Delhi District Court
State vs Javed on 18 March, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 328/2016
PS.: Kashmere Gate
U/s.: 392/397/411/34 IPC
State Vs. Javed & Ors.
(a) SC Case No. 29047/2016
(b) CNR No. DLCT01-016371-2016
(c) Date of commission 10.09.2016 at around 05:15 p.m.
of offence
(d) Name of the Sh. Jang Bahadur, S/o. Sh. Ramtej,
complainant R/o. Bahubara Agai, Distt.
Sultanpur, Uttar Pradesh.
(e) Name of the accused i) Javed, S/o. Mr. Ibrahim, R/o.
person(s), parentage Kacheri Colony, Kasim Vihar,
and residence PS. Loni, Ghaziabad, Uttar
Pradesh; Permanent address:
Village Ajijabad, PS.
Aurangabad, Distt.
Bulandshahar, Uttar Pradesh;
ii) Ahshan @ Ilyas, S/o. Mohd.
Ikramuddin, R/o. Bari Masjid,
Chaman Vihar, PS. Tronica City,
Loni, Ghaziabad, Uttar Pradesh;
Permanent address: Village
Khetta Dala, PP. Tatiri, PS.
Kotwali, Distt. Bagpat, Uttar
Pradesh; Also at: Khasra No.
E-47, Sarla Vihar, Loni,
Ghaziabad, Uttar Pradesh;
iii) Wasim @ Chhote, S/o. Mr.
Rashid Ahmad, R/o. H.No. T-25,
Gali No. 1, Kailash Nagar,
Chander Puri, PS. Gandhi Nagar,
Delhi;
iv) Akram, S/o. Mr. Mohd. Umar,
R/o. J-Block, PS. Seelampur,
Delhi-110053; Permanent
address: Vill. Ajijabad, PS.
SC No. 29047/2016 State v. Javed & Ors. Page 1 of 66
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.03.18
14:34:16 +0530
Aurangabad, Dist. Bulandshahar,
Uttar Pradesh.
(f) Plea of the accused Not guilty
person(s)
(g) Final Order All the accused persons have been
acquitted of charges levelled against
them
(h) Date of institution of 21.11.2016
case
(i) Date when judgment 28.01.2025
was reserved
(j) Date when judgment 18.03.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on 10.09.2016, HC Rajkumar Singh No. 1187/N along with Ct. Ajay No. 2833/N, were on area patrolling duty. At around 05:00-05:15 p.m., when the said police officials are asserted to have reached in front of Church at Lothiyan Road ( hereinafter referred to as the 'spot'), voice of bachao-bachao was heard by the said police officials from an autorickshaw ('करीब 5-5:15 बजे शाम लोथियान रोड पर चर्च के सामने पहुंचा तो एक आटो से बचाओ-बचाओ की आवाज आयी'). Upon this HC Rajkumar and Ct. Ajay are asserted to have rushed towards the said auto and stopped it, while surrounding the same, which was slowly proceeding towards GPO ('जिस पर HC Rajkumar Singh मय Const Ajay No. 2833/N ने दौड़कर आटो को दोनो तरफ से घेरकर रूकवाया जो जाम में धीरे -धीरे आटो G.P.O की तरफ बढ़ रहा था').
Subsequently, the police officials are avowed to have apprehended all the accused persons, sitting inside the said auto as well as the autorickshaw in question bearing registration no. DL-1RL-2755, with the assistance of the complainant, namely, Jung Bahadur (hereinafter referred to as the 'complainant'). Correspondingly, it is proclaimed under the chargesheet that from the possession of SC No. 29047/2016 State v. Javed & Ors. Page 2 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:34:22 +0530 accused, Javed, S/o. Ibrahim, the robbed bag of the complainant was got recovered/recovered. Thereupon, all the accused persons along with the complainant as well as the police officials are stated to have returned to the police station in the said autorickshaw ('जिस पर आटो में बैठे सभी लड़को को हमराही सिपाही व शिकायतकर्ता की मदद से आटो न० DL-1RL-2755 सहित काबू किया तथा शिकायतकर्ता का लूटा गया बैग मुल्जिम Javed S/o Ibrahim R/o Kachi colony Kasim Vihar Loni Gyz (UP) से बरामद किया और सभी को आटो में बैठाकर हाजिर थाना आया' ). Thereupon, statement/complaint of the complainant was recorded by HC Rajkumar.
2. Markedly, under his complaint, the complainant is asserted to have inter alia declared that on the said day, i.e., on 10.09.2016, he had reached ISBT, Delhi from Panipat, Haryana and was waiting at Lothiyan Road, underneath Kashmere Gate Metro flyover, for a vehicle/transport mode to reach old Delhi Railway Station ('आज दिनांक 10/9/16 को में पानीपत (HR) से बस से ISBT Delhi आया था और अपने गाँव जाने के लिए बस अड्डे के बाहर K. Gate Metro flyover के नीचे लोथियन रोड पर पुरानी दिल्ली रे लवे स्टे शन जाने के लिए सवारी की इन्तजार करने लगा'). Successively, at around 05:00 p.m., on autorickshaw is proclaimed to have reached at the said place/spot, in which, one person is avowed to be already seated on the rear seat, while one person was stated to be present on the driver seat and another person is asserted to be waiting near the said auto, calling for passengers ('थोडी देर बाद एक आटो समय करीब 5 बजे शाम आकर रुका जिसमें एक लडका पिछले सीट पर पहले से ही बैठा था तथा एक लडका चालक की सीट पर बैठा था और एक लडका आटो की बराबर में खडा होकर सवारी को आवाज दे रहा था'). Thereupon, the person who was calling for passengers is proclaimed to have asked the complainant as to whether he desired to go to old Delhi Railway Station and when the complainant enquired about the fare of the said trip, the said person asked him SC No. 29047/2016 State v. Javed & Ors. Page 3 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:34:27 +0530 to hastily sit in the auto, lest they would have to face traffic jam ('जो आवाज लगाने वाले लडके ने मुझसे पुछा कि पुरानी दिल्ली रे लवे स्टे शन जाना है क्या मैने कहा जाना है कितना पैसा लोगे जो कहने लगा कि जल्दी बैठो जाम लग जायेगा'). Concomitantly, the complaint records that the complainant was forcefully pushed inside the said auto along with his baggage and after travelling some distance, one more person clamoured and sat inside the auto, on its rear seat (' मुझे जबरदस्ती खीचकर आटो में सामान सहित बैठा लिया थोडी दूर चलने के बाद एक लडका ओर आटो में पीछे आकर बैठा'). The said person is further proclaimed to have brandished chaku/knife at the complainant, frisked him as well as forcefully robbed him/the complainant of his bag, comprising of his clothes and some documents (' मुझे चाकू दिखाकर मेरी जेबो की तलाशी लेने लगे और जबरदस्ती मेरे बैग को मुझसे लूट लिया जिसमें मेरे पहनने के कु छ कपडे व कागजात है '). It is further declared under the complaint that the complainant noted some police officials ahead of the auto, whereupon, he/the complainant raised an alarm of bachao-bachao ('तभी मैने सामने पुलिस वालो को देखकर बचाओ बचाओ करके मदद की आवाज लगाई'). Consequently, the said police officials are asserted to have reached the auto in question, surrounded it from side and it was subsequently, determined that the registration no. of the said auto was; DL-1RL-2755, besides the names of all the four persons in the said autorickshaw were determined to be; Akram, Ahashan @ Ilyas, Javed, and Wasim @ Chhote (hereinafter all the said accused persons are collectively referred to as the 'accused persons').
REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, under the aforenoted facts and circumstances as well as on the basis of the complainant's complaint, the concerned police official/HC Rajkumar prepared tehrir and got the instant FIR registered under Sections 392/411/34 SC No. 29047/2016 State v. Javed & Ors. Page 4 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:34:33 +0530 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Thereupon, the investigation was marked by the SHO of PS Kashmere Gate to the concerned SI. Notably, during the course of investigation, the autorickshaw bearing registration no. DL-1RL-2755 as well as the black colour robbed bag was seized. Correspondingly, accused Mohd. Ahshan @ Ilyas is asserted to have produced the weapon/chaku/knife, deployed at the time of commission of offence, which was found to be 31.5 cm long (21 cm long sharp side, while handle of 10.5 cm) and 6 cm width, which was seized by the concerned police official (' चाकू तैयार किया जो चाकू की पैमाइस करने पर चाकू की कु ल लम्बाई 31.5cm, फल की लम्बाई 21cm, फल की अधिकतम चौड़ाई 6cm तथा हत्थे की लम्बाई 10.5cm हु ई। फल लोहे का तथा हत्था एल्युमिनियम नुमा धातू का बना था। फल पर हत्था joint था व हत्थे पर एक तरफ तीन गड्ढे थे तथा एक छे द था। दुसरी तरफ एक गड्डा था। जो हत्था फल मुड़ता नही था। जो बरामदा चाकू को मन SI ने एक सफे द कपड़े में लपेटकर पुलिन्दा तैयार किया तथा RK की मोहर से सर्वमोहर किया तथा seal बाद इस्तेमाल हवाले HC Rajkumar Singh की गई तथा पुलिन्दा चाकू को बरुये फर्द बतौर वजह सबूत कब्जा पुलिस मे लिया।'). Further, from the search of accused Mohd. Akram, the concerned police official(s) is asserted to have recovered; (i) heavy magnet; (ii) 08 (eight) keys; (iii) 4 (four) edged metallic sharp object; (iv) 3 (three) surgical blades, which were seized post preparation of pullanda.
4. Concurrently, the accused persons are stated to have been formally arrested as well as statement/supplementary statement of the complainant was recorded wherein the complainant is asserted to have declared that the driver of the autorickshaw at the relevant point in time was, accused, namely, Wasim @ Chhote; person calling the passengers was accused, namely, Akram; person, who boarded the said vehicle after a distance of around 100 mts. was accused, namely, Ahshan @ Ilyas SC No. 29047/2016 State v. Javed & Ors. Page 5 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:34:39 +0530 and the person, who was already sitting in the auto at the rear seat was accused, Javed. Further, as per the complainant, accused, Ahshan @ Ilyas had brandished the weapon at him, while Akram and Javed forcefully pushed him in the auto as well as frisked him, while forcefully robbing him of his bag ('शिकायतकर्ता जंग बहादुर ने दरयाफ्त पर ब्यान किया कि वारदात के समय TSR/Three Seater Rickshaw को चालक वसिम @ छोटे S/o. राशिद अहमद चला रहा था, व सवारी बिठाने के लिए अकरम आवाज लगा रहा था। जो TSR मे बैठने के बाद करीब 100 मीटर आगे जाकर एहशान @ इलयाश S/o. इकरामुदिन ने उसे चाकू दिखाया था व TSR में पहले से बैठे जावेद ने उसे अन्दर खिच लिया तथा अकरम व जावेद ने उसकी जैबो कि तलाशी लेनी शुरु कर दी तथा उसका बैग जबरदस्ती उन लोगो ने लूट लिया था।'). The chargesheet further records that the robbed bag of Reebok company was recovered from the possession of accused, Javed, which was found containing the complainant's clothes and documents. The police officials besides preparing seizure memo of the recovered articles are also stated to have issued notice under Section 133 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'MV Act') to its owner, namely, Naveen, whereupon the said owner responded that on the said date/date of incident, the said vehicle was being driven by accused Wasim @ Chhote ("दिनांक 10/9/16 को शाम के समय आटो No. DL1RL2755 को Wasim @ Chhote S/o Rashid R/o T-25, Gali No. 1, Kailash Nagar, Chanderpuri, Delhi चला रहा था"). Markedly, in the course of investigation, the concerned police official/SI is asserted to have added Section 397 IPC in the instant case, besides the proceedings by means of kalandra under Section 3/181 MV Act was initiated against accused, Wasim @ Chhote for driving the vehicle in question without license and kalandra under Section 5/180 MV Act was correspondingly, got registered against the owner of the said autorickshaw ('जो मुलजिम Wasim @ Chhote जो कि मुकदमा हजा SC No. 29047/2016 State v. Javed & Ors. Page 6 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:34:45 +0530 की वारदात के समय, मुकदमा हजा की वारदात मे इस्तेमाल किये गये TSR को चला रहा था तथा without licence TSR को चला रहा था लिहाजा मुलजिम Wasim @ Chhote के खिलाफ कलन्दरा u/s 3/181 M.V. Act तथा TSR मालिक के खिलाफ कलन्दरा u/s 5/180 M.V. Act का अगल से तैयार किया।'). FILING OF CHARGESHEET AND COMMITTAL:
5. Markedly, upon conclusion of investigation in the instant case, chargesheet was filed by the concerned IO before Ld. MM-03, Central, Tis Hazari Courts under Sections 392/397/411/34 IPC. Subsequently, on 09.11.2016, cognizance of offence(s) the said provisions/Sections 392, 397, 411, 34 IPC, was taken by the Ld. MM-03, Central, Tis Hazari Courts. Correspondingly, upon conclusion/compliance of the provisions under Section 207 Cr.P.C., Ld. MM-03 (Central), Tis Hazari Courts vide order dated 17.11.2016, passed an order of committal of the present case before the Ld. Predecessor Judge, routed via Ld. District & Sessions Judge (Head Quarter), Tis Hazari Courts. CHARGE FRAMING:
6. Relevantly, upon receipt of the file on committal, the Ld. Predecessor Judge heard the arguments addressed on behalf of the accused persons as well as by Ld. Addl. PP for the State and upon conclusion of the same, charge(s) under Sections 392/34 IPC were framed against accused persons, namely, Javed, Wasim @ Chhote, Akram and Ahshan @ Ilyas; charges under Sections 392/397 IPC were (additionally) framed against accused, namely, Ahshan @ Ilyas; and charge(s) under Section 411 IPC was/were (additionally) framed against accused, namely, Javed vide order dated 19.05.2018. Notably, the relevant extracts of the said order of charge is reproduced as under;
"...Arguments are heard.
