Delhi District Court
Sandeep @ Mussa vs State on 27 May, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-008791-2023
CRIMINAL APPEAL No.: 147/2023
SANDEEP @ MUSA,
S/o. Shri. Vijay @ Raghubir Prasad,
R/o. H. No. 2571, Gali No. 66,
Masjid Wali Gali, Sant Nagar,
Burari, Delhi ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of filing : 05.07.2023
Date of institution : 07.07.2023
Date when judgment was reserved : 30.04.2025
Date when judgment is pronounced : 27.05.2025
JUDGMENT
1. The present appeal has been preferred in terms of the provisions under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 27.02.2023 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate-02/Ld. MM-02, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing, 'State v. Dilip & Ors., Crl. Case No. 298622/2016', arising out of FIR No. 326/2010, PS. Timarpur, under Sections 457/380/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the appellant for the offence punishable under Sections 411 IPC read and the consequent order of sentence dated 30.05.2023 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, awarding rigorous imprisonment for a term of 2 (two) years along with fine of Rs. 5,000/- (Rupees Five Thousand only) for the said offence/offence under Section 411 CA No. 147/2023 Sandeep @ Musa v. State Page No. 1 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:20:28 +0530 IPC. Markedly, the appellant was directed to undergo, simple imprisonment for a further period of 15 (fifteen) days, in default of payment of fine, besides the appellant was further directed to deposit a sum of Rs. 4,000/- (Rupees Four Thousand only) as prosecution expenses. Needless to mention that the appellant was directed to be entitled to the benefit of the provisions under Section 428 Cr.P.C. (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Succinctly, the facts leading up to the filing of the present appeal are that on 12.12.2010 on receipt of PCR Call vide DD No. 16A, the concerned police official(s) is/are asserted to have reached at the spot, i.e., H. No. 13, Type-III, Multistorey, Timarpur, Delhi (hereinafter referred to as the 'spot/premise'). On reaching there, it was determined that the window at the rear end of the house was open and the grill, which was fixed on the window had been removed and kept inside. Upon this, the concerned police official reached/entered inside the said house and opened the font gate thereof. Thereafter, on entering the house, it was determined that articles inside the house were lying strewn here and there, besides the locks of the almirah were found opened. As per the police official(s), it was further ascertained that owner of the said house/complainant/Subhash Sethi was not present there and it was subsequently, at around 07:00 p.m. on 12.12.2010 that the said owner returned to his home. Consequently, statement of the complainant was got recorded wherein he inter alia asserted that he was resident of the said premise, while employed as Section Officer at Union Public Service Commission at the relevant point in time. The complainant further proclaimed that on 11.12.2010, he along with his daughter and son-in-law, to Amritsar and in the morning of 12.12.2010, he/the complainant received a call from CA No. 147/2023 Sandeep @ Musa v. State Page No. 2 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:20:36 +0530 his neighbor, informing him that the rear window of his house was open, and an incident of theft had occurred at his house. Correspondingly, as per the complainant, when he returned to his house, at around 07:00 pm., he/the complainant noted that (1) laptop, (2) City Bank Credit Card/Debit Card, (3) IDBI Debit Card, (4) Syndicate Debit Card, (4) RC/registration certificate no. DL-7CH-2407, (5) Diamond bracelet, earrings, bali (6) Golden chain with pendant (10 gms.), (7) Rs. 30,000/- (Rupees Thirty Thousand only), and (8) Clothes, were found missing/stolen. Ergo, under said facts and circumstances and on the basis of the instant complaint, the present FIR came to be registered, and the investigation ensued. Relevantly, during the course of investigation, the appellant along with co-accused persons namely, Dilip, Rohit @ Chunchun, and Jeeva Nand (hereinafter referred to as the 'co-accused persons') were apprehended/arrested and various recoveries were effected from the said accused persons/co- accused persons and appellant. Correspondingly, during the investigation proceedings, TIP proceedings of the recovered articles was got conducted on 06.01.2011, wherein the complainant is asserted to have correctly identified all the recovered articles.
2.1. Notably, upon conclusion of the investigation, the concerned police official filed the chargesheet before the Ld. Trial Court whereupon, cognizance of offence specified under the chargesheet was taken by the Ld. Trial Court on 22.02.2011.
Subsequently, on compliance of provisions under Section 207 Cr.P.C. was undertaken, followed by arguments on charge having been addressed by/on behalf of Ld. Counsel for the appellant and co-accused persons as well as by Ld. APP for the State. Consequently, Ld. Trial Court vide its order dated 04.08.2011, CA No. 147/2023 Sandeep @ Musa v. State Page No. 3 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:20:41 +0530 directed framing of charges against the appellant as well as the co- accused persons for the offences under Section 411 IPC. Apposite at this stage to reproduce the relevant extracts of order dated 04.08.2011 of the Ld. Trial Court, as under;
"..Arguments on point of charge heard. Charge and documents perused. It is alleged that the accused were found in possession of stolen property which was earlier stolen from the area of police station Timarpur from complainant, which they received or retained knowing or having reason to believe the same to be stolen property. Prima facie case against accused u/s. 411 IPC made out. Charge u/s. 411 IPC is framed against all the accused to which they have pleaded not guilty and claimed trial..."
(Emphasis supplied) 2.2. Consequently, the following charge was framed against the appellant on 04.08.2011;
"...I, ***, MM. Delhi do hereby charge you Sandeep @ Musa S/o. Vijay, as under:-
That on 25.12.2010 at 252, Nirankari Colony, Dhir Pur, Delhi you dishonestly received or retained the stolen property the laptop leather bag and one golden colour chain belonging to complainant Subhash Sethi which was earlier stolen on 12.12.2010 from the area of Police Station Timar Pur, which you received or retained knowing or having reason to believe the same to be stolen property and you thereby committed an offence punishable u/s. 411 IPC and within the cognizance of this Court.
And I hereby direct both of you to be tried for the aforesaid offence by this court..."
(Emphasis supplied) 2.3. Markedly, the appellant and co-accused persons, all pleaded not guilty to the charges levelled against them and claimed trial. Relevantly, during the course of trial, prosecution examined 8 (eight) witnesses, i.e., PW-1/Subhash Sethi/complainant; PW-2/Ct. Mukesh, PIS No. 28012269; PW-3/Ct. Mukesh, PIS No. 28070892; PW-4/HC Ajay Kumar; PW-5/SI (Retd.) Jagdish CA No. 147/2023 Sandeep @ Musa v. State Page No. 4 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:20:45 +0530 Chander; PW-6/Smt. Reeta Sethi; PW-7/Insp. Vikram; and PW-8/SI Sunil Kumar. Relevantly, during the course of proceedings, co-accused, Jeeva Nand left for heavenly abode and the proceedings qua the said accused were abated vide order dated 24.08.2016 of the Ld. Trial Court, upon a death verification report, having been filed by/on behalf of the concerned SHO.
Correspondingly, during the ensuing trial, the appellant and co- accused persons, Rohit @ Chunchun and Dilip admitted the genuineness and correctness of DD No. 16A regarding theft at H.No. 13, Type-III, Multistorey, Timarpur, Delhi as Ex. PA-1; and TIP of case property, dated 06.01.20211, conducted by the Ld. MM as Ex. PA-2, in terms of the provisions under Section 294 Cr.P.C. on 04.03.2020. At the same time, the said accused persons (including the appellant) also admitted the fingerprint expert report no. 1060/10, dated 12.12.2010, prepared by Ct. Chetan (Crime team) as Ex. X-1, in terms of the provisions under Section 294 Cr.P.C. on 06.05.2022. Needless to mention that the corresponding witnesses/prosecution witnesses, proposed to be adduced by prosecution in proof of said documents were dropped from array of prosecution witnesses, in light of such admission. Subsequently, on conclusion of prosecution evidence, appellant's leading defence evidence/defence witnesses, i.e., DW-1/Sandeep (himself) and DW-2/Smt. Laxmi; recording of statement of the appellant (and co-accused persons) under Section 281/313 Cr.P.C. on 26.09.2022; as well as on conclusion of arguments on behalf of the parties, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant, guilty of the offence punishable under Section 411 IPC, sentenced him in the manner, as noted hereinabove.
