Delhi District Court
Mohd Tahseem vs State Gnct Of Delhi on 18 February, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-016986-2024
CRIMINAL APPEAL No.: 446/2024
MOHD. TAHSEEM,
S/o. Mohd. Yasin,
R/o. D-183, Gali No. 9,
Village Wazirabad,
Delhi-110054. ... APPELLANT
VERSUS
STATE (GNCT OF DELHI) ... RESPONDENT
Date of e-filing : 23.10.2024
Date of institution : 25.10.2024
Date when judgment was reserved : 17.12.2025
Date when judgment is pronounced : 18.02.2026
JUDGMENT
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 ( hereinafter, referred to as 'Cr.P.C./Code')/Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS') against the judgment dated 29.05.2024 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate-02/Ld. MM-02, Central, Tis Hazari Court, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing; 'State v. Mohd. Tahseem & Ors., Cr. Case No. 300839/2016', arising out of FIR No. 913/2015, PS. Timarpur, under Sections 394/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the appellant, namely, Mohd. Tahseem (hereinafter referred to as the 'appellant') of the offence under Section(s) 394/34 IPC and the consequent order of sentence dated 26.09.2024 (hereinafter referred to as 'impugned order'), passed by the Ld. C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 1 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:39:04 +0530 Trial Court, sentencing the appellant with rigorous imprisonment for a period of 03 (three) years along with fine of Rs. 10,000/- (Rupees Ten Thousand only) and in default of payment of which, to undergo rigorous imprisonment for a further period of 06 (six) month, for the said offence. Further, the appellant was directed to be entitled to the benefit of the provisions under Section 428 Cr.P.C., besides out of the said fine amount, a sum of Rs. 9,017/- (Rupees Nine Thousand and Seventeen only) was directed to be adjusted against the expenditure, incurred by the prosecution (hereinafter the impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Succinctly, the case of the prosecution is that on 27.11.2015, on receipt of PCR Call vide DD No. 43A, the concerned police officials reached at the spot, i.e., near the main gate of village Gopalpur, Delhi (hereinafter referred to as the 'spot'). Upon reaching at the spot, the concerned police officials, met the complainant, namely, Sunil Kumar (hereinafter referred to as the 'complainant'). Correspondingly, one person, namely, Mohd. Tahseem/the appellant, who was apprehended on the spot was presented to the police official(s) along with hook of the broken gold chain. Thereafter, the complainant was sent to Trauma Centre along with the concerned police officials. Markedly, the complainant was got examined in the said Hospital vide MLC No. 216887 and thereafter, the complainant and the said police official(s), returned to the spot. Subsequently, the statement of the complainant was recorded wherein he/the complainant inter alia proclaimed that he was the resident of Gopalpur village ad engaged in the business/operation of milk dairy. Congruently, the complainant asserted under his complaint that on 27.11.2015 at C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 2 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:39:08 +0530 around 08:30 p.m., he was on his way from his milk dairy at Bhajanpura to his house at Gopalpur on his scooty bearing registration no. DL-8SBL-1181 (दिनांक 27/11/15 को समय करीब 8.30 pm पर मैं अपनी दूध की दुकान भजनपुरा से अपने घर गाव गोपालपुर के लिए अपनी Sooty No. DL8SBL1181 पर सवार होकर आ रहा था). It was further proclaimed by the complainant that when he reached in front of the main gate at Gopalpur, he noted that one motorcycle was approaching from front, where four persons/passengers were present (जब मैं गाव गोपालपुर के Main Gate के पास पहुँचा तो सामने से एक M/Cycle पर चार लडकें सवार होकर आ रहे थे ). The complainant further proclaimed under his complaint that the said motorcycle collided with his vehicle/scooty, whereupon, he raised objection, leading to a scuffle between him and the said persons and that the said persons slapped him (जिनकी M/Cycle मेरी Sccoty से टकरा गयी जो मैने इनको टोका तो कहासुनी हो गयी जो इन्होने मेरे थप्पड मार दिया). 2.1. Notably, it was further chronicled under the complainant's complaint that when he took out his mobile phone bearing no. 9582094288 from his pocket, to call at 100 number, one of the said persons, grabbed his/complainant's mobile phone, while the other person snatched his/complainant's gold chain, which he was wearing at that point in time and weighing around 2½ tola (जो मैं अपनी जेब से Mobile Phone No. 9582094288 को निकालकर 100 न० पर Call करने लगा तो इनमे से एक लडके ने मेरे हाथ से मेरा मोबाइल Phone छीन लिया तथा दूसरे लडके ने मेरे गले में पहनी हु ई मेरी सोने की चेन वजन करीब 2½ तोले तोड ली). Congruently, as per the complainant, the other two persons, grabbed hold of him, grabbed stones which were lying there and inflicted injuries on the complainant's head (तथा बाकी दोनो लडको ने मुझे पकड कर वही पर से पत्थर उठाकर मेरे सिर में मार दिया). As per the complainant, the said four persons, robbed him of his mobile phone and gold chain. However, it was avowed by the complainant C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 3 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:12 +0530 that he was in a position to apprehend the person, who had snatched his gold chain and had handed over the same to his associate (जो इन चारो ने मेरे साथ मारपीट करके मेरा मोबाइल Phone व सोने की चेन लूट लिये जो मैने चेन तोडने वाले व्यक्ति को हिम्मत करके पकड लिया जसने मेरे तोडी हु ई चेन अपनी साथी को दे दी). It was further asserted by the complainant that the other three persons/accused persons, fled from the spot with his/complainant's mobile phone and his gold chain (जो कि बाकी इसके तीनो साथी मेरा मोबाइल फोन व चेन लेकर भाग गये ). Further, as per the complainant, he somehow called 100 number from someone's phone and handed over the said apprehended person along with the hook of his broken/robbed gold chain, upon police officials reaching at the spot. Further, as per the complainant, the name of of the said apprehended person was later on revealed as Mohd. Tahseem, the appellant herein (जो मैने किसी के Phone से 100 न० पर Call कर दी पकडे गये व्यक्ति ने पूछताछ पर अपना पता मौ० तहसीम s/o मौ० यासीन R/o Gali No. 17, शिव मन्दिर वजीराबाद बताया तथा मेरी टूटी हु ई चेन की कु ण्डी इस व्यक्ति के हाथ में ही रह गयी थी जो मैने इस व्यक्ति को टूटी हु ई चेन की कु ण्डी के साथ आपको पेश किया). 2.2. Relevantly, under the aforenoted facts and circumstances, and on the basis of the complainant's complaint, the instant FIR came to be registered, and investigation ensued.
Markedly, during the course of investigation, site plan was prepared and the appellant was apprehended, besides the hook of the broken gold chain was seized from/at the behest of the appellant and the disclosure statement of the appellant was recorded. Pertinently, on the basis of appellant's disclosure statement, co-accused, Amit @ Bola and Mool Chand @ Ramu (hereinafter the appellant and co-accused persons, namely, Amit @ Bhola and Mool Chand @ Ramu are collectively referred to as the 'accused persons') were apprehended. However, the said C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 4 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:15 +0530 co-accused persons are asserted to have denied participation in the test-identification parade/TIP proceedings. Correspondingly, opinion on the injuries of the complainant was obtained by the IO, wherein the nature of complainant's injuries were opined to be 'simple' (शिकायतकर्ता सुनील की MLC को दाखिल अस्पताला कराया था जिस पर Doctor साहब ने simple तहरीर किया।), besides the CAF and CDRs of the mobile phones were obtained. However, it was determined by the concerned IO at that point in time that one of the co-accused persons was not traceable at that point in time, besides the robbed gold chain could not be located/seized. 2.3. Noticeably, upon conclusion of the investigation, chargesheet was prepared and 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 25.02.2016.
Subsequently, on compliance of the provisions under Section 207 Cr.P.C. qua the accused persons and upon arguments on charge, having been addressed by/on behalf of the accused persons and State, charges under Section 394/411/34 IPC, were directed to be framed by the Ld. Trial Court against the accused persons vide order dated 12.07.2016, inter alia noting as under;
"...Arguments on point of charge submitted. Vide separate order accused persons are charged for offence u/s. 394/411/34 IPC to which accused persons pleaded not guilty and claimed trial.
To come up for PE on ..."
