Delhi District Court
Akbar Alam vs State on 30 April, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No. DLCT01-002640-2025
CRIMINAL APPEAL No. 62/2025
SHRI. AKBAR ALAM,
S/o. Shri. Suleman,
R/o. 116, Kuccha Rahman,
Pape Wali Gali, Ballimaran,
Delhi-110006. ... APPELLANT
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of Filing : 15.02.2025
Date of Institution : 24.02.2025
Date when judgment was reserved : 05.04.2025
Date when judgment is pronounced : 30.04.2025
JUDGMENT
1. The present appeal has been filed under Section 415 of the of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS')/pari materia with Section 374 of the Code of Criminal Procedure, 1973 ( hereinafter, referred to as 'Cr.P.C.') against the judgment dated 19.02.2024 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate-07/Ld. MM-07, Central, Tis Hazari Court, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing; 'State v. Akbar Alam, Cr. Case No. 7732/2023', arising out of FIR No. 254/2023, PS. Kashmere Gate, under Sections 379/411 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the appellant of the offences under Sections 379/411 IPC and the consequent order of sentence dated 13.05.2024 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, sentencing rigorous C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 1 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:45:36 +0530 imprisonment for a term of 3 (three) years for the offence under Section 379 IPC as well as rigorous imprisonment for a period of 3 (three) years for the offence under Section 411 IPC, the period of imprisonment being directed to run concurrently. Further, the appellant was directed to pay/deposit a compensation of Rs.
8,000/- (Rupees Eight Thousand only) to be disbursed to the victim and sum of Rs. 1760/- (Rupees One Thousand Seven Hundred and Sixty only) as litigation expenses of the State (hereinafter the impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Succinctly, the case of the prosecution against the appellant is that on 02.05.2023, on receipt of PCR Call vide DD No. 59A, the concerned police officials are asserted to have reached at the spot, i.e., Hanuman Mandir, Jamuna Bazar, Kashmere Gate, Delhi (hereinafter referred to as the 'spot'), where they found the complainant/victim, namely, Rudrakshi Goyal, D/o. Ketan Goyal, R/o. MM-17 Mandir Marg, Lane-10, Sainik Farm, Anupam Garden, Delhi (hereinafter referred to as the 'complainant'). The complainant is asserted to have inter alia declared to the police officials in her complaint that on the said day, i.e., on 02.05.2023 at around 05:45 p.m., she had reached at Kashmere Gate, Hanuman Mandir and while she was purchasing offering/parshad, suddenly, someone from behind opened the chain of her bag and stole her grey color bag small purse from the same (आज दिनांक 02/05/23 को शाम 5:45 PM बजे मैं कश्मिरी गेट में हनुमान मंदीर आयी हु ई थी तभी परशाद खरिदते समय पिछे से एक लड़के ने मेरे Bag की चैन खोली और उसमे रखा मेरी एक छोटा Grey Color का पर्स निकाल लिया). The complainant further asserted in her complaint that when she realized of the same, she raised an alarm by shouting ' chor chor' C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 2 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:45:43 +0530 (तभी मुझे अहसास हु आ तो मैं चोर-चोर चिल्लाने लगी), thereupon, one police official who was coming from front caught the said thief, who has stolen the complainant's purse containing her/complainant's Aadhar Card, Pension Card, Rs. 1,000/- (Rupees One Thousand only)-Rs. 1,500/- (Rupees One Thousand Five Hundred only), and some documents (तभी सामने से आ रहे एक पुलिस वाले ने उस चोर को पकड लिया जिसके पास मेरा पर्स था मेरे पर्स मे मेरा आधार कार्ड, pension Card, 1000-
1500 रुपये, और कु छ documents थे ). Correspondingly, as per the complainant, the said police official took search of the said apprehended person and from inside his shirt, complainant's purse was recovered, which was identified by the complainant ( जो उस पुलिस वाले ने उसकी तलाशी ली तो उस लड़के के शर्ट के अंदर से मेरा पर्स निकला जिसकी मैं ने पहचान कि). It was further avowed by the complainant that the name of the said apprehend person was later on revealed as, Akbar Alam, S/o. Suleman, R/o. 116, Kuchha Rahman, Pappe wali gali, Ballimaran, Delhi. Markedly, under said facts and circumstances and on the basis of the complainant's complaint, the instant FIR came to be registered, and investigation ensued. Notably, during the course of investigation, statements of other witnesses were recorded, personal search as well as disclosure statement of the appellant was recorded, and the formal search and seizure proceedings were conducted.
2.1. Noticeably, upon conclusion of the investigation, chargesheet was filed by the concerned police official/IO before the Ld. MM, upon which, cognizance of the offence(s) was taken by the Ld. Trial Court on 27.06.2023. Correspondingly, on compliance of the provisions under Section 207 Cr.P.C., and arguments on charges having been addressed by/on behalf of the appellant as well as by Ld. Addl. PP for the State before the Ld. Trial Court, charges under Section 379/411 IPC were directed to C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 3 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:45:48 +0530 be framed by the Ld. Trial Court by virtue of order dated 28.07.2023 inter alia under the following observations;
"...Arguments heard. Record perused. On the basis of material available on record, prima facie case for the offence punishable under section 379/411 IPC is made out against the accused. Accordingly, charge framed against the accused to which he pleaded not guilty and claimed trial. Issue court notice to the complainant for NDOH..."
(Emphasis supplied) 2.2. Apposite to reproduce the charges framed against the appellant herein on 28.07.2023, as under;
"...I, ***, Metropolitan Magistrate, Tis Hazari Courts, Delhi do hereby charge you Akbar Alam s/o Sh. Suleman as under: -
That on 02.05.2023, at about 5.45 p.m. near Hanuman Mandir, Jamuna Bazar, Kashmere Gate, Delhi, within the jurisdiction of PS Kashmere Gate, you committed theft of wallet containing aadhar card, pension card, cash of Rs. 1000/- 1500/- and some documents from the bag of complainant Ms. Rudrakshi Goyal and thereby you committed an offence punishable u/s 379 IPC and within my cognizance.