3. Learned Counsel for the appellant vehemently CA No. 147/2023 Sandeep @ Musa v. State Page No. 5 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:20:49 +0530 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 impugned judgment is incorrect both on facts as well as in law, making the same liable to be set aside. It was further submitted that the Ld. Trial Court erred in not appreciating the facts and circumstances of the present case, nor the submissions of the appellant, while passing the impugned judgment and order. In this regard, Ld. Counsel outrightly submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth, besides the story put forth by the prosecution does not inspire confidence or appeals to the senses of a prudent man. Ld. Counsel further submitted that there are various material contradictions in the depositions of PW-1 and PW-6, belying the version put forth by the said witnesses. In this regard, Ld. Counsel further asserted that none of the prosecution witnesses have supported the case of the prosecution, rather, the judgment was passed by the Ld. Trial Court in an extremely hasty manner, without applying judicial mind. Further, as per the Ld. Counsel PW-2 to PW-5, PW-7 and PW-8 are police witnesses, who have neither conducted a fair investigation nor supported the case of the prosecution. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate that though the incident allegedly took place on 12.12.2010, the appellant was arrested only after fifteen days thereafter and in order to fill-in the lacune in the instant case, the police officials have wrongly planted the alleged recovered article on the appellant. In this regard, it was submitted that public witnesses were joined in the recovery proceedings of alleged case property nor the said proceedings video/photographed, which is CA No. 147/2023 Sandeep @ Musa v. State Page No. 6 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:20:53 +0530 fatal to the case of the prosecution. In fact, as per the Ld. Counsel, the prosecution did not even produce the alleged neighbor of PW-1 who is asserted to have informed PW-1 of the alleged incident of theft.
3.1. Ld. Counsel for the appellant further submitted that the finding of the Ld. Trial Court is not based on any cogent material and the Ld. Trial Court, as per the Ld. Counsel, passed the impugned judgment and order, mechanically and in haste. Further, as per the Ld. Counsel the Ld. Trial Court erred in appreciation of evidence led in the case, ignoring the fundamental shortcoming in the investigation conducted by the IO as well as the assertion of various prosecution witnesses. Even otherwise, as per the Ld. Counsel, Ld. Trial Court failed to consider that the appellant as falsely implicated in the present case. As per the Ld. Counsel, the IO of the case, moved no application for test-identification parade/TIP of the case property and the same was released to/in favour of the complainant, without placing any bill on record pertaining to the said case property and without any verification thereof, creating a doubt in the prosecution story and warranting the appellant, benefit of doubt in the instant case. Correspondingly, as per the Ld. Counsel even the search, seizure and arrest proceedings were not properly conducted by the IO in the instant case. In this regard, Ld. Counsel fervently argued that tough the place of arrest of the appellant was admittedly, a thickly populated area on a busy road, however, not a single independent witness was produced by the prosecution to prove the recovery of article(s) from the possession of the appellant. On the contrary, Ld. Counsel submitted that the alleged recovery was planted upon the appellant by the police officials to falsely rope him in the present case. It was further submitted that though the prosecution examined/produced CA No. 147/2023 Sandeep @ Musa v. State Page No. 7 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:20:57 +0530 six police officials as witnesses/prosecution witnesses, however, the said witnesses failed to disclose their arrival and departure entries, as per the Punjab Police Rules, creating a colossal lacuna in the prosecution case.
3.2. Ld. Counsel for the appellant further submitted that the Ld. Trial Court reached its conclusion of guilt of the appellant, while failing to appreciate that there is no cogent, credible and reliable evidence on record for reaching an unambiguous conclusion towards the guilt of the appellant. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court fail to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellant, guilty of the aforementioned 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 their family members. Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing the accused/appellant with severe sentence would subject the accused's/appellant's 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 may ensue to his 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 aside. In the alternate, Ld. Counsel submitted that CA No. 147/2023 Sandeep @ Musa v. State Page No. 8 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:21:01 +0530 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').
4. Per contra Ld. Addl. PP for the State submitted that the impugned judgment and order were 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 the complainant and various other prosecution witnesses have not only been consistent, rather, of sterling quality, lucidly pointing out towards the only inference of guilt of the appellant. Further, as per the Ld. Addl. PP for the State the appellant even failed to prove his defence. 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(s) and other material placed on record of the present case, including the report of the concerned probation officer, thoroughly perused.
6. Before proceeding with the determination of the merits of the present case, this Court deems it apposite to deal with the application/prayer for condonation of delay in filing the present appeal. In this regard, it is outrightly noted that against the impugned judgment and impugned order dated 27.02.2023 and CA No. 147/2023 Sandeep @ Musa v. State Page No. 9 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:04 30.05.2023, respectively, the present appeal was preferred only on 05.07.2023, admittedly after a delay. Notably, in the application for condonation of delay of the appellant, the reason for said delay is specified as the appellant's Ld. Counsel's inability to trace the documents/file of the present case owing to some renovation/construction work going on in the office due to summer vacation. In particular, it is specified under the said application that the appellant contacted his counsel and requested him to file the appeal as soon as possible. Consequently, the instant appeal is asserted to have been drafted and finalized, however, due to the non-operation of the court, the appeal could not be filed in time , i.e., on 29.06.2023 and was filed with a delay for the reason that of file/documents were not traced due to renovation/construction work going on in the office of Ld. Counsel of the appellant. Further, during the course of arguments, Ld. Counsel for the appellant, while supplementing the said contentions, vehemently contended that the appellant has been wrongly convicted and sentenced by the Ld. Trial Court and in case, the delay in preferring the present appeal is not condoned, grave and irreparable loss would accrue upon the appellant, whist, no loss/damage would be caused to the State, in case the prayer, as sought for is granted. Needless to mention here, Ld. Addl. PP for the State sternly objected to the said prayer for condonation on the ground, entreating that no relaxation/indulgence may be granted in favour of the appellant herein.
7. Apropos the present discussion and before delving into the arguments addressed before this Court, on the aspect of delay, it would be relevant to make a reference to Article 115(b)(ii) of the Schedule of the Limitation Act, 1963 (' Limitation Act' for short), which prescribes a period of thirty (30) days from the date CA No. 147/2023 Sandeep @ Musa v. State Page No. 10 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:21:08 +0530 of sentence or order, sought to be challenged, as a period of limitation for filing criminal appeal. However, Section 5 of the Limitation Act, inter alia provides for condonation of delay/extension of prescribed period in certain cases on demonstration of 'sufficient cause', which terms/words have been repeatedly, held by the superior courts to be elastic in nature, necessitating liberal construction, in the interest of justice in a given case. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein the Hon'ble Court, while painstakingly collating the guiding principles governing the exercise of court's power to condone delay as well as the meaning of the said words, enunciated as under;
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 11 of 41
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.05.27
16:21:12 +0530
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving CA No. 147/2023 Sandeep @ Musa v. State Page No. 12 of 41 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.05.27 16:21:16 +0530 consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(Emphasis supplied)
8. Unmistakably, the rules of limitation, which are premised on the principles enshrined in a Latin maxim, 'interest reipublicae up sit finis litium1', are designed not to destroy the legal rights of parties, rather, to ensure that the parties do not resort to dilatory tactics. Ergo, considering the objective of the law and further being wary of the fact that there is no presumption under law that the delay in approaching courts was deliberate, courts 2 have repetitively professed for adoption of a pragmatic, justice- oriented approach, in variance to, technical interpretation, while determining 'sufficient cause' in a case. Needless to mention that it is equally a settled law3, "decisive factor for condonation of delay is not length of delay but sufficiency and satisfactory explanation." Apposite in regard the foregoing to make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. Satish Chand Shivhare & Brothers, 2022 SCC OnLine SC 2151 , wherein the Hon'ble Court, while professing for the adoption of a balanced as well as liberal approach in the determination of a prayer for limitation/condonation of delay, asserted as under;
"22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an 1 It is for the general welfare that a period be put to litigation. 2 J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC OnLine Del 1082.
