his statement u/s 313 CrPC has told that it was the accused Shiv Kumar who committed the alleged offence and accused Nitin has not committed any offence.
15. I have heard the Ld. APP for the State and Ld. Counsel/LADC for the accused persons. I have also given my thoughtful consideration to the material available on record.
POINT OF DETERMINATION
16. After going through the record and considering the material available on record, the only point of determination left is whether the prosecution has been able to prove beyond reasonable doubt that the accused committed offences punishable under sections 392/411/394/411 IPC.
LAW AND LEGAL PRINCIPLES INVOLVED
17. Section 392 IPC prescribes punishment for robbery while Section 390 IPC defines robbery. Section 394 IPC prescribes punishment for aggravated Digitally form of robbery. Relevant provisions are as following: signed by Udbhav Udbhav Kumar Jain Kumar Date:
390. Robbery.--In all robbery there is either theft or extortion. Jain 2026.01.22 16:35:11 +0530 FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 17 of 23 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.
xxx Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
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 imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Thus, 'robbery', with respect to the present case, is 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.
18. Section 411 of the IPC provides that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property. It means mere possession of stolen property is not and cannot be an offence. In order to be an offence, it must be received or retained dishonestly, and with the knowledge, or sufficient cause for belief that it was stolen property. To be liable under Section 411 of the IPC, it must be proved that the accused either dishonestly received the property Digitally signed by FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav Udbhav Page no. 18 of 23 Kumar Jain Kumar Date:
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or having received honestly, dishonestly retained it. In both the cases the accused must receive it from another. The mere recovery of stolen property certainly is not enough for conviction under section 411 of the IPC.
19. The general burden of proof, which is a non-shifting burden, on the prosecution is to prove the guilt of accused beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that point only towards the guilt of accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE AND REASONS FOR
DECISION OF THE CASE
Offence u/s 392/394/34 IPC
20. From the written statement of the complainant Ex. PW1/A to FIR and the testimony of PW-1, the version of complainant has remained unimpeachable that when he was returning to his home, two persons came from behind and one of them locked/choked his neck while the other removed mobile phone from his pocket. Both the accused persons pushed the complainant towards an iron fencing thereby causing injuries to the complainant. While one of the accused Nitin (as per cross-examination of PW-1) was caught by the complainant, the other accused Shiv Kumar, from whom the phone of the complainant was also recovered, was caught by police officials while escaping. It is also evident that both the accused persons were acting in furtherance of their common intention to commit robbery. The MLC of the complainant Ex.P3 was also admitted by virtue of section 294 CrPC. In the absence of any evidence to the contrary, it is also proved that complainant suffered injuries of simple nature.
Digitally FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav signed Udbhav by Page no. 19 of 23 Kumar Jain Kumar Date:
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21. The complainant was duly cross-examined by the Ld. Counsels for the accused persons; however, no such fact or material contradiction or material discrepancy has surfaced in the cross-examination of the complainant which could falsify the contents of the examination-in-chief of the complainant. Complainant as PW-1 has also correctly identified the accused persons. Hence, the testimony of PW-1 is cogent and reliable.
22. Nothing has come in the cross-examination of PW-1 which contradicts the presence of the complainant as well as the accused persons on the spot. The presence of the accused persons on the spot is further confirmed by the testimony of PW-2, PW-3, PW-4 and PW-5.
23. PW-3 and PW-5 were on patrolling duty and they caught one of the accused when he was trying to escape. In fact both these witnesses also saw that two person were holding one person who was on ground and when both of them saw PW-3 and PW-5, both the accused tried to run away from the spot but they were caught on the spot. Both these witnesses also correctly identified the person who were caught on the spot.