Alternatively, on the same date and from the same place, you were apprehended by the complainant and found in possession of abovesaid wallet belonging the complainant which you had received or retained dishonestly knowing or having reason to believe the same to be the stolen property and thus committed the offence punishable u/s 411 IPC and within the cognizance of this court.
And I hereby direct that you be tried by this Court on the said charge..."
(Emphasis supplied) 2.3. Relevantly, the appellant pleaded not guilty to the aforesaid charges and claimed trial. Strikingly, during the course of trial, prosecution examined three witnesses, i.e., PW-1/Ms. Rudrakshi Goyal; PW-2/HC Sripal; and PW-3/SI Manish Tanwar. Further, during the trial proceedings, the appellant admitted; FIR C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 4 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:45:53 +0530 No. 254/2023, PS Kashmere Gate (Ex. A-1); endorsement on rukka (Ex. A-2); GD No. 59A dated 02.05.2023, PS Kashmere Gate (Ex. A-3); and entry in the register no.19, PS Kashmere Gate (Ex. A-4) on 04.09.2023, in terms of the provisions under Section 294 Cr.P.C., with the Ld. Trial Court dispending the evidence of corresponding witness. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellant under Section 313/281 Cr.P.C. on 13.02.2024, as well as on conclusion of arguments by/on behalf of the appellant as well as by State, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences punishable under Sections 379/411 IPC, sentenced him in the manner, as noted hereinabove.
3. Learned Assistant Legal Aid Defence Counsel for the appellant outrightly contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their setting aside at the outset. In this regard, Ld. Counsel vehemently asserted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth by the prosecution and that the prosecution's story does not inspire any confidence, not appealing to the senses of a prudent man. Further, as per the Ld. Counsel, the Ld. Trial Court decided the matter in a mechanical manner, without appreciating the evidence produced at the trial. It was further submitted that a perusal of the testimony(ies) of the various witnesses, who were examined before the Ld. Trial Court would clearly demonstrate that there are glaring, and material contradictions and the Ld. Trial Court has committed grave error C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 5 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:45:57 +0530 by not considering the same, leading to gross miscarriage of justice to the appellant. Further, as per the Ld. Counsel, the Ld. Trial Court failed to consider that the prosecution had cooked up a false case against the appellant and further, the Ld. Trial Court failed to consider that the witnesses, relied by the prosecution were not reliable in the instant case. Even otherwise, it was submitted that the Ld. Trial Court failed to appreciate that the prosecution has not examined any public witnesses, despite the fact that the place of alleged occurrence was a public place with heavy footfall. Further, as per the Ld. Counsel, the prosecution only examined three witnesses in the instant case, amongst which, one was complaint and two others were police officials, including the investigating officer. Ergo, as per the Ld. Counsel there were serious doubts on the version of the prosecution as the place of alleged incident was a public spot, densely populated/congested with heavy footfall, despite which no public persons have been joined in the instant case.
3.1. Learned Assistant Legal Aid Defence Counsel for the appellant further submitted that the Ld. Trial Court, while passing the order of conviction of the appellant, failed to consider that the prosecution has been unable to prove its case beyond a shadow of doubt against the appellant and that the Ld. Trial Court, as per the Ld. Counsel, passed the order/judgment of conviction on the basis of mere presumption, rather, than on hard facts. It was further submitted that the Ld. Trial Court further failed to consider that in the present case neither is there any CCTV footage of the alleged incident, nor any public person/independent witnesses were examined. Ergo, as per the Ld. Counsel, the investigation in the instant case was conducted mechanically by the police officials, C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 6 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:46:01 +0530 solely to implicate the appellant in the instant false case. Even otherwise, Ld. Counsel asserted that the Ld. Trial Court failed to appreciate the material contradictions in the statements given by the prosecution witnesses, more specifically with respect to the number of stolen currency notes and the said contradictions clearly, cast a shadow on the version put forth by the prosecution against the appellant. Further, as per the Ld. Counsel, the Ld. Trial Court also did not consider the admitted facts, which came on record of the Ld. Trial Court and passed the order in extreme haste, oblivious to the correct factual scenario. Accordingly, Ld. Counsel for the appellant reiterated that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly held the appellant guilty of the aforementioned offences. 3.2. Learned Assistant Legal Aid Defence Counsel for the appellant submitted that there are material omissions in the statements/depositions of various witnesses as well as lacunae in the investigation process. In this regard, it was submitted that the presence of the appellant at the spot of incident has not been proved from the statement of the witnesses and reiterated that even the CDRs/CCTV footage have not been placed on record. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court failed to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offences. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside or in C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 7 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:46:06 +0530 the alternate, relaxation be granted, releasing the appellant on probation/Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act').
4. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimony of the complainant/victim and other witnesses unambiguously proved the commission of the offences by the appellant, besides the appellant was apprehended on the spot and recovery effected from him, of the stolen articles. It was further contended by Ld. Addl. PP for the State that the depositions of the prosecution witnesses have not only been consistent, rather, unblemished as well as lucidly points towards the only inference of guilt of the appellant. As per the Ld. Addl. PP for the State, the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Assistant Legal Aid Defence Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record have been thoroughly perused.
