Delhi District Court
State vs Sunil Kumar on 18 November, 2025
CNR No.DLWT02-004015-2014
IN THE COURT OF SH. ANSHUL SINGHAL
JUDICIAL MAGISTRATE FIRST CLASS-04, WEST
TIS HAZARI COURTS, DELHI
CNR No.: DLWT02-004015-2014
Cr. Case: 68010/2016
FIR No.: 267/14
PS: Moti Nagar
U/s.: 392/411/34 IPC
State
versus
Sunil Kumar
S/o Sh. Malkhan Singh
R/o H.No. Jhuggi No.70A, Zakhira, Chara Mandi, Delhi
.... Accused
JUDGMENT
Date of Commission of Offence : 30.03.2014 Name of Complainant : Sh. Rohtash Offence Complained of : u/s. 392/411/34 IPC Plea of Accused : Not Guilty Date when judgment was reserved : 22.09.2025 Date of pronouncement of judgment : 18.11.2025 Final Order : Convicted u/s. 392 IPC Acquitted u/s. 411 IPC
Argued By: Sh. Amit Yadav, Ld. Substitute APP for the State.
Sh. AK Sharma, Ld. Counsel for the accused.
FIR No. 267/2014 State vs. Sunil Kumar Page No. 1 of 25 CNR No.DLWT02-004015-2014 BRIEF STATEMENT OF REASONS FOR THE DECISION
1. In the present case, the accused Sunil Kumar is facing trial for the offences punishable under Section 392/411/34 Indian Penal Code (hereinafter referred to as IPC).
2. It is alleged that on 30.03.2014 at about 10:00 PM at Rakhi Market, Jakhira, Delhi within the jurisdiction of PS Moti Nagar, accused alongwith his accomplice Munna (since not arrested) and Akash Verma (since Juvenile) in furtherance of his common intention committed theft of Rs.9,000/- and one phone make Micromax X-088 (bearing two SIM Cards 9958041010 and 8505933900) and one phone make Huwai TATA (bearing Sim No.921029307) from the person of complainant Sh. Rohtash S/o Sh. Jagdish Prasad and in order to commit theft and while committing theft, for that end, caused wrongful restraint by grappling him and caught hold his neck and also put him in fear of hurt by knife.
3. It is further alleged that on 31.03.2014, accused was found in possession of Rs.1500/- and one mobile phone make Micromax X-088 (bearing two sim cards 9958041010 and 8505933900) as per seizure memo, which were earlier stolen and which were dishonestly received or retained by accused knowing and having reasons to believe the same to be stolen property.
COMMENCEMENT OF TRIAL
4. Chargesheet was filed against the accused on 02.06.2014 on which cognizance was taken by this court on 06.06.2014. Accused FIR No. 267/2014 State vs. Sunil Kumar Page No. 2 of 25 CNR No.DLWT02-004015-2014 produced from JC on 06.06.2014 and copy of the chargesheet was supplied to the accused on the same day.
5. After due compliance of Section 207 CrPC, charge for offences u/s.392/411/34 IPC IPC was framed against the accused on 08.08.2014 by this court, to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. To prove its case, the prosecution has examined eight witnesses, i.e., Sh. Rohtash (PW-1), Sh. Kishan Lal (PW-2), ASI Mahesh Dutt (PW-3), Ct. Bhawar Singh (PW-4), SI Sushil Kumar (PW-5), Retired SI Ram Raj (PW-6), Inspector Gulshan Nagpal (PW-7) and Ct. Sunil Kumar (PW-8), whose respective testimonies are discussed hereinafter. During prosecution evidence, following evidence has come on record:
S. No. Document Exhibit No.
1. Complaint Ex.PW1/A
2. Age memo Ex.PW1/B
3. Seizure memo Ex.PW1/C
4. Site plan Ex.PW1/D
5. Disclosure Statement of accused Ex.PW1/E
6. Apprehension memo of accused Ex.PW3/A
7. Computer generated copy of FIR Ex.PW5/A (OSR)
8. Endorsement on rukka Ex.PW5/B
9. Certificate u/s 65B of IEA in support of FIR Ex.PW5/C
10. Second Disclosure Statement of accused Ex.PW6/A
11. Pointing out memo Ex.PW6/B
FIR No. 267/2014 State vs. Sunil Kumar Page No. 3 of 25
CNR No.DLWT02-004015-2014
12. Rukka/ tehrir Ex.PW7/A
13. Personal Search Memo of accused Sunil Ex.PW7/B
14. Statement/ Version of Accused Sunil Ex.PW7/C
15. Social Background Report of Accused Sunil Ex.PW7/D
16. Intimation Letter to mother of accused Sunil Ex.PW7/E
17. DD No. 9B dated 31.03.2014 Ex.PW8/A (OSR)
18. Case property Ex.P1 to Ex.P3
7. PW-1, Sh. Rohtash has deposed that on that the incident occurred in the year, 2014 however he did not remember the exact date but he deposed that it occurred in the night at about 08.00-09.00 pm and on the date of incident, he was going to his house from his shop and when he reached at railway line, three persons caught hold of him and snatched his two mobile phones make of Micromax and Tata and also took cash of Rs. 9/10,000/-.
8. PW-1 further deposed that after the incident, he called his brother-in-law and narrated the whole incident to him and he (PW-1) also called at 100 number and in the late night at about 11- 12 midnight PW-1 and his brother-in-law apprehended the accused Sunil and the police officials came at the spot and prepared the site plan. The witness correctly identified the accused and the case property before the court. PW-1 was not cross-examined by the accused despite opportunity and was discharged. However, on an application u/s. 311 CrPC, the witness was recalled for cross- examination and the witness was cross-examined and discharged.
FIR No. 267/2014 State vs. Sunil Kumar Page No. 4 of 25 CNR No.DLWT02-004015-2014
9. PW-2, Sh. Kishan Lal, deposed that on the incident had occurred on 31.03.2014 and at the time of incident, he was present at his home and then he received a call from his brother in law Rohtash regarding snatching of mobile phones as well as an amount of Rs. 8,000 - 10,000/- and at the spot, his brother in law Rohtash met him who had apprehended accused Sunil Kumar and thereafter, accused was taken to the house of one another person namely Akash who had accompanied to accused Sunil in snatching mobile phone as well as amount and thereafter, they made a call at 100 number and police officials reached at Zakhira Market and PW-2 also reached at PS and it is further deposted that during investigation police officials inquired from him and recorded his statement and police also recovered mobile phone as well as Rs. 1500/- from the accused Sunil. The witness correctly identified the accused before the court. PW-2 was not cross-examined by the accused despite opportunity and was discharged. However, on an application u/s. 311 CrPC, the witness was recalled for cross-examination and the witness was cross-examined and discharged.
10. PW-3, ASI Mahesh Dutt, deposed that on 31.03.2014 he was posted at PS Moti Nagar as HC and he alongwith IO SI Gulshan Nagpal reaced at place of incident where complainant alongwith his brother-in-law were present and two persons were apprehended by them. It is further deposed that accused was interrogated and one mobile phone make Micromax and currency notes of Rs. 1500/- were recovered and the aforesaid case property was taken into FIR No. 267/2014 State vs. Sunil Kumar Page No. 5 of 25 CNR No.DLWT02-004015-2014 possession while placing the same in white cloth and sealed with the seal of RRM and on apprehension regarding age of accused persons IO prepared the apprehension memo of accused Sunil Kumar as well as of accused Akash. It is further deposed that co-accused Munna was searched but no fruitful result came out. The witness correctly identified the accused before the court. PW-3 was not cross- examined by the accused despite opportunity and was discharged. However, on an application u/s. 311 CrPC, the witness was recalled for cross-examination and the witness was cross-examined and discharged.