(Emphasis supplied) 2.4. Pertinent to reproduce the charges framed against the appellant as well as co-accused, Mool Chand and Amit @ Bhola/accused persons on 12.07.2016, as under;
"...I, ***, MM-02, THC, Central, Delhi do hereby charge you 1. Amit @ Bhola, S/o. Sh. Barham Prakash, 2. Md. Tehseem S/o. Sh. Md. Yamin and Moolchand @ Ramu S/o Sh. Mangroo as under:-C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 5 of 60
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:19 +0530 That on 27.11.2015, at about 08:30 p.m. near main gate of village Gopal Pur, Delhi, within jurisdiction of PS. Timar Pur, you all in furtherance of your common intention voluntarily caused hurt to Sunil Kumar while committing robbery of his mobile phone and wearing gold chain and thereby committed an offence U/s 394/34 IPC and within my cognizance. Secondly, on 12.02.2016, you, Moolchand found in possession of stolen mobile phone of the complainant which you received or retained with the knowledge or having reason to believe the same to be the stolen property and thereby committed an offence u/s 411 IPC.
Thirdly, on 28.11.2015, you, Tehsim were found in possession of part of the stolen chain of the complainant which you received or retained with the knowledge or having reason to believe the same to be the stolen property and thereby committed an offence u/s 411 IPC.
Alternatively, the said robbed articles were recovered from your possession which you all received or retained knowingly or having reasons to believe that the same was stolen property and thereby you have committed an offence punishable u/s 411/34 IPC, and within my cognizance. And I hereby direct that you be tried by this Court for the aforesaid offence..."
(Emphasis supplied) 2.5. Relevantly, during the course of trial, prosecution examined 16 (sixteen) witnesses/prosecution witnesses, who deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Akram Ali Eyewitness of the incident, who inter
alia asserted of him having witnessed
the incident, as well as identified the
appellant as one of the perpetrators
before the Ld. Trial Court.
PW-2 HC Sandeep Deposed regarding him, receiving the
rukka from Ct. Arvind and
consequently of him/PW-2's
registering the instant FIR.
PW-3 Sunil Kumar Complainant/victim, who inter alia
deposed of the incident as well as
identified the accused persons before
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 6 of 60
Digitally signed by
ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:23 +0530
the Ld. Trial Court.
PW-4 Dr. Lalit Deposed of him, examining the
Tanwar complainant on 27.11.2015 and
preparing the complainant's MLC
bearing no. 216887.
PW-5 ASI Johnson Deposed regarding him receiving a
Surin call of a scuffle at around 08:53 p.m.
and of recording of DD No. 43.
PW-6 Asif Deposed of him being present at the
time of the alleged incident as well as
of the complainant's making a PCR
call using his/PW-6's mobile phone.
PW-7 Aditya @ The witness inter alia proclaiming of
Sanjit him receiving Samsung mobile phone
from accused Ramu @ Monu, which
was further taken by PW-7's friend,
namely, Pradeep. However, the said
mobile phone is asserted to have been
returned to Ramu @ Monu.
PW-8 Pradeep Deposed inter alia of being
approached by Aditya for a SIM card
and of him/PW-8's handing over
his/PW-8's father's SIM card to
Aditya for use. PW-8 further deposed
that the said SIM was eventually
returned to him by Aditya.
PW-9 Lekhpal @ Deposed of him, handing over his
Lekhraj SIM card pertaining to mobile no.
8860746310 to his/PW-9's son,
Pradeep, which was handed over by
Pradeep to the police official in the
present case.
PW-10 Ct. Saurav Proclaimed of him having joined the
investigation along with the IO and
joining the PC remand proceedings of
accused Amit @ Bhola.
PW-11 Ct. Arvind Deposed inter alia regarding him
joining the investigation of the
present case along with the IO as well
as of him, proceeding for registration
of FIR at the instance of the IO,
getting the instant FIR registered.
PW-12 Ct. Rakesh Joined the investigation of the present
Kumar case along with the IO and deposed of
him joining the arrest proceedings of
the accused persons.
PW-13 Ct. Manohar Proclaimed of him having joined the
Singh investigation of the present case,
including the arrest proceedings of
accused Bhola @ Amit.
PW-14 Maninder Produced the CAF and CDR of the
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 7 of 60
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:27 +0530
Singh, mobile no. 9582094288 for the period
Alternate from 26.11.2015 to 29.11.2015 as
Nodal officer, well as of mobile no. 8860746310 for
Vodafone-Idea the period from 14.12.2015 to
18.12.2015.
PW-15 ASI Ram MHC(M) at the relevant point in time.
(wrongly Nivas Produced and proved the relevant
noted as entries in the register no. 19,
PW-16) regarding deposit of case property in
malkhana.
PW-16 Insp. Yogesh Investigating Officer of the present
(wrongly Kumar case who inter alia deposed of him
noted as having conducted the investigation in
PW-17) the present case, arrested the accused
persons, etc.
2.6. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the following documents and objects, during the course of their respective evidence;
Exhibit Description of Exhibit Proved
no./Material by/Attested by
objects
Ex. PW2/A Present FIR bearing No. PW-2/HC
913/2015, PS. Timarpur. Sandeep
Ex. PW2/B Endorsement on rukka by PW-2. PW-2/HC Sandeep Ex. PW3/A Statement/complaint of the PW-3/Sunil complainant before the police Kumar officials.
Ex. PX-1 Mobile phone of Samsung make, PW-3/Sunil
white in colour. Kumar
Ex. PX-2 SIM card of Vodafone company. PW-3/Sunil
Kumar
Ex. PW5/A MLC bearing no. 216887 of the PW-4/Dr. Lalit
(wrongly complainant, namely, Sunil Tanwar
numbered as Kumar
Ex. 5/A,
instead of Ex.
PW4/A)
Ex. PW5/A DD no. 43A, dated 27.11.2015 PW-5/ASI
Johnson Surin
Ex. PW11/A Seizure memo of hook (kundi) of PW-11/Ct. Arvind
the gold chain.
Ex. PW11/B Disclosure statement of accused, PW-11/Ct. Arvind
Mod. Tahseem/appellant.
Ex. PW11/C Arrest memo of accused, Mod. PW-11/Ct. Arvind
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 8 of 60
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.02.18
16:39:30
+0530
Tahseem/appellant.
Ex. X-1 Hook/kundi of the gold chain. PW-11/Ct. Arvind
Ex. PW16/A Entry no. 3062 of register no. 19 PW-15/ASI Ram
in respect of broken hook/kundi Nivas
of gold chain.
Ex. PW16/B Entry no. 2118 of register no.19 PW-15/ASI Ram
in respect of case property, i.e., Nivas
mobile phone, sim and personal
search memo.
Ex. PW17/A Tehrir on the statement tendered PW-16/Insp.
by the complainant Yogesh Kumar
Ex. PW17/B Site plan of the spot of PW-16/Insp.
occurrence. Yogesh Kumar
2.7. Relevantly, during the course of trial, the appellant and co-accused persons/accused persons, admitted the genuineness and correctness of MLC No. 216887, dated 27.11.2015, wherein the Senior ENT had tendered an opinion regarding the injury, inflicted to the complainant Sunil and which was Ex. PW5/A, in term of the provisions under Section 294 Cr.P.C., on 20.05.2022. Consequently, the Ld. Trial Court, dispensed/dropped the corresponding witness, i.e., Dr. Eshaan, Sr. ENT from the list of prosecution witnesses, in view of such admission. Pertinent to further note that during the course of trial proceedings, co-accused Mool Chand @ Ramu, left for heavenly abode. Consequently, upon receipt of death verification report of the said accused from the concerned IO, proceedings qua the said accused/accused, Mool Chand @ Ramu were abated vide order dated 03.11.2023. Markedly, subsequently, to the conclusion of prosecution evidence, statements of the appellant and co-accused Amit @ Bola, in terms of the provisions under Section 313/281 Cr.P.C. were recorded on 12.03.2024, wherein the appellant and said co-accused submitted that they did not desire to lead any evidence/witness in their defence. Consequently, on conclusion of arguments by/on behalf of the State and the appellant/accused persons, the Ld. Trial Court vide impugned judgment and order, C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 9 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.18 16:39:34 +0530 while inter alia holding the appellant guilty of the offence punishable under Sections 394/34 IPC, sentenced him in the manner, as noted hereinabove.
3. Ld. 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. As per the Ld. Counsel, the Ld. Trial Court, miserably failed to consider the real facts of the case as well as various improvements, contradictions and discrepancies in the testimonies of various prosecution witnesses, while reaching a finding of guilt of the appellant, thereby, erroneously convicting and sentencing him, in the manner, as specified under the impugned judgment and order. It was further vehemently asserted by the Ld. Counsel that the impugned judgment and order are not maintainable/sustainable in the eyes of law as the same were passed by the Ld. Trial Court in utter contradiction of the settled law/judicial dictates and facts of the present case. Congruently, it was argued by the Ld. Counsel that the impugned judgment suffers from mis-appreciation of evidence on record, thereby, resulting in miscarriage of justice. In this regard, Ld. Counsel strenuously asserted that under the impugned judgment, the Ld. Trial Court erred in not considering that PW-1/Akram Ali, nowhere under his examination-in-chief asserted that the appellant had committed the offence of robbery. Correspondingly, it was argued that though, PW-6/Asif proclaimed under his examination-in-chief regarding an incident of scuffle between the complainant and the (alleged) accused persons, however, PW-6 too did not depose of any offence of robbery by the said accused persons with the complainant or C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 10 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:39:37 +0530 otherwise, belying the version put forth by the prosecution. At the same time, Ld. Counsel for the appellant accentuated that nowhere during the course of his deposition/examination in chief, PW-11/Ct. Arvind Kumar identified the appellant as alleged perpetrator of offence.