6. At the outset, it is observed that the instant appeal was preferred by/on behalf of the appellant with a delay. However, C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 8 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:46:10 +0530 along with the instant appeal, application for condonation of delay was filed before this Court. However, this Court vide its order dated 29.03.2025 allowed the appellant's entreaty for seeking condonation of delay inter alia under the following observations;
"8. Consequently, in light of the aforenoted judicial dictates/principles governing limitation; arguments addressed by the Ld. Counsel for the appellant and Ld. Addl. PP for the State; as well as appreciating the facts and circumstances and brought forth to the notice of this Court, this Court is of the considered opinion that the prayer for condonation of delay in filing the instant appeal, deserves to be allowed. As aforenoted, the reasons for delay in the present case are stated to have been attributed to the fact of appellant's incarceration, limited access to judicial resources while in judicial custody and the late receipt of request at the office of LADC from the concerned jail to prefer the present appeal. Further, as aforenoted, Ld. Counsel for the appellant had further submitted that even after receipt of such request, Ld. Assistant Legal Aid Defence Counsel had limited access to the appellant and there was delay in obtaining the certified copies of the trial court record as well as receipt of executed copies of the appeal from the concerned jail, whereupon, the appeal was immediately preferred. Further, the appellant is noted to be in judicial custody during the entire interregnum period of trial from 02.05.2023 till 12.05.2024 and from 13.05.2024 till date, post his conviction and passing of impugned order of sentence, as per the appellant's nominal roll requisitioned by this Court from the concerned jail. Clearly, in light of the foregoing, the reasons for preferring the present appeal by/on behalf of the appellant cannot be treated to be malicious or dilatory in any manner. Correspondingly, this Court unswervingly observes that the prayer for condonation of delay in filing the present appeal deserves to be allowed and the period of 220 days delay in preferring the present appeal, be condoned. Consequently, for the foregoing reasons, this Court allows the appellant's prayer for condonation of delay and the period of 220 days in filing/preferring the present appeal is, hereby, condoned."
(Emphasis supplied) C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 9 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:46:14 +0530
7. Proceeding further, this Court deems it apposite at this stage to enunciate the scope of jurisdiction of this Court in an appeal. In this regard, this Court it is pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621, wherein the Hon'ble Court, while delving into the 'scope an ambit' of appellate court's jurisdiction inter alia noted as under;
"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court..."
(Emphasis supplied)
8. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
9. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 10 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:46:18 +0530 the jurisdiction of this Court in an appeal extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising appellate power is not required to consider the question of law, rather, also question of facts to affirmatively reach a conclusion of guilt or innocence of an accused. In fact, it is trite law1 that non-re-appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even the accused. Needless to reemphasize that the appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
10. Therefore, being wary of the aforesaid principles, however, before proceeding with the determination of the rival contentions of the parties, it would be pertinent to reproduce the relevant provisions under law/IPC, for the purpose of present adjudication, as under;
"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".
*** *** ***
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.
379. Punishment for theft-Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
*** *** *** 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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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)
11. Notably, it is observed from perusal of the aforesaid provisions that the essential ingredients2 to constitute the offence punishable under Section 379 IPC are, '(i) the accused must have a dishonest intention to take the property; (ii) the property must be movable; (iii) the property must be taken out of the possession of another person, resulting in wrongful gain by one and wrongful loss to another; (iv) the property must be moved in order to such taking i.e., obtaining property by deception; and (v) taking must be without that person's consent.' Synchronously, the Hon'ble High Court of Delhi in State (NCT of Delhi) v. Narender @ Babloo, Crl. A. 121 of 2018, dated 20.01.2023, while explicating the ingredients of the provisions/offence punishable under Section 338 IPC inter alia observed as under;
"7. Section 379 of the IPC requires four essentials viz. (a) that the accused had taken the movable property dishonestly, (b) property was taken out of possession of the complainant, (c) property was taken out without consent of complainant and (d) the property was moved to such taking. To fulfill the requirements under Section 379 of the IPC, the above mentioned ingredients must be full-filled but the statements of the prosecution witnesses failed to corroborate and full-fill the ingredients of Section 379 of the IPC ..."
(Emphasis supplied)
12. Quite evidently, in order to sustain a conviction under the aforenoted provisions, the prosecution is inter alia required to prove that the moveable property of another person is taken away 2 K.N. Mehta v. State of Rajasthan, MANU/SC/0030/1957: AIR 1957 SC 369.
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from him/such person's possession, without his/such person's consent, either express or implied, with a dishonest intention. Relevantly, Section 24 of IPC defines the term, 'dishonestly' as doing of anything by any person with an intention of causing wrongful gain to one person or wrongful loss to another person. In turn, the terms wrongful gain and wrongful loss are defined under Section 23 of 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."
(Emphasis supplied)
13. Apropos the present discourse, this Court deems it further apposite to note that that superior courts have persistently avowed that in order for an act constitute theft, it is to be demonstrated that the accused took the movable property, permanently, out of possession of another person with the intention not to return him. In fact, law is trite3 that, it would satisfy the definition of theft, if the accused takes away any movable property out of possession of another person, though, he/accused intends to finally return it. Correspondingly, for culpability under Section 411 IPC to attract, 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 3 Pyare Lal v. State, MANU/SC/0152/1962: AIR 1963 SC 1094.
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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)
14. Congruently, reference is further made to the decision in Gopi Jaiswal v. State of U.P., Criminal Appeal u/S. 374 Cr.P.C. No. 1899 of 2009, dated 08.11.2011, wherein the Hon'ble Allahabad High Court unambiguously noted that a person cannot be held responsible, simultaneously4, for committing the offence of theft as well as for dishonestly receiving or keeping the stolen property, knowingly it to be stolen at the same time. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"In view of the fact that the appellant Gopi 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 4 Sarwar Ali & Ors. v. State, Criminal Revision No. - 390 of 2006, dated 29.05.2015 (Allahabad HC).
C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 14 of 36
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.30
12:46:34
+0530
passed against the appellant under section 411 IPC cannot be upheld...."