3 Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610. CA No. 147/2023 Sandeep @ Musa v. State Page No. 13 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:21:20 application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is glimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."
(Emphasis supplied)
9. Consequently, in light of the aforenoted judicial dictates/principles governing limitation; arguments addressed by the Ld. Counsel for the appellant and Ld. Addl. PP for the State; as well as appreciating the facts and circumstances and brought forth, this Court outrightly notes that Section 4 of the Limitation Act, which inter alia provides, "Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court re-opens." Clearly, in the instant case, the last date of expiry of the limitation period being the non- operational day of the Court, the appeal had to be filed on 01.07.2023, however, the same was filed only on 05.07.2023, admittedly with a delay. As aforenoted, reason for said delay is attributed to the loss of documents/file due to the renovation work ongoing in the Ld. Counsel's office and, in the considered opinion of this Court, same is neither deliberate nor intentional. Clearly, in terms of the aforenoted judicial dictates, submissions made, contents of the application for condonation of delay as well as the provisions under Section 5 of the Limitation Act, the delay in preferring the instant appeal, in the present case, in the considered opinion of this Court, deserves to be allowed. Needless to reiterate, the reasons for delay in the present case are stated to have been attributed to the fact of loss/misplacement of documents/files of CA No. 147/2023 Sandeep @ Musa v. State Page No. 14 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:25 +0530 the present case due to renovation work in the Ld. Counsel's office. Clearly, in light of the foregoing, the reasons for preferring the present appeal by/on behalf of the appellant cannot be treated to be malicious or dilatory in any manner. Correspondingly, this Court unswervingly observes that the prayer for condonation of delay in filing the present appeal deserves to be allowed and the period of delay warrants to be condoned. Consequently, for the foregoing reasons, this Court allows the appellant's prayer for condonation of delay and the period of delay in filing/preferring the present appeal is, hereby, condoned.
10. Proceeding further, this Court deems it apposite at this stage, to enunciate the scope of jurisdiction of this Court in an appeal against conviction. In this regard, this Court deems it pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court1 in Atley v. State of U.P., 1955 SCC OnLine SC 51, wherein the Hon'ble Court, while delving into the 'scope an ambit' of appellate court's jurisdiction, against an appeal against acquittal or an appeal against conviction, inter alia noted as under;
"8. ... It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207: AIR 1952 SC 52]; Wilayat Khan v. The State of Uttar Pradesh [1951 SCC 898: AIR 1953 SC 122]. In our opinion, there is no substance in the contention 1 Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 15 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.05.27 16:21:29 +0530
raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions...."
(Emphasis supplied)
11. 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)
12. 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 against conviction 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 its appellate jurisdiction, is not only 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 law 1 that non-re- appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even an accused. Needless to reemphasize that an appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by acquittal nor weakened by a conviction in the trial court.
1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 16 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:33 +0530 13. Therefore, being cognizant of the aforesaid
principles, however, before proceeding with the determination of the rival contentions of the parties, this Court deems it pertinent here to reproduce the relevant provisions under law/IPC, for the purpose of present adjudication, as under;
"410. Stolen property-Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
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)
14. Notably, from a perusal of the above, it is noted that capability for the offence under Section 411 IPC can arise only upon the prosecution's ability to unambiguously prove 1, "(1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property..." Reference in this regard is made to the decision of the Hon'ble High Court of Andhra Pradesh in Maruboina Srinu @ Maddu Srinu v. State of Andhra Pradesh, Criminal Revision Case No. 436/2010, dated 21.02.2024, wherein the Hon'ble COurt, while delving into the contours, scope and ambit of the provisions under Section 411, noted as under;
1 Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39:
CA No. 147/2023 Sandeep @ Musa v. State Page No. 17 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:21:37 +0530 "13. From the above, it should be seen whether the prosecution proved that the accused retain the stolen property covered under M.O.1. It is mandatory for the prosecution to establish the essential ingredient of knowledge of the accused that the goods are stolen property. To bring home the guilt under Section 411 of IPC, the following four segments has to be proven by the prosecution namely (i). dishonestly; (ii). receives or retains any stolen property; (iii). knowing; or (iv).
having reason to believe the same to be stolen property. These four aspects shall be established by the prosecution against the accused for the said offence.
14. 'Dishonestly' is defined under Section 23 I.P.C. as "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'." The key ingredient for a crime is, of course, mens rea. This was nicely explained by Hon'ble Supreme Court in Vimla v. Delhi Administration, 1905 SCC Online Mad 87.
15. In this connection, it is appropriate to mention a reference in the judgment of the Hon'ble Supreme Court, to decide the matter in issue, reported in Shiv Kumar v. State of Madhya Pradesh, wherein it was held that "for successful prosecution under Section 411 it is not enough to prove that the accused was either negligent or that he had a cause to think that property was stolen, or that he failed to make enough inquiries to comprehend nature of goods procured by him and further initial possession of goods in question may not be illegal but retaining those with knowledge that it was stolen property, makes it culpable."
16. So, the Apex Court clinchingly held that to prove the offence under Section 411 of IPC, it is mandatory for the prosecution to establish that retaining of goods with the knowledge that it is a stolen property."
(Emphasis supplied)
15. Correspondingly, for culpability under Section 411 IPC to attract, it is not necessary that an accused receives any stolen property with a culpable intention, knowledge or reason to believe, rather, even in the instance of retention of such stolen property with such mens rea is sufficient to attract the provisions of Section 411 IPC. Reference in this regard, is made to the decision CA No. 147/2023 Sandeep @ Musa v. State Page No. 18 of 41 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.05.27 16:21:40 +0530 of the Hon'ble Supreme Court in Shiv Kumar v. State of M.P., (2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon'ble Court inter alia observed as under;
"16. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
(Emphasis supplied)
16. Congruently, reference is further made to the decision in Gopi Jaiswal v. State of U.P., Criminal Appeal u/S. 374 Cr.P.C. No. 1899 of 2009, dated 08.11.2011, wherein the Hon'ble Allahabad High Court unambiguously noted that a person cannot be held responsible, simultaneously1, for committing the offence of theft as well as for dishonestly receiving or keeping the stolen property, knowingly it to be stolen at the same time. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under section 379 IPC. His conviction under section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under section 411 IPC cannot be upheld...."
(Emphasis supplied)
17. Reference in respect of the foregoing is further made to the decision in Sunil Mashi v. State NCT of Delhi, 1 Sarwar Ali & Ors. v. State, Criminal Revision No. - 390 of 2006, dated 29.05.2015 (Allahabad HC).
CA No. 147/2023 Sandeep @ Musa v. State Page No. 19 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:45 +0530
MANU/DE/3768/2014, wherein the Hon'ble High Court of Delhi in akin context, remarked as under;
"43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside..."