3.1. Ld. Counsel for the appellant further submitted that the Ld. Trial Court even failed to consider that are several inconsistencies, improvements, discrepancies and/or variations in the case put forth by the prosecution. Correspondingly, as per the Ld. Counsel, while reaching a finding of appellant's guilt, Ld. Trial Court failed to consider that the investigation in the instant case was not fairly and properly conducted, disproving the version put forth by the prosecution against the appellant. Ld. Counsel further 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 and in an utter haste, without appreciating the evidence/material brough forth on record. It was further strenuously reiterated by the Ld. Counsel that a perusal of the testimonies 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 by not considering the same, leading to gross miscarriage of justice. Further, it was argued by the Ld. Counsel, that while reaching the finding of appellant's guilt, the Ld. Trial Court erred in not considering the settled law that where on the basis of evidence on record, two views are C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 11 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:40 +0530 possible, one favouring an accused and other against him, the one favouring an accused should always be accepted. 3.2. Ld. Counsel for the appellant further submitted that the impugned judgment and order were passed in utter violation/contradiction of the settled principles of law and judicial precedents, unmindful of the significant improvement in the versions put forth by the prosecution witnesses. Correspondingly, it was asserted that even the investigation in the instant case was not fairly conducted and the police officials. Accordingly, in light of the foregoing, Ld. Counsel for the appellant submitted that not only did the Ld. Trial Court fail to consider the truth of circumstances and passed its judgment/decision in haste, rather, the Ld. Trial Court also did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offence(s). Even otherwise, it was submitted by the Ld. Counsel that the order of sentence was also passed by the Ld. Trial Court, whimsically, while failing to appreciate that the appellant was of young age at the relevant point in time, as well as responsible for the look after and take care of his family members. Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing the appellant with severe sentence would subject his family members to grave depravity.
Further, as per the Ld. Counsel, substantial time has lapsed since the incident in question and in case relaxation/leniency is not afforded to the appellant, serious/severe repercussions would ensue to their physical and mental well-being. Consequently, the Ld. Counsel for the appellant inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 12 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:39:45 +0530 aside. In the alternate, Ld. Counsel submitted that the appellant be permitted/granted the benefit/relaxation in terms of the provisions under the Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act') and/or Section 360 Cr.P.C. In fact, as per the Ld. Counsel, the Ld. Trial Court erred in appreciating that the appellant was clearly covered within the ambit of provisions under the Probation of Offenders Act and entitled to the benefit of probation. In support of the said contentions, reliance was placed upon the decisions in; State through CBI, Anti-Corruption Branch, Chandigarh v. Sanjiv Bhalla & Anr., Crl. Appeal Nos. 1338-39/2014, dated 04.07.2014 (SC); State v. Lucky, Crl. Appeal No. 539/2016, dated 17.05.2017 (DHC); Mohd. Samim v. State (Govt. NCT of Delhi), 2014 (4) LRC 295 (Del.); Akram @ Babu Musahid v. State (Govt. of NCT of Delhi), 2014 (3) LRC 279 (Del.); Islam & Anr. v. State NCT of Delhi, 2014 (9) LRC 403 (Del.); and Govt. of NCT of Delhi v. Manoj & Anr., (2014) 8 LRC 247 (Del.).
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 testimonies of various witnesses placed on record, unambiguously prove the commission of the offences by the appellant. It was further contended by Ld. Addl. PP for the State that the deposition/testimonies of the prosecution witnesses have not only been consistent, rather, unblemished as well as lucidly point towards the only inference of appellant's guilt. As per the Ld. Addl. PP for the State, the facts and circumstances put forth as C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 13 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:48 +0530 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. Concomitantly, it was submitted by the Ld. Addl. PP for the State that no ground of any indulgence or relaxation even in the sentence granted to the appellant is made out, besides considering the gravity of offence involved, the appellant is not entitled to the benefit of the provisions under the Probation of Offenders Act. 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. 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 and the other material, including the case laws relied upon have been thoroughly perused.
6. At the outset, this Court deems it apposite to enunciate the scope of jurisdiction of this Court in an appeal against conviction. 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 and 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 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 14 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:39:52 +0530 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)
7. 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)
8. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that 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, 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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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.
9. 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, germane for the purpose of present adjudication, as under;
"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 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.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 16 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:39:59 +0530
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.
*** *** ***
394. Voluntarily causing hurt in committing robbery-If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
*** *** ***
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)
10. Appositely, from a conscientious perusal of the above, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability 2 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 law3 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 2 Suresh v. State of U.P., (2001) 3 SCC 673.
3Virendra Singh v. State of M.P., (2010) 8 SCC 407.
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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 evidently4, 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. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating 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 4 Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 18 of 60 Digitally signed
ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:07 +0530 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 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)
11. 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 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 19 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:10 +0530 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 had shared a common intention5. 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.5
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) C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 20 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:14 +0530
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 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)
12. In so far as accountability under Section 390 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 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 21 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:18 +0530 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 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)
13. Apposite to further note here that in terms of the unambiguous provision under law, culpability under Section 394 IPC can be attracted in a given case, only when the offender while committing or attempting to commit robbery voluntarily causes hurt6. In fact, law is trite that the provisions under Section 394 IPC are attracted in instances, where during the course of robbery voluntary hurt is caused by7, "two distinct class of persons as follows: "(1) Firstly, those who actually cause hurt; and (2) Secondly, those who do not actually cause hurt, but are "jointly 6 Dudhnath v. State of Maharashtra, 2011 SCC OnLine Bom 1390.
7Arab Sk. v. State of W.B., 2015 SCC OnLine Cal 1435.
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concerned" in the commission of offence of robbery." Relevantly, the Hon'ble Supreme Court in Aslam v. State of Rajasthan, (2008) 9 SCC 227, while articulating the contours of the said provision, observed as under;
"10. Section 394 describes punishment for voluntarily causing hurt in committing or attempting to commit robbery. The offence under this section is more serious offence than one under Section 392. Section 394 postulates and contemplates the causing of harm during commission of robbery or in attempting to commit robbery when such causing of hurt is hardly necessary to facilitate the commission of robbery. Section 394 applies to cases where during the course of robbery voluntary hurt is caused. Section 394 classifies two distinct class of persons. Firstly, those who actually cause hurt and secondly, those who do not actually cause hurt but are "jointly concerned" in the commission of offence of robbery. The second class of persons may not be concerned in the causing of hurt, but they become liable independently of the knowledge of its likelihood or a reasonable belief in its probability."
(Emphasis supplied)
14. In so far as the culpability under Section 411 IPC is concerned, law is settled that to attract culpability under the said provision, 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 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 23 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:25 +0530 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)
15. Correspondingly, reference is further made to the decision in State of U.P. v. Nawab, 2014 SCC Online All 14976 , wherein the Hon'ble High Court of Allahabad noted that conviction under Section 392 and Section 411 IPC cannot be maintained simultaneously8 against same accused. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"20. 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."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) C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 24 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:30 +0530 (Emphasis supplied)
16. Reference in respect of the foregoing is further made to the decision in Gopi Jaiswal v. State of U.P., 2011 SCC Online All 1775, wherein the Hon'ble High Court of Allahabad in akin terms, remarked 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 passed against the appellant under Section 411 IPC cannot be upheld..."