(Emphasis supplied)
15. Reference in respect of the foregoing is further made to the decision in Sunil Mashi v. State NCT of Delhi (14.10.2014 - DELHC): MANU/DE/3768/2014, wherein the Hon'ble High Court of Delhi in akin context, remarked as under;
"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)
16. Consequently, mindful of the principles hereinunder noted, this Court would now proceed with the appreciation of the evidence and material placed on record. At the outset, it is pertinent to refer to the deposition/testimony of complainant, victim, Ms. Rudrakshi Goyal/PW-1, who deposed in her testimony before the Ld. Trial Court that on 02.05.2023 at about 05:45 p.m., she/PW-1 was present at Hanuman Mandir, Kashmere Gate and, purchasing the offering/prashad, when, suddenly boy came from behind of PW-1 and opened the zip of her/PW-1's bag and took out small grey colour purse from her/PW-1's bag. Correspondingly, as per PW-1, she realized that her purse had been taken out and, she/PW-1 raised hue and cry as well as shouted, 'chor chor'. Thereupon, as per PW-1, one police official, who was coming towards that side, apprehended the said boy and PW-1's stolen purse was recovered from the possession of the said boy. It was further deposed by PW-1 that her said purse contained her/PW-1's Aadhar card, Pension Card, cash of Rs. 1,000/- (Rupees One C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 15 of 36 Thousand only)- Rs. 1,500/- (Rupees One Thousand and Five Hundred only) and her/PW-1's other documents. Concomitantly, PW-1 avowed that she identified her purse and the said boy, as well as made a complaint to the police in the said regard, which is Ex. PW-1/A, bearing PW-1's signatures at point A. PW-1 further asserted that she pointed out the incident spot to the IO and the IO prepared the site plan at her/PW-1's instance, as Ex. PW-1/B, bearing PW-1's signatures at point A. Further, PW-1 declared that the IO seized the recovered purse vide seizure memo Ex. PW-1/C, bearing PW-1's signatures at point A; recorded disclosure statement (Ex. PW-1/D), bearing PW-1's signatures at point A; arrested the accused/appellant vide memo Ex. PW-1/E, bearing PW-1's signatures at point A and conducted accused's/appellant's personal search Ex. PW-1/F, bearing PW-1's signatures at point A. Significantly, PW-1 further identified the appellant as the said accused person before the Ld. Trial Court. It was further proclaimed by PW-1 in her deposition that two days thereafter, she/PW-1 got her purse and articles released on superdari vide superdarinama (Ex. PW-1/G), bearing PW-1's signatures at point A. Markedly, PW-1 further identified her recovered purse, cash and documents from the photographs (Ex. PW-1/H(Colly.)) from the records of the Ld. Trial Court, besides PW-1 further produced the said purse and articles before the Ld. Trial Court during her deposition, which purse along with cash and documents were marked, Ex. P1 (colly).
17. Relevantly, upon being cross examined by/on behalf of the appellant, PW-1/complainant/Ms. Rudrakshi Goyal, asserted as under;
"XXXX by Sh. ******, Ld. LAC for the accused.
C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 16 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:46:41 +0530
It is correct that the spot is busy public place and there were several shops situated near the spot and people were coming and going from there. It is correct that no person from the shops were called to join the investigation. It is wrong to suggest that no public witness is cited as PW. It is further correct that the name of the public persons who refused to join is not mentioned and no notice was served to them. It is correct that no photograph of the case property was taken at the spot. It is wrong to suggest that I was not present at the spot and no incident has alleged ever took place. It is wrong to suggest that the accused was not apprehended at the spot and lifted from his house and was falsely implicated in the present case. It is wrong to suggest that nothing was recovered from the possession of the accused and the recovery has been planted upon him. It is wrong to suggest that all the proceedings were carried out while sitting in the PS and that the signatures of accused were taken on blank papers and were later on misused as disclosure statement and other documents. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
18. Here it is further apposite to refer to the testimony of PW-2/HC Sripal, who corroborated the version of PW-1 regarding apprehension of the appellant at the spot as well as of recovery of the stolen articles from the possession of the appellant herein. In fact, it was PW-2, who apprehended the appellant as well as made recovery from him on the spot. Pertinent in this regard to note that PW-2 proclaimed before the Ld. Trial Court that on 02.05.2023, he was posted as HC at PS Kashmere Gate and on that day, he/PW-2 was on patrolling duty. As per PW-2, when he/PW-2 reached Hanuman Mandir, he saw a person, chasing the other and shouting 'chor chor'. Further, as per PW-2, he immediately apprehended the said person and the person, who was chasing also reached there and informed him/PW-2 that the said person had snatched her purse (person who was chasing, her purse) of grey colour, containing her Aadhar Card, Pension Card, sum of Rs. 1,020/- (Rupees One Thousand and Twenty only) in cash and other C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 17 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:46:46 +0530 documents. On the cursory checking of the accused, as per PW-2, the said purse was recovered and on scrutiny of the same, all the said articles were also recovered and taken into possession. Further, as per PW-2, the complainant revealed her name as, Rudrakshi Goel and on further interrogation, the said person/accused is asserted to have revealed his name as Akbar Alam/the appellant herein. It was further proclaimed by PW-2 that the complainant had already made a call at 100 number and SI Manish Tawar also reached at the spot along with Ct. Parmeet, to whom, PW-2 handed over custody of the accused along with the recovered case property. PW-2 further deposed that he/PW-2 narrated the whole incident to the said police officials. PW-2 also declared that SI Manish Tanwar also inquired about the incident from the complainant and recorded her detailed statement. Correspondingly, on the basis of the said statement, he/SI Manish Tanwar prepared the rukka and handed over the same to Ct. Parmeet for registration of FIR. Consequently, Ct. Parmeet is asserted to have gone to the PS, got the FIR registered, returned to the spot as well as handed over the copy of FIR and original rukka to the IO. PW-2 further proclaimed that during this while, he/PW-2 along with SI Manish Tawar made efforts to trace the CCTV footage at/near the spot, however, no such camera was found. Further, as per PW-2, the IO prepared the site plan of the spot and after conducting a thorough interrogation, decided to arrest the accused. As per PW-2, the arrest memo (Ex. PW-1/E) of accused bore his/PW-2's signatures at point B. Further, as per PW-2, the recovered purse, containing the said articles was also seized vide seizure memo (Ex. PW-1/C), bearing PW-2's signatures at point B. PW-2 further proclaimed that the detailed disclosure statement C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 18 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:46:50 +0530 of the accused was also recorded by the IO, which is Ex. PW-1/D, bearing PW-2's signatures at point B. Further, PW-2 declared that his detailed statement was also recorded by the IO, besides PW-2 correctly identified the accused as well as the case property , i.e., cash, Aadhar Card, one grey color ladies' purse, one pension card as Ex. PW-1/H (colly.).