(Emphasis supplied)
18. Ergo, being wary of the principles hereinunder noted, this Court would now appreciate the evidence and material placed on record. At the outset, it is pertinent to refer to the deposition/testimony of the complainant/PW-1/Subhash Sethi, who inter alia deposed that on 11.12.2010, he/PW-1 along with his family, including his daughter and son-in-law went to visit at Golden Temple at Amritsar, Punjab. Further, as per PW-1, on 12.12.2010, his neighbor called him/PW-1 on his mobile phone and informed him that the rear-side window of his house was broken and in an open condition as well as that theft had taken place in his house. On that day, as per PW-1, he returned to his house in Timarpur and searched it/his house as well as found; one laptop, one City Bank credit/debit card, one IDBI debit card, Syndicate debit card, RC of his son-in-law's car bearing no. DL-7CH-2407, diamond bracelet, one pair of ear rings, one gold chain with pendant, Rs 30,000/- (Rupees Thirty Thousand only) in cash and some clothes were missing. PW-1 further deposed that he tendered his statement to the police officials at PS. Timarpur and asserted that the police recorded his/PW-1's statement and read over as well as explained the same to him/PW-1, which was proved as Ex. PW-1/A, bearing PW-1's signatures at point A. PW-1 further proclaimed that later on, he also found one golden color ring, CA No. 147/2023 Sandeep @ Musa v. State Page No. 20 of 41 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.05.27 16:21:49 +0530 missing, which he also informed to the police. Further, as per PW-1, the IO prepared the site plan (Ex. PW-1/B) at his/PW-1's instance and later on, as per PW-1, TIP of his recovered stolen property, i.e., golden bangle, golden earrings, one golden chain, one golden ring, one laptop along with bag was conducted by the Ld. MM and he/PW-1 identified the same. Correspondingly, as per PW-1, the said articles were released to him/PW-1 vide superdarinama (Ex. PW-1/C). PW-1 further asserted that he had also given a copy of bill of said laptop (Dell) and certificate regarding the bracelet, both, Mark-A. PW-1 further produced the black laptop bag, bearing the mark of ' Alisan'; laptop of 'Dell'; one brown jacket; one golden chain; one pair of diamond earrings; and one finger ring of male before the Ld. Trial Court, however, expressed his inability to produce the diamond bracelet on the pretext that his wife was admitted in Hospital. Nonetheless, PW-1 identified the case property from their photographs (Ex. P-1). Relevantly, upon being cross examined, PW-1 inter alia asserted as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused Rohit and Sandeep.
It is correct that the stolen article was not recovered from my presence from any of the accused. I had given the bill regarding laptop and Bracelet.
*** *** *** XXXXXX by Ld. ***, Ld. Legal aid counsel for accused Dilip.
It is correct that I do not know who had committed the theft of my articles."
(Emphasis supplied)
19. Apposite for the purpose(s) of present discourse to refer the testimony of PW-6/Smt. Reeta Sethi, W/o. Sh. Subhash Sethi who deposed in her testimony that on 11.12.2010 or may be in the year, 2011, she along with her husband/PW-1, daughter, son and son-in-law went to Amritsar as it was their wedding CA No. 147/2023 Sandeep @ Musa v. State Page No. 21 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:21:53 +0530 anniversary and had gone to Amritsar, Golden Temple to pay homage. Further, as per PW-6, on 12.12.2010, she received an information from her neighbor regarding theft at her/PW-6's house situated at H. No. 13, Type III, Timarpur, Delhi and thereafter, they returned to their house immediately. PW-6 further proclaimed that her husband reported the said matter to police and further proclaimed that some articles were stolen from their house, i.e., one gold chain, one gold ring, bracelet and one pair of earrings of diamond, jacket, some credit cards, debit cards and laptop and some cash around Rs. 30,000/- (Rupees Thirty Thousand only)-Rs. 40,000/- (Rupees Forty Thousand only), etc. PW-6 further proclaimed that on 25.12.2010, she received a call from PS regarding apprehension of accused persons who had committed theft at their house and thereafter, she got released some articles, i.e., one jacket and some cash around Rs. 30,000/- (Rupees Thirty Thousand only)-Rs. 40,000/- (Rupees Forty Thousand only), etc., from court, however, she could not recollect the date of such release. PW-6 further identified the case property from their photographs (Ex. P-1) before the Ld. Trial Court. Markedly, upon being cross examined by/on behalf of appellant and co-accused, Sandeep, PW-6 asserted as under;
"XXXXXX by Sh. ***, Ld. Counsel for accused Rohit and Sandeep.
I am not sure about the year of incident but it may be 2010 or 2011. It is correct that I am not the eyewitness of the incident.
*** *** *** XXXXXX by Sh. ***, Ld. LAC for accused Dilip. I do not remember the name of the person and his mobile number who had shared the information with me regarding theft in my house. It was about 10-11 am when I received this information"
(Emphasis supplied)
20. Germane for the purposes of the present discourse to CA No. 147/2023 Sandeep @ Musa v. State Page No. 22 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:56 +0530 make a reference to the testimony of PW-3/Ct. Mukesh, PIS No. 28070892, who deposed that on 12.12.2010, he was posted at PS. Timarpur and on the said day, he accompanied IO Sunil to spot, i.e., MS Flats, Timarpur. PW-3 further deposed that there, they found the rear/back window of the house was broken and the front lock of the flat was intact. Correspondingly, as per PW-3, they went inside and found the articles to be scattered. Further, as per PW-3, the owner of the flat was not found and thereafter, the said owner reached at the police station and gave his statement on which, the present FIR was registered. PW-3 further deposed that on 24.12.2010, he was present along with SI Sanjay Gupta, Ct. Dharmender and SI Sunil at Lucknow Road and in the evening accused Dalip was found, who was interrogated. As per PW-3, said accused, gave his disclosure statement ( Ex. PW-3/A) about the theft in the present case at MS Flats and also disclosed about the role of his accomplices, namely, Rohit @ Chunchun, Sandeep @ Musa/the appellant and Jeeva Nand. Under his disclosure statement, as per PW-3, accused Dilip disclosed about his possession of stolen property, i.e., laptop at his jhuggi at Patrachar. Thereafter, as per PW-3, accused Dilip led to his jhuggi and got recovered the said laptop, which was kept in a box. Correspondingly, as per PW-3, the said laptop was seized vide seizure memo (Ex. PW-3/B), bearing PW-3's signatures at point A. The accused Dalip is further proclaimed to have been arrested vide arrest memo (Ex. PW-3/C), bearing PW-3's signatures at point A and personal/search memo vide (Ex. PW-3/D), bearing PW-3's signatures at point A. PW-3 further avowed that on the same date, at night, accused Sandeep @ Musa/the appellant was arrested from the truck parking, Timarpur and his disclosure statement was recorded (Ex. PW-3/E). It was further asserted by PW-3 that CA No. 147/2023 Sandeep @ Musa v. State Page No. 23 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:01 +0530 thereafter, the appellant led them to his house , i.e., at Dhirpur Colony where he got recovered the stolen laptop bag and one golden chain, which articles were both sealed by putting into the pullanda and sealing with the seal of 'SV'. The said articles are further asserted to have been seized vide seizure memo (Ex. PW-3/F) and the accused Sandeep @ Musa/the appellant was also arrested vide arrest memo (Ex. PW-3/G) and his personal search was also got conducted vide memo (Ex. PW-3/H), both bearing PW-3's signatures at point A. It was further proclaimed under PW-3's testimony that on the same day, at night, co-accused, Jeeva Nand was also apprehended from the area of Tikona Park, New Market, Timarpur and his disclosure statement was recorded by memo (Ex. PW-3/I) and from his possession, one jacket of brown colour, from his house situated at MS Flats was recovered, which was seized by putting into pullanda vide seizure memo (Ex. PW-3/J), bearing PW-3's signatures at point A. Further, as per PW-3, accused Jeeva Nand was also arrested by the IO vide memo (Ex. PW-3/K) and his personal search was also got conducted vide memo (Ex. PW-3/L), both, bearing PW-3's signatures at point A. Thereafter, as per PW-3, they returned to the police station and the case property was deposited in the malkhana. PW-3 further asserted that his statement was recorded by the IO. Further, PW-3 correctly identified accused, Dilip, Jeeva Nand and Rohit @ Chunchun before the Ld. Trial Court, while appearance of the appellant was exempted on him not disputing his identity on his application. PW-3 also identified the case property from its photographs (Ex. P-1).