(Emphasis supplied)
17. Consequently, being mindful of the principles hereinunder observed, this Court would now proceed with the appreciation of the evidence and material placed on record. In particular, at the outset, this court deems it pertinent to make a reference to the testimony of the complainant/PW-3/Sunil Kumar, who inter alia deposed regarding the incident in question as well as the role of the accused persons, including the appellant herein. In this regard, it is apposite to note that the complainant/PW-3 inter alia avowed in his deposition that on 27.11.2015, he/PW-3 was returning to his home from his shop, on his scooty bearing registration no. DL-8SBL-1181. Correspondingly, as per PW-3, at around 08:30 p.m., when he reached in front of the main gate of his village, four boys riding on a motorcycle came from the front side and hit his/PW-3's scooty and thereafter, some dispute arose between them. Pertinently, during the course of his deposition PW-3, while pointing towards the appellant, Md. Tahseem, C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 25 of 60 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:34 +0530 asserted that he/the appellant had slapped him in the said scuffle. It was further deposed by PW-3 that when he tried to call at 100 number by his phone, co-accused, Mool Chand, who was correctly identified by the complainant/PW-3 before the Ld. Trial Court, snatched his/PW-3's said mobile phone from his hand, whilst other co-accused persons manhandled him/PW-3. Further, as per PW-3, the accused persons also snatched his gold chain, which he was wearing at that point in time, as well as the accused persons also took a piece of stone, lying at the spot and hit him/PW-3 behind his head and on his eye. After the said incident, as per PW-3, the said accused persons endeavored to flee from the spot, however, he apprehended the appellant, namely, Tahseem, who was again correctly identified by the complainant before the Ld. Trial Court, while the other accused persons fled from the spot. PW-3 also proclaimed that he made a call at 100 number by getting the phone of one public person, whereupon one PCR van came to the spot after some time. It was further avowed by PW-3 that on conducting a cursory search of the appellant, one broken piece of his snatched/robbed gold chain was recovered from his/appellant's possession. It was further deposed by PW-3 that the PCR took him to Trauma Centre and after some time, two police person came at the Taruma Center for taking his/PW-3's statement, however, he/PW-3 was not able to tender the same as he was not feeling well. Thereafter, as per PW-3, the police officials took him/PW-3 to the spot, where his statement (Ex. PW3/A) was recorded. After some days, as per PW-3, the police official called him for the identification of one accused and he went to the police station, where he identified co-accused/Mool Chand, who was apprehended by the police person, as well as also identified his C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 26 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:38 +0530 mobile, i.e., Samsung make at PS Timarpur. After some days, as per PW-3, he was again called to PS. Timarpur for identification of other accused persons. Needless to mention that PW-3 also correctly identified his mobile phone of Samsung make as well as the recovered SIM card of Vodafone company, as belonging to him, as Ex. PX-1 and Ex. PX-2, respectively.
18. Relevantly, upon being cross-examined by/on behalf of the appellant, the complainant/PW-3, asserted as under;
"XXXXXX By Sh. ***, LAC for the accused Amit & Tehsin.
The incident had happened around 8:45 pm. There was proper light at the spot & it was right time. I do not remember whether the alleged motorcycle's head light was on. I had not fallen down on the road after hitting by the motorcycle. At the time of the incident, around 10-15 public persons had gathered on the spot. The public persons had reached at the spot after snatching of my mobile and gold chain. The PCR van came to the spot within 5 minutes of making the call. The IO of this case met me for the first time in the hospital. The police had recorded my statement at the spot on the same day after my discharge from the hospital. I do not know whether police had recorded the statement of any other person who claims to be the eye witness of the incident. There was jhuggi cluster on the opposite side of the road where the incident had happened called the PCR by the use of the mobile phone of one by stander After the incident, I met the IO two times at the PS. After 2-3 days of the incident, I was called by the police to identify one of the accused. 3-4 days thereafter, I was again called to the PS by the IO to identify another accused. The search of the accused Tehsim (the witness pointed out towards the accused, present in the court today) was conducted by the police after I handed over him to the IO. It is wrong suggest that I myself handed over the hook of golden chain to the IO. It is wrong to suggest that no such incident had happened with the accused persons. It is wrong to suggest that it was a mere case of road rage where we all were involved in the scuffle and no incident of robbery or snatching took place. It is wrong to suggest that concocted the false story in order to falsely implicate the accused persons.
XXXXXX by Sh. ***, counsel for accused Mool C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 27 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:40:41 +0530 Chand.
I had not stated the motorcycle number to the IO. The accused persons had fled away after leaving the motorcycle on the spot. I had not stated the description of the accused persons to the police. Vol. Some public persons from jhuggi had stated the name of the accused persons as Bhola & Vijay. The police had inquired from those public persons. I had informed to the PCR on 100 number call that I had been injured & my belongings are snatched. The gold chain was recovered from Tehsim on search made by the IO. No pieces of stones were seized by the police from the spot. I had stated to the police after identification of the accused Mool Chand & Amit. At this stage, the witness is confronted with his statement recorded u/s 161 Cr.P.C dt. 18.02.16 EXPW3/D1 where it is not so recorded, and the statement is to the effect that the witness identify the accused Mool Chand in the photograph shown by the IO. I had stated the IEMI number of the said mobile phone to the police. At this stage, witness is confronted with his statement Ex.
PW3/A where it is not so recorded. I had not submitted any bill or invoice of the said mobile phone to the IO. It is wrong to suggest that I am deposing falsely regarding the incident as mere scuffle took place between us and I exaggerated the facts to falsely implicate the accused."
(Emphasis supplied)
19. Here, it is further pertinent to refer to the testimony of PW-1/Akram Ali, who deposed before the Ld. Trial Court that he was a resident of N-15, B-30, T Huts, Indira Vikas Colony. Delhi, at the relevant point in time and engaged in the business of selling vegetables. It was further asserted by PW-1 that on 27.11.2015, he/PW-1 was selling vegetables at Gopalpur market, were one boy, whom he could identify, approached him from Wazirabad side on scooty to buy the vegetables, and 3-4 boys came on motorcycle from the side of Mukherjee Nagar. As per PW-1, the motorcycle of the said boys touched the scooty, whereupon an altercation ensued between the boys standing with scooty and the persons, who had reached there on motorcycle. Further, as per PW-1, the said four persons started beating the boy C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 28 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:40:45 +0530 who was on the scooty and when he/the person on scooty, tried to make a call at number 100, the aforesaid boys snatched the phone and threw it away. In the altercation, as per PW-1, one of them fell down and others managed to flee, however, they also snatched the chain of the boy. PW-1 avowed that the name of the person, who had fallen down from the motorcycle was Md. Tahseem, the appellant herein, who was apprehended by public and later on arrested by the police. PW-1 further proclaimed that the IO recorded his statement. Correspondingly, PW-1 correctly identified the appellant before the Ld. Trial Court. Here, it is apposite to reproduce the extracts from cross examination of PW-1, as under;
"XXXXXX by ***, Ld. LAC for the accused persons namely Tehseem and Amit.
I was present at the spot at about 8-8:15 pm. I do not know about the boy who came on a scooty, but I can recognized as he used to live in Gopalpur Village. I do not know registration number of abovesaid scooty and motorcycle, but the colour of scooty was white and I do not remember the colour of motorcycle. There was a bazar and the person who was beaten up was standing at one) corner of the road alongwith his scooty and buying vegetables from market. The area was crowdy. It is correct that there was scuffle between person standing on the scooty and the motorcyclist as the cause of altercation was collision of their vehicles. Thereafter, they both started abusing each other and started fighting with each other. No other incident was committed in my presence, but the person on scooty shouted that accused person had snatched one chain and broken the mobile. I had not seen any person snatching the phone and gold chain. I had not stated the fact of snatching of gold chain and about breaking the mobile to IO of this case in my statement recorded U/s 161 Cr.P.C. which is Ex. PW-1/D-1.
At this stage. the statement of witness recorded U/s 161 Cr.P.C. is shown to him and confronted from Point A to A1 where it is so written. I remained present at the spot till 11:00 pm. Police persons came at the spot in my presence. I do not know whether any personal search has been conducted by the police C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 29 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:40:49 +0530 official of the accused who was apprehended at the spot. On the day of incident police official met and thereafter, I never met them. My statement was recorded at Gopalpur at about 9:30 pm. It is correct that this incident was of road rage, but I had not seen any snatching of gold chain, or breaking of mobile. At this stage, Ld. APP for the State seeks permission to re-examine the witness as he stated contradictory fact in his cross-examination.
Court observation.
Contradictions are bound to come vide cross- examination of any witnesses. Moreover, re- examination is not for the purpose of filling the lacuna of the case. Hence, disallowed.
XXXXXX by ***, Ld. Counsel for accused Mool Chand.
Nil. Opportunity given..."
(Emphasis supplied)
20. Correspondingly, reference is here made to the testimony of PW-6/Asif, who deposed before the Ld. Trial Court that on 27.11.2015, at around 09:30 p.m., when he was present near his jhuggi, i.e., Nand Lal jhuggi, H. No. 1050, Vil. Gopalpur, he saw that 3-4 person were beating one person at near main gate Gopalpur. It is further deposed by PW-6 that large number of public person had gathered till he/PW-6 reached there. Correspondingly, PW-6 testified that 2-3 person had fled away and one of them was apprehended by the public. It was further asserted by PW-6 that since the person, who was beaten did not have a mobile phone, said person, asked PW-6 for his mobile phone. Thereafter, as per PW-6, the person who was beaten, made a PCR call by using his/PW-6's mobile phone and after some time, PCR Van reached at the spot, and took the injured as well as one of the said boys, who were beating the said person. Markedly, upon being cross-examined by/on behalf of the accused persons, PW-6 asserted, as under;
"XXXXXX by ***, Ld. Counsel for Mool C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 30 of 60 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:55 +0530 Chand.