19. Markedly, upon being cross examined, PW-2 proclaimed as under;
"XXXXXX by Sh. ******, Ld. LAC for accused. The incident had taken place between 05:30-06:00 pm. I was patrolling on foot. The recovery was effected from the accused during the course of cursory search conducted by me in the presence of the complainant. The recovered currency notes were in the denomination of Rs. 500 (2 notes) and Rs. 20/- (01 note). I cannot say whether the IO had mentioned the denomination of the notes in the seizure memo. I cannot say whether the IO had placed the photographs of the currency notes.
At this stage, the photographs of the currency notes are shown to the witness again which after seeing the same. The witness has confirmed that the photographs only reflect the image of two notes of Rs. 500/-. I do not remember the precise time when Ct. Parmeet left the spot with the rukka for registration of FIR. Same is my answer with regard to his return to the spot. pot. I remained at the spot from 06:00 pm to 08:30 pm. The distance between the Hanuman Temple and the spot where the accused was apprehended is about 200 meters.
It is wrong to suggest that no efforts were made to locate the CCTV cameras at / near the Hanuman Temple. It is wrong to suggest that I was not on patrolling duty on that day or that I had signed the documents while sitting in the PS or that the case property was recovered later on and thereafter was shown as recovery from the possession of the accused. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
20. At this stage, it is further relevant to note that PW-3/SI Manish Tanwar proclaimed before the Ld. Trial Court in C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 19 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:46:55 +0530 his deposition that on 02.05.2023, he/PW-3 was on emergency duty from 08:00 a.m. to 08:00 p.m. at PS Kashmere Gate and on that day, he/PW-3 received a PCR call regarding the apprehension of one thief by HC Sripal Singh. As per PW-3, he reached at the spot i.e. near Hanuman Mandir, Jamna Bazar, Kashere Gate, Delhi. Further, as per PW-3, HC Sripal handed over the accused and case property, i.e., a gray colour purse containing, Aadhar Card, Pension Card and Rs.1,020/- (Rupees One Thousand and Twenty only), and some other documents of the complainant to him/PW-3. Correspondingly, PW-3 proclaimed that he also met the complainant there and recorded the complainant's statement which is Ex. PW-1/A, bearing PW-3's signatures at point B. It was further deposed by PW-3 that on the basis of complaint, he/PW-3 prepared the tehrir, which is Ex. PW-3/A, bearing PW-3's signatures at point A. After that, as per PW-3, he sent Ct. Parmit to lodge the FIR and after lodging of FIR, Ct. Parmit returned to the spot and handed over original tehrir and computerized copy of FIR. After that, as per PW-3, he prepared the site plan at the instance of complainant, which is Ex. PW-1/B, bearing PW-3's signatures at point B. Correspondingly, PW-3 avowed that he also arrested the accused vide arrest memo (Ex. PW-1/E), bearing PW-3's signatures at point C and conducted personal search of accused vide search memo (Ex. PW-1/F), bearing PW-3's signatures at point B. After that, as per PW-3, he recorded the disclosure statement of the accused, i.e., Ex. PW-1/D bearing PW-3's signatures at point C. After that, as per PW-3, he seized the property vide seizure memo (Ex. PW-1/C), bearing PW-3's signatures at point C. PW-3 further deposed that he also recorded the statements of witnesses u/s 161 Cr.P.C. and after that, he/PW-3 C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 20 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:46:59 +0530 got conducted, the medical examination of the accused. PW-3 further proclaimed that on the following day, the accused was produced before the Court and sent to judicial custody. PW-3 further correctly identified the accused as well as the case property, i.e., Ex. PW-1/H (colly), before the Ld. Trial Court.
21. Apposite for the purpose of the present discourse to refer to the cross examination of PW-3, wherein he proclaimed as under;
"XXXXX by Sh. ******, Ld. LAC for the accused.