The version of the prosecution is that on 10.09.2016 at about 5:15 p.m., in front of Church, SC No. 29047/2016 State v. Javed & Ors. Page 7 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:34:50 +0530 Lothiyan Road towards GPO, accused persons namely Javed, Wasim @ Chhote and Akram along with co-accused Ahshan @ Ilyas in furtherance of their common intention committed robbery on complainant Jang Bahadur and robbed him of his bag. It is further urged that on above said date, time and place, accused Ahshan @ Ilyas not only aided in commission of the aforesaid robbery in furtherance of his common intention, but also used a knife which is a deadly weapon in commission of the said robbery. It is further urged that on above said date, time and place, accused Javed dishonestly received or retained the bag of complainant, knowing or having reason to believe the same to be robbed/stolen from complainant Jang Bahadur.
The offences under Motor Vehicles Act are not being made part of the charge since, as per Ld. Addl. Public Prosecutor, for the said offences, the police has filed separate kalandra before the competent Magistrate.
It is well settled that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to find out whether the facts emerging therefrom taken on their face value disclose the existence of the ingredients constituting the alleged offence. The court is not supposed to meticulously examine and assess in detail the material placed on record by the prosecution to assess whether there is sufficient ground for conviction of the accused. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame charge. Reference is made to the judgments of Hon'ble Supreme Court titled as Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja AIR 1980 SC 52, State of Delhi Vs. Gyan Devi AIR 2001 SC 40, State of Bihar Vs. Ramesh Singh AIR 1977 SC 2018 and Soma Chakravarty Vs. State AIR 2007 SC 2149.
The material on record discloses that a prima facie case for the offence under Section 392 read with Section 34 of IPC is made out against accused persons namely Javed, Wasim @ Chhote and Akram whereas offence under Section 392 read with Section 34 of IPC and Section 397 of IPC is made out against accused Ahshan @ Ilyas and offence under Section 411 of IPC is made out against accused Javed. Charges ought to be framed against the accused persons for the said offences.
Charges are framed against accused persons namely Javed, Wasim @ Chhote, Akram and Ahshan SC No. 29047/2016 State v. Javed & Ors. Page 8 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:34:58 +0530 @ Ilyas separately. Charges are read over and explained to accused persons. Accused persons plead not guilty and claim trial.
Put up for PE on 16.10.2018..."
(Emphasis supplied)
7. Further, it is apposite to reproduce the charges, as framed by the Ld. Predecessor Judge, against the accused persons, pursuant to the aforesaid order, as under;
"...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you 1. Javed S/o Mohd. Ibrahim, 2. Wasim @ Chhote S/o Rashid Ahmed and
3. Akram S/o Mohd. Umar as under:
That on 10.09.2016 at about 5:15 p.m., in front of Church, Lothiyan Road towards GPO, within the jurisdiction of PS Kashmere Gate, you all along with your co-accused Ahshan @ Ilyas in furtherance of your common intention committed robbery on complainant Jang Bahadur and robbed him of his bag and thereby all of you committed an offence punishable under Section 392 read with Section 34 of IPC and within my cognizance.
And, I hereby direct that you all be tried by this Court for the aforesaid offence...
*** *** *** "...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you Ahshan @ Ilyas S/o Mohd. IKrammudin as under:
That on 10.09.2016 at about 5:15 p.m., in front of Church, Lothiyan Road towards GPO, within the jurisdiction of PS Kashmere Gate, you along with your co-accused persons namely Javed, Wasim @ Chhote and Akram in furtherance of your common intention committed robbery on complainant Jang Bahadur and robbed his bag and while committing above said robbery you used a knife i.e. a deadly weapon and thereby you committed an offence punishable under Section 392 read with Section 34 of IPC and Section 397 of IPC within my cognizance. And, I hereby direct that you be tried by this Court for the aforesaid..."
*** *** *** "...I, ***, Addl. Sessions Judge-III [Central], Delhi do hereby charge you Javed S/o Mohd. Ibrahim as under:
That on 10.09.2016, after committing robbery on complainant Jang Bahadur, in front of Church, SC No. 29047/2016 State v. Javed & Ors. Page 9 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:02 +0530 Lothiyan Road towards GPO, within the jurisdiction of PS Kashmere Gate, you dishonestly received or retained the bag of complainant, knowing or having reason to believe the same to be robbed/stolen from complainant Jang Bahadur and thus you committed an offence punishable under Section 411 of IPC and within my cognizance.
And, I hereby direct that you be tried by this Court for the aforesaid offence..."
(Emphasis supplied) PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings, prosecution examined 7 (seven) witnesses/prosecution witnesses, who deposed in their respective testimonies as under; 8.1. PW-1/Ct. Ajay deposed that on 10.09.2016, he/PW-1 was posted as Constable at PS Kashmiri Gate and that on the said day, at around 05:15 p.m., he/PW-1 along with HC Raj Kumar reached Church, Lothian Road. Further, as per PW-1, he/PW-1 heard alarm of 'bachao bachao', whereupon he/PW-1 along with the said Head Constable reached the TSR. PW-1 further proclaimed that four persons were snatching something from one person. Thereupon, as per PW-1, they (PW-1 and HC) apprehended all the said four persons and brought them to police station. Correspondingly, as per PW-1, the person, who was being robbed also reached the police station and the formal search of all said four persons were carried out. As per PW-1, from the possession of Javed, one black coloured bag of the complainant was recovered; from accused, namely, Ahsaan, as per PW-1, one knife was recovered; from the possession of accused, Akram, a bunch of keys, a heavy magnet and three blades including one surgical blade were recovered. PW-1 further deposed that all the said articles were seized by the IO vide seizure memos; Ex. PW1/A, Ex. PW1/B and Ex. PW1/C, all bearing PW-1's SC No. 29047/2016 State v. Javed & Ors. Page 10 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:35:07 +0530 signatures at point A. Correspondingly, PW-1 proved the sketch of knife as Ex. PW1/D, bearing PW-1's signatures at point A. It was further avowed by PW-1, that HC Raj Kumar recorded the statement of complainant and prepared tehrir and FIR was got registered. Further, as per PW-1, medical examination of accused persons was also got conducted. PW-1 further proved the arrest memos of accused persons, namely, Javed, Ahsaan, Akram and Wasim as Ex. PW1/E, Ex. PW1/F, Ex. PW1/G and Ex. PW1/H, respectively, as well as their respective personal search memos as Ex. PW1/I, Ex. PW1/J, Ex. PW1/K and Ex. PW1/L, all bearing PW-1's signatures at point A. Further, as per PW-1, accused persons gave their disclosure statements, as Ex. PW1/M, Ex. PW1/N, Ex. PW1/O and Ex. PW1/P, bearing PW-1's signatures at point A. PW-1 further asserted that the TSR was also seized vide seizure memo Ex. PW-1/L, bearing PW-1's signatures at point A. PW-1 further correctly identified all the accused persons in Court. Notably, upon the MHC(M)'s producing the case property, PW-1 identified the black coloured bag of Reebok label, as Ex. P-1, asserted to have been recovered from accused Javed. Further, PW-1 also identified the knife, as recovered from accused Ahsaan, as Ex. P-2; and one heavy magnet, bunch of keys, two shaving blades and one surgical blade, stated to have been recovered from accused Akram, as Ex. P-3.
8.2. PW-2/W/Ct. Meenakshi deposed that on 10.09.2016, she/PW-2 was posted as Sub-Inspector at PS. Kashmere Gate and was working as Duty Officer from 04:00 p.m. to 12:00 midnight. Further, as per PW-2, at about 07:15 p.m., on receipt of a rukka from HC Raj Kumar, she/PW-2 got recorded FIR No. 328/2016/instant FIR. PW-2 further produced the original FIR register, copy of which FIR is Ex. PW2/A (OSR), bearing PW-2's SC No. 29047/2016 State v. Javed & Ors. Page 11 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:12 +0530 signatures at point A. PW-2 further deposed that she made an endorsement Ex. PW2/B, bearing her/PW-2's signatures at point A on rukka. Further, as per PW-2, the FIR was typed by CIPA Operator on the computer installed in the police station on her/PW-2's dictation and that she/PW-2 had issued a Certificate under Section 65B of Indian Evidence Act, 1872 ( hereinafter referred to as the 'Evidence Act') in respect of registration of FIR as Ex. PW2/C, bearing PW-2's signatures at point A. As per PW-2, after registration of FIR, copy of FIR and original rukka were handed over to Ct. Ajay for being delivered to IO SI Ravikant for investigation.
8.3. PW-3/Sh. Naveen S/o. Hira Lal deposed that he was the registered owner of TSR bearing registration No. DL-1RL-2755 and that since he/PW-3 was specially abled, he used to give the said TSR on rent. Further, though, PW-3 could not recollect the date, month and year, however, it was around five years prior to his deposition, when he/PW-3 had given the TSR to one Waseem @ Chhotu on rent. PW-3 further deposed that, he could not correctly remember the date, however, pursuant to a notice given by the IO, he/PW-3 had produced the original RC of said TSR to IO/SI Ravikant. PW-3 further identified his signatures at point A on the said RC. Seizure memo of RC is Ex. PW3/A and the original RC is Ex. PW3/B. PW-3 further deposed that on enquiry, he/PW-3 had told SI Ravikant that in the evening of 10.09.2016, his/PW-3's said TSR was being driven by Waseem @ Chhote. PW-3, on further being shown the notice under Section 133 MV Act (Ex. PW3/C), identified his signature at point A on the said notice. PW-3 further affirmed that he got the said TSR released on superdari from the Court of Ld. Metropolitan Magistrate/Ld. MM vide order dated 28.09.2016. PW-3 further SC No. 29047/2016 State v. Javed & Ors. Page 12 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:17 +0530 identified his signatures at point A on the original superdarinama (Ex. PW3/D), panchnama (Ex. PW3/E) and photocopies of documents pertaining to TSR bearing registration No. DL-1RL-2755 (Mark PW3/1, PW-3 identified his signature at points A on 7 pages). PW-3 further identified three photographs of TSR bearing registration No. DL-1RL-2755, produced by the MHC(M) in Court, as Ex. PW3/F(Colly.), bearing PW-3's signatures, overleaf the said photographs. 8.4. PW-4/SI Raghunath Prasad deposed that on 10.09.2016, he/PW-4 was posted as MHC(M) in the PS Kashmere Gate. Further, as per PW-4, on the said day, SI Ravi Kant deposited the following articles in malkhana vide entry at Sl. No. 2647 in Reg. No. 19; "(1) One parcel sealed with the seal having impression 'RK' containing knife; (2) One parcel sealed with the seal having impression 'RK'; (3) One plastic box sealed with the seal having impression 'RK', containing one heavy magnet, 8 keys, 4 edged metallic shaped object and 3 blades including surgical blade; (4) One TSR bearing registration No. DL-1RL-2755; (5) One plastic bag sealed with the seal having impression 'RK', containing one black colour bag containing clothes and other articles; and (6) Personal search articles of the accused persons, namely, Ahsan and Akram." PW-4 further produced the original Reg. No. 19, containing entry at Sr. No. 2647, copy of relevant page of Reg. No. 19 containing Sr. No. 2647 is Ex. PW4/A (OSR). PW-4 further deposed that till the aforesaid exhibits remained with him/PW-4 in the malkhana, the seals of the aforesaid exhibits remained intact and they were not tampered with.
8.5. PW-5/Mr. Jung Bahadur deposed that on 10.09.2016, he/PW-5 came to Delhi from Panipat, Haryana and had deboarded SC No. 29047/2016 State v. Javed & Ors. Page 13 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:35:26 +0530 the bus at ISBT, Delhi. Further, as per PW-5, he was going to his native village at Uttar Pradesh and was carrying two bags, one of which was of Reebok company. As per PW-5, the bag of Reebok company was containing his/PW-5's clothes and another bag was containing electricity wires and soaps, which he/PW-5 had taken for his household purpose. PW-5 further proclaimed that he started waiting for an autorickshaw under Kashmere Gate Metro flyover to go to old Delhi Railway Station and that at that point in time, one person was calling passengers for railway station for his auto rickshaw. As per PW-5, he went to the said auto rickshaw, when it was around 04:00-05:00 p.m. It was further asserted by PW-5 that one passenger was already sitting insider the said autorickshaw and he/PW-5 had enquired about the fare, whereupon the said person told PW-5 that the same/said fare was Rs. 20/- (Rupees Twenty only) for old Delhi Railway Station. Further, as per PW-5, he sat in the said auto rickshaw and again deposed that the person, who was calling passengers made him/PW-5 sit in the said autorickshaw and kept one of his/PW-5's bag in the said autorickshaw. Correspondingly, PW-5 proclaimed that the driver of said autorickshaw was already present at driver's seat, while the person who was calling passengers also sat near him/PW-5.