11. PW-4, Ct. Bhawar Singh, deposed that he alongwith HC Mahesh Dutt were on patrolling duty when they received an information regarding apprehension of two thieves at Jahira Chara Mandi and when they reached there complainant alongwith his brother in law namely Kishan Lal were present there and accused Sunil Kumar alongwith one another person namely Akash were apprehended by them. It is further deposed that he left the spot and went to PS, got the FIR registered and return back at the spot alongwith SI Ram Raj and SI Ram Raj interrogated the accused Sunil and his accomplice Akash and on search of accused Sunil, one mobile phone make Micromax along with currency notes were seized and after completion of proceedings, the accused was taken to PS and put behind the bars after his medical examination. The witness could not identify the accused. PW-4 was duly cross- examined by Ld. Defence Counsel for accused and discharged.
FIR No. 267/2014 State vs. Sunil Kumar Page No. 6 of 25 CNR No.DLWT02-004015-2014
12. PW-5, SI Sushil Kumar, deposed that on 31.03.2014 he was posted at PS Moti Nagar as Duty Officer and he received a tehrir/ erkka through Ct. Bhawar Singh and on the basis of said rukka, he registered an FIR of the present case and handed over the original rukka and copy of FIR to SI Ram Raj and he also made an endorsement on the original rukka. PW-5 was duly cross-examined by Ld. Counsel for accused and discharged.
13. PW-6, Retired SI Ram Raj, deposed that on 31.03.2014 he was posted at PS Moti Nagar as SI and the investigation of the present case was entrusted upon him and he reached at the spot where first IO SI Gulshan alongwith other staff members and complainant Rohtash and complainant's relative namely Kishan Lal were present and the accused namely Sunil Kumar alongwith his accomplice Akash were apprehended by them and on reaching at the spot, the custody of accused and his accomplice was handed over to him and also he carried out the search of accused Sunil Kumar and he found from accused's possession an amount of Rs. 1500/- and one mobile phone namely Micromax and from accused's accomplice namely Akash, he found from his possession an amount of Rs. 1500/- and the said recovered was taken into possession in separate white clothes and the information of accused's apprehension and accused's accomplice were given you accused family members and whereupon accused's and his accomplices's mothers came at the spot and accused and his accomplices disclosed their age below 18 years and accused's as well as his accomplice custody was handed over to FIR No. 267/2014 State vs. Sunil Kumar Page No. 7 of 25 CNR No.DLWT02-004015-2014 SI Gulshan who deals the matter of juvenile. It is further deposed that on the same day, accused as well as his accomplice age were verified from respective schools and it was revealed that accused is major and after completion of investigation, the chargesheet was filed against accused while the proceedings against accused's associate namely Akash was proceed before the juvenile court. The witness correctly identified the accused before the court. PW-6 was duly cross-examined by Ld. Counsel for accused and discharged.
14. PW-7, Inspector Gulshan Nagpal, deposed that on 31.03.2014 he was posted at PS Moti Nagar as SI and he received an information regarding robbery to which he alongwith Ct. Bhawar Singh and HC Mahesh reached at the spot where complainant and his brother in law were present and it was apprised by the complainant to him that accused has committed robbery an amount of Rs. 9,000/- and two mobile phones alongwith his accomplice. The witness correctly identified the accused before the court. PW-7 was duly cross-examined by Ld. Counsel for accused and discharged.
15. PW-8, Ct. Sunil Kumar, deposed that on 31.03.2014 he was posted at PS Moti Nagar as constable and was assigned the duty of Duty Officer and at about 01.10 am an information regarding robbery at Zakhira Chara Mandi was received and the said information was reduced into writing in register no.2. PW-8 was duly cross-examined by Ld. Counsel for accused and discharged.
FIR No. 267/2014 State vs. Sunil Kumar Page No. 8 of 25 CNR No.DLWT02-004015-2014
16. Since no other witness was remaining to be examined on behalf of the prosecution, accordingly, prosecution evidence was closed vide order dated 20.04.2023.
STATEMENT OF ACCUSED u/s. 313 Cr.P.C.
17. Statement of accused was recorded separately u/s. 313 Cr.P.C on 29.04.2023, in which all the incriminating testimonies and other pieces of evidence were put to him. The accused denied the allegations leveled against him and stated that he had some previous enmity with PW ASI Mahesh Dutt with respect to jhuggi of accused and that is why accused has been falsely implicated in the present matter. Accused has further stated that complainant and other police officials deposed falsely against the accused. Accused opted to lead defence evidence and led evidence of two defence witnesses, Sh. Raj Kumar (DW-1) and Sh. Abhishek Sharma (DW-2).