I reached at the spot at about 6.00 p.m. to 6.30 p.m. I met there the complainant, HC Sripal and the accused. It is correct that recovery did not take place in my presence. Vol. Case property was handed over to me by the HC Sripal with the accused. Rs.1020/- were handed over to me by the HC Sripal. It is correct that the Note of Rs.20/- is not in the photograph Ex. PW-1/H (colly). Vol. It might be in the purse. It is correct that the spot is thickly populated area. No public witness joined the investigation despite my request. It is correct that no notice was given to them neither their names were recorded. It is wrong to suggest that the accused is falsely implicated and that no recovery took place from him. It is wrong to suggest that the case property was planted with the accused. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
22. Conspicuously, in light of the foregoing, this Court would now proceed with the determination of the rival contentions on behalf of the appellant and that on behalf of the State. As aforementioned, Ld. Assistant Legal Aid Defence Counsel for the appellant has outrightly asserted that the conviction of the appellant could not have been premised on the sole testimony of the complainant/PW-1 and that the concerned police officials made no endeavour to either join any public persons in the arrest, search and seizure proceedings, nor any CCTV footage of the C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 21 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.30 12:47:04 +0530 alleged place of occurrence was recovered. However, the said contentions do not find favour with this Court in light of the repeated avowals of superior courts5 unambiguously declaring that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness, if his version is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
23. Congruently, this Court unambiguous observes that mere fact that the prosecution, opted not to produce the other public persons, asserted to be present or would have been present at the spot of occurrence at the time of incident, as prosecution witnesses before the Ld. Trial Court, as otherwise contended by Ld. Assistant Legal Aid Defence Counsel for the appellant, cannot, in the considered opinion of this Court, be read against the 5 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 22 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:08 +0530
prosecution in light of the decision of the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, wherein the Hon'ble Court in a similar situation, held as under;
"34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
(Emphasis supplied)
24. Here, it is further pertinent to refer to the decision of the Hon'ble Punjab and Haryana High Court in Roop Singh v. State of Punjab, 1995 SCC OnLine P&H 443, wherein the Hon'ble Court dispelled the argument that a conviction can be sustained even on the testimony of police officials, without any independent corroboration and the presumption that a person acts honestly, applies so much in favour of a police officer as of other persons. Apposite to reproduce the relevant extract(s) from the said dictate as under;
"13. As regards the second limb of the argument that the conviction has been sustained merely on the testimony of two police officers without any independent corroboration, is also without any merit. It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs coroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons and it is not the judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 23 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:12 +0530 corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. In fact, in a given case, there may not be any other direct evidence of the withness to coroborate the evidence of the police officer but at the same time there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain in-built and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer."
(Emphasis supplied)
25. Ergo, in light of the aforenoted judicial dictates, when the material placed on record is conscientiously perused, it is noted that the complainant consistently deposed about the commission of offence of theft by the appellant as well as of his apprehension on the spot. As aforenoted, PW-1/complainant specifically avowed that on 02.05.2023 at about 05:45 p.m., when she/PW-1 was present at Hanuman Mandir, Kashmere Gate and, purchasing the offering/prashad, suddenly one boy came from her back and opened the zip of her bag as well as took out small grey colour purse from her/PW-1's bag. Correspondingly, as per PW-1, she realized that her purse had been taken out and, she/PW-1 raised hue and cry as well as shouted, 'chor chor'. Thereupon, one police official, who was coming towards that side, apprehended the said boy and PW-1's stolen purse was recovered from the possession of the said boy. Further, as aforenoted, as per PW-1, her said purse contained her Aadhar card, Pension Card, cash of Rs. 1,000/- (Rupees One Thousand only)- Rs. 1,500/- (Rupees One Thousand and Five Hundred only) and her/PW-1's other documents, which was recovered from the possession of the appellant at the spot. Pertinently, the version of apprehension of the appellant and that of recovery from his/appellant's possession, articles/case property C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 24 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:47:16 +0530 is corroborated with the version of PW-2/HC Sripal, who is asserted to have reached at the spot and apprehended the appellant upon hearing the alarm of 'chor chor'. Further, as aforenoted, PW-2 deposed that he met PW-1 at the spot, who informed him of the occurrence and that of appellant's snatching her/complainant's purse from her possession, which contained her Aadhar Card, Pension Card, sum of Rs. 1,020/- (Rupees One Thosuand and Twenty only) in case and other documents, which were all recovered from the possession of the appellant, upon his/appellant's cursory check by PW-2. PW-2 further deposed that PW-1/complainant informed him/PW-2 of having already made a call at 100 number, whereupon PW-3 and Ct. Parmeet reached at the spot, to whom, custody of the appellant as well as of the recovered articles were handed over by PW-2. Subsequently, as per PW-2 the investigation proceedings were undertaken by the IO/PW-3, including the recording of statement of the complainant, search and seizure as well as formal arrest of the appellant, etc. Needless to mention here that, both, PW-1 and PW-2 inter alia proved the seizure memo (Ex. PW-1/C), disclosure statement of the appellant/accused (Ex. PW-1/D) and accused's/appellant's arrest memo (Ex. PW-1/E). Relevantly, PW-3 in his deposition before the Ld. Trial Court also asserted about him reaching the spot, upon PCR being marked to him as well as of conducting of formal search, seizure and recovery proceedings at the spot. In particular, PW-3 corroborated that upon reaching the spot, PW-2/HC Sripal handed over the accused/appellant and case property, i.e., a gray colour purse containing, Aadhar Card, Pension Card and Rs.1,020/- (Rupees One Thousand and Twenty only), and some other documents of the complainant to him/PW-3.C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 25 of 36 Digitally signed
by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:20 +0530 Correspondingly, as per PW-3, he also met the complainant at the spot and recorded her/complainant's; prepared the tehrir; got the FIR registered via Ct. Parmit; prepared the site plan at the instance of complainant/PW-1; arrested the accused/appellant; conducted personal search of accused/appellant; recorded appellant's disclosure statement and seized the case property, etc.
26. Clearly, in light of the foregoing material placed on record, seen in conjunction with the aforenoted judicial dictates, this Court is in concurrence with the finding of the Ld. Trial Court that the offence of theft/Section 379 IPC against the appellant in the instant case stands proved beyond a shadow of doubt in the instant case. In particular, this Court unmistakably records that the consistent testimonies of the prosecution witnesses prove that the appellant, dishonestly took the moveable property of the complainant/PW-1, i.e., her grey colour purse containing the complainant's Aadhar card, Pension Card, cash of Rs. 1,020/- (Rupees One Thousand and twenty only) and her/PW-1's other documents, from the possession of the complainant. Correspondingly, it is proved from the material on record that such taking of moveable property from the complainant's possession by the appellant, was without the complainant's consent and that the said act was undertaken dishonestly, i.e., committed by the appellant with the intention of causing wrongful gain to himself/the appellant and wrongful loss to the complainant. Needless to mention, the facts demonstrate that the property/complainant's said purse was moved by the appellant, in order to taking, i.e., obtaining thereof by deception. Needless to further mention that this Court is further in concurrence with the finding of the Ld. Trial Court that nothing has been brought on the C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 26 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:24 +0530 material on record, i.e., either under the cross examination of prosecution witnesses by/on behalf of the appellant or under his statement under Section 313 Cr.P.C. to demonstrate false implication of the appellant in the instant case, as averred on behalf of the appellant. Pertinent to observe, it is not the case of the appellant that the prosecution witnesses were known to him or that they had any intention or malice to falsely implicate the appellant in the instant case. Correspondingly, the appellant has not even striven to bring any witness in support of his said avowal before the Ld. Trial Court.