The main gate of Gopal Pur is in front of my jhuggi with the distance of around 40 meter. At the time of incident, there were around 50 public person as the incident had happened at the time of Friday Market (weekly market). (vol. There was bleeding from the head of the injured and I had not stated the same to the police as it was not asked). I had stated my mobile number to the police in my statement.
At this stage, the witness is confronted with his statement Ex PW 6/D1 where it is not so mentioned. The police had reached at the pot in my presence. Due to some urgent work, I had left the spot, hence, I cannot tell whether any public person was inquired by the police. I was contacted on telephone by the police regarding this case on 03.12.2015. I had never met the IO of this case. I was only inquired on telephone. I cannot say whether the police had recorded my statement in this case. It is wrong to suggest that my mobile phone was not used by the injured to make the PCR call. It is wrong to suggest that I am deposing falsely at the instance of IO. XXXXXX by ***, Ld. LAC for accused Bhola and Tehseem.
I remained at the spot for about 15-20 minutes. It is wrong to suggest that I was not present at the spot. It is wrong to suggest that I am deposing falsely at the instance of IO"
(Emphasis supplied)
21. Here, it is further pertinent to refer, the deposition of PW-4/Dr. Lalit Tanwar, who testified that on 27.11.2015, he was working as CMO at Sushruta Trauma Centre, Delhi. Further, as per PW-4, on the said day, one patient, namely, Sunil was brought to the Hospital with alleged history of physical assault. Correspondingly, as per PW-4, he medically examined the said patient and prepared his MLC bearing no. 216887 (Ex PW5/A) and thereafter, the said patient was further referred to ENT specialist. Pertinently, PW-4 was not cross examined by/on behalf of the accused persons, including the appellant, herein, despite being afforded an opportunity. Congruently, it is germane for the C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 31 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:40:59 +0530 purpose(s) of the present discourse to make reference to the deposition of PW-5/ASI Johnson Surin, wherein he/PW-5 inter alia testified that on 27.11.2015, he was posted as Head Constable at PS. Timarpur and on that day, he was deputed as Duty Officer from 04:00 p.m. to 12:00 midnight. PW-5 further deposed that he received a call at 08:53 p.m., on the said date, regarding an incident of scuffle at house no. 1050 at T-huts, Gopalpur, whereupon, he/PW-5 recorded DD entry 43 in original rojnamcha (Ex PW5/A), which was handed over to SI Yogesh to investigate the case. Apposite to note that during the course of his cross examination, PW-5 denied the suggestion that no DD entry was recorded by him/PW-5, as aforenoted and further denied that such DD entry was ante-timed and ante-dated. Needless to mention, PW-5 further denied that he was deposing falsely.
22. Conspicuously, reference is made to the deposition of PW-2/HC Sandeep, who inter alia asserted that on 28.11.2015, he was posted as Head Constable at PS. Timarpur and on that day, he was deputed as Duty Officer from 12:00 midnight to 08:00 a.m. Further, as per PW-2, on that day, at around 12:05 a.m., Ct. Arvind handed over rukka to him, sent by IO/SI Yogesh and on the basis of the said rukka, he/PW-2 registered the present FIR (Ex. PW2/A). It was further deposed by PW-2 that he also made his endorsement on rukka (Ex. PW2/B), bearing PW-2's signatures at point A. Congruently, as per PW-2, after the registration of FIR, he handed over the copy of FIR and original rukka to Ct. Arvind for further handing over to the same to IO, for necessary action. Relevantly, the deposition of PW-2, finds corroboration with the deposition of PW-11/Ct. Arvind Kumar, who inter alia proclaimed that on 27.11.2015, he/PW-11 was posted as Constable at PS. C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 32 of 60 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:03 +0530 Timarpur and on that day, IO/SI Yogesh received DD No. 43A. Further, as per PW-11, thereafter, he/PW-11 along with the said IO, went to the spot, i.e., near Main Gate of Gopalpur and saw that complainant Sunil Kumar was in injured condition and he/the complainant, had apprehended one person. As per PW-11, said apprehended person, had hand lock/hook of broken gold chain of the complainant in his hand. It was further avowed by PW-11 that the complainant produced the said person before IO and after inquiry, name of the said accused was revealed as Mohd. Tahseem. Thereafter, as per PW-11, the injured was taken to Trauma Centre by PCR and the IO had left him/PW-11 to the spot with the accused, while himself proceeding to Trauma Centre. After medical examination of the complainant, as per PW-11, IO along with the complainant returned to the spot and he recorded the statement of the complainant, Sunil as well as prepared tehrir and handed over the same to him/PW-11 for the registration of FIR. PW-11 further asserted that after registration of FIR, he returned to spot along with a copy of FIR and rukka and handed over the same to IO and thereafter, the IO prepared the site plan at the instance of complainant. Further, as per PW-11, the IO seized the hook/lock (kundi) of broken gold chain of complainant vide seizure memo Ex. PW11/A, by placing it in a plastic container (dibbi), converted the same into pullanda and affixed the seal of 'YS'. Further, as per PW-11, the IO also interrogated accused Mohd. Tahseem, who admitted his involvement in the commission of offence in present case along with his two associates namely Vijay and Bhola. PW-11 also proclaimed that the IO recorded the disclosure statement of the said accused (Ex. PW11/B) and thereafter, formally, arrested as well as conducted personal search C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 33 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:07 +0530 of the said accused vide memos Ex. PW11/C and Ex. PW11/D, respectively. Apposite to note here that PW-11 failed to identify the appellant, both, under his examination in chief as well as in his cross examination by/at the behest of Ld. Addl. PP for the State, before the Ld. Trial Court, though, he correctly identified the hook/kundi of the gold chain as Ex. X1. Needless to further mention here that PW-11 was not cross examined by any of the accused persons, despite opportunity.
23. Germane for the purpose(s) of the present discourse to further refer to the deposition of PW-15 (wrongly mentioned as PW-16, in cosonance with the decision of the Ld. Trial Court)/ASI Ram Nivas, who deposed that on 28.11.2015 and 12.02.2016, he/PW-15 was posted as MHC(M) at PS. Timarpur, besides, PW-15 also produced register no. 19 of years 2015 and 2016, before the Ld. Trial Court. Markedly, as per PW-15, as per record, on 28.11.2015, SI Yogesh Kumar, deposited the case property , i.e., one sealed pullanda containing 'sone ki chain ki tuti hui kundi' and personal search articles. PW-15 further produced the records of the entry regarding the same in register no. 19 at S. No. 3062, photocopy of which was proved as Ex. PW16/A. Correspondingly, PW-15 proved the entry bearing no. 2118 in register no. 19, in respect of deposit of case property , i.e., mobile phone, sim and personal search memo on 12.02.2016, as Ex. PW16/B. Markedly, under his cross examination, PW-15 proclaimed, as under;
"XXXXXX by ***, Ld. Counsel for the accused. It is correct that I had not issued any acknowledgement/receipt to SI Yogesh. It is correct that I had not obtained his signatures on the register no. 19.
It is wrong to suggest that I had not received the above said case property in the malkhana on the above C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 34 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:12 +0530 said dates. It is wrong to suggest that I am deposing falsely at the instance of the IO."