DEFENCE EVIDENCE
18. DW-1, Sh. Raj Kumar deposed that on 30.03.2014, he was sleeping in his jhuggi and 2-3 police officials came at night and he remember the name of one police officer i.e. Mahesh. It is further deposed by DW1 that they took his brother i.e. accused to PS and locked in the lock up and demanded Rs.1500/- as bribe to release his brother i.e. accused. It is further deposed by DW-1 they planted the same money in the present case as recovery. The witness was duly cross-examined by Ld. Counsel for accused and discharged.
19. DW-2, Sh. Abhishek Sharma deposed that on 30.03.2014 at FIR No. 267/2014 State vs. Sunil Kumar Page No. 9 of 25 CNR No.DLWT02-004015-2014 around 11/11:15 PM, in front of his office at Zakhira, Shop No.12, when he came out from his office, he saw police officers namely Mahesh and Lachhu and accused were arguing. It is further deposed by DW-2 that parents and brothers of accused Sunil were also present there and they had requested the said police officers to let go accused stating that he was innocent. It is further deposed by DW-2 that then brother of accused had paid Rs.1500/- to the said police officers for release of accused but the police officers had taken the accused away.
20. Since no other witness was remaining to be examined on behalf of the accused, accordingly, defence evidence was closed vide order dated 19.05.2025.
FINAL ARGUMENTS Ld. APP for the State
21. Ld. Substitute APP for State argued that prosecution witnesses have supported the prosecution and their testimonies has remained unrebutted. He has stressed on the fact that the accused has been duly identified by the witnesses in court, the case property has been duly identified, the witnesses have supported the prosecution and that the accused was caught with the stolen property. He has further submitted that the complainant has turned hostile during cross-examination as he had been won over by the accused and no reliance should be placed on the testimony of the complainant during cross-examination. He has further submitted that FIR No. 267/2014 State vs. Sunil Kumar Page No. 10 of 25 CNR No.DLWT02-004015-2014 on a combined reading of testimony of prosecution witnesses, commission of offences u/s. 392/411/34 IPC by the accused is proved beyond reasonable doubt.
Ld. Counsel for the Accused
22. On the other hand, Ld. Counsel for the accused has stated that there is no legally sustainable evidence against the accused and he was shown to the witnesses at the police station itself. The case, he argued, is based on circumstantial evidence at best and there is no incriminating evidence against the accused.
23. He has further pointed out several contradictions in the case of the prosecution. He has further submitted that the prosecution has not furnished any ownership documents pertaining to the phones allegedly stolen by the accused. He has further submitted that the complainant has turned hostile and has failed to identify the accused during cross-examination.
24. He has further submitted that no CDR has been obtained to prove the presence of the accused at the place of the crime. He has further submitted that the PW-2 is an interested witness who is lying at the instance of PW-1 and the IO. He has further submitted that PW-1 and PW-2 have contradicted themselves on various material aspects which go to the root of the matter.
25. He has further submitted that the IO has failed to join any independent public person to prove the apprehension of the accused and the recovery of the stolen property. He has further submitted FIR No. 267/2014 State vs. Sunil Kumar Page No. 11 of 25 CNR No.DLWT02-004015-2014 that even one police official i.e. PW-4 Ct. Bhawar Singh has failed to identify the accused in court.
26. He has further submitted that PW-3 has submitted that he went alongwith IO SI Gulshan Nagpal after receiving DD No.9B, however, PW-4 Ct. Bhawar Singh has stated that he and HC Mahesh Dutt were already on patrolling duty. He has thus submitted that the prosecution has not been able to prove the case against the accused beyond reasonable doubt and accused is liable to be acquitted of all charges.
APPRECIATION OF EVIDENCE
27. Arguments were heard at length from both the sides and the case file has been carefully perused.
In respect of charge u/s. 392 IPC
28. It is the case of the prosecution that on 30.03.2014, the accused along with two other persons committed robbery of Rs.9,000/- in cash and two mobile phones from the possession of the complainant under the threat of knife injury.