Thereupon, as per PW-5, the driver of the rickshaw, drove the same towards old Delhi Railway Station and on the way, one more passenger, is stated to have boarded/sat in the said autorickshaw, whereupon, PW-5 was made to sit on the front seat, beside the driver as there no space for four passengers on the rear seat. It was further avowed by PW-5 that there was a police picket on the way. Consequently, the driver of autorickshaw asked him/PW-5 to sit on the rear seat as the police checking was proceeding, on the way. Further, as per PW-5, he was told by the driver to sit with SC No. 29047/2016 State v. Javed & Ors. Page 14 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:31 +0530 him/driver, after passing by the police picket. Consequently, PW-5 proclaimed that he sat on the rear seat along with aforesaid three persons, yet, the Police stopped the autorickshaw at the police picket and took all of them in the said auto to the police post near ISBT Bus stand. As per PW-3, Police conducted proceedings against the driver and helper of the said auto and his/PW-5's bag was in open condition. It was further deposed by PW-3 that the police officials asked him/PW-5 to check his bag to ascertain if something was stolen, whereupon he/PW-5 checked his bag and found that his bag containing wires and soaps was missing. However, as per PW-5, his bag of Reebok company, containing his/PW-5's clothes was there and its contents were not stolen. PW-3 further proclaimed that the Police officials showed some weapons, including iron punch and blades to him/PW-5 as well as informed him/PW-5 that the said weapons were recovered from the aforesaid driver, helper and the passenger who were travelling with him in the aforesaid auto rickshaw. However, as per PW-5, the search of the said persons was not carried out in his/PW-5's presence. PW-5 further expressed his inability to identify the said persons, however, deposed that as per the police information, the said persons were present in the Court on the date of his deposition. PW-5 further expressed inability to disclose the registration number of the said auto rickshaw, except for DL*******. It was further deposed by PW-5 that the police recorded his statement and obtained his signatures thereupon, which was Ex. PW5/A, bearing PW-5's signatures at point A. Further, as per PW-5, the police prepared other documents and obtained his/PW-5's signatures on the same. As per PW-5, the site plan is Ex. PW-5/B, bearing PW-5's signatures at point A. Further, as per PW-5, the seizure memo of keys, sharp edged articles and SC No. 29047/2016 State v. Javed & Ors. Page 15 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:35:35 +0530 magnet is Ex. PW-1/C, bearing PW-5's signatures at point B; seizure memo of knife (Ex. PW-1/B); sketch of knife (Ex. PW-1/D); and seizure memo of TSR (Ex. PW-1/Q), all bear his/PW-5's signatures at point B, respectively. Further, PW-5 proved his signatures at point B on the arrest memos of accused Javed, Ahsan, Akram and Wasim (Ex. PW-1/E to Ex. PW-1/H), as well as their personal search memos (Ex. PW-1/I to Ex. PW-1/L). Further, as per PW-5, the seizure memo of his/PW-5's bag is Ex. PW1/A, bearing his/PW-5's signatures at point B. Thereafter, as per PW-5, he was sent to his house. Pertinently, PW-5 expressed his inability to identify the TSR bearing no. DL-1RL-2755 from its photographs (Ex. PW-3/F). However, PW-5 identified his bag, produced by MHC(M) as Ex. P1. Pertinently, PW-5, upon being shown the knife, when produced by MHC(M), deposed that the said knife was not shown to him by police, as recovered from the accused persons. However, upon being shown one magnet, eight keys, one iron cross, two shaving blades and one surgical blade (Ex. P-3(Colly.)), as produced by MHC(M) in Court, PW-5 identified the said articles as the ones recovered from the possession of accused persons.
8.6. PW-6/Inspector Ravi Kant deposed that on 10.09.2016, he/PW-6 was posted as SI at PS. Kashmere Gate and on the said date, investigation of the present case was assigned to him/PW-6, after registration of FIR. PW-6 further deposed that he received a copy of FIR and original tehrir and that he/PW-6 along with staff reached at the spot. PW-6 further deposed that he/PW-6 prepared a site plan (Ex. PW5/B) at the instance of the complainant Jung Bahadur, bearing his/PW-6's signature at point B. Further, as per PW-6, he recorded the supplementary statement of Jung Bahadur and thereafter, interrogated the accused persons in the SC No. 29047/2016 State v. Javed & Ors. Page 16 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:40 +0530 police stations. It was further proclaimed by PW-6 that keys; heavy magnet; three blades, including one surgical blade and 4 (four) edged metallic sharp object were recovered from accused Akram. As per PW-6, he kept the said articles in a plastic box and sealed it with the seal of 'RK', with the help of doctor tape.
Thereupon, he/PW-6 seized the box vide seizure memo, Ex. PW1/C, bearing PW-6's signature at point C. PW-6 further deposed that one knife was also recovered from the possession of accused Ahsan by HC Raj Kumari and that he/PW-6 prepared sketch of the said knife, Ex. PW1/D, bearing PW-6's signature at point C. As per PW-6, he kept the knife in a white cloth and converted it into a parcel, which was sealed with the seal of 'RK'. Further, as per PW-6, he seized the parcel vide seizure memo, Ex. PW1/B, bearing his/PW-6's signature at point C. Correspondingly, as per PW-6, he seized the TSR no. DL-1RL-2755, which was used by accused persons in commission offence vide seizure memo, Ex. PW1/Q, bearing his/PW-6's signatures at point C. As per PW-6, the said TSR was being driven by accused, Wasim at the time of occurrence and the robbed bag was recovered from the possession of accused Javed. It was further proclaimed by PW-6 that the said bag contained clothes and belongings, including the photocopy of X (tenth) marks-sheet and Aadhar Card of the complainant Jung Bahadur. As per PW-6, he kept the said bag along with its contents in a plastic bag and sealed the mouth of plastic bag with the seal of 'RK', which plastic bag was seized vide seizure memo, Ex. PW1/A, bearing PW-6's signatures at point C. PW-6 further affirmed that he arrested the accused persons, namely, Wasim, Akram, Javed and Ahsan vide arrest memos; Ex. PW1/H, Ex. PW1/G, Ex. PW1/E and Ex. PW1/F, all bearing PW-6's signatures at point C. Further, as per SC No. 29047/2016 State v. Javed & Ors. Page 17 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:35:45 +0530 PW-6, he carried out their personal search vide memos; Ex. PW1/L, Ex. PW1/K, Ex. PW1/I and Ex. PW1/J, all bearing his/PW-6's signatures at point C. Further, as per PW-6, he interrogated the accused persons and recorded their disclosure statements, which are; Ex. PW1/N to Ex. PW1/P, all bearing PW-6's signatures at point B. Correspondingly, as per PW-6, he deposited the case property in malkhana, PS. Kashmere Gate and the accused persons were got medically examined as well as put in lockup. PW-6 further declared that he recorded the statements of witnesses and on 12.09.2016, he/PW-6 served notice under Section 133 MV Act to the owner of the aforesaid TSR, namely, Naveen and he replied that on the date of incident, TSR was being driven by accused Wasim, who had taken the said TSR on rent from Naveen. PW-6 further proved the said notice as Ex. PW6/A, bearing his/PW-6's signature at point A and reply as Ex. PW3/C. Further, as per PW-6, he recorded the statement of Naveen and also seized the original RC of aforesaid TSR vide seizure Ex. PW3/A, bearing PW-6's signatures at point B and the RC as Ex. PW3/B. After completion of investigation, as per PW-6, he prepared the chargesheet and filed before the Court. PW-6 further proved the photographs of TSR bearing no. DL-1RL-2755 as Ex. PW3/F(Colly)(3 photographs), as well as identified the accused persons namely Javed, Ahsan, Wasim and Akram in Court. PW-6 further identified the black colour bag (Ex. P1) of Reebok label, containing clothes, shoes, scale, pencil, eraser, sharpener, skin shine cream, wires as well as copy of mark-sheet and Aadhar card in the name of Jung Bahadur, as the one recovered from accused Javed and seized by him/PW-6. Correspondingly, PW-6 also identified the knife, recovered from accused Ahsan and seized by him/PW-6, as Ex. P2; and also identified one magnet, eight keys, SC No. 29047/2016 State v. Javed & Ors. Page 18 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:50 +0530 one iron cross, two shaving blades and one surgical blade, as recovered by him/PW-6 from accused Akram as Ex. P-3(colly.). 8.7. PW-7/ASI Raj Kumar deposed that on 10.09.2016, he/PW-7 was posted as Head Constable at PS. Kashmere Gate and on that day, he/PW-7 along with Ct. Ajay, was on patrolling duty and at about 05:15 p.m., they reached at Lothian Road in front of Church. As per PW-7, there, traffic was moving slowly towards GPO and they heard noise of 'bachao bachao' from an auto-
rickshaw/TSR in the said traffic. Further, as per PW-7, he stopped the said TSR with the help of Ct. Ajay and the registration number of said TSR was DL-1RL-2755. As per PW-7, there were five persons, including the driver in the said TSR and the complainant, who revealed his name as Jung Bahadur. It was further deposed by PW-7 that the complainant informed that the other persons present in the said TSR had robbed his/complainant's bag by showing knife and thereupon, PW-7 and Ct. Ajay apprehended all the four persons against whom the complainant made allegations. Thereafter, as per PW-7, he/PW-7 along with Ct. Ajay, complainant and the aforesaid four persons went to PS Kashmere Gate in the aforesaid TSR. PW-7 further proclaimed that he recorded the statement of complainant in police station and made endorsement on the same, which is Ex. PW7/A, bearing PW-7's signatures at point A, as well as got registered the FIR. PW-7 further asserted that he interrogated the aforesaid four persons and they disclosed their names as Waseem @ Chhote, Javed, Akram and Ahsan @ Iliyas. Further, as per PW-7, the robbed bag was recovered from the possession of accused Javed; knife was recovered from the possession of Ahsan @ Iliyas; and one magnet, a bunch of eight keys, surgical blades and four iron pieces/objects were recovered from accused Akram. As per PW-7, the aforesaid SC No. 29047/2016 State v. Javed & Ors. Page 19 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:35:55 +0530 TSR was found in possession of driver Wasim @ Chote. It was further deposed by PW-7 that after registration of the FIR, the investigation of the present case was assigned to SI Ravi Kant and he/PW-7 handed over the case property as well as the custody of accused persons to SI Ravi Kant. PW-7 further asserted that the IO prepared sketch of the recovered knife as Ex. PW1/D, bearing his/PW-7's signatures at point D. Correspondingly, as per PW-7, the IO kept the said knife in a cloth and converted it into a parcel and sealed with the seal of 'RK', which was seized by the IO vide seizure memo Ex. PW1/B, bearing PW-7's signatures at point D. Further, as per PW-7, the IO seized the bag of Reebok make recovered from accused, Javed, containing clothes, another small bag of brown colour, Aadhar Card and photocopy of 10 th (tenth) class Mark Sheet of the complainant and other articles including electricity wire, pencil pieces, shoes black colour, which bag along with its contents were kept by the IO in a plastic bag and sealed with the seal of 'RK'. The IO, as per PW-7, seized the said parcel vide seizure memo, Ex. PW1/A, bearing PW-7's signature at point D. Further, as per PW-7, the IO kept the articles recovered from the possession of accused Akram in a plastic box and sealed the said box with the seal of 'RK' as well as the IO seized the box vide seizure memo Ex. PW1/C, bearing PW-7's signatures at point D. It was further avowed by PW-7 that the IO seized the TSR vide seizure memo Ex. PW1/Q, bearing PW-7's signatures at point D and the said IO also interrogated the accused persons as well as arrested them vide arrest memos already Ex. PW1/E, Ex. PW1/F, Ex. PW1/G and Ex. PW1/H, all bearing PW-7's signature at point D. Personal search of the accused persons, as per PW-7, was conducted vide memos already Ex. PW1/I, Ex. PW1/J, Ex. PW1/K and Ex. PW1/L, all bearing PW-7's signature at point D. Further, SC No. 29047/2016 State v. Javed & Ors. Page 20 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:35:59 +0530 as per PW-7, the IO recorded the disclosure statements of the accused persons as Ex. PW1/M, Ex. PW1/N, Ex. PW1/O and Ex. PW1/P, all bearing PW-7's signature at point C. Further PW-7 correctly identified all the accused persons before the Court as well as identified the photographs of TSR bearing No. DL-1RL-2755 as Ex. PW3/F (colly) (3 photographs); bag, containing clothes, shoes, scale, pencil, eraser, sharpener, skin shine cream, wires as well as copy of mark sheet and Aadhar Card in the name of Jung Bahadur, recovered from the accused Javed and seized by the IO, as Ex. P1; knife, recovered from the accused Ahsan and seized by the IO, as Ex. P2; and one magnet, eight keys, one iron cross, two shaving blades and one surgical blade, recovered from the accused Akram and seized by the IO, as Ex. P-3 collectively. 8.8. Notably, all the aforenoted prosecution witnesses were thoroughly examined by/on behalf of the accused persons by their Ld. Counsel.