(Emphasis supplied)
24. Strikingly, PW-16 (wrongly mentioned as PW-17, as consonance with the decision of Ld. Trial Court)/IO/SI Yogesh Kumar deposed before the Ld. Trial Court that on 27.11.2015, he was posted as Sub-Inspector at PS. Timarpur and on that day, he was on night emergency duty from 08:00 p.m. to 08:00 a.m. As per PW-16, he received DD no. 43A and thereafter, he along with Ct. Arvind went to the spot, i.e., near Main Gate of Gopalpur and met the complainant, namely, Sunil Kumar, who was in injured condition and the complainant had apprehended one person, who had one lock/hook of broken gold chain of the complainant in his hand. It was further deposed by PW-16 that the complainant produced the said person before him/PW-16 and his/accused's name was revealed as Mohd. Tahseem. Thereafter, as per PW-16, the injured was taken to Trauma Centre by PCR and he/PW-16 left Ct. Arvind at the spot with accused, and he/PW-16 proceeded to Trauma Centre. PW-16 further asserted that he collected the MLC of the victim and after complainant's medical examination, he/PW-16 and the complainant returned to the spot. Correspondingly, as per PW-16, he recorded the statement of the complainant (Ex. PW3/A) and thereafter, prepared tehrir (Ex.PW17/A), which was handed over to Ct. Arvind for registration of FIR. Thereafter, as per PW-16, Ct. Arvind left the spot and after registration of FIR, returned to spot along with copy of FIR and rukka, which were handed over to him/PW-16. PW-16 further testified regarding preparation of site plan (Ex. PW17/B) by him/PW-16, at the instance of the complainant, as well as of seizure of the hook/lock (kundi) of complainant's broken gold C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 35 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:15 +0530 chain vide memo Ex. PW11/A, recovered from the appellant, by placing it in a plastic container (dibbi), converting it into pullanda and on affixation of seal of 'YS'. PW-16 further deposed that he interrogated the appellant, who admitted his involvement in the commission of offence in present case along with his two associates namely, Vijay and Bhola. Thereafter, as per PW-16, he formally arrested and conducted personal search of the appellant vide memos, Ex. PW11/C and Ex. PW11/D, as well as recorded appellant's disclosure statement, Ex. PW11/B. PW-16 further inter alia deposed that he deposited the case property to malkhana. Subsequently, as per PW-16, on 29.11.2015, he along with Ct. Manohar went into the search of accused Bhola and Vijay at Gali No. 17 Wazirabad Village Shiv Mandir, where they met a secret informer who disclosed the information regarding the accused Bhola @ Amit and on the pointing of the secret informer, Ct. Manohar apprehended accused Bhola @ Amit, who was arrested vide memo Ex. PW13/B and personally searched vide memo Ex. PW13/C. PW-16 further deposed that he recorded the disclosure statement (Ex. PW13/A) of accused Bhola. Thereafter, as per PW-16, accused Bhola was produced before the concerned court for conducting his TIP proceedings, however, the same was refused by the said accused. It was further proclaimed by PW-16 that the robbed mobile phone was put on tracing mode and it was found running in the name of one Lekh Pal S/o. Virpal, which eventually led them to co-accused Mool Chand, who was apprehended and interrogated about the said mobile. Correspondingly, as per PW-16, on search of Mool Chand, the said mobile phone was recovered from the right pocket of his wearing pants, which was seized vide memo, Ex. PW7/B. C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 36 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:20 +0530 Correspondingly, as per PW-16, accused Mool Chand also denied participation in TIP proceedings. Thereafter, as per PW-16, he collected the certified copies of CDRS, CAF of mobile number involved in the present case, as well as prepared the chargesheet, which was filed before the concerned court. Needless to mention, PW-16 correctly identified the appellant as one of the perpetrators as well as the case property, before the Ld. Trial Court.
25. Significantly, during the course of his cross- examination, PW-16/IO/SI Yogesh Kumar, deposed as under;
"XXXXXX by ***, Ld. Counsel for accused Amit and Tahseem.
I received the DD No.43A at about 8:30 pm. We went to the spot on my private motorcycle. Public persons were present at the spot and 02 public persons have been made witnesses in the present case. No videography of recovery proceedings was done by me. I reached at the hospital for medical examination of complainant at Trauma Centre at about 9:30 pm and returned back at the spot at about 11 pm. Rukka was prepared at the spot and handed over to Ct. Arvind at about 11:50 pm. The seal of mine was prepared from the shop and I do not know about the shop.
The signatures of accused Tahseem was not taken on pullanda of gold chain kundi, however, his signature was taken on the seizure memo of the same.
No public person was joined at the time of arrest of accused Amit @ Bhola. No case property was recovered from the possession of accused Amit @ Bhola.
It is wrong to suggest that I prepared the site plan at my own instance. It is wrong to suggest that I took the signatures of accused Tahseem and Amit @ Bhola on black papers which were converted into their disclosure statements. It is wrong to suggest that it was a road rage matter and no robbery was committed. It is wrong to suggest that the aforesaid gold chain kundi was not recovered from the possession of accused Tahseem and it was in the possession of the complainant. It is wrong to suggest that no pointing out memo was prepared at the instance of Amit @ Bhola. It is wrong to suggest that C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 37 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:41:25 +0530 all the proceedings were conducted while sitting in the PS. It is wrong to suggest that I have not conducted the fair investigations and falsely implicated accused persons in the present case. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
26. Conspicuously, in light of the foregoing, this Court would now proceed with the evaluation of the material placed on record, in light of the arguments addressed by/on behalf of the appellant and by Ld. Addl. PP for the State. However, before proceeding further, this Court deems it pertinent to deal with the contention of Ld. Counsel for the appellant inter alia to the effect that the conviction of the appellant could not have been premised on the deposition of the complainant in the instant case. However, in this regard, this Court deems it pertinent to outrightly note that the superior courts have persistently avowed9 that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness/victim, 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, reference is made to the decision of the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, wherein the Hon'ble Court in unambiguous terms, remarked 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 9 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 38 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:29 +0530
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)
27. Correspondingly, reference is made to the decision of the Hon'ble Apex Court in Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365, wherein the Hon'ble Court enunciated the principles to be kept in mind, while appreciating the evidence of an injured eye-witness, as under;
"26. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the courts are required to be kept in mind:
26.1. The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
26.2. Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
26.3. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. 26.4. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. 26.5. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. 26.6. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 39 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:41:32 +0530 to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
(Emphasis supplied)
28. Pertinently, Ld. Counsel for the appellant has further strenuously contended that the Ld. Trial Court did not consider the contradictions, variations and/or improvements, in the testimonies of various prosecution witnesses while pronouncing the impugned judgment. However, in order to appreciate the said contention, this Court deems it apposite to iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness. In particular, in this regard, this Court deems it apt to outrightly make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 40 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:36 +0530 evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied)
29. Similarly, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 41 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:40 +0530 scrutiny."
(Emphasis supplied)
30. Evidently, from the conspectus of the above, it is clearly deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, cannot be permitted to be annexed with any undue weight. In fact, it is trite law10, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."... Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of 10 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 42 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:44 +0530 the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied)
31. Ergo, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession to marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Consequently, when the testimonies of prosecution witnesses in the instant case are analysed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. Counsel for the appellant that there are any material contradictions to belie the testimonies of the said witnesses. On the contrary, it is seen from a conscientious scrutiny of the evidence of the complainant/PW-3/Sunil Kumar, PW-1/Akram Ali and PW-6/Asif that they have consistently deposed of the incident in question, as well as of the involvement of the appellant therein. In particular, it is seen from the testimony of the complainant/PW-3 that he deposed before the Ld. Trial Court that on on 27.11.2015, when he/PW-3 was returning to his home from his shop, on his scooty bearing registration no. DL-8SBL-1181 and had reached in front of main gate of his village at around 08:30 p.m., four boys riding on a motorcycle came from the front side and hit his/PW-3's scooty and thereafter, some dispute arose between them. Further, as aforenoted, PW-3 further identified the appellant as the person, C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 43 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:48 +0530 who slapped him in the said scuffle, besides asserted that when he/PW-3 tried to call at 100 number by his phone, co-accused, Mool Chand snatched his/PW-3's said mobile phone from his hand, whilst other co-accused persons manhandled him/PW-3. Further, as per PW-3, the accused persons also snatched his gold chain, which he was wearing at that point in time, as well as the accused persons also took a piece of stone, lying at the spot and hit him/PW-3 behind his head and on his eye. After the said incident, as per PW-3, the said accused persons endeavoured to flee from the spot, however, he apprehended the appellant, and from whose/appellant's possession, one broken piece of his/complainant's snatched/robbed gold chain was recovered. Pertinently, the material part of PW-3's deposition in so far as it pertains to the ensuing scuffle between the boy on scooty and the boys on motorcycle; presence of four boys on motorcycle; snatching of complainant's mobile phone in the process as well as of them/the said boys' injuring/hurting the complainant; and that pertaining to one of the said perpetrators being apprehended on the spot, finds corroboration from the deposition of PW-1/Akram Ali. Correspondingly, PW-6/Asif corroborated the deposition of the complainant in so far as it related to the incident of beating of one person by 3-4 persons at the spot; apprehension of one such persons/perpetrators at the spot; of the complainant's using PW-6's mobile phone to make at 100 number; and that of the PCR van reaching the spot as well as taking the injured to the Hospital.