21. Ominously, under his cross-examination, PW-3 deposed as under;
"XXXXXX by Sh. ***, Ld. counsel for accused Dalip, Rohit @ Chunchun and Sandeep @ Musa.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 24 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:05 +0530
I remained at the spot i.e. the spot of theft for about thirty minutes. The photographs of the flats were taken by the crime team. The IO interrogated two/three persons who were the nearby residents of the MS Flats. We had to the house of the accused Dalip at about 8.00 pm and we remained there for 15 minutes. The list of articles recovered was prepared. The signatures of the parents of accused Dalip were not obtained. IO had requested to the mother of accused Dalip and other person to join the investigation but they did not join. I do not recollect whether they signed any documents. All the documents were prepared at the Police Station. The house of the brother of the accused Dalip is in front of his house. None was found at the house of brother of accused Dalip. The nearby residents were inquired who stated that his brother has gone outside. I do not recollect the name of that person.
The accused Sandeep @ Musa was arrested at about 10.00 pm. We all four namely SI Sunil, SI SK Gupta and Ct. Dharmener collectively apprehended the accused Sandeep @ Musa. Ct. Dharmender carried out his personal search. He did not offer his search before effecting search upon the accused. Nothing was recovered in his personal search. We reached at his house at about 11.00 pm. We were on government Tata 407. At his house his mother and father were present. I do not recollect as to whether the signatures of the parents of the accused Sandeep @ Musa were obtained on the documents prepared. None of the nearby residents were asked to join the investigation. The proceedings writing work was done while sitting in the gali. No site plan of recovery was prepared. The street light was working. His house is the 5th house from the start of the gali. His house is situated at ground floor which is a tenanted house. I do not recall as to whether the owner of the house was called by the IO. The recovered articles from the house of accused Sandeep @ Musa were sealed at the PS. The IO after affixing the seal retained. It is wrong to suggest that the accused Dalip and Sandeep have been falsely implicated and no recovery has been effected from their possession and hence no public persons were joined at the time of recovery..."
(Emphasis supplied)
22. Apposite to further refer to the deposition of PW-5/SI Jagdish Chander, who deposed that on 12.12.2010, he was posted as ASI at PS. Timarpur and on that day, he/PW-5 was working at CA No. 147/2023 Sandeep @ Musa v. State Page No. 25 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:09 +0530 Duty Officer from 04:00 p.m. to 12:00 midnight. It was further asserted by PW-5 that on that day, at around 09:25 p.m. he received rukka from Ct. Mukesh, sent by SI Sunil and that on the basis of the same, he/PW-5 registered the instant FIR. PW-5 further proved the said FIR from the original FIR, copy of which is Ex. PW-5/A, bearing PW-5's signatures at point A. Correspondingly, PW-5 proved his endorsement on the rukka (Ex. PW-5/B) from points B to B1. Further, as per PW-5, the copy of FIR and original rukka were given to Ct. Mukesh to further hand over to same to SI Sunil for investigation. Correspondingly, PW-7/Insp. Vikram deposed that on 21.01.2011, he was posted as SI at PS. Timarpur and that on the said day, the instant FIR was marked for further investigation to him/PW-7. PW-7 further proclaimed that he prepared the chargesheet against four accused persons, subsequently, and filed the same before the concerned court. After filing the chargesheet, as per PW-7, he arrested one accused Anil Khajji in a present FIR. However, due to lack of evidence against Anil Khajji, a report was filed under Section 169 Cr.P.C. was filed against him.
23. Here, this Court deems it further pertinent to refer the testimony of PW-8/SI Sunil Kumar, who inter alia deposed before the Ld. Trial Court that on 12.12.2010, he/PW-8 was posted at PS. Timarpur and on that day, he was accompanied by Ct. Mukesh to the spot, i.e., MS Flats, Timarpur. Correspondingly, as per PW-8, at the said spot, they found the back window was broken and the front lock of the flat was intact. Consequently, they went inside and found the articles to be scattered. As per PW-8, the owner of the flat was not found and had later on reached at the police station and given his statement on which, the present FIR was registered. PW-8 further deposed that on 24.12.2010, he received a secret information regarding the accused and thereafter he/PW-8 along CA No. 147/2023 Sandeep @ Musa v. State Page No. 26 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 with Ct. Mukesh, Ct. Dharmender and SI Sanjay Gupta were present at the Lucknow Road and in the evening, co-accused Dalip was found. PW-8 further deposed that the said accused was interrogated, and he gave a disclosure statement about the theft in the present case at MS Flats. It was further avowed by PW-8 that accused Dilip also disclosed about the role of his accomplices namely, Rohit @ Chunchun, Sandeep @ Musa/the appellant and Jeeva Nand. PW-8 further proved co-accused, Dilip's disclosure statement (Ex. PW-3/A), bearing PW-8's signature at point A. Under his disclosure statement, as per PW-8, co-accused Dilip disclosed about the possession of stolen property i.e. laptop at his jhuggi at Patrachar as well as the said accused is asserted to have got recovered the said laptop from his jhuggi, which was kept in the box and seized vide seizure memo (Ex. PW-3/B), bearing PW-8's signatures at point B. The accused Dalip, is stated to have been, thereafter arrested vide arrest memo Ex. PW-3/C, bearing PW-8's signatures at point B and search memo vide Ex. PW-3/D, bearing PW-8's signatures at point B. As per PW-8, on the same day, in the night, accused Sandeep @ Musa was arrested from the truck parking, Timarpur and he is stated to have made his disclosure statement (Ex. PW-3/E), bearing PW-8's signature at point A. Thereafter, as per PW-8, accused Sandeep @ Musa led them to his house i.e. at Dhirpur Colony, where he got recovered the stolen laptop bag and one golden chain. PW-8 further proclaimed that both the said articles were sealed by putting into the pullanda by putting seal 'SV' vide seizure memo Ex. PW-3/F, bearing PW-8's signatures at point A. The accused Sandeep @ Musa was further deposed by PW-8 to have been arrested vide arrest memo Ex. PW-3/G and personal search was also got conducted vide memo Ex. PW-3/H, both, bearing PW-8's CA No. 147/2023 Sandeep @ Musa v. State Page No. 27 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:19 +0530 signatures at point B. It was further avowed by PW-8 that thereafter, on the same day, in the night, co-accused, Jeeva Nand was apprehended from the area of Tikona Park, New Market, Timarpur and his disclosure statement was recorded by memo (Ex. PW-3/I). PW-8 further declared that from the possession of the said accused, one jacket of brown colour, was recovered, from the house of the said co-accused at MS Flats and seized vide memo (Ex. PW-3/J). PW-8 further proved the arrest memo (Ex. PW-3/K) and personal search memo (Ex. PW-3/L) of the said co-accused, both, bearing PW-8's signatures at point A. Thereafter, as per PW-8, they returned to the police station and the case property were deposited in the malkhana and further, as per PW-8, he recorded the statement of witnesses. PW-8 further correctly identified the appellant as well as co-accused before the Ld. Trial Court, besides also identified the case property from their photographs, Ex. P1.
24. Significantly, in his cross-examination, IO/SI Sunil Kumar/PW-8 deposed as under;
"XXXXXX by Sh. ***, Ld. counsel for accused Sandeep @ Musa.