EXAMINATION OF ACCUSED PERSONS:
9. Apposite to note here that upon conclusion of prosecution evidence, statement of accused persons in terms of the provisions under Section 313 Cr.P.C. was recorded, wherein the accused persons denied their involvement in the present case and proclaimed that they have been falsely implicated in the present proceedings/case. Notably, accused, Javed denied the recovery from him, besides asserted that all the accused persons in the present case, ply TSR at ISBT, Kashmere Gate on sharing basis, whereupon the police officials try to extort money from them and upon our refusal to pay them, the instant false case was fabricated against them/accused persons. Notably, the relevant extracts from accused, Javed's statement, recorded under Section 313 Cr.P.C., are reproduced as under;SC No. 29047/2016 State v. Javed & Ors. Page 21 of 66 Digitally signed
ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:04 +0530 "...Q. 1: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that on 10.09.2016, he/PW-1 was posted as constable at PS Kashmiri Gate and that on the said day, at about 05:15 p.m., he/PW-1 along with HC Raj Kumar reached Church, Lothian Road. It is further in evidence that as per PW-1, he/PW-1 heard an alarm of 'bachao bachao'. Consequently, as per PW-1, he along with Head Constable reached the TSR, where four persons were snatching something from one person. What do you have to say?
Answer: PW-1 Ct. Ajay Kumar has given false deposition. This is a fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon refusal, they fabricated the present false case. Nothing was recovered from any of the accused persons including me.
*** *** *** Q. 3: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that from the possession of accused, Javed, one black coloured bag of complainant was recovered. What do you have to say?
Answer: Nothing was recovered from my possession or any of the accused persons and the recoveries shown by the police are planted.
*** *** *** Q. 9: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that accused persons gave their disclosure statements which are Ex. PW-1/M, Ex. PW-1/N, Ex. PW-1/O and Ex. PW-1/P, which bears PW-1's signatures at point 'A'. What do you have to say?
Answer: Neither me nor other accused persons gave any disclosure statement and our signatures were obtained on blank papers.
*** *** *** Q. 44: Whereas it has come in evidence against you that PW6/Insp. Ravi Kant deposed that he/PW-6 interrogated the accused persons at police station. It is further in evidence that as per PW-6, keys, heavy magnet, three blades including one surgical blade and four edged metallic sharp object were recovered from accused Akram and that he/PW-6 kept the said articles in a plastic box and sealed it with the seal of 'RK' with the help of doctor tape. What do you have to say? Answer: Nothing was recovered from me or any of the accused persons and PW-6 Insp. Ravi Kant had SC No. 29047/2016 State v. Javed & Ors. Page 22 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:36:09 +0530 obtained our signatures on blank papers and misused the same.
*** *** *** Q. 71: Why was this case registered against you? Answer: This is a false and fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon our refusal to pay them, they fabricated the present false case against us. Nothing was recovered from any of the accused persons including me and the recoveries, as shown by the police are planted. The alleged complainant Jung Bahadur has not deposed against us.
Q. 72: Why have the PWs deposed against you? Answer: The police witnesses have deposed against us being interested witnesses where as Jung Bahadue, the complainant has deposed in our favour.
Q. 73: Do you want to lead any evidence in your defence?
Answer: No. Q. 74: Do you want to say anything else?
Answer: I am innocent and have been falsely implicated in the present case..."
(Emphasis supplied) 9.1. In so far as accused, Ahshan @ Ilyas is concerned, as aforenoted, the said accused also denied his involvement in the present case as well as affirmed about his false implication.
Relevant extracts of accused, accused, Ahshan's @ Ilyas' statement under Section 313 Cr.P.C. are reproduced as under;
"...Q. 1: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that on 10.09.2016, he/PW-1 was posted as constable at PS Kashmiri Gate and that on the said day, at about 05:15 p.m., he/PW-1 along with HC Raj Kumar reached Church, Lothian Road. It is further in evidence that as per PW-1, he/PW-1 heard an alarm of 'bachao bachao'. Consequently, as per PW-1, he along with Head Constable reached the TSR, where four persons were snatching something from one person. What do you have to say?
Answer: PW-1 Ct. Ajay Kumar has given false deposition. This is a fabricated case. All the accused persons in the present case ply TSR at ISBT, SC No. 29047/2016 State v. Javed & Ors. Page 23 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:36:14 +0530 Kashmere Gate on sharing basis. The police officials try to extort money from us and upon refusal, they fabricated the present false case. Nothing was recovered from any of the accused persons including me.
*** *** *** Q. 4: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that from the possession of accused, Ahsaan, one knife was recovered. What do you have to say?
Answer: Nothing was recovered from my possession or any of the accused persons and the recoveries shown by the police are planted.
*** *** *** Q. 71: Why was this case registered against you? Answer: This is a false and fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon our refusal to pay them, they fabricated the present false case against us. Nothing was recovered from any of the accused persons including me and the recoveries, as shown by the police are planted. The alleged complainant Jung Bahadur has not deposed against us.
Q. 72: Why have the PWs deposed against you? Answer: The police witnesses have deposed against us being interested witnesses where as Jung Bahadue, the complainant has deposed in our favour. Q. 73: Do you want to lead any evidence in your defence?
Answer: No. Q. 74: Do you want to say anything else?
Answer: I am innocent and have been falsely implicated in the present case..."
(Emphasis supplied) 9.2. Correspondingly, accused Wasim @ Chhote proclaimed regarding his false implication in the present case, besides the recovery being planted on him by the police officials, while acting in collusion with each other. Relevant extracts from the statement of accused, namely, Wasim @ Chhote, recorded in terms of the provisions under Section 313 Cr.P.C. are reproduced as under;
SC No. 29047/2016 State v. Javed & Ors. Page 24 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:19 +0530
"...Q. 1: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that on 10.09.2016, he/PW-1 was posted as constable at PS Kashmiri Gate and that on the said day, at about 05:15 p.m., he/PW-1 along with HC Raj Kumar reached Church, Lothian Road. It is further in evidence that as per PW-1, he/PW-1 heard an alarm of 'bachao bachao'. Consequently, as per PW-1, he along with Head Constable reached the TSR, where four persons were snatching something from one person. What do you have to say?
Answer: PW-1 Ct. Ajay Kumar has given false deposition. This is a fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon refusal, they fabricated the present false case. Nothing was recovered from any of the accused persons including me.
*** *** *** Q. 18: Whereas it has come in evidence against you that PW3/Mr. Naveen deposed that he was the registered owner of TSR bearing registration No. DL-1RL-2755. It is further in evidence that as per PW-3, he was differently abled and used to give the said TSR on rent. It is further in evidence that as per PW-3, he could not recollect the date, month and year, however, it was more than 5 years prior to his/PW-5's deposition, when he/PW-3 had given the said TSR to one Waseem @ Chhotu on rent. What do you have to say?
Answer: It is a matter of record.
*** *** *** Q. 21: Whereas it has come in evidence against you that PW3/Mr. Naveen deposed that on enquiry, he/PW-3 had told SI Ravikant that in the evening of 10.09.2016, his/PW-3's said TSR was being driven by Waseem @ Chhote. What do you have to say?
Answer: It is a matter of record.
*** *** *** Q. 71: Why was this case registered against you? Answer: This is a false and fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon our refusal to pay them, they fabricated the present false case against us. Nothing was recovered from any of the accused persons including me and the recoveries, as shown by the police are planted. The alleged complainant Jung Bahadur has not deposed against us.
SC No. 29047/2016 State v. Javed & Ors. Page 25 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:25 +0530
Q. 72: Why have the PWs deposed against you? Answer: The police witnesses have deposed against us being interested witnesses where as Jung Bahadue, the complainant has deposed in our favour.
Q. 73: Do you want to lead any evidence in your defence?
Answer: No. Q. 74: Do you want to say anything else?
Answer: I am innocent and have been falsely implicated in the present case..."
(Emphasis supplied) 9.3. Similarly, accused, Akram denied is involved in the instant case as well as asserted his false implication at the behest of the police officials. Relevant extracts from the statement of accused, namely, Akram, recorded in terms of the provisions under Section 313 Cr.P.C. are reproduced as under;
"...Q. 1: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that on
10.09.2016, he/PW-1 was posted as constable at PS Kashmiri Gate and that on the said day, at about 05:15 p.m., he/PW-1 along with HC Raj Kumar reached Church, Lothian Road. It is further in evidence that as per PW-1, he/PW-1 heard an alarm of 'bachao bachao'. Consequently, as per PW-1, he along with Head Constable reached the TSR, where four persons were snatching something from one person. What do you have to say?
Answer: PW-1 Ct. Ajay Kumar has given false deposition. This is a fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon refusal, they fabricated the present false case. Nothing was recovered from any of the accused persons including me.
*** *** *** Q. 5: Whereas it has come in evidence against you that PW-1/Ct. Ajay Kumar deposed that from the possession of accused Akram, a bunch of keys, a heavy magnet and three blades, including one surgical blade were recovered. What do you have to say? Answer: Nothing was recovered from my possession or any of the accused persons and the recoveries shown by the police are planted.
SC No. 29047/2016 State v. Javed & Ors. Page 26 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:30 +0530 *** *** ***
Q. 71: Why was this case registered against you? Answer: This is a false and fabricated case. All the accused persons in the present case ply TSR at ISBT, Kashmere Gate on sharing basis. The police officials try to extort money from us and upon our refusal to pay them, they fabricated the present false case against us. Nothing was recovered from any of the accused persons including me and the recoveries, as shown by the police are planted. The alleged complainant Jung Bahadur has not deposed against us.
Q. 72: Why have the PWs deposed against you? Answer: The police witnesses have deposed against us being interested witnesses where as Jung Bahadue, the complainant has deposed in our favour.
Q. 73: Do you want to lead any evidence in your defence?
Answer: No. Q. 74: Do you want to say anything else?
Answer: I am innocent and have been falsely implicated in the present case..."
(Emphasis supplied)
10. As aforenoted, the accused persons, in their respective statements recorded under Section 313 Cr.P.C. asserted/professed that they did not desire to lead any evidence in their support. Consequently, in view of the said submission, the matter was listed for arguments.
CONTENTIONS OF STATE:
11. Learned Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the conjoint reading of the testimonies of PW-1/Ct. Ajay Kumar, PW-3/Naveen, PW-5/Sh. Jung Bahadur and PW-7/ASI Raj Kumar, the role, complicity as well as active involvement of the accused persons in the commission of the offences alleged against them stands proved. As per the Ld. Addl. PP for the State, the accused persons were apprehended on the spot, besides PW-1 and PW-7 had directly approached the autorickshaw/TSR on the spot, SC No. 29047/2016 State v. Javed & Ors. Page 27 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:36:35 +0530 upon hearing the alarm raised by PW-5. Thereupon, as per Ld. Addl. PP for the State, various accused persons were apprehended and the recovery of the robbed bag as well as weapon, deployed in the commission of the offence were effected from the possession of accused, Javed as well as Ahshan @ Ilyas, respectively. Correspondingly, as per Ld. Addl. PP for the State, PW-3 deposed that at the relevant point in time, TSR in question was being driven by accused, Wasim @ Chhote, which fact has not even been denied by the said accused under his statement, recorded under Section 313 Cr.P.C. It was further submitted by the Ld. Addl. PP for the State that the testimony of hostile witness cannot be discarded in its entirety. On the contrary, Ld. Addl. PP for the State asserted that the law is settled that the testimony of a hostile witness cannot be discarded entirely, rather, relevant and admissible parts can be used by either the prosecution or the defense and a conviction can be based on such testimony if corroborated by other evidence. In the instant case, as per Ld. Addl. PP for the State, testimony/version put forth by the complainant stands corroborated by the testimonies of PW-1 and PW-7 and the accused persons have not been able to demonstrate/explain the recovery as well as their presence on the spot. It was further contended by Ld. Addl. PP for the State that despite an extensive and though cross examination of the prosecution witnesses, the defence has not been able to rebut the sterling testimonies of the prosecution witnesses, clearly, indicating towards the only inference of guilt of the accused persons. Further, as per the Ld. Addl. PP for the State, the accused persons, despite being afforded an opportunity to lead evidence, deliberately opted not to lead any defence witnesses to belie the case of prosecution. Accordingly, Ld. Addl. PP for the State SC No. 29047/2016 State v. Javed & Ors. Page 28 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:36:39 +0530 reiterated that from the material, evidence and documents, placed on record the charges levelled against the accused persons stand duly proved, making them liable for the offences/charges levelled against them.