24. The Hon'ble Apex Court in Edmund S. Lyngdoh v. State of Meghalaya, (2016 (15) SCC 572), while appreciating the evidentiary value of the statement of the accused under section 313 CrPC held that:
"21. Where the accused gives evasive answers in his cross-examination under Section 313 Cr.P.C., an adverse inference can be drawn against him. But such inference cannot be a substitute for the evidence which the prosecution must adduce to bring home the offence of the accused. The statement under Section 313 Cr.P.C. is not evidence. In Balwant vs. State of U.P. (2008) 9 SCC 974, this Court held that conviction of the accused cannot be based merely on his statement recorded under Section 313 Cr.P.C. which cannot be regarded as evidence. It is only the stand or version of the accused by way of explanation explaining the incriminating evidence/circumstances appearing against him. The statement made in defence by the accused under Section 313 Digitally signed by Udbhav FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr.Udbhav Kumar Jain Page no. 20 of 23 Kumar Date:
Jain 2026.01.22 16:35:30 +0530 Cr.P.C. can certainly be taken aid of to lend credence to other evidence led by the prosecution. Statements made under Section 313 Cr.P.C. must be considered not in isolation but in conjunction with the other prosecution evidence."
25. Now in the present case, the answers given by the accused persons to the questions pertaining to incriminating evidence led by the prosecution against them, instead of aiding the accused persons further strengthens the case of the prosecution as accused persons have clearly admitted their presence on the spot. They have only tried to put the blame on each other, but this instead fortifies the case of prosecution. Neither any substantive defence was taken by the accused persons during the whole trial, nor any questions or suggestions were put to PW-1 (complainant) or any other witness supporting the version of accused persons.
26. In C. Muniappan v. State of Tamil Nadu (supra), 2010 (9) SCC567 the Hon'ble Supreme Court of India observed that:
"71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the Court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."
27. Thus, neither there is any material inconsistency or contradiction in the testimony of the witnesses nor anything has come on record which creates doubt on the version of the complainant and the prosecution thereto. With the testimony of the witnesses and answers given by the accused persons in statement u/s 313 CrPC, prosecution has successfully proved that the accused persons committed offences punishable under sections Digitally signed by FIR No.330/2020 Udbhav Udbhav State vs. Shiv Kumar @ Kadwa & Anr. Page no. 21 of 23 Kumar Jain Kumar Date:
Jain 2026.01.22 16:35:36 +0530 392/394/34 IPC and the guilt of the accused persons is proved beyond reasonable doubt.
Offence u/s 411 IPC
28. As regards Section 411 IPC, the section does not apply to the actual thief/robber. The offence (from Section 411 to 414 IPC) is not directed against the principal offender but against the class of persons who trade in stolen articles and are receivers of the stolen property. The principal offender is therefore outside the scope of this section. Reliance here is placed upon judgment passed by the Hon'ble High Court of Delhi in Sunil Mashi@ Silly vs State NCT of Delhi (14.10.2014-DELHC):
MANU/DE/3768/2014.
CONCLUSION
29. In view of the above discussion, this Court is satisfied that the ingredients of the offence punishable under sections 392/394/34 IPC are duly proved against the accused persons and prosecution has proved the guilt of the accused persons beyond reasonable doubt. Accordingly, accused Shiv Kumar @ Kadwa and Nitin are hereby convicted of offences under sections 392/394/34 IPC.
30. As regards offence under section 411 IPC, no offence is made out against the accused persons as they have been proved to be the persons who committed robbery by the prosecution. Accordingly, accused Shiv Kumar @ Kadwa and Nitin stands acquitted of the offence under section 411 IPC.
Digitally signed by Udbhav Udbhav Kumar Jain Kumar Date:
Jain 2026.01.22 16:35:41 +0530 FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 22 of 23 Let copy of the judgment be given to the convicts free of cost.
Convicts be now heard on quantum of sentence.
A copy of this judgment be uploaded on the official website of the District Court.
Announced in open court today i.e., 22.01.2026.Digitally signed
Udbhav by Udbhav
Kumar Jain
Kumar Date:
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(UDBHAV KUMAR JAIN)
JMFC-04:SHD:KKD
This judgment contains 23 pages all signed by the presiding officer.
FIR No.330/2020 State vs. Shiv Kumar @ Kadwa & Anr. Page no. 23 of 23