29. It is to be noted here that PW-1, i.e., the complainant has turned hostile during his cross-examination. In this regard, the judgment of Hon'ble Supreme Court of India in Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731, is to be noted, wherein five-judges Constitution bench of Hon'ble Court held as follows:
"87. Therefore, this Court cautioned that even if a witness is treated as "hostile" and is cross-examined, his evidence FIR No. 267/2014 State vs. Sunil Kumar Page No. 12 of 25 CNR No.DLWT02-004015-2014 cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness"
testimony if corroborated by other reliable evidence."
30. Reliance is further placed on the judgment of Hon'ble Supreme Court of India in Rajesh Yadav vs. State of U.P., (2022) 12 SCC 200, wherein the Hon'ble Court held as follows:
"22. The expression "hostile witness" does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear it in mind that a witness may depose in favour of a party in whose favour it is meant to be giving through his chief- examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief- examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief- examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief- examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion."
FIR No. 267/2014 State vs. Sunil Kumar Page No. 13 of 25 CNR No.DLWT02-004015-2014
31. Reliance is further placed on the judgment of Hon'ble Supreme Court of India in Khujji v. State of M.P., (1991) 3 SCC 627 wherein the Hon'ble Court held as follows:
6. ... the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court -- Bhagwan Singh v.
State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7 :
(1976) 2 SCR 921] , Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 :
1980 SCC (Cri) 59 : (1980) 1 SCR 95] -- that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
32. Reliance is further placed on the judgment of Hon'ble Supreme Court of India in C. Muniappan v. State of T.N., (2010) 9 SCC 567, wherein the Hon'ble Court held as follows:
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
33. Reliance is further placed on the judgment of Hon'ble Supreme Court of India in State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, wherein the Hon'ble Court held as follows:
7. ... It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of FIR No. 267/2014 State vs. Sunil Kumar Page No. 14 of 25 CNR No.DLWT02-004015-2014 the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.
34. In Shokeen vs. State of Haryana, 2023:PHHC:161666-DB, decided 15.12.2023, the Hon'ble Punjab and Haryana High Court elaborated on how the testimony of a witness who turns hostile during cross-examination should be appreciated.
34.1. The Court noted that the complainant (PW-4) had supported the prosecution's case in his examination-in-chief but later resiled during cross-examination, denying identification of the accused. Relying on Supreme Court precedents such as Bhagwan Singh v. State of Haryana (1976), Khujji v. State of M.P. (1991), C. Muniappan v. State of T.N. (2010), and Rajesh Yadav v. State of U.P. (2022), the Bench held that the evidence of a hostile witness is not automatically effaced from the record. Portions of such testimony that are trustworthy and corroborated by other reliable evidence can be safely relied upon.
34.2. The Court observed that the seven-month delay between the witness's examination-in-chief and cross-examination gave ample opportunity for the witness to be won over, and this must be considered while assessing credibility. Therefore, the Court accepted that part of the complainant's earlier statement which was corroborated by recovery of the weapon and forensic evidence. It reaffirmed that courts must assess the entirety of a hostile witness's evidence, accepting credible parts consistent with independent FIR No. 267/2014 State vs. Sunil Kumar Page No. 15 of 25 CNR No.DLWT02-004015-2014 proof, rather than discarding the testimony wholesale.
35. In Selvamani vs. State, 2024 SCC OnLine SC 837, the Hon'ble Supreme Court of India considered the evidentiary value of a hostile witness who turned hostile during cross-examination. The prosecutrix and her relatives had supported the prosecution in their examination-in-chief but later retracted their statements after a delay of over three months before cross-examination.
35.1. The Court, citing Khujji v. State of M.P., C. Muniappan v.
State of T.N., and Vinod Kumar v. State of Punjab, reiterated that the testimony of a hostile witness cannot be discarded in its entirety. Portions of such testimony that are reliable and corroborated by other evidence may still be accepted.