CONTENTIONS OF DEFENCE:
12. Per contra, Learned Counsel for the accused persons outrightly submitted that from the material placed on record, the ingredients of offence under Section 392/397/411/34 IPC are not made out in the instant case. In this regard, Ld. Counsel vehemently asserted that the prime prosecution witness/PW-5 has not supported the case of the prosecution, besides the said witness has even failed to identify the accused persons as the perpetrators of the offence. Ld. Counsel further submitted that a scrupulous analysis of the material placed on record would demonstrate, various omissions, lacunae, material improvements, contradictions and variations in the statements of various prosecution witnesses, belying their allegations against the accused persons. It was further submitted by the Ld. Counsel that the investigation in the present case has not been properly conducted as neither any endeavour made to join independent witnesses in recovery process, nor any attempts made to retrieve CCTV footage of the vicinity of the alleged place of occurrence. Correspondingly, Ld. Counsel reiterated that in view of the contradictions in various prosecution witnesses in respect of the alleged incident; arrest and apprehension of the accused persons; and the so called recovery, possibility of accused persons being falsely implicated in the present case cannot be ruled out. Further, as per the Ld. Counsel no proceedings of search, seizure, recovery as well as arrest of the accused persons were carried out at the alleged spot of occurrence, casting serious doubt/suspicion on the SC No. 29047/2016 State v. Javed & Ors. Page 29 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:44 +0530 investigation/recovery proceedings. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused persons be permitted to benefit of doubt and be acquitted of the charges levelled against him.
APPEARANCE:
13. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel for the accused persons have been heard as well as the record(s), including the testimonies of various witnesses, document(s)/material/evidence placed on record (oral and documentary evidence), thoroughly perused. LEGAL PROVISIONS:
14. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the relevant provisions under law/IPC as under;
"23. "Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully-A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
24. "Dishonestly"-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
*** *** ***
34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
39. "Voluntarily"-A person is said to cause an effect "voluntarily" when he causes it by means SC No. 29047/2016 State v. Javed & Ors. Page 30 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:36:48 +0530 whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
*** *** ***
378. Theft-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft...
*** *** ***
383. Extortion-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
*** *** ***
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.
*** *** ***
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.
*** *** ***
397. Robbery, or dacoity, with attempt to cause death or grievous hurt-If, at the time of commuting SC No. 29047/2016 State v. Javed & Ors. Page 31 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:36:53 +0530 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.
*** *** ***
411. Dishonestly receiving stolen property-
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
(Emphasis supplied)
15. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability1 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law2 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently3, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. However, law is trite that for common intention to develop, it is not necessary that there must be a prior conspiracy or premeditated mind. On the contrary, such common intention can be formed even in the course of the incident , i.e., during the occurrence of the crime. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating 1 Suresh v. State of U.P., (2001) 3 SCC 673.
2Virendra Singh v. State of M.P., (2010) 8 SCC 407.
3Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
SC No. 29047/2016 State v. Javed & Ors. Page 32 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:36:58 +0530
the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence.
The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into SC No. 29047/2016 State v. Javed & Ors. Page 33 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:37:02 +0530 operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence.
Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
16. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants SC No. 29047/2016 State v. Javed & Ors. Page 34 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:37:06 +0530 had shared a common intention4. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually 4 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) SC No. 29047/2016 State v. Javed & Ors. Page 35 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:37:10 +0530 done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
17. In so far as accountability under Section 390/392 IPC is concerned, this Court deems it pertinent at this stage to make a reference to the decision of the Hon'ble Supreme Court in Mohd. Wajid v. State of U.P., 2023 SCC OnLine SC 951 , wherein the Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC noted as under;
"15. Theft amounts to '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. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted 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 second necessary ingredient is that this must be 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 third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not SC No. 29047/2016 State v. Javed & Ors. Page 36 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:37:15 +0530 sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."..."
(Emphasis supplied)
18. Conspicuously, in order to convict a person under Section 392 IPC, ingredients of Section 390 IPC 5 must be established, inert alia to the effect that the offender should voluntarily cause or attempts to cause to any person death or hurt or wrongful restrain, or put such persons in fear of instant death or of instant hurt, or of instant wrongful restrain, inter alia in order to commit or while committing theft or extortion, as the case may be. Correspondingly, the Hon'ble Supreme Court in Dilawar Singh v. State of Delhi, MANU/SC/3678/2007, enunciating the ingredients of offence under Section 397 IPC, noted as under;
"22. The essential ingredients of Section 397 IPC are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i) 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 5 Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.SC No. 29047/2016 State v. Javed & Ors. Page 37 of 66 Digitally signed
ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:37:20 +0530 the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co-accused..."
(Emphasis supplied)
19. Markedly, in the aforesaid dictate, the Hon'ble Apex Court in unambiguous terms observed that Section 397 IPC can be attracted only against a particular accused/individual, who uses the deadly weapon or does any of the acts mentioned in the said provision. As a corollary, no culpability can be attracted against other accused/co-accused persons, vicariously, under the said provision. Reference in this regard is further made to the decision in Phool Kumar v. Delhi Administration, MANU/SC/0210/1975 , wherein the Hon'ble Apex Court iterated similar sentimentalities in the following terms;
"5. The sentence of imprisonment to be awarded under Section 392 cannot be less than 7 years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to 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 no 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 some body 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 P.W. 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."SC No. 29047/2016 State v. Javed & Ors. Page 38 of 66 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:37:25 +0530 (Emphasis supplied)
20. Germane for the purpose(s) of the present discourse to make a reference to the decision in Ashfaq v. State (Govt. of NCT of Delhi), (2004) 3 SCC 116, wherein the Hon'ble Supreme Court explicitly noted that mere brandishing of weapon/deadly weapon is enough to attract culpability under Section 397 IPC and that it is not required that such an accused, actually used such a weapon for cutting, stabbing, shooting, as the case may be. Pertinently, the relevant extract from the said dictate is as under;
"8. Thus, what is essential to satisfy the word "uses" for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be."
(Emphasis supplied)
21. Congruently, the Hon'ble High Court of Delhi in Murlidhar v. State, 2018 SCC Online Del. 9401 , while cogitating the ingredients of offence under Section 397 IPC inter alia noted that recovery of the weapon is not a necessary ingredient for a conviction under Section 397 IPC. In this regard, the Hon'ble Court, remarked as under;
"27. This court is of the opinion that the decision of the Supreme Court in Ashfaq is clear and categorical that recovery of the weapon is not a necessary ingredient for a conviction under Section 397 IPC. The 'Use' of the same to threaten is sufficient. The Accused in the present case clearly USED the knife. The same was within the vision of both the victims as per their testimony. They were terrorised and threatened due to the use of the same. They were made to part with valuables, some of which were even recovered from the house of the accused. This Court is inclined to follow the binding precedents of the Supreme Court in Phool Kumar and Ashfaq, as also followed by Ld. Single Judges of this Court in SC No. 29047/2016 State v. Javed & Ors. Page 39 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:37:29 +0530 Seetal and Imran to hold that recovery of the weapon is not needed for a conviction under Section 397 IPC."
(Emphasis supplied)
22. Here, this Court deems it further apposite to refer to the decision in Asif v. State (NCT of Delhi), 2022 SCC OnLine Del 270, wherein the Hon'ble High Court observed in respect of the foregoing, as under;
"9. It is trite law that even if the weapon of offence is shown after snatching had taken place for running away along with snatched article, offence under Section 397 IPC is attracted. Section 390 Cr.P.C. provides that in a robbery, there is either theft or extortion. It is further provided that theft is 'robbery' if, in order to 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 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. Thus, if the offender uses the deadly weapon at the time of committing robbery or dacoity which would include even the fear of instant death or instant hurt or wrongful restrain or an attempt to cause death or hurt or wrongful restraint even while carrying away or attempting to carry away the property obtained by theft, the act of the offender will fall within the four corners of Section 397 IPC. Thus the contention of learned counsel for the appellant that Section 397 IPC is not made out as the blade was allegedly shown after the mobile phone was robbed, deserves to be rejected. The decisions relied upon by the learned counsel for the appellant did not consider the necessary ingredients of an offence of robbery which in turn is a necessary ingredient of an offence punishable under Section 397 IPC."
(Emphasis supplied)
23. Quite lucidly, it is observed from above that the Hon'ble Court explicitly remarked that even if a dangerous weapon is deployed/brandished/shown by an accused to a victim, after the incident of snatching had taken place, for running away along with snatched article, offence under Section 397 IPC would be attracted. However, in order for such weapon to fall within the SC No. 29047/2016 State v. Javed & Ors. Page 40 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:37:36 +0530 ambit/meaning of dangerous weapon, as specified under Section 392 IPC, prosecution is required to produce convincing evidence that such knife, deployed/used by an accused was, in fact, 'deadly weapon'. Apposite to further note at this stage that the law is settled6, "depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not." However, the superior courts7 have repeatedly avowed that all kinds of knives cannot be graded as 'deadly weapon' within the meaning of Section 397 IPC. In fact, it is the length, shape and the manner of use which makes a knife 'deadly weapon'. Reference in this regard is made to the decision of the Hon'ble High Court in Guddu v. State, MANU/DE/1118/2019, wherein the Hon'ble Court in respect of the foregoing, noted as under;
"11. In Rajender Yadav Vs. The State (NCT of Delhi) MANU/DE/2667/2013: 2013 VII AD (Delhi) 359, this Court has held that where the prosecution case itself is that only vegetable knife was found in the possession of the accused, the knife cannot be considered a 'deadly weapon' to award the sentence of seven years which is a minimum sentence to be given with the aid of Section 397 IPC". In Jagdish and etc. Vs. The State MANU/DE/0546/1985: 1985 Crl. L.J. 1621, this Court has held thus:
"Para 9. "A deadly weapon is a thing designed to cause death, for instance, a gun, a bomb, a rifle, a sword or even a knife. A thing not so designed may also be used as a weapon to cause bodily injury and even death. It will be a question of fact in each case whether the particular weapon which may even be a knife can be said to be a deadly weapon. In the instant case, there is evidence to the effect that the knives which the accused were having were small in size. They were ordinary vegetable cutting knives. This renders the possibility of those knives being deadly weapons highly doubtful and as such the appellants shall be entitled to benefit thereof. Consequently it would 6 Mathai v. State of Kerala, (2005) 3 SCC 260.7
Sonu v. The State (Govt of NCT of Delhi), MANU/DE/5649/2012.
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be unfair to impose the minimum sentence contemplated in Section 397 on the appellants merely because they used those knives in the commission of the crime..."
12. In Rakesh Kumar Vs. State of NCT of Delhi 2005 (1) JCC 334, a Single Judge of this Court has held that there are knives of hundreds of type available in different length and width. All the knives cannot be graded as "deadly weapon" within the meaning of Section 397 IPC. It is the length, shape and the manner of use which makes a knife "deadly weapon". In Charan Singh Vs. State 1998 Crl. L.J. NOC 28 (Delhi), it was held that in order to bring home a charge under Section 397, the prosecution must produce convincing evidence that the knife used by the accused was 'deadly weapon'."
(Emphasis supplied)
24. Pertinently, for culpability under Section 411 IPC to arise, it is not necessary that an accused receives any stolen property with a culpable intention, knowledge or reason to believe, rather, even in the instance of retention of such stolen property with such mens rea or upon the failure of the accused to make enough inquires to comprehend the nature of good(s) procured by him, is sufficient. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Shiv Kumar v. State of M.P., (2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon'ble Court inter alia observed as under;
"16. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
(Emphasis supplied)
25. Correspondingly, reference is further made to the decision in State of U.P. v. Nawab, MANU/UP/1516/2014, SC No. 29047/2016 State v. Javed & Ors. Page 42 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:37:48 +0530 wherein the Hon'ble Court noted that conviction under Section 392 and Section 411 IPC cannot be maintained simultaneously 8 against same accused. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"17. When an accused is guilty of robbery he is to be convicted under section 392, I.P.C. When accused is found guilty under section 392 for committing robbery and under section 411 for retaining stolen property, his conviction under section 411 I.P.C. is improper. For considering the language of section 411, dishonest retention is contradistinguished in that section from dishonest reception. The act of dishonest removal within section 379 constitutes dishonest reception within section 411 and so the thief does not commit the offence of retaining stolen property merely by continuing to keep possession of the property he stole. The theft and taking and retention of stolen goods form one and the same offence and cannot be punished separately."
(Emphasis supplied)
26. Reference in respect of the foregoing is further made to the decision in Gopi Jaiswal v. State of U.P., MANU/UP/3723/2011, wherein the Hon'ble High Court of Allahabad in akin terms inter alia noted that a real thief cannot be a receiver of a stolen property. Relevant extract from the said decision is repoduced as under, "8. In view of the fact that the appellant Gopi 8 Reference is further made to the decision in Sunil Mashi v. State NCT of Delhi, MANU/DE/3768/2014, wherein the Hon'ble High Court of Delhi, noted; "41. Even as regards offence under Section 379 IPC, the appellant was rightly convicted inasmuch as he was found in possession of the stolen articles immediately after the commission of theft and, therefore, the presumption under Section 114A of Indian Evidence Act, 1872 arises against him.***42. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, MANU/SC/0694/2001: (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:***"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case, illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."***43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside."