Accused Sandeep was apprehended on the intervening night of 24/25.12.2010 at about 2 am. Accused Sandeep was apprehended from Truck Parking. Timarpur. No public person was available at that time. I prepared arrest memo, personal search, disclosure statement of accused Sandeep. Personal search of accused Sandeep was conducted by Ct. Mukesh on my instructions. Streetlight was available in the Truck Parking where the aforesaid documents were prepared. The said street light was not shown in the site plan already Ex.PW1/B. I left the PS at about 10 pm on that day. I made departure entry for the same.
At this stage, the witness is shown the judicial file and after going through the same, the witness states that no document qua his departure entry is on record.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 28 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:24 +0530
I reached at the house of accused Sandeep at about 4 am on my personal pulsar bike bearing registration no. DL5_5667 (complete number not recollect). 1 cannot tell the registration numbers of the other motorcyle with the police officials. There were three bikes. We were total 05 members. On my motorcyle Ct. Mukesh was a pillion rider. I am not able to recall today the other police officials who were riding the bike and who were pillion riders.
I cannot say whether the accused Sandeep's house was rented or not. I am not able to recall today as to how many stories were built up at accused Sandeep's house, however, accused Sandeep resides at the ground floor. I am not able to recall today as to who opened the door of accused Sandeep's house at that time. I am not able to recall today on which direction the main door of the accused's house is opened. The accused's house was admeasuring approximately 50- 60 Sq. Yards. There were two rooms on the GF. The case property i.e. golden chain and laptop bag were recovered under the bed lying in the first room. No photography was done. No public witness was cited when articles were seized. Complainant disclosed the color of the laptop bag however the same was not mentioned in a complaint. I remained at the of accused Sandeep for about 1 hour. I prepared seizure memo regarding the case property seized from the possession of the accused Sandeep. At the house of accused Sandeep one male person was present whose name I cannot recall. I have not recorded the statement and have not taken his signatures on any document. No public person was cited as a witness and for the same no notice was served to them for non joining of investigation. I left the spot at about 5 am. I did not made any handing out memo. It is wrong to suggest that all the proceedings were conducted while sitting in the PS. It is further wrong to suggest that no case property was recovered from the possession of the accused Sandeep and the same was planted by me. It is wrong to suggest that I am deposing falsely.
*** *** *** XXXXXX by Sh. ***, Ld. LAC for accused Dileep and Rohit @ Chunchun.
On 12.12.2010 my duty hour were from 8 AM to 8 PM. I did not made any DD entry regarding the arrival at PS. I received a PCR call regarding a theft at Ms Flats Timarpur. I did not recorded the statement of the PCR caller. I called the crime team at the spot and the photographs of the spot was taken by the crime team. I reached the spot at about 11:45 AM. The DD no. 16A was marked to me at about 11:30 AM. It is correct that CA No. 147/2023 Sandeep @ Musa v. State Page No. 29 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:28 +0530 I formally inspected the place of alleged incident before the arrival of the crime team. I did not took the photographs of the spot before the arrival of the crime team. I did not requested the neighbours to join the investigation. I did not ask the person to join the investigation who informed the owner of the house regarding the theft took place at his house. I met the owner of the house at about 6 PM on 12.12.2010. The complainant handed over some bills regarding the articles stolen from his house. The complainant provided the bill pertaining to the laptop as well as gold articles however the same was not verified. It is wrong to suggest that the said bill was forged and fabricated. I did not took statement of public person who were present at the spot. It is correct that I did not verify on whose ID the laptop was .... It is wrong to suggest that the verification was not done as the laptop was not recovered from the possession of the accused. DD entry regarding the secret information received inadvertently could not be placed with chargesheet however the same was part of the police file. Today I am not able to recall the said DD no. The secret informer met at about 7 PM outside PS Timarpur. I met him alone. I informed the SHO orally regarding the secret information given by informer. I made the DD entry but today I am not able to recall the DD entry no.
*** *** *** Secret informer was not a neighbour of accused persons. I did not write down the information given by the secret informer. I do not remember the exact time when I met with secret informer. I did not record the statement of a neighbour who gave the information to the complainant regarding the theft took place at his house. No notice was served upon the said neighbour. The secret informer disclosed the name of accused persons and places where they could be apprehended, however, the secret informer did not give any description regarding how their appearance. I did not obtain the signature of any public person at the time of arrest and recovery effected from the accused persons as the public persons were not available there at that time.
On 12.12.2010, the complainant met me at about 6 pm and remained with me till 9 pm. On 24.12.2010, I do not remember the DD Entry number regarding my departure as well as my arrival qua secret informer. On the intervening night of 24- 25/12.2010, 1 do not remember the DD entry number regarding my arrival and departure qua the arrest of accused Dilip and Rohit and recovery from them. No CA No. 147/2023 Sandeep @ Musa v. State Page No. 30 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:32 +0530 public person was asked to join the investigation as it was late night and no public person was available (1-2 am). I left the PS for the arrest of accused Dilip and Rohit on 24.12.2010 at about 10 pm and returned to PS on 25.12.2010 at about 5 am. It is wrong to suggest that accused persons have been falsely implicated in the present case. It is wrong to suggest that nothing has been recovered from the possession of accused persons. It is wrong to suggest that nothing has been recovered at the instance of accused persons. It is wrong to suggest that case property has been planted by the IO at the behest of complainant. It is wrong to suggest that I have no conducted fair investigation. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
25. Consequently, in light of the foregoing this Court would proceed with the determination of the rival contentions of the parties (arguments by/on behalf of the appellant and that of State/Ld. Addl. PP for the State) before this Court. In this regard, it is outrightly noted that the case of the prosecution against the appellant is primarily based on the recovery of the laptop bag and gold chain from the possession of the appellant and the appellant's disclosure statement recorded by the police official (Ex. PW-3/E) pertaining to the appellant's share of property/articles, stolen from the spot. Correspondingly, the prosecution has further relied on the TIP proceedings of the recovered articles (Ex. PA-2) to assert that the case has been proved beyond reasonable doubt against the appellant in the instant case. Needless to mention that upon appreciation of the material brought on record, in light of the arguments addressed by/on behalf of the appellant and the State, Ld. Trial Court reached at the conclusion of guilt of the appellant in the instant case. However, when the material placed on record is meticulously perused, in view of the aforenoted judicial dictates, submissions addressed, material placed on record as well as in light of the legal provisions, this Court finds itself difficult to concede with the findings reached by the Ld. Trial Court under the CA No. 147/2023 Sandeep @ Musa v. State Page No. 31 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:38 +0530 impugned judgment/order. In this regard, it is noted at the outset, that nowhere under his complaint, Ex. PW-1/A or the deposition before the Ld. Trial Court, the complainant/PW-1 makes any reference of theft of any laptop bag or gives a description thereof in any manner. In fact, both, under the said complaint as well as the consequent FIR, there is solely a mention of; (1) laptop, (2) City Bank Credit Card/Debit Card, (3) IDBI Debit Card, (4) Syndicate Debit Card, (4) RC/registration certificate no. DL-7CH-2407, (5) Diamond bracelet, earrings, bali (6) Golden chain with pendant (10 gms.), (7) Rs. 30,000/- (Rupees Thirty Thousand only), and (8) Clothes, as the stolen articles. Correspondingly, even under his deposition before the Ld. Trial Court, PW-1 reiterates the theft of the said articles along with one golden colour ring, which PW-1/complainant asserts that he came to know of missing, later on, which he/PW-1 allegedly informed to the concerned police official(s). However, despite the same, PW-1 does not mention of theft any laptop bag or the alleged stolen laptop being in such bag at the relevant point in time or even provides the particulars of such bag in question. Pertinent to further note that though, PW-8/IO/SI Sunil Kumar, in his cross-examination inter alia proclaim that the complainant/PW-1 disclosed the color of the laptop bag, however, even PW-8 admits that the said fact was not mentioned under the complaint. Needless to mention that the same is notwithstanding that nowhere under his deposition, PW-1/complainant asserts of having informed the police officials of the particulars of said laptop bag or the colour thereof or that the same bore a tag of 'Alisan', as asserted to be present on the alleged recovered laptop bag, from the possession of the appellant herein. Clearly, the said ambiguities are sufficient to demonstrate the contradictory version put forth by various prosecution witnesses in their respective CA No. 147/2023 Sandeep @ Musa v. State Page No. 32 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:43 +0530 versions before the Ld. Trial Court, besides casting a substantial dent in the story put forth by the prosecution against the appellant. Correspondingly, though, PW-1 proclaimed of theft of one golden chain with pendant (10 gms.), however, the particulars of even such chain are also wanting in the instant case, either in the complainant's complaint or subsequent deposition before the Ld. Trial Court.