32. Congruently, the deposition of the foregoing witnesses, further finds corroboration from the testimony of PW-4/Dr. Lalit Tanwar, who proved the MLC bearing no. 216887 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 44 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:41:52 +0530 (Ex PW5/A) of the complainant, wherein the complainant is noted to have inter alia sustained, "... lacerated wound pt. Lt. eyebrow- 3*0.1 cm...mild swelling around 1*0.5 cm over mid occipital region...mild tenderness (+) over Rt. zygomatic region ...". Needless to reiterate that the appellant duly admitted the nature of injuries, being 'simple' in the complainant's MLC No. 216887, dated 27.11.2015, in term of the provisions under Section 294 Cr.P.C., on 20.05.2022, leading to dispensation/dropping of Dr. Eshaan, Sr. ENT from the list of prosecution witnesses. Pertinent to further note that the factum of apprehension of the appellant at the spot as well as of recovery of the hook/ kundi of the complainant's gold chain from the possession of the appellant, further finds credence from the deposition of PW-11/Ct. Arvind Kumar as well as from the deposition of PW-16 (wrongly mentioned as PW-17)/IO/SI Yogesh Kumar. Ergo, under such circumstances, this Court finds itself in concurrence with the finding of the Ld. Trial Court that the prosecution has been able to prove the commission of incident by the appellant, while acting in collusion/connivance and in furtherance of common intention with each other. In fact, even in the considered opinion of this Court, the appellant has failed to bring forth any material even under the cross examination of any of the foregoing witnesses, so as to demolish the case put forth against him by the prosecution. Correspondingly, the appellant has not even been able to bring forth any malice/ill will or wrongful intention on the part of the complainant to falsely implicate him in the present case. In fact, not only has the appellant not even given any suggestion to any of the witnesses so as to suggest any reasons for his false implication, rather, the appellant has not even denied his presence on the spot C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 45 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:41:57 +0530 at the time of the alleged incident or that of him being falsely roped in subsequently in the case. In fact, even the explanation tendered by the appellant in his statement, recorded in terms of Section 313 Cr.P.C. is quite uninspiring of confidence, and seemingly specious.
33. In so far as the fulfilment/establishment of ingredients of offence under Section 394/34 IPC against the appellant is concerned in the instant case, this Court is in concurrence with the finding of the Ld. Trial Court, under the impugned judgment. In fact, this Court concedes with the observations of the Ld. Trial Court that PW-1, PW-3 and PW-6, all deposed regarding the complainant being beaten by 3-4 boys, besides the complainant persistently asserted that he was slapped by the appellant and manhandled by the co-accused persons. Correspondingly, PW-3 proclaimed that the accused persons also snatched his gold chain, which he was wearing at that point in time, as well as the accused persons also took a piece of stone, lying at the spot and hit him/PW-3 behind his head and on his eye. Needless to reiterate that the injuries sustained by the complainant stand duly corroborated/validated from his MLC and the deposition of PW-4/Dr. Lalit Tanwar. Clearly, under the said facts, there is clear evidence that the appellant and co-accused persons inflicted injuries on the complainant, in which process the perpetrators, dishonestly took movable property , i.e., his gold chain out of the possession of the complainant, without his consent and moved the same, in order to such taking. Ergo, under such circumstances, this Court concedes with the finding of the Ld. Trial Court that the ingredients of offence under Section 394 IPC C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 46 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:00 +0530 read with Section 34 IPC stand proved beyond reasonable doubt against the appellant herein.
34. Conclusively, in conspectus of the above and inter alia keeping in view consistent testimonies of the complainant/PW-3/Sunil Kumar, PW-1/Akram Ali, PW-6/Asif and PW-4/Dr. Lalit Tanwar, as well as considering other material on record, including the testimonies of other witnesses, seizure and recovery memos, etc., the only conclusion which can be unambiguously arrived at in the facts and circumstances brought forth is that the prosecution has been able to prove its case 'beyond reasonable doubt' against the appellant for the offences under Section 394/34 IPC. On the contrary, the appellant has failed to raise a probable defence/defence by 'preponderance of probabilities' in his favour and/or to belie the case put forth by the prosecution for the reasons, hereinunder, observed. However, in as much as the allegations/charges under Section 411 IPC is concerned, this Court unambiguously reiterates that in light of the aforementioned dictates, in particular, in terms of the decisions in State of U.P. v. Nawab (Supra.) and Gopi Jaiswal v. State of U.P. (Supra.), once a finding of guilt of accused for the commission of offence under Section 394/34 IPC has been reached by this Court, it would not be proper to convict the appellant for the offence under Section 411 IPC in the instant case.
35. In so far as the quantum of sentence to be awarded to the appellant is concerned, this Court deems it pertinent to outrightly observe that though the penal provisions under law, in particular that under IPC, prescribe for penalties to be imposed for offences, however, do not lay down any set guidelines for the C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 47 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:04 +0530 same. Nonetheless, the persistent avowals of the superior courts 11 have laid down certain guidelines, which may be considered by the courts, when confronted with conundrum regarding such determination. 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 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 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)
36. Concurrently, 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. ...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...The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further 11 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 48 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:08 +0530 offences) and the maintenance of public confidence..." (Emphasis supplied)
37. 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 word12 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 settled13 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 courts14, a 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 and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." In this regard, reference is made to the decision of the Hon'ble Apex Court in Vasanta Sampat Dupare v. State of Maharashtra, (2017) 6 SCC 631, wherein the Hon'ble Court while delving into the aspect of award of sentence/sentencing, enunciated as under;
"20. It is thus well settled, "the court would consider the cumulative effect of both the aspects (namely, aggravating factors as well as mitigating circumstances) and it may not be very appropriate for the Court to decide the most significant aspect of 12 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.13
Bachan Singh v. State of Punjab, (1980) 2 SCC 684 14 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 49 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:12 +0530 sentencing policy with reference to one of the classes completely ignoring other classes under other heads and it is the primary duty of the Court to balance the two". Further, "it is always preferred not to fetter the judicial discretion by attempting to make excessive enumeration, in one way or another; and that both aspects, namely, aggravating and mitigating circumstances have to be given their respective weightage and that the Court has to strike the balance between the two and see towards which side the scale/balance of justice tilts". With these principles in mind, we now consider the present review petition."' (Emphasis supplied)
38. Here, it is further apposite to make a reference to the decision of the Hon'ble Supreme Court in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, wherein the Hon'ble Court, while iterated the law as under;
"76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh [(1980) 2 SCC 684: 1980 SCC (Cri) 580] and thereafter, in Machhi Singh [(1983) 3 SCC 470: 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartments-- one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 50 of 60 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2026.02.18 16:42:16 +0530 (2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 51 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:20 +0530
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."
(Emphasis supplied)
39. At this stage, this Court deems it apposite to further reproduce the relevant provisions under the Probation of Offenders Act, as under;
"4. Power of court to release certain offenders on probation of good conduct-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 52 of 60 Digitally signed
ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:24 +0530 Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1) is made, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order or impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
*** *** ***
11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision-(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision***"
(Emphasis supplied)
40. Notably, the Probation of Offenders Act was brought into force, in view of the increasing emphasis on the reformation C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 53 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:28 +0530 and rehabilitation of the offenders as useful and self-reliant members of society without subjecting them to deleterious effects of jail life, however, law is trite15 that no one can claim the benefit of Sections 3/4 of the Probation of Offenders Act as a matter of right and the court has to, "pass appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc." Correspondingly, superior courts have persistently avowed16 that for the benefit under Probation of Offenders Act to enure in favour of an accused, court must be cognizant of the nature of offence, conditions stipulated under Section 4 of the said enactment, as well as judicial precedents governing the field. Here, this Court deems it further pertinent to note that the superior courts have persistently avowed that merely because the maximum sentence of life could have been awarded for the offence under Section 394 IPC, it would be no ground for not granting the benefit of Probation of Offenders Act17 to the respondent. Reference in this regard is made to the decision of the Hon'ble High Court of Delhi in State v. Lucky, 2017 SCC Online Del 8328, wherein the Hon'ble Court, unambiguously noted, as under;
"13. What would control and affect the applicability of the Probation of Offenders Act, 1961 would not be the maximum sentence prescribed for the offence, but whether the Court has a discretion to award a lesser sentence than the maximum, without there being any caveat with respect to the minimum sentence which has to be awarded for the offence. Since the Penal Code does not bar the exercise of judicial discretion in the matter of award of sentence for the offence under Section 394 IPC, Probation of Offenders Act, 1961 would be applicable.15
Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, (2001) 5 SCC 317.16
Mohd. Hashim v. State of U.P., (2017) 2 SCC 198.17
Reference is further made to the decisions in; Arvind Mohan Sinha v. Amulya Kumar Biswas, (1974) 4 SCC 222; and Ajay Kumar v. State, CRL.A. 549/2007 & CRL.M.A. 14125/2025, dated 04.07.2025.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 54 of 60 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:31 +0530
14. Any Court while exercising jurisdiction under Sections 4 & 6 of the Probation of Offenders Act, 1958 has to keep in view the nature of the offence and the conditions incorporated under the Act. It is only if the Court forms an opinion that it is expedient to release the convict on probation for good conduct, regard being had to the circumstances of the case, then only the benefit could be extended. The nature of offence is definitely one of the circumstances. The Court has the discretion to decide when and how it should form such an opinion. The word "expedient"
also has been explained by the Supreme Court in State of Gujarat v. Jamnadas G. Pabri (1975) 1 SCC 138 :
AIR 1974 SC 2233. In the aforesaid judgment, it has been observed as hereunder:--
*** *** ***
15. Thus, merely because the maximum sentence of life could have been awarded under Section 394 of the Penal Code, 1860, it would be no ground for not granting the benefit of Probation of Offenders Act to the respondent. The Court has a discretion in matters of sentencing and the sentencing process would hinge on the nature and circumstances of the case."