(Emphasis supplied) SC No. 29047/2016 State v. Javed & Ors. Page 43 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:37:52 +0530
Jaiswal was the real thief, his conviction could only be made under Section 379 IPC. His conviction under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under Section 411 IPC cannot be upheld."
(Emphasis supplied) APPRECIATION OF EVIDENCE:
27. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel for the accused, this Court would now proceed with the determination on merits of the instant case. In particular, and outrightly to the effect as to, 'whether from the material placed on record, culpability under the provisions of law, i.e., Section(s) 392/34 IPC can be attracted against the accused namely, Javed, Wasim @ Chhote and Akram; culpability under Section(s) 392/34 read with Section 397 IPC can be attracted against accused, namely, Ahshan @ Ilyas;
and culpability under Section 411 IPC can be attracted/proved beyond reasonable doubt against the accused, namely, Javed? '. Conspicuously, in order to deal with the said aspect, this Court deems it apt to incipiently note that the case of prosecution primarily hinges on the version/complaint/assertion of the complainant/PW-5, namely, Jung Bahadur. However, as aforenoted, PW-5 deposed in his testimony before this Court that on 10.09.2016, he/PW-5 had come to Delhi from Panipat, Haryana and had deboarded the bus at ISBT, Delhi. Further, as per PW-5, he was going to his native village at Uttar Pradesh and was carrying two bags, one of which was of Reebok company. As per SC No. 29047/2016 State v. Javed & Ors. Page 44 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:37:57 +0530 PW-5, the bag of Reebok company was containing his/PW-5's clothes and another bag was containing electricity wires and soaps, which he/PW-5 had taken for his household purpose. PW-5 further proclaimed that he started waiting for an autorickshaw under Kashmere Gate Metro flyover to go to old Delhi Railway Station and that at that point in time, one person was calling passengers for railway station for his auto rickshaw. As per PW-5, he went to the said auto rickshaw, when it was around 04:00-05:00 p.m. It was further asserted by PW-5 that one passenger was already sitting insider the said autorickshaw and he/PW-5 had enquired about the fare, whereupon the said person told PW-5 that the same/said fare was Rs. 20/- (Rupees Twenty only) for old Delhi Railway Station. Further, as per PW-5, he sat in the said auto rickshaw and again deposed that the person, who was calling passengers made him/PW-5 sit in the said autorickshaw and kept one of his/PW-5's bag in the said autorickshaw. Correspondingly, PW-5 proclaimed that the driver of said autorickshaw was already present at driver's seat, while the person who was calling passengers also sat near him/PW-5. Thereupon, as per PW-5, the driver of the rickshaw, drove the same towards old Delhi Railway Station and on the way, one more passenger, is stated to have boarded/sat in the said autorickshaw, whereupon, PW-5 was made to sit on the front seat, beside the driver as there no space for four passengers on the rear seat. It was further avowed by PW-5 that there was a police picket on the way. Consequently, the driver of autorickshaw asked him/PW-5 to sit on the rear seat as the police checking was proceeding, on the way. Further, as per PW-5, he was told by the driver to sit with him/driver, after passing by the police picket. Consequently, PW-5 proclaimed that he sat on the rear seat along with aforesaid three persons, yet, the Police stopped the SC No. 29047/2016 State v. Javed & Ors. Page 45 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:02 +0530 autorickshaw at the police picket and took all of them in the said auto to the police post near ISBT Bus stand. As per PW-3, Police conducted proceedings against the driver and helper of the said auto and his/PW-5's bag was in open condition. It was further deposed by PW-3 that the police officials asked him/PW-5 to check his bag to ascertain if something was stolen, whereupon he/PW-5 checked his bag and found that his bag containing wires and soaps was missing. However, as per PW-5, his bag of Reebok company, containing his/PW-5's clothes was there and its contents were not stolen. PW-3 further proclaimed that the Police officials showed some weapons, including iron punch and blades to him/PW-5 as well as informed him/PW-5 that the said weapons were recovered from the aforesaid driver, helper and the passenger who were travelling with him in the aforesaid autorickshaw. However, as per PW-5, the search of the said persons was not carried out in his/PW-5's presence. PW-5 further expressed his inability to identify the said persons, however, deposed that as per the police information, the said persons were present in the Court on the date of his deposition. PW-5 further expressed inability to disclose the registration number of the said auto rickshaw, except for DL*******. Quite evidently, since PW-5 is asserted to have not depose on the same lines as his earlier statement/was found resiling from his earlier statement/complaint, Ex. PW5/A and considering that he even failed to identify the accused persons as the perpetrators of offence, he/PW-5 was cross examined by/on behalf of the State.
28. Markedly, upon being so cross examined by/on behalf of the State, PW-5/Sh. Jung Bahadur proclaimed as under;
"XXXXXX by Sh. ***, Ld. Addl. PP for the State. I have studied up to 12th class. I can read and write Hindi.
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At this stage, witness is shown his statement Ex.PW-5/A. The witness read the said statement and stated that no such incident as stated in the statement had happened. Witness further stated that he was nervous at that time as he was in hurry as he had to board the train and he had not read his statement when he signed the same nor it was read over to him by the police.
It is wrong to suggest that I gave the statement Ex.PW-5/A and thereafter, signed it at point A. It is wrong to suggest that I stated to IO that the person calling the passengers told me 'jaldi baitho jaam lag jayega and he pulled me along with my bag forcibly inside the auto' (confronted with portion X to X1 of the statement Ex.PW-5/A where it is so recorded). It is wrong to suggest that the passenger who boarded the auto rickshaw showed a knife to me and carried out search of my pockets and robbed my bag containing clothes and documents and after seeing police officials, I shouted 'bachao bachao' for help upon which police officials surrounded the auto in traffic jam and apprehended all the four persons (confronted with portion X2 to X3 of the statement Ex.PW-5/A where it is so recorded). It is wrong to suggest that I stated to IO that the name of apprehended persons were revealed as Akram, Ahsan, Javed and Wasim and the said persons robbed my bag by using knife in the aforesaid auto rickshaw (confronted with portion X4 to X5 of the statement Ex.PW-5/A where it is so recorded).
At this stage, statement dated 10.09.2016 u/s 161 Cr.P.C is shown to witness. Witness stated that he has not given any such statement to police. Statement is Mark PW-5/1.
It is wrong to suggest that I stated to police that the name of person who was calling passengers was revealed as accused Akram on interrogation by police and the name of person who boarded the auto rickshaw on the way and shown me knife and carried out my search was Ahsan. It is wrong to suggest that I stated to IO that accused Javed and Akram carried out search of my pockets and accused Javed snatched my black colour bag upon which I raised alarm and police apprehended all the accused persons. It is wrong to suggest that I stated to IO that my black colour bag of Reebok was recovered from accused Javed and a knife was recovered from possession of accused Ahsan @ Iliyas and three blades, heavy magnet and keys were recovered from the possession of accused Akram. It is wrong to suggest that I stated to IO that accused SC No. 29047/2016 State v. Javed & Ors. Page 47 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:38:12 +0530 persons were arrested in my presence and their personal search was carried out in my presence. It is wrong to suggest that accused persons were the same who were travelling with me in the auto rickshaw on the date of incident. (Vol. I had not seen their faces properly and I cannot identify them). It is wrong to suggest that I am deliberately not identifying the TSR No. DL1RL2755, knife and my articles to favour the accused persons. It is wrong to suggest that I am deliberately and intentionally not stating the true and correct facts regarding the role of accused persons as well as recovery from their possession as I have been won over by accused persons or a compromise has been arrived at between us. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
29. Quite lucidly, it is noted from the above that the complainant/victim, under his examination in chief did not depose regarding occurrence of any incident of the sort, as propounded in the complaint/instant chargesheet. In fact, PW-5 did not even assert about him being forced to sit in the autorickshaw or of the accused persons' frisking and robbing him of his bag or of even accused, Ahshan @ Iliyas brandishing any knife/ chaku at him at the alleged time of occurrence. On the contrary, as aforenoted, PW-5 proclaimed that while he and other passengers of the TSR/autorickshaw were proceeding towards old Delhi Railway Station and had crossed police picket on the way, the said TSR/autorickshaw was stopped at the picket and the police took all the passengers to the police post, ISBT Bus Stand, where the police is asserted to have conducted proceedings against the driver and helper of the auto. PW-5 further proclaimed that though, one of his bag was missing, however, nothing was stolen from his Reebok bag. On the contrary, as per PW-5, the police showed him some weapon stated to be recovered from the possession of the driver, helper and other passengers of the auto, though, PW-5 firmly asserted that the search of such persons was not conducted SC No. 29047/2016 State v. Javed & Ors. Page 48 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:18 +0530 in his presence. Apposite to further reiterate that PW-5 expressed his inability to identify the said persons, present in the auto and asserted that he was told by the police officials that the said persons were present in the Court on the date of his deposition, who were pointed out by the complainant/PW-5 as accused, Wasim, Ahshan, Akram and Javed. Remarkably, PW-5 in his cross examination by/at the behest of the State, denied/negated the occurrence again, after having read over his complaint Ex. PW5/A by asserting that he was nervous at the relevant point in time and had neither read out his said statement, when it was signed by him nor was the same read out to him by the police official(s), as he was in hurry. As aforenoted, PW-5 was further confronted with his supplementary statement under Section 161 Cr.P.C. (Mark PW5/1), identifying and attributing specific roles to each of the accused persons, however, PW-5 denied of having made any statement. Needless to further accentuate, PW-5 further denied of having being forced into the auto by accused persons along with his bag, of having being shown knife and being frisked by the accused persons as well as of being robbed and also denied of having raised an alarm of 'bachao bachao' on seeing the police officials, and was consequently confronted with the relevant extracts from his complaint Ex. PW5/A, where it was so recorded.
30. Ominously, it is seen from above the complainant/star witness of the prosecution has not supported the case of the prosecution even in so far as the occurrence of incident, i.e., of him being robbed whilst being put under fear of imminent danger to life, etc., or of brandishing of any deadly weapon at such alleged time of occurrence. Needless to reiterate that the complainant has not even identified the accused persons as perpetrators of any offence against him despite being vigorously SC No. 29047/2016 State v. Javed & Ors. Page 49 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:38:23 +0530 cross examined by/on behalf of the State. Pertinent to note here that this Court is conscious of the settled law9 that there is no legal impediment to base a conviction upon the testimony of even of a hostile witness, if corroborated by other reliable evidence. In other words, when a complainant/witness turns hostile and even fails to identify an accused, though, the prosecution case may be weakened, however, the same would not lead to an automatic acquittal of such an accused. On the contrary, under such circumstances, court has to scrutinize the evidence, including any corroborating evidence, and the overall strength of the prosecution's case with greater caution, before reaching its final determination. However, in the instant case, when the entire material placed on record is conscientiously evaluated, this Court unambiguously reaches an unwaiving conclusion that the prosecution has failed to prove its case beyond a pale of doubt against the accused persons.
31. In respect of the foregoing, this Court deems it apt to refer here to the testimonies of PW-1/Ct. Ajay Kumar and PW-7/ASI Raj Kumar. As aforenoted, PW-1/Ct. Ajay inter alia deposed before this Court that on 10.09.2016, while he was posted as Constable at PS. Kashmere Gate, at around 05:15 pm, he along with HC Raj Kumar reached at Church, Lothian Road. As per PW-1, he heard an alarm of 'bachao bachao', whereupon, he along with the Head Constable reached the TSR. Further, as per PW-1, four persons were snatching something from one person, who were all apprehended and brought to the police station. As per PW-1, the person, who was being robbed also reached the police station and formal search of all the four persons was taken, whereupon, from the possession of Javed, one black coloured bag of complainant 9 Bhagwan Singh v. The State of Haryana, MANU/SC/0093/1975.
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was recovered and from Ahshan, one knife was recovered, whilst from accused, Akram, a bunch of keys, a heavy magnet and three blades including one surgical blade were recovered. Markedly, in his cross examination by/at the behest of the accused persons, PW-1, inter alia s asserted as under;
"XXXXXX by Shri ***, Ld. Counsel for accused persons Javed, Ahshan, Akram and Wasim ***...We stayed at the place where the auto was apprehended, for 1or 2 minutes. It is correct that no proceeding of any sort connected with the aforesaid case was conducted at the aforesaid place where the auto with the complainant and accused was apprehended.
When the auto was brought to the police station, I sat with driver and Head Constable on the rear seat on the left side. The TSR was driven by accused Wasim from the spot to the police station. The TSR was parked in the police station outside camera room and later on, it was handed over to MHC(M).
We took accused persons and complainant to room no. 1 of police station. This room is not assigned to a particular officer. Investigating officers used to sit in this room. I do not remember whether any person was present in room no. 1 at the time when we reached the room.
Head Constable Raj Kumar started investigation of the present case immediately on reaching room no. 1 and first of all, formal search of accused persons was conducted. The statement of complainant was recorded by Head Constable Raj Kumar. I do not remember whether SHO was present at police station at that time..."