26. Here, it is further pertinent to note that though, PW-1/complainant under his deposition before the Ld. Trial Court (examination in chief as well as his cross examination) proclaimed that he/PW-1 had handed over the copy of bill of laptop (Dell) and certificate regarding the bracelet (both, Mark-A) to the police official(s), however, there is no mention of handing over of any bill or photographs of the laptop bag or golden chain in question by the complainant to the police officials. Indubitably, though, PW-8/IO/SI Sunil Kumar proclaimed under his cross-examination that the complainant had provided the bill pertaining to the laptop as well as gold articles, however, PW-8 affirmed that the same were not verified. Apposite to further note in this regard that PW-8, merely casually/unconcernedly asserted regarding the complainant's handing of bills pertaining to 'gold articles', however, the said bills were neither been placed before the Ld. Trial Court nor the factum of such handing over of bills of ' gold articles', except to the extent complainant's assertion of handing over of a certificate regarding the bracelet, finds corroboration from the testimony of the complainant/PW-1. Needless to reiterate that admittedly the so called handed over bills remained unverified in the instant case. Ergo, under such circumstances, in the absence of proof of complainant's ownership of the laptop bag and gold chain, stated to be recovered from the possession of the appellant, CA No. 147/2023 Sandeep @ Musa v. State Page No. 33 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:47 +0530 it does not appeal to the senses of this Court that finding of appellant's guilt, beyond reasonable doubt, can/could have been reached in the instant case. Needless to mention that the articles allegedly recovered are both easily available/accessible in marked and in the absence of any specific identity mark thereon, it is difficult, rather, incongruous to attribute their ownership solely to the complainant in the instant case. In this regard, reference is made to the decision of Hon'ble High Court of Punjab and Haryana in Manjinder Singh v. State of Punjab, Criminal Appeal No. 418-SB of 1995, dated 05.05.2009, wherein the Hon'ble Court while confronted with an akin situation of ambiguity regarding the identity of 'stolen property', accentuated the importance of proof of ownership of the person alleging theft of his article, in the following terms;
"9. The Counsel for the appellant, submitted that no offence, punishable under Section 411 of the Indian Penal Code, was constituted, but the trial Court, was wrong, in recording conviction, and awarding sentence for the same. He further submitted that no evidence was produced by the prosecution, to prove that scooter No. PIA 7915, which was allegedly recovered from the appellant, belonged to Deepak Kumar, and, as such, was the stolen property. The submission of the Counsel for the appellant, in this regard, appears to be correct. Savinder Singh, Assistant Sub Inspector, PW3, is the Investigating Officer. It was he, who apprehended accused Manjinder Singh, who was found in possession of scooter No. PIA 7915. The prosecution was required to prove that scooter No. PIA 7915, which was allegedly recovered from Manjinder Singh, and his companion, was the ownership of Deepak Kumar, from whom, the same was allegedly snatched. Deepak Kumar, stated that he was the owner of scooter No. PCM 6623, and not PIA 7915. It appears that scooter No. PIA 7915, and scooter No. PCM 6623, were two different scooters. Surinder Singh, Clerk, Office of the DTO, Amritsar, when appeared as, PW5, stated that he brought the summoned record of scooter No. PCM 6623, bearing chassis No. 230217, and engine No. 229100. He did not state that chassis number of scooter No. PIA 7915, was the same, as that of scooter CA No. 147/2023 Sandeep @ Musa v. State Page No. 34 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:50 +0530 No. PCM 6623, which belonged to Deepak Kumar. No cogent evidence was produced by the prosecution that fake number plate bearing No. PIA 7915, was affixed to scooter No. PCM 6623. The registration certificate or copy thereof in relation to scooter No. PCM 6623, was not got exhibited so as to ascertain that the chassis and engine number of the scooter recovered from Manjinder Singh, tallied with the chassis number and engine number of scooter No. PCM 6623. Assistant Sub Inspector Savinder Singh, PW3, stated that he did not verify regarding the registration of scooter No. PIA 7915 allegedly recovered from Manjinder Singh. The bald statement of Savinder Singh that the scooter recovered from Manjinder Singh, was the one, which belonged to Deepak Kumar, and bore the actual No. PCM 6623, in the absence of any documentary evidence, which could be easily available, was hardly of any consequence, to bring home the guilt to the accused. Since scooter No. PIA 7915, did not belong to Deepak Kumar, as to who was the owner thereof, was for the prosecution to prove. Had the prosecution proved that scooter No. PIA 7915, belonged to Deepak Kumar, and the same was found in possession of the accused, in the absence of furnishing any proof, with regard to the ownership thereof, it could be said that he dishonestly received and retained the stolen property. Even, Deepak Kumar, did not lodge any report, with regard to the theft of scooter No. PIA 7915. The prosecution, thus, miserably failed to bring home the guilt to the accused. In these circumstances, no offence, punishable under Section 411 of the Indian Penal Code, was made out. The trial Court, thus, acted on conjectures and surmises, in holding that the offence, punishable under Section 411 of the Indian Penal Code, was committed by the appellant. The finding of the trial Court, are liable to be set aside. The submission of the Counsel for the appellant, being correct, is accepted..."