35.2. The Court emphasized that delays between examination- in-chief and cross-examination create opportunities for witnesses to be influenced, thereby undermining justice. Hon'ble Court found that the prosecutrix's earlier testimony, FIR, statement u/s. 164 CrPC, and medical evidence, showing injuries consistent with sexual assault, provided adequate corroboration.
35.3. Hence, despite the witnesses turning hostile later, the credible and corroborated portions of their testimony were relied upon to uphold the conviction.
36. It is to be noted that the complainant during his examination- in-chief dated 30.03.2016 has deposed as PW-1 and has substantially corroborated the version of the prosecution. The FIR No. 267/2014 State vs. Sunil Kumar Page No. 16 of 25 CNR No.DLWT02-004015-2014 witness was called for further examination on 31.03.2016, and his examination-in-chief was completed and opportunity to cross- examine was given to the accused, but the same was not availed and the witness was discharged.
37. Thereafter, the brother-in-law of the complainant, namely, Sh. Kishan Lal was examined as PW-2, who has correctly identified the accused. He has also deposed in favour of the prosecution, and his examination-in-chief was completed on 08.02.2017 and opportunity to cross-examine was given to accused, but the same was not availed and the witness was discharged.
38. Both the witnesses were recalled for cross-examination after an application u/s. 311 CrPC was allowed by this court. It is to be noted here that although PW-2 still supported the case of the prosecution, however, PW-1 turned hostile and did not support the prosecution during cross-examination.
39. During his examination-in-chief, the complainant had duly identified the accused in open court, however, PW-1 during cross- examination stated that he had identified the accused in his examination-in-chief due to some misconception and stated that the accused had not committed any crime against him.
40. During his examination-in-chief, the witness had testified as to the preparation of documents, i.e., his statement, Ex.PW1/A, the age memo of the accused, Ex.PW1/B, the seizure memo, Ex.PW1/C, the site plan, Ex.PW1/D and the disclosure statement of the accused, FIR No. 267/2014 State vs. Sunil Kumar Page No. 17 of 25 CNR No.DLWT02-004015-2014 Ex.PW-1/E. The witness had further testified regarding his signatures on the above-mentioned documents. However, during his cross-examination, the witness stated that the police officials had obtained his signatures on some blank papers.
41. It is a settled position of law that the testimony of a hostile witness cannot be discarded in its entirety. The rule of evidence, i.e., falsus in uno, falsus in omnibus, is not applicable in India. It has been repeatedly held by Hon'ble Supreme Court of India that if a witness is treated as hostile and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon.
42. In the facts of the present matter, PW-1, i.e., the complainant has not turned hostile on the point of identification of case property. Further, the complainant has duly narrated the offence that has taken place with him. It is further to be noted that the complainant has turned hostile during cross-examination only on the point of identification of accused and the preparation of documents by IO.
43. The complainant, PW-1, initially deposed against the accused during his examination-in-chief on 30.03.2016 and 31.03.2016. However, he turned hostile during his cross-examination on 20.04.2023, stating that his identification of the accused was a result of misconception. The time gap of nearly 7 years between his examination-in-chief and the hostile testimony, coupled with the FIR No. 267/2014 State vs. Sunil Kumar Page No. 18 of 25 CNR No.DLWT02-004015-2014 more than 11 years that have passed since the date of the incident, raises significant doubts about the reliability of his identification.
44. While the complainant did provide a coherent account of the offence during his examination-in-chief, his subsequent hostile testimony creates uncertainty. It is also possible that external factors, such as threats or influence from the accused, may have caused the complainant to alter his stance.
45. The testimony of PW-2, the complainant's brother-in-law, is critical in this case. PW-2 deposed about the recovery of the stolen property and the apprehension of the accused. Notably, PW-2 has consistently identified the accused and has not turned hostile. His testimony remains unchallenged and corroborates key elements of the complainant's version of events, particularly concerning the recovery of the stolen items.
46. Ld. Counsel for accused has highlighted the contradiction in the testimony of PW-3 and PW-4, wherein PW-3 has stated that he went upon receipt of DD entry and PW-4 has stated that he was on patrolling duty when he received the information.