(Emphasis supplied)
32. Relevantly, before proceeding with the appreciation of the testimony of PW-1, this Court deems it further apposite to note the version put forth by PW-7/ASI Raj Kumar, who inter alia proclaimed that on 10.09.2016, he was posted as HC at PS Kashmere Gate and on the said day, he/PW-7 along with Ct. Ajay were on patrolling duty and at about 05:15 p.m., they reached Lothian Road in front of Church. There, as per PW-7, traffic was SC No. 29047/2016 State v. Javed & Ors. Page 51 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:34 +0530 moving slowly towards GPO and they heard noise of ' bachao bachao' from an auto-rickshaw/TSR in the said traffic, which TSR was stopped by PW-7 with the help of PW-1/Ct. Ajay. As per PW-7, there were five persons, including driver in the said TSR and the complainant revealed his name as Jung Bahadur, who is stated to be amongst the aforesaid five persons. As per PW-7, the complainant informed that the other persons present in the said TSR had robbed his bag by showing knife and PW-7 as well as PW-1 apprehended all the four persons against whom the complainant made allegations. Thereafter, as per PW-7, he along with PW-1/Ct. Ajay, complainant and the aforesaid four persons went to PS Kashmere Gate in the aforesaid TSR. Further, as per PW-7, he recorded the statement of the complainant in police station and made endorsement on the same, as well as got the FIR registered. Relevantly, in his cross examination, PW-7 affirmed as under;
"XXXXXX by Sh. ***, Ld. Counsel for all the accused persons.
Departure entry was made when we left the police station for patrolling but I do not remember the DD number. It is wrong to suggest that there was no departure entry in this regard. It is wrong to suggest that I along with Ct. Ajay were not present at Lothian Road on 10.09.2016 at 05.15 p.m. It is wrong to suggest that we had not heard any noise of Bachao Bachao from an auto rickshaw/ TSR. It is wrong to suggest that neither the complainant Jang Bahadur nor any other person met us at Lothian Road. It is wrong to suggest that we had not apprehended the accused persons at Lothian Road. It is wrong to suggest that I recorded the statement of complainant on my own and no allegations were leveled by the complainant against the accused persons. It is wrong to suggest that I obtained the signatures of accused persons on blank paper and converted them into their disclosure statement. It is wrong to suggest that accused persons had not made any disclosure statement. It is wrong to suggest that no knife or any other article i.e. one magnet bunch of keys, surgical blade, iron pieces/ objects were recovered from the possession of any of SC No. 29047/2016 State v. Javed & Ors. Page 52 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:38 +0530 the accused persons. It is wrong to suggest that the aforesaid case property was planted upon the accused persons. It is wrong to suggest that I have falsely implicated the accused persons after planting the aforesaid case property on them. It is wrong to suggest that I had not conducted the investigation in fair and proper manner. It is wrong to suggest that I had falsely implicated the accused persons. It is wrong to suggest that I have deposed falsely..."
(Emphasis supplied)
33. Strikingly, it is observed from a conjoint reading of the above that while, PW-1 asserted that when he reached at the spot with PW-7, on hearing the alarm of ' bachao bachao', he saw that four persons were snatching something from one person, who were all apprehended and brought to the police station. However, in utter distinction, PW-7 proclaimed that on reaching the spot along with PW-1, on hearing such an alarm, the complainant who was present in the TSR in question, informed that the other persons present in the said TSR had robbed his bag by showing knife. Clearly, there is an apparent contradiction between the testimony of PW-1 asserting to have witnessed the incident of robbing/snatching upon approaching the auto in question, while of PW-7's deposing that the complainant informed of the incident of robbery when PW-1 and PW-7 reached and apprehended the accused persons on the spot. Concomitantly, one of the most glaring features in the instant case is that despite the complainant and the accused persons being so apprehended at the spot, the police officials made no endeavour to carry out any recovery, search and seizure proceedings at the spot. In fact, PW-1 and PW-7, both unanimously declared under their depositions that immediately upon apprehension of the accused persons, they along with the complainant as well as the accused persons returned to the police station, where all the proceedings related to the present case were carried out. In fact, even the complaint of the complainant or SC No. 29047/2016 State v. Javed & Ors. Page 53 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:38:42 +0530 the documents pertaining to alleged seizure were admittedly not prepared by the police officials on the spot, rather the same were prepared in the police station. Further, no reasons for such a course of action, being adopted in the instant case is forthcoming from the material placed on record. The same is despite the repeated avowals of superior courts that search and seizure memo lose their credibility if prepared at police station and not place of recovery. Reference in this regard is made to the decision of the Hon'ble High Court of Rajasthan in Major Singh v. State of Rajasthan, MANU/RH/1544/2024, wherein the Hon'ble Court iterated in unwavering terms, as under;
"15. The credibility of the seizure memo looses significance if the thing is recovered at a distant place and it is taken by the police from the crime scene to the police station and then memos got prepared in the police station. If it is allowed then why not in every case the things may be taken from the crime scene and whereafter, the entire proceeding be undertaken in the premises of police station and then why not in every case the accused can be detained from any place and whereafter his/her/their memo of arrest be prepared in the police station. This Court is of the view that if anything or any incriminating material is collected or recovered from a particular place and at a particular time then the seizure memo/recovery memo should have been prepared at the same place and that too in the presence of the witnesses of the same locality. A slight departure or deviation can be permitted in case when no other person is available to verify the fact of recovery at the crime scene then the members of the police party can be made witness of the fact of recovery. In certain circumstances, when there is heavy rain or there is heavy traffic on the highway or other like situation, in that cases also, the seizure memo can be prepared at a nearby place so that the proceedings can be undertaken calmly or safely. However, it is not permissible for a police officer to pick the contraband from a particular place then carry with him to the police station which is situated at a far place and whereafter prepare the seizure memo in the police station premises. The moment this kind of practice is permitted; the day is not far when there would be a trait that the police officers will claim that though the memos were prepared in the police station SC No. 29047/2016 State v. Javed & Ors. Page 54 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:46 +0530 but the things were recovered from a different place. In that situation, the purity, originality, genuineness and virtuousness would be lost and at the same time, there would be serious aspersions regarding fairness and genuineness of factum of seizure."
(Emphasis supplied)
34. Clearly, in the instant case, where the complainant/PW-5 denied of the search proceedings having been conducted in his presence or of the recovery, if any, having been made from the accused persons, in the considered opinion of this Court, PW-1's and PW-7's conducting the entire search, recovery and seizure proceedings in the police station, bereft of any endeavour to even join any independent witness(es) to such search and seizure, casts a significant dent in the case of the prosecution. Correspondingly, as aforenoted, the reasons for not even recording the initial complaint/tehrir at the spot of alleged occurrence or of even arresting the accused persons in the police station in the instant case, accentuates the gravity of the circumstances. Simultaneously, in so far as the testimony of PW-3/Sh. Naveen is concerned, as aforenoted, PW-3 inter alia deposed in his examination in chief that he used to give his TSR bearing no. Dl-1RL-2755 on rent to accused, Wasim @ Chhote. Further, PW-3 also declared that upon being enquired, he/PW-3 told SI Ravikant that in the evening of 10.09.2016, his/PW-3's said TSR was being driven by Waseem @ Chhote. However, in his cross examination by/at the behest of the accused persons, PW-3 asserted as under;
"XXXXXX by Mr. ***, Advocate for the accused persons, namely, Javed, Ahsan and Wasim10. I had not obtained permission from the Court before selling TSR bearing registration No. DL 1RL 2755. I am illiterate but can sign on the documents. It is correct that I had not written anything on any of the documents and had put my signatures only. I 10 PW-3 deposed similarly upon being cross examined on behalf of accused Akram on 28.11.2022.
SC No. 29047/2016 State v. Javed & Ors. Page 55 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:38:51 +0530
cannot read. Hence, I had not read the contents of the documents on which I put my signatures. I had put my signatures on the documents while sitting in a car outside PS. I had purchased the said TSR by borrowing amount from a dealer and employee of the said dealer had called me in the PS. I had put the signatures on documents on asking of said employee of the dealer. I have no proof in the form of any agreement or any written document that I gave my TSR on rent. It is wrong to suggest that accused Waseem neither took my TSR on rent nor he was driving the same. I have not seen the accused, namely, Waseem driving the said TSR on the date of alleged incident. It is wrong to suggest that IO has taken my signatures on blank paper and later converted it into notice Ex. PW3/C. I was not aware what was written on Notice Ex. PW3/C. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
35. Noticeably, it is seen from above that, though, PW-3 asserted that he had told SI Ravikant that in the evening of 10.09.2016, his/PW-3's said TSR was being driven by Waseem @ Chhote, however, in his cross examination by/at the behest of the accused persons, PW-3 affirmed that he had not seen the accused Wasim @ Chhote drive the said TSR on the date of alleged incident. Quite evidently, in the absence of PW-3 being present of the spot, PW-3 cannot affirm/depose with utter certainty regarding the said TSR being driven by accused Wasim @ Chhote on the date of alleged occurrence. Here, this Court deems it apposite to refer to another serious omission on the part of the prosecution/investigation agency in the instant case, as can be observed from the testimony of PW-6/SI Ravikant. At the outset, it is noted from a scrupulous analysis of the testimony of PW-6 that the same is replete with contradictions, variations and material omissions, explicating the gross laxity in the manner in which the investigation of the present case was carried out by the concerned police officials. As aforenoted, PW-6 inter alia deposed that on SC No. 29047/2016 State v. Javed & Ors. Page 56 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:38:56 +0530 receipt of FIR and original tehrir, he along with staff reached at the spot and prepared site plan (Ex. PW5/B) at the instance of the complainant, bearing his/PW-7's signatures at point B. Correspondingly, PW-7 deposed that he recorded the supplementary statement of the complainant as well as conducted the search and seizure proceedings. Markedly, PW-6 further inter alia asserted that the TSR in question was being driven by accused, Wasim at the time of occurrence and the robbed bag was recovered from the possession of accused Javed. However, upon being cross examined, PW-6 proclaimed as under;
"XXXXXX by Sh. ***, Ld. Counsel for all accused persons.
The incident of present case took place on 10.09.2016 in evening, but I cannot tell the exact time. HC Raj Kumar had conducted the investigation of present case before registration of FIR and before the case was marked to me. It is correct that I am not an eye witness of the incident. Present case was marked to me at 07:15 PM on 10.09.2016.
I had myself made recoveries from accused persons.
I had myself recovered blade and magnet from accused Akram; knife from accused Ahsan; and bag of the complainant from accused Javed. I have not taken any proof of ownership of the complainant of the bag which was recovered from accused Javed, from the complainant. (Vol. Copy of Xth Mark-sheet and Aadhar Card of complainant were inside the bag). It is wrong to suggest that X th Mark-sheet and Aadhar Card of complainant were put by me in the aforesaid bag. It is further wrong to suggest that no recovery of any sort was effected by me from any of the accused persons and the same has been planted. I had recorded the supplementary statement of complainant Jung Bahadur at around 09:00 PM on 10.09.2016. I relieved the complainant Jung Bahadur from the police station at around 10:30 PM on the same day. I had met the complainant Jung Bahadur for the first time in the police station at around 07:00 PM on the said date. Complainant was in my company at the police station on the said date from around 07:00 PM to 10:30 PM. I along with complainant had gone SC No. 29047/2016 State v. Javed & Ors. Page 57 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:39:00 +0530 to the spot from 07:30 PM to 08:00 PM on the same day. We stayed at the spot for around 30 to 40 minutes. We went to the spot at 07:30 PM and came back to the police station at about 08:15 PM. HC Raj Kumar and Ct. Ajay had accompanied both of us to the spot. All four of us had gone to the spot by official Gypsy and returned by the same. The spot is at a distance of about 600-700 meters from police station. It is correct that the way from the police station to the spot is heavily crowded.
It is wrong to suggest that the accused persons have been falsely implicated. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
36. Ominously, it is observed from the testimony of PW-6 that though, PW-6 declared in affirmative terms that the TSR in question was being driven by accused Wasim at the relevant point in time, however, in his cross examination, PW-6 affirmed that he was not an eyewitness to the incident. Another unusual aspect noted from the deposition of PW-6 is that PW-6 declared under his cross examination that he had himself made recoveries from the accused persons, however, PW-7 asserted that he had recovered various articles from the accused persons, which was later on handed over to the IO. In particular, PW-7 declared in his examination in chief, "...Robbed bag was recovered from the possession of accused Javed. Knife was recovered from the possession of Ahsan @ Iliyas. One magnet, a bunch of eight keys, surgical blades and four iron pieces/ objects were recovered from accused Akram. The aforesaid TSR was found in possession of driver Wasim @ Chote. After registration of FIR, the investigation of the present case was assigned to SI Ravi Kant. I handed over the case property and custody of accused persons to SI Ravi Kant..." Quite portentously, another disconcerting aspect noticed from the testimony of PW-6 is that he deposed that he proceeded to the spot, on receipt of the FIR and original tehrir to the spot, where the site SC No. 29047/2016 State v. Javed & Ors. Page 58 of 66 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:39:04 +0530 plan was prepared. However, in his cross examination, PW-6 deposed that he along with the complainant had gone to the spot from 07:30 p.m. to 08:00 p.m., on the same day, where they stayed for around 30-40 minutes and returned to the police station at around 08:15 p.m. Relevantly, PW-6 further declared that HC Raj Kumar and Ct. Ajay had accompanied them (PW-6 and the complainant to the spot) and that all four of them had gone to the spot in an official gypsy and returned by the same. However, the said factum of the complainant and HC Raj Kumar or Ct. Ajay returning to the spot, along with PW-6/SI Ravikant, for preparation of site plan is not forthcoming under the testimonies of any of the said prosecution witnesses. Clearly, the endeavor on the part of PW-6 appears to be nothing other than a feeble attempt to cover up the lacunae in the prosecution case, including the fact that no investigation or documentation pertaining to the present case was carried out at the alleged spot of occurrence. On the contrary, the testimonies of various police officials, as aforenoted, reinforce the fact that the entire search, seizure, arrest and even the entire investigation proceedings were conducted by the concerned police officials while being present at the police station, with no plausible basis/reasons thereof, forthcoming from any material placed on record.