27. In as much as the contention by/on behalf of the appellant pertaining to non-joining of independent witnesses/public witnesses during the investigation of the present case is concerned, this Court is further in consonance with the finding of the Ld. Trial Court that non-joining of a public witness during an investigation is a factor, which can be considered by the Court. However, law is trite that such non-joining of independent witness(es) is not automatically fatal to the prosecution case, if other evidence and testimony are credible and reliable. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State of U.P v. Anil Singh, 1988 AIR SC 1998 , wherein the Hon'ble Court remarked as under;
"On late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 27 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:29 +0530 occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 C.W.N. 626 PC, the Privy Council had this to say..."
(Emphasis supplied)
28. Correspondingly, the Hon'ble Apex Court in Appabhai v. State of Gujarat, 1988 Supp SCC 241, in akin context, remarked as under;
"11. In the light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 28 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:35 +0530 of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap v. State of Haryana [(1983) 3 SCC 327, 330 : 1983 SCC (Cri) 601] Chinnappa Reddy, J., speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed: [SCC p. 330, SCC (Cri) p. 604, para 6]..."
(Emphasis supplied)
29. Consequently, in conspectus of above and further keeping in view the facts and circumstances place on record, arguments addressed by/on behalf of the appellant and the State, aforenoted judicial dictates and in light of the material/deposition of various prosecution witnesses, this Court reiterates that the offence under Section 379 IPC/of theft stands proved against the appellant beyond a shadow of doubt in the instant case. However, at this stage, this Court deems it pertinent to note that this Court finds itself difficult to concede with the finding of the Ld. Trial Court that culpability under Section 411 IPC is also attracted against the appellant in the instant case, in light of the facts and circumstances, aforenoted. In fact, as noted heinunder, law is trite that a person cannot be convicted for both theft (under Section 379 IPC) and that of dishonestly receiving stolen property (under Section 411 IPC) for the same act, i.e., a person convicted of theft, cannot be a receiver of stolen property. The reason for same are quite obvious with the ingredients of Section 411 IPC, as explicated by the Hon'ble Apex Court in Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39, in the following terms;
"5. We are satisfied that this was not the correct way of approaching the decision of a case under Section 411, I.P.C. It is the duty of the prosecution in order to bring home the guilt of a person under Section 411, I.P.C. to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 29 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:40 +0530 before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts."
(Emphasis supplied)
30. Quite intelligibly, it is noted from above that the Hon'ble Supreme Court in Trimabak v. State (Supra.) unambiguously remarked that one of the ingredients of offence under Section 411 IPC is that some person, other than the accused, had possession of the property before the accused got possession thereof. As a corollary, if the said ingredient is not proved against an accused by the prosecution, benefit of doubt must enure in favour of such an accused. No doubt, when a thief removes the stolen property from the possession of its owner and takes it into his own possession, he not only commits theft, rather, also in possession of stolen property knowing it to be stolen. However, in light of the aforesaid judicial dictate, in particular, as also noted under Gopi Jaiswal v. State of U.P., (Supra.) and Sunil Mashi v. State NCT of Delhi, (Supra.), since no changing of hands of such stolen property takes place when such thief is found in possession of the stolen property, he cannot be simultaneously convicted for the offence, both, under Section 379 IPC and Section 411 IPC under such case(s). Consequently, it is reiterated that the conviction of the appellant for the offence under Section 411 ICP along with Section 379 IPC under the impugned judgment is bad in law and not sustainable, in the considered opinion of this Court.
31. Conclusively, in view of the above discussion, in particular, in light of the unambiguous testimonies of the prosecution witnesses and the material placed on record of the Ld. Trial Court, the ingredients of offence(s) under Section 379 IPC stands duly proved against the appellant herein. Needless to C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 30 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.30 12:47:44 +0530 reiterate that the consistent testimonies of the prosecution witnesses prove that the appellant, dishonestly took the moveable property of the complainant/PW-1, i.e., her grey colour purse containing the complainant's Aadhar card, Pension Card, cash of Rs. 1,020/- (Rupees One Thousand and twenty only) and her/PW-1's other documents, from the possession of the complainant. Correspondingly, it is proved from the material on record that such taking of moveable property from the complainant's possession by the appellant, was without the complainant's consent and that the said act was undertaken dishonestly, i.e., committed by the appellant with the intention of causing wrongful gain to himself/the appellant and wrongful loss to the complainant. Needless to mention, the facts demonstrate that the property/complainant's said purse was moved by the appellant, in order to taking, i.e., obtaining thereof by deception. Further, as aforenoted, the appellant was apprehended on the spot by PW-2 as well as the case property was recovered from his possession at the spot, which was identified by the complainant/PW-1. Correspondingly, the factum of alleged false implication of the appellant is not proved from either the cross examination of any of the prosecution witnesses or under the statement of the appellant under Section 313 Cr.P.C. Needless to mention, the appellant opted not to produce any witness in support of his said assertion. Ergo, under such circumstances, this Court is in concert with the Ld. Trial Court's observation that the prosecution has been able to prove its case 'beyond reasonable doubt' against the appellant herein for the offence under Section 379 IPC. On the contrary, the appellant has failed to raise a probable defence/defence by 'preponderance of probabilities' in his favour for the reasons C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 31 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:49 +0530 hereinunder noted. However, for the reasons hereiunder noted, in the considered opinion of this Court, simultaneous conviction of the appellant for the offence under Section 411 IPC by the Ld. Trial Court is bad in law and hereby set aside.