47. In Appa Bhai vs. State of Gujarat, AIR 1998 SC 694, the Hon'ble Supreme Court has observed that undue importance must not be given to minor discrepancies and if the same do not shake the basic version of the prosecution case, such discrepancy may be discarded. The testimonies of PW-2, PW-3 and PW-4 are consistent with their statements given to the police and nothing has been FIR No. 267/2014 State vs. Sunil Kumar Page No. 19 of 25 CNR No.DLWT02-004015-2014 elicited in their cross-examination to impute falsehood.
48. The testimony of PW-7, the IO Inspector Gulshan Nagpal has been crucial in establishing the procedural aspects of the investigation. The IO has corroborated the complainant's testimony regarding the preparation of documents, from Ex.PW1/A to Ex.PW1/E, which further strengthens the case against the accused. The IO's testimony also corroborates the recovery of stolen property and the arrest of the accused.
49. Although the complainant's testimony has been undermined by his hostile cross-examination, the testimonies of PW-2 (Kishan Lal) and PW-7 (the Investigating Officer) are consistent and provide a reliable account of the events. The accused, Sunil Kumar, was apprehended in connection with the stolen property, which was recovered, and the involvement of the accused is corroborated by PW-2 and the Investigating Officer.
50. It is to be noted that the IO was accompanied by two other police officials, namely, ASI Mahesh Dutt (PW-3) and Ct. Bhawar Singh (PW-4). While both the witnesses have duly corroborated the version of the IO, PW-4 has failed to identify the accused. He has stated that he is not sure if the accused is the same person who was apprehended at the spot.
51. It is important to highlight that PW-4 deposed more than 4 years after the incident in question. Human memory, is prone to fading over time. This significant gap in time could have led to the FIR No. 267/2014 State vs. Sunil Kumar Page No. 20 of 25 CNR No.DLWT02-004015-2014 erosion of clarity in the witness's memory. This can particularly affect aspects such as identification of the accused or other specific facts that were once vivid but have since faded.
52. As stated above, it is a settled position of law that the testimony of a hostile witness may still be relied upon if it is corroborated by other independent and reliable evidence.
53. The identity of the accused and recovery of stolen property from him is duly proved by the testimonies of PW-2, PW-3 and PW-7. The entire chain of circumstances is further completed through the testimony of PW-6, Retd. SI Ram Raj, who is the second IO in the present matter, and who had visited the spot after the accused has already been apprehended by the complainant, PW-2 and police officials, i.e., PW-3, PW-4 and PW-7.
54. The defence witnesses have deposed regarding the demand of bribe by PW-3 ASI Mahesh Dutt, however, DW-1 has stated that the said bribe was sought at the Police Station, whereas DW-2 has stated that the same was sought at the spot itself. It is also to be noted that the accused has not made any complaint regarding the alleged bribe demanded by ASI Mahesh Dutt. It is also to be noted that DW-1 is related to the accused as his brother and DW-2 is the neighbour of the accused. The apparent contradiction in the testimony of DW-1 and DW-2 regarding the place where the alleged bribe has been sought and paid, goes to the core of their testimonies and hence, their testimonies cannot be relied upon by this court.
FIR No. 267/2014 State vs. Sunil Kumar Page No. 21 of 25 CNR No.DLWT02-004015-2014
55. In view of the above, despite the complainant's hostile stance, there is sufficient corroborative evidence against the accused for commission of offence of robbery u/s. 392 IPC and the same has been duly proved by the prosecution beyond reasonable doubt.
In respect of charge u/s. 411 IPC
56. The second offence under consideration is offence u/s. 411 IPC. Section 411 IPC prescribes punishment for dishonestly receiving stolen property. Section 410 IPC defines stolen property. Sections 410 and 411 IPC are reproduced 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.
57. Hon'ble Supreme Court of India in Hiralal Babulal Soni vs. State of Maharashtra & Ors., 2025 INSC 266, reiterated the ingredients of offence u/s. 411 IPC and same are reproduced as under:
32. In order to bring home the charge under Section 411 of FIR No. 267/2014 State vs. Sunil Kumar Page No. 22 of 25 CNR No.DLWT02-004015-2014 the IPC, it is the duty of the prosecution to prove:
(i) that the stolen property was in the possession of the accused;
(ii) that some persons other than the accused had possession of the property before the accused got possession of it and
(iii) that the accused had knowledge that the property was stolen property (See: 'Trimbak vs. State of M.P'- AIR 1954 SC 39).