37. Strikingly, in the instant case, there is another significant and glaring irregularity, observable from a scrupulous analysis of the material placed on record. Pertinent in this regard to note that, while the chargesheet records that the seal of HC Raj Kumar bearing 'RK' deployed to seal samples/seized articles was handed over to him after use, however, no evidence in respect of handing over of said seal is forthcoming from the case records. Clearly, in the instant case, there is nothing on record to show as to SC No. 29047/2016 State v. Javed & Ors. Page 59 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:39:09 +0530 when the seal in question was finally taken back from the possession of the members of police team or whether the same preserved to remain with them forever. Clearly, the seal during the entire interval reasonably appears to be within the reach of the police officials. Ergo, under such circumstances, the possibility of tampering with the case property cannot be ruled out. Notably, in this regard, this Courts deems it apposite at this stage to make a reference to the decision in Safiullah v. State (Delhi Admn.), 1992 SCC OnLine Del 516, wherein the Hon'ble High Court of Delhi, whilst being confronted with the situation of akin kind, observed as under;
"9. ...The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of the sample the benefit of the same should go to the accused...
*** *** ***
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out. Since the Inspector Omveer Singh, appearing as P.W.-8, has tried to improve his statement in the Court, to my mind, no reliance can be placed on his statement, particularly when the Investigating Officer and the Moharrar Malkhana do not say anything about the deposit of the CFSL form with the Moharrar Malkhana. In these circumstances I am clearly of the view that the prosecution has failed to prove this link evidence to show that the sample parcel was not tampered with the anyone before it was examined by the C.F.S.L. and the benefit of the same must go to the appellant."SC No. 29047/2016 State v. Javed & Ors. Page 60 of 66 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:39:14 +0530 (Emphasis supplied)
38. Consequently, in light of the foregoing discrepancies, omissions and lacunae in the prosecution's case/on the part of the prosecution witnesses, in order to successful bring home guilt of the accused persons in the instant case, it was incumbent on the prosecution to establish the case against the accused persons on the basis of other corroborative and reliable evidence, considering the hostility of the material/star prosecution witness , i.e., the complainant/PW-5. However, when the testimonies of various prosecution witnesses are scrupulously analysed, this Court unwaveringly reaches a conclusion that the prosecution has miserably failed to prove its case against the accused persons, beyond a shadow of doubt. In this regard, this Court deems it apposite at this juncture to reiterate as under;
a) The complainant/PW-5/Sh. Jung Bahadur/star witness of the prosecution has not supported the case of the prosecution even in so far as the occurrence of incident, i.e., of him being robbed whilst being put under fear of imminent danger to life, etc., or of brandishing of any deadly weapon at such alleged time of occurrence. The complainant has even identified the accused persons as perpetrators of any offence against him despite being vigorously cross examined by/on behalf of the State;
b) The complainant, under his examination in chief did not depose regarding occurrence of any incident of the sort, as propounded in the complaint/instant chargesheet. In fact, PW-5 did not even assert about him being forced to sit in the autorickshaw or of the accused persons' frisking and robbing him of his bag or of even accused, Ahshan @ Iliyas brandishing any knife/chaku at him at the alleged time of occurrence. On the contrary, PW-5 proclaimed that while he and other passengers of the TSR/autorickshaw were proceeding towards old Delhi Railway Station and had crossed police picket on the way, the said TSR/autorickshaw was stopped at the picket and the police took all the passengers to the police post, ISBT Bus Stand, where the police is asserted to have conducted proceedings against the driver and helper of the auto. PW-5 further proclaimed that though, one SC No. 29047/2016 State v. Javed & Ors. Page 61 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:39:20 +0530 of his bag was missing, however, nothing was stolen from his Reebok bag. On the contrary, as per PW-5, the police showed him some weapon stated to be recovered from the possession of the driver, helper and other passengers of the auto, though, PW-5 firmly asserted that the search of such persons was not conducted in his presence;
c) The complainant/PW-5 further expressed his inability to identify the said persons, present in the auto and asserted that he was told by the police officials that the said persons were present in the Court on the date of his deposition, who were then, pointed out by the complainant/PW-5 as accused, Wasim, Ahshan, Akram and Javed. Clearly, the identification, if any, is also stated to be at the behest of the concerned IO/police officials;
d) PW-5 in his cross examination by/at the behest of the State, denied/negated the occurrence again, after having read over his complaint Ex. PW5/A by asserting that he was nervous at the relevant point in time and had neither read out his said statement, when it was signed by him nor was the same read out to him by the police official(s), as he was in hurry. As aforenoted, PW-5 was further confronted with his supplementary statement under Section 161 Cr.P.C.
(Mark PW5/1), identifying and attributing specific roles to each of the accused persons, however, PW-5 denied of having made any statement. Needless to further accentuate, PW-5 further denied of having being forced into the auto by accused persons along with his bag, of having being shown knife and being frisked by the accused persons as well as of being robbed and also denied of having raised an alarm of 'bachao bachao' on seeing the police officials, and was consequently confronted with the relevant extracts from his complaint Ex. PW5/A, where it was so recorded;
e) Despite hostility of PW-5, even the other material placed on record is not sufficient, in the considered opinion of this Court, to prove the case of the prosecution beyond shadow of doubt against the accused persons. In this regard it is noted that from a conjoint reading of testimonies of PW-1 and PW-7, it is noted that while PW-1 asserted that as he reached at the spot on hearing the alarm of 'bachao bachao', he saw that four persons were snatching something from one person, who were all apprehended and brought to the police station. However, in utter distinction, PW-7 proclaimed that on reaching the spot, on hearing such an alarm, the complainant who was present in the TSR in question, informed that the other persons present in the said TSR had robbed his bag by SC No. 29047/2016 State v. Javed & Ors. Page 62 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:39:24 +0530 showing knife. Clearly, there is an apparent contradiction between the testimony of PW-1 as to him witnessing the incident of robbing/snatching, while of PW-7's deposing that the complainant informed of such incident when they reached and apprehended the accused persons on the spot;
f) One of the most glaring features in the instant case is that despite the complainant and the accused persons being so apprehended at the spot, the police officials made no endeavour to carry out any recovery, search and seizure proceedings at the spot. In fact, PW-1 and PW-7, both unanimously declared under their depositions that immediately upon apprehension of the accused persons, they along with the complainant as well as the accused persons returned to the police station, where all the proceedings related to the present case were carried out;
g) Even the complaint of the complainant or the alleged seizure proceedings were not conducted by the said police officials on the spot and no reasons for such a course of action being adopted in the instant case is forthcoming from the material placed on record (Ref:
Major Singh v. State of Rajasthan,
MANU/RH/1544/2024);
h) Where the complainant/PW-5 denied of the search proceedings having been conducted in his presence or of the recovery, if any, having been made from the accused persons, in the considered opinion of this Court, PW-1's and PW-7's conducting the entire search, recovery and seizure proceedings in the police station, bereft of any endeavour to even join any independent witness(es) to such search and seizure, casts a significant dent in the case of the prosecution. Correspondingly, as aforenoted, the reasons for not even recording the initial complaint/tehrir at the spot of alleged occurrence or of even arresting the accused persons in the police station in the instant case, accentuates the gravity of the circumstances;
i) PW-3 asserted that he had told SI Ravikant that in the evening of 10.09.2016, his/PW-3's said TSR was being driven by Waseem @ Chhote, however, in his cross examination by/at the behest of the accused persons, PW-3 affirmed that he had not seen the accused Wasim @ Chhote drive the said TSR on the date of alleged incident. Quite evidently, in the absence of PW-3 being present of the spot, PW-3 cannot affirm/depose with utter certainty regarding the said TSR being driven by accused Wasim @ Chhote on the date of alleged occurrence;
j) The testimony of PW-6 that the same is replete with contradictions, variations and material omissions, SC No. 29047/2016 State v. Javed & Ors. Page 63 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.18 14:39:29 +0530 explicating the gross laxity in the manner in which the investigation of the present case was carried out by the concerned police officials;
k) PW-6 declared in affirmative terms that the TSR in question was being driven by accused Wasim at the relevant point in time, however, in his cross examination, PW-6 affirmed that he was not an eyewitness to the incident;
l) PW-6 declared under his cross examination that he had himself made recoveries from the accused persons, however, PW-7 asserted that he had recovered various articles from the accused persons, which was later on handed over to the IO. In particular, PW-7 declared in his examination in chief, "...Robbed bag was recovered from the possession of accused Javed. Knife was recovered from the possession of Ahsan @ Iliyas. One magnet, a bunch of eight keys, surgical blades and four iron pieces/ objects were recovered from accused Akram. The aforesaid TSR was found in possession of driver Wasim @ Chote. After registration of FIR, the investigation of the present case was assigned to SI Ravi Kant. I handed over the case property and custody of accused persons to SI Ravi Kant...";
m) PW-6 deposed that he proceeded to the spot, on receipt of the FIR and original tehrir to the spot, where the site plan was prepared. However, in his cross examination, PW-6 deposed that he along with the complainant had gone to the spot from 07:30 p.m. to 08:00 p.m., on the same day, where they stayed for around 30-40 minutes and returned to the police station at around 08:15 p.m. Relevantly, PW-6 further declared that HC Raj Kumar and Ct. Ajay had accompanied them (PW-6 and the complainant to the spot) and that all four of them had gone to the spot in an official gypsy and returned by the same. However, the said factum of the complainant and HC Raj Kumar or Ct. Ajay returning to the spot, along with PW-6/SI Ravikant, for preparation of site plan is not forthcoming under the testimonies of any of the said prosecution witnesses; and
n) While the chargesheet records that the seal of HC Raj Kumar bearing 'RK' deployed to seal samples/seized articles was handed over to him after use, however, no evidence in respect of handing over of said seal is forthcoming from the case records. Clearly, in the instant case, there is nothing on record to show as to when the seal in question was finally taken back from the possession of the members of police team or whether the same preserved to remain with them forever. Clearly, the seal during the entire interval reasonably appears to be within the reach of the SC No. 29047/2016 State v. Javed & Ors. Page 64 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.18 14:39:34 +0530 police officials. Ergo, under such circumstances, the possibility of tampering with the case property cannot be ruled out. (Ref: Safiullah v. State (Delhi Admn.), 1992 SCC OnLine Del 516).
CONCLUSION:
39. Conclusively, in light of the foregoing, it is reiterated that from the material placed on record and arguments addressed on behalf of the State as well as by/on behalf of the accused persons, in the considered opinion of this Court, the prosecution has failed to discharge the burden to prove its case 'beyond reasonable doubt' against the accused persons, namely, Akram, Ahshan @ Ilyas, Javed, and Wasim @ Chhote. On the contrary, in light of the various contradictions, lacunae, and material omissions, as hereinunder observed, benefit of doubt must, in the considered opinion of this Court, accrue in favour of the accused persons. Needless to mention at this stage that it is trite law 11 that the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise. It is equally a settled law12 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
40. Accordingly, accused persons, namely, Akram, Ahshan @ Ilyas, Javed, and Wasim @ Chhote are acquitted of the charges levelled against them under Section(s) 392/34 IPC; accused, namely, Ahshan @ Ilyas is acquitted of the charges under Section 392/34 IPC read with Section 397 IPC; and accused, namely, Javed is acquitted of charges under Section 411 IPC. Consequently, all the said accused/accused persons, namely, 11 Meena v. State of Maharashtra, (2000) 5 SCC 21.
12Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
SC No. 29047/2016 State v. Javed & Ors. Page 65 of 66 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.18 14:39:39 +0530
Akram, Ahshan @ Ilyas, Javed, and Wasim @ Chhote are admitted to bail on furnishing of a personal bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) each, along with one surety of the like amount (each), as per the provisions under Section 437A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Further, as requested, the bail bond be furnished by the accused persons within a period of one week from the date of this judgment.
41. File be consigned to record room after due compliance.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.18
14:39:51
+0530
Announced in the open Court (Abhishek Goyal)
on 18.03.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 29047/2016 State v. Javed & Ors. Page 66 of 66