32. Significantly, in as much as the aspect of sentence awarded to the appellant by the Ld. Trial Court is concerned, this Court deems it pertinent to outrightly observe that though the penal provisions prescribe for penalties to be imposed for offences, however, do not lay down any set guidelines for the same. Nonetheless, the persistent avowals of the superior courts 6 have laid down certain guidelines, which may be considered by the courts, when confronted with such conundrum. Undoubtedly, the inclination of courts is usually tilted towards the reformation and rehabilitation of the accused, however, at the same time, court have incessantly cautioned that sentencing should be adequate as undue sympathy, by imposing inadequate sentence may result into causing more harm to the justice system. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516, wherein the Hon'ble Court observed as under;
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of 6 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.
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the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
(Emphasis supplied)
33. Concomitantly, the Hon'ble Supreme Court in Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while iterating the objective behind sentencing enunciated as under;
"9. The maintenance of peace, order and security is one of the oldest functions of the civil society. The imposition of penal sanctions on those who have infringed the rules by which a society has bound itself are a matter of legitimate interest to the members of the society...Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers..."
(Emphasis supplied)
34. Apposite to further observe that besides the tenacious affirmations of the superior courts, inclined towards the grant of just and appropriate sentence, there has also been a cautionary word7 that mere long pendency of case is no ground to award lesser sentence. However, this Court is equally cognizant that the superior courts have incessantly asserted that while determining the quantum of sentence, courts cannot be oblivious to the mitigating circumstances, which are required to be accorded due weightage, alongside aggravating factors. In fact, law is settled 8 that the discretion in the matter of sentence is to be exercised by court(s), after balancing all the aggravating and mitigating circumstances of the crime. Further, as per the superior courts 9, a 7 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
8Bachan Singh v. State of Punjab, (1980) 2 SCC 684 9 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 33 of 36 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:47:59 +0530 balance sheet of aggravating and mitigating circumstances has to be drawn up at such a stage and while doing so the mitigating circumstances have to be accorded full weightage as the aggravating circumstances.
35. Ergo, in light of the foregoing principles, when the facts and circumstances of the present case are scrupulously analyzed in the context of the attendant factors such as the manner of commission of crime; role of the appellant; and appellant's previous conduct and involvement/conviction in another case of similar kind/nature, as per his nominal roll (FIR no. 840/2021 under Section 379/34 IPC, PS Kotwali Delhi), this Court unswervingly observes that the Ld. Trial Court has acted justly and reasonably by awarding sentence/rigorous imprisonment for a period of 03 (three) years for the offence punishable under Section 379 IPC. Needless to further mention that the appellant has failed to demonstrate any mitigating factor, convincing this Court to grant any relaxation in his/appellant's favour. Clearly, under such circumstances, this Court is of the considered opinion that no interference in the quantum of sentence awarded by Ld. Trial Court is warranted by this Court in so far as it pertains to the substantive sentence for offence under Section 379 IPC, as the sentence awarded to the appellant by the Ld. Trial Court not only corresponds with the crime involved, rather, falls in tandem with the resolute declarations of the superior courts, as hereinunder noted. However, in the considered opinion of this Court and considering the financial situation of the appellant brought forth, in light of the settled law10, in the considered opinion of this Court, interest of justice would be met if the appellant if the appellant is 10 Delhi Domestic Working Women's forum v. Union of India & Ors., (1995) 1 SCC 14.
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directed to deposit compensation to a tune of Rs. 4,000/- (Rupees Four Thousand only) for the victim, to be deposited with DLSA to be released to the victim as well as a sum of Rs. 1,000/- (Rupees One Thousand only ) towards the expenses of the prosecution to be deposited with the Ld. Trial Court.
36. Conclusively, in view of the above discussion, the present appeal is partly allowed in so far as while upholding the conviction of the appellant under Section 379 IPC, his/appellant's conviction under Section 411 IPC is set aside under the judgment dated 19.02.2024, passed by Ld. MM-07, Central, Tis Hazari Court, Delhi in case bearing; 'State v. Akbar Alam, Cr. Case No. 7732/2023', arising out of FIR No. 254/2023, PS. Kashmere Gate, under Sections 379/411 IPC. Congruently, the order of sentence dated 13.05.2024 of the Ld. Trial Court is upheld only to the extent that the appellant would undergo the substantive sentence/rigorous impri for a period of 03 (three) years for the offence punishable under Section 379 IPC, however, is now directed to deposit compensation to a tune of Rs. 4,000/- (Rupees Four Thousand only) for the victim with DLSA, to be released to the victim along with a sum of Rs. 1,000/- (Rupees One Thousand only) towards the expenses of the prosecution, with the Ld. Trial Court. Needless to mention that the appellant is already under judicial custody and would serve the remaining term of his sentence as hereinunder noted.
37. Trial Court Record be sent back along with a copy of this order/judgment, with direction to proceed against the appellant as per law. Copy of this order/judgment be also given dasti to the appellant. Further, a copy of this judgment be also sent to the jail superintendent for record purpose(s). Further C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 35 of 36 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:48:09 +0530 compliance of judgment of Hon'ble Supreme Court in WP(C) 1082/2020, titled as Suhas Chakma v. Union of India & Ors., dated 23.10.2024 has been carried out. Needless to mention that the appellant is already in judicial custody in the present case, he is directed to undergo the remaining period of sentence.
38. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.30 12:48:16 +0530 Announced in the open Court (Abhishek Goyal)
on 30.04.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 62/2025 Akbar Alam v. State (NCT of Delhi) Page 36 of 36