(Emphasis supplied)
41. Whence, in light of the foregoing principles, this Court would now proceed with the determination of rival contentions of Ld. Counsel for the appellant as well as Ld. Addl. PP for the State. Appositely, Ld. Counsel for the appellant strenuously averred that the appellant belong to poor strata of society as well as struggling for their daily sustenance. Further, as per Ld. Counsel, the appellant has suffered the rigors of litigation, as early as 2015 and has ever since, been diligently appearing before court; besides, nothing has come on record to demonstrate that the appellant misused the condition of bail/suspension of sentence during the interregnum period. Ld. Counsel for the appellant further reiterated that the appellant has always cooperated during the trial as well as pendency of present appeal. However, it was further argued that the appellant is around 42 years of age, sole bread earner in his family, besides he/the C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 55 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:35 +0530 appellant is obligated to take care of their old/ailing mother and other family members. Accordingly, Ld. Counsel for the appellants have entreated for a lenient view in awarding sentence. In contrast, Ld. Addl. PP for the State has asserted that no relaxation in sentencing ought to be granted in favour of the appellant, considering the gravity of offence, besides the appellant be conferred no indulgence of probation, as prayed for.
42. Ergo, in light of the foregoing submissions of the Ld. Counsel for the appellant and that of Ld. Addl. PP for the State, further, being wary of the facts and circumstances of the present case, aggravating as well as mitigating factors brought forth, antecedents/previous involvement, nominal roll of the appellant and the possibility of reformation in view of the reports of the probation officer, dated 06.10.2025, this Court is of the considered opinion that in the matter at hand, the appellant deserves the benefit of probation18/provisions under Probation of Offenders Act. Apposite at this stage to reproduce the relevant extracts from the report of probation officer qua the appellant, as under;
"...Current Address (Place of residence): D-183, 18 Reference is made to the decision of the Hon'ble Apex Court in Chhanni v. State of Uttar Pradesh, Crl. Appeal No. 721 of 2006, dated 06.07.2006: AIR 2006 SC 3051: 2006 (5) SCC 396: 2006 Cri. LJ 4068, wherein the Hon'ble Court, noted the provisions under Section 360 Cr.P.C. vis-à-vis provisions under the Probation of offenders Act to inter alia observe, "Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.*** Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.*** Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area." (Emphasis supplied) C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 56 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.18 16:42:38 +0530 Gali No. 9, Village Wazirabad, Delhi.
*** *** *** PERSONAL HISTORY: The convict is a 41 year old separated man (divorce). The convict us living with his mother in Delhi in his own flat 5 gaz. rented flat. He is study upto 3rd class. He is working as a e- rickshaw diver and earns 10,000 rs. per month.
*** *** *** Report of parents and relations: The family of the Convict said positively about the behavior and conduct of the Convict. They stated that the Convict behaves satisfactory.
Attitude of family towards offenders and extent of his influence on him/her: The family has a positive attitude towards the Convict.
Report of Neighbours: Neighbours have reported in favour of the Convict. But denied to give in written.
*** *** *** Offender's own reaction to the offence and his attitude towards possible punishment: He is worried and strained about the possible punishment for this act. The Convict stated that if the Hon'ble Court is pleased to release him on Probation, he undertakes to maintain good behavior and peace in future.
*** *** ***
Summary:
(a) Factual background of offender and his environment and offence: The Convict is a 42 year old Seprated man. He resides in his own flat with his senior citizen mother. He is studied upto 3 rd class. He is working as a E-rikshaw driver and earns 10,000 rs per month. He is the sole bread earner of his family.
(b) Diagnosis (Offender's attitude, defects in character of Family, Motivation and other Factory regarded as Causal Factors for the Offence): The Convict denied the charges against him in the present case. However, he also stated that now he wants to live a normal life.
(c) Prognosis (treatment considered most suitable and estimate of chances of improvement): There is a possibility of improvement in the behaviour of the Convict. If the Convict is released on probation he will keep under the supervision of probation officer.
(d) Recommendation (if asked for you by court):
The Convict has been facing the present case since 2015. He has suffered socially, mentally as well as economically throughout this period of trial. There is C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 57 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:42 +0530 a possibility of Rehabilitation and Reformation in this case. In the view of above facts and observations, the Social Investigation Report is being submitted to the Hon'ble Court for kind perusal please..."
(Emphasis supplied)
43. Quite evidently, it is seen from above that the probation officer, in the probation reports has tendered a favorable opinion regarding the chance of reformation of the appellant, besides favored the grant of benefit of probation to the appellant. Correspondingly, from a report of appellant's previous involvement and/ or antecedents, submitted by the concerned SHO, it is noted that the appellant is not found involved in any other case. Needless to mention that there is nothing on record to demonstrate that the appellant preserved to harass or trouble the victim/complainant, subsequent to the day of incident; appellant has expressed inclination to lead normal life as well as undertaken not to repeat similar offence in future; the appellant have remained on bail even during the appeal and faced the ordeal of litigation as early as year, 2015; besides, there is nothing negative in the probation reports against the appellant, rather, as aforenoted, the probation officer has recommended that the case of the appellant, be considered for the benefit of probation. Conclusively, being wary of the foregoing circumstances as well as judicial dictates, this Court is of the considered opinion that it is expedient to release the appellant on probation of good conduct. Needless to further mention that as per the aforesaid report of the probation officer, the appellant has a fixed abode in the local limits of NCT of Delhi, besides the appellant has a favorable and positive report qua his behavior as well as there are no complaints of anti-social behavior against him.
44. Conclusively, in light of the foregoing discussion, C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 58 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.18 16:42:46 +0530 while upholding the conviction of the appellant for the offence(s) under Section 394/34 IPC, under the impugned judgment dated 29.05.2024, passed by Ld. MM-02, Central, Tis Hazari Court, Delhi in case bearing; 'State v. Mohd. Tahseem & Ors., Cr. Case No. 300839/2016', arising out of FIR No. 913/2015, PS. Timarpur for the foregoing reasons, the appellant is now, directed to be released on probation. Ergo, the appellant is released on probation/entitled to benefit under Section 4 of the Probation of Offenders Act, upon him/the appellant's furnishing a personal bond in a sum of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount each, subject to the satisfaction of the Ld. Trial Court/Ld. JMFC/Ld. Duty JMFC, with an undertaking to appear and receive punishment when called upon and in the meantime, to keep the peace and be of good behavior maintain peace during the period of 02 (two) years, as well as further subject to the following conditions;
(a) The appellant shall not involve himself in any offence and registration of any further case shall make them liable for cancellation of probation;
(b) The appellant shall receive the sentence as may be given by the court, if the benefit of probation is withdrawn;
(c) The appellant shall maintain peace and harmony and refrain from criminal activity; and
(d) The appellant is further directed to deposit Rs. 15,000/- (Rupees Fifteen Thousand only), before the Ld. Trial Court/ Ld. JMFC/Ld. Duty JMFC, to be released as compensation to the victim/complainant, Sunil Kumar, in terms of the provisions under Section 5 of the Probation of Offenders Act.
45. Needless to mention that since the appellant has now been dealt under Section 4 of Probation of Offenders Act, he shall not suffer any disqualification attached with conviction, in terms C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 59 of 60 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.18 16:42:49 +0530 of Section 12 of the said enactment19. At request, the bonds and sureties as well as the fine, as aforenoted, be filed/deposited by the appellant before the Ld. Trial Court/Ld. JMFC/Ld. Duty JMFC within a period of 15 (fifteen) days from the date of this judgment, as per law and rules.
46. The present appeal is accordingly disposed off in above terms. Needless to further mention that though this Court holds highest regard for the decisions relied upon by the Ld. Counsel for the appellant in support of appellant's case, however, the same would not come to the aid of the appellant, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
47. Trial Court Record be sent back along with a copy of this judgment for necessary action. Copy of this judgment be also given dasti to the appellant. Further, compliance of the decision of the Hon'ble Supreme Court in Suhas Chakma v. Union of India, (2024) 16 SCC 1 has been carried out.
48. Appeal file be consigned to record room after due compliance.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:42:54
+0530
Announced in the open Court (Abhishek Goyal)
on 18.02.2026. ASJ-03, Central District, Tis Hazari Courts, Delhi 19 Radhey Shyma And Another v. State of U.P. & Anr., Crl. Rev. No. 436 of 2014, dated 20.09.2023 (Honble Allahabad HC).
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 60 of 60