58. In respect of the second ingredient of the offence u/s. 411 IPC, Hon'ble Allahabad High Court has held in Rajjaua vs The State, AIR 1959 All 718, as follows:
While pointing out the second ingredient of Section 411 I. P. C., their Lordships of the Supreme Court were only reiterating the well recognised distinction between a receiver and a thief. When the thief removes the stolen property from the possession of its owner and takes it into his own possession, he not only commits theft but is also in possession of stolen property knowing it to be stolen. He cannot, however, be convicted of both the offences. If he is the thief he possesses the stolen property in his capacity as a thief, and not as a receiver. It has, therefore, been held that the same person cannot be convicted of theft as well as of receiving stolen property knowing it to be stolen."
59. It is proved from the statement of PW-1, Sh. Rohtash, the complainant, that the accused had stolen the mobile phones and cash and was caught with the stolen property. It is in view of the recovery of stolen property from the possession of the accused that Ld. APP for the State has sought conviction of the accused for commission of offence u/s. 411 IPC.
60. However, in view of the above-mentioned judgements of Hon'ble Supreme Court and of Hon'ble Allahabad High Court, this FIR No. 267/2014 State vs. Sunil Kumar Page No. 23 of 25 CNR No.DLWT02-004015-2014 court is of the considered opinion that since the accused has been found guilty for the offence of robbery, accordingly, the accused cannot also be held guilty of receiving or retaining stolen property in terms of the provisions of section 411 IPC. As already held by Hon'ble Superior Courts, "A thief possesses the stolen property as a thief and not as a receiver." Thus, the charge u/s. 411 IPC does not hold any water and accused cannot be said to have committed offence u/s. 411 IPC.
FINDINGS OF THE COURT
61. All the material particulars deposed by PW-1 have been corroborated by the police witnesses. No material contradiction has been brought forth in the cross-examination of any of the prosecution witnesses. The hostile testimony of the complainant during cross-examination does not inspire the confidence of this court, and this court has placed reliance on the testimony of the complainant given by him in his examination-in-chief.
62. Admittedly, there are certain minor inconsistencies in the statements of the prosecution witnesses, however, none of them pertain to any material particulars or go to the root of the matter. The reliable deposition given by the witnesses against the accused, read with the identification of the accused and the case property by the witnesses before the court, imply that the disclosure statement is not the only evidence against the accused. There is continuity in the entire chain of events narrated by the prosecution witnesses, where FIR No. 267/2014 State vs. Sunil Kumar Page No. 24 of 25 CNR No.DLWT02-004015-2014 there is no contradiction as regards the event of commission of robbery and the recovery from the accused.
63. In view of the above, the case as against the accused stands established by the prosecution. The accused on the other hand has failed to explain the incriminating prosecution evidence in his statement u/s 313 Cr.PC. The accused has failed to create any reasonable doubt in the case of the prosecution.
64. As a cumulative effect of the observations made above, I am of the opinion that the prosecution has proved its case beyond reasonable doubt against accused Sunil Kumar S/o Sh. Malkhan Singh and he is hereby convicted for offence punishable under section 392 of Indian Penal Code. The accused is acquitted of offence under section 411 of Indian Penal Code.
65. One copy of this judgment be given to the accused free of cost and against due acknowledgment. Digitally signed by ANSHUL ANSHUL SINGHAL SINGHAL Date: 2025.11.18 16:12:04 +0530 Announced in Open Court (Anshul Singhal) on 18.11.2025 JMFC-04, West District, Tis Hazari Courts, Delhi.
Note: This judgment contains 25 pages and each page hasDigitally beensigned ANSHUL by ANSHUL signed by the undersigned. SINGHAL SINGHAL Date: 2025.11.18 16:12:07 +0530 (Anshul Singhal) JMFC-04, West District, Tis Hazari Courts, Delhi.
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