(Emphasis supplied)
27. Another glaring feature of the instant case is noted from a careful analysis of the depositions of PW-3 and PW-8 before the Ld. Trial Court. In this regard, it is noted that there are significant and material contradictions in the testimonies of said witnesses on several important aspects of search, seizure, arrest and recovery of/at the behest of the appellant in the instant case, despite the fact that the said witnesses, both, admitted being a part CA No. 147/2023 Sandeep @ Musa v. State Page No. 35 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:22:54 +0530 of team that conducted the said arrest, search and seizure proceedings. In this regard, it is outrightly noted that while, PW-3 in his cross examination asserted that the appellant was arrested at 10:00 p.m., however, as per the arrest memo of the appellant (Ex. PW-3/G), such arrest has been shown at 02:00 a.m. on 25.12.2010. In fact, such assertion of PW-3 is contradicted from the cross examination of PW-8/IO/SI Sunil Kumar, wherein her inter alia asserted that on 24.12.2010, he had left the police station at around 10:00 p.m. Here, it is further pertinent to note that though, PW-8 proclaimed that he had made departure entry in this regard, however, upon perusal of the case file, during his cross examination, PW-8 confirmed that no such record was placed by him before the Ld. Trial Court. Needless to mention that the said assertion is further contradicted from the cross examination of PW-3, who asserted that co-accused Dilip was arrested on the said day, i.e., on 24.12.2010 as early as 08:00 p.m., i.e., way prior to the departure time, proclaimed by PW-8 under his cross examination. Relevantly, there is also contradiction in respect of the search/personal search proceedings of the appellant, wherein PW-8 asserted under his cross-examination that the personal search of the appellant was conducted by Ct. Mukesh/PW-3 on his/PW-8's instruction. However, in complete variance, PW-3 avowed under his cross examination that such personal search was conducted by Ct. Dharmender. Apposite to further note that there is also incongruity in the number of members, constituting the team that conducted the arrest, search and seizure proceedings inter alia qua the appellant, wherein PW-8 proclaimed that there were five members in the said team, though, he could not recollect the names of all such members. However, in contrast, PW-3 deposed that he/PW-3 along with SI Sanjay Gupta, Ct. Dharmender and CA No. 147/2023 Sandeep @ Musa v. State Page No. 36 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:59 +0530 PW-8/SI Sunil constituted the said team. Here, it is further pertinent to note that there are other significant and glaring aspects of the recovery/search/seizure proceedings, wherein, PW-8 avowed under his cross-examination that the case property, i.e., golden chain and laptop bag were recovered from underneath the bed, lying in the first room in appellant's house, however, the seizure memo of such search (Ex. PW-3/F) records that the said recovery was effected from inside the bed. Needless to mention that PW-3 under his cross-examination further specifically asserted that no site plan of the recovered articles was prepared and even more so, astonishingly, it was proclaimed by PW-3 under his cross-examination that the articles recovered from the house of the appellant/accused Sandeep @ Musa were sealed at the police station. Lastly, PW-3 also confirmed that the IO retained the seal after affixing the same on pullanda, besides even PW-8 conceded that he did not prepare handing over memo, under his cross- examination. Clearly, in the instant case, the seal during the entire interval reasonably appears to be within the reach of the police officials and the members of the aforesaid team, not ruling out 1 a possibility of tampering with the case property, in the instant case.
28. Ergo, in light of the foregoing discrepancies and omissions on the part of the prosecution, in order to successful bring home guilt of the appellant in the instant case, in the considered opinion of this Court, it was incumbent on the prosecution to prove the recovery of the alleged laptop bag and golden ring/gold ring, search and seizure from the appellant by means of the testimony of independent witnesses in the present case. However, in the instant case, not only has the prosecution failed to adduce any independent witness, rather, even genuine 1 Safiullah v. State (Delhi Admn.), 1992 SCC OnLine Del 516. CA No. 147/2023 Sandeep @ Musa v. State Page No. 37 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:23:03 +0530 endeavor on the part of the investigating authorities/police officials to join independent witnesses in the said proceedings, including the alleged recovery from the appellant, appear to be grossly wanting. In fact, PW-3 under his cross examination, went ahead to depose that though the appellant's parents were present at his house at the time of the recovery proceedings, however, PW-3 expressed his inability to recollect whether the signatures of the appellant's parents were obtained on the documents prepared. Correspondingly, PW-3 further affirmed that none of the nearby residents were asked to join the investigation, showing lack of diligence/due care on the part of members of search party. Relevant in this regard to make a reference to the decision of the Hon'ble High Court in Anoop Singh v. State, 1992 SCC OnLine Del 218, wherein the Hon'ble Court in an akin situation inter alia observed as under;
"Apart from this material discrepancy, there is also discrepancy regarding the alleged efforts made by the police for joining the independent public witnesses. R.K. Chadha had been brought by the police from the police station while coming to the spot and it is stated by all the witnesses except the I.O. that only some of the passers by were requested to join the raiding party and they declined expressing their own difficulties and had gone away, whereas the I.O. came up with the story that even the shop-keepers, whose shops were open at the time of occurence, had been requested to join but they had declined The other witnesses have categorically stated that no shop-keeer was asked to join the raided party.
It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-keepers had declined to join the raiding party, the police could have later on taken legal action against such shop-keepers because they could not have escaped the rigours of law while CA No. 147/2023 Sandeep @ Musa v. State Page No. 38 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:23:07 +0530 declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the I.P.C..."
(Emphasis supplied)
29. Here, it is further apposite to note that though the seizure of the laptop bag and gold ring (Ex. PW3/F) in the instant case is asserted to be pursuant to the disclosure statement of the appellant (Ex. PW-3/E), however, from a scrupulous analysis of the said disclosure statement it is noted that nowhere under his said disclosure statement, the appellant makes a reference of any golden chain/gold chain in his possession. On the contrary, the appellant asserts therein that the stolen gold articles were sold, and he had received his monetary equivalent share thereof. Ergo, under such circumstances, the disclosure statement of the appellant, alleged seizure pursuant thereof or the subsequent TIP proceedings, in the considered opinion of this Court, could not/cannot form the basis of conviction of the appellant. Even otherwise, it is pertinent to note that this Court is cognizant of the settled law that recovery evidence under Section 27 of the Indian Evidence Act, 1872/Evidence Act, is a weak piece of evidence and the same cannot form the sole basis for conviction of an accused. Reference in this regard is made to the decision of the Hon'ble Supreme Court in Manoj Kumar Soni v. State of M.P., 2023 SCC OnLine SC 984: Criminal Appeal No.1030/2023, dated 11.08.2023, wherein the Hon'ble Court, noted in this context, as under;
"21. A doubt looms: can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt."
CA No. 147/2023 Sandeep @ Musa v. State Page No. 39 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:23:11 +0530 (Emphasis supplied)
30. Correspondingly, considering the various lacunae noted in the instant case, in the considered opinion of this Court, it would not be safe to raise a presumption under Section 114(a) of the Evidence Act against the appellant in the instant case, especially when the law is trite that a presumption of fact under Section 114(a) of the Evidence Act can be drawn 1 only, "considering other evidence on record and without corroboration from other cogent evidence, it must not be drawn in isolation".
31. Comprehensibly, in light of the foregoing facts and circumstances, material and evidence placed on record as well as the arguments addressed before this Court, in the considered opinion of this Court, the prosecution has not been able to unwaveringly and 'beyond reasonable doubt', bring home the charge(s) levelled/alleged against the appellant herein. Further, considering the gross lacunae and omissions in the case of the prosecution, as noted hereinunder, this Court cannot irrefutably reach to the conclusion of guilt of the appellant. Even otherwise, it is noted herein that it is a settled law2 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favoring the accused must be accepted.
32. Conclusively, in view of the above discussion, the present appeal deserves to be allowed and is hereby allowed. As such, in light of the foregoing, this Court reiterates that from the facts and circumstances placed on record, the appellant cannot be determined to be guilty 'beyond reasonable doubt' of any offence as charged against him. Consequently, the judgment dated 1 Manoj Kumar Soni v. State of M.P., 2023 SCC OnLine SC 984. 2 Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 40 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:23:15 +0530
27.02.2023 and consequent order of sentence dated 30.05.2023, passed by Ld. MM-02, Central, Tis Hazari Courts, Delhi in case bearing, 'State v. Dilip & Ors., Crl. Case No. 298622/2016 ', arising out of FIR No. 326/2010, PS. Timarpur, under Sections 457/380/411/34 IPC, convicting and sentencing, respectively, the appellant for the offence punishable under Section 411 IPC is hereby set aside to the extent of appellant's conviction/sentence. The appellant is hereby admitted to bail on furnishing of a personal bond in the sum of Rs. 15,000/- (Rupees Fifteen Thousand only) along with one surety of the like amount, as required under Section 437A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. As requested, the bail bond be furnished within a period of one week from today.
33. Trial Court Record be sent back along with a copy of this judgment for record and refence purpose(s).
34. Appeal file be consigned to record room after due compliance. Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.05.27 16:23:23 +0530 Announced in the open Court (Abhishek Goyal) on 27.05.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CA No. 147/2023 Sandeep @ Musa v. State Page No. 41 of 41