Delhi District Court
State vs Shyam Sunder Etc (5) on 29 November, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000733-2011
SC No. 28352/2016
FIR No. 96/2010
U/Sec. 392/397/411/34 IPC
P.S. Gulabi Bagh
STATE VERSUS SHYAM SUNDER & ORS.
(i) SC No. of the case : 28352/2016
(ii) Date of commission of offence : 14.12.2010
(iii) Name, parentage and address : 1. Shyam Sunder @
Shyamu
S/o Sh. Rajkumar
Address: 10685
Gali No. 9, Pratap Nagar
Gulabi Bagh, Delhi.
2. Rakesh Kumar @
Munim
S/o Late Sh. Tulsi Ram
Address: 10685
Gali No. 8, Pratap Nagar
Gulabi Bagh, Delhi.
3. Jatin Khanna @
Rajkumar @ Raju Khanna
(PROCLAIMED OFFENDER)
(Vide order dated 06.03.2017)
S/o Sh. Kishan Lal Khanna
Address: G-14-15
J.J. Colony, Wazirpur
Delhi.
SC No. 28352/2016
FIR No. 96/2010
State Vs. Shyam Sunder Etc. Page 1 of 59
4. Shyam @ Shamu @
Chhotu
S/o Sh. Ram Dayal
Address: Jhuggi
Shastri Park PS Seelampur
Delhi.
5. Pravesh
(DISCHARGED)
(Vide order dated 21.09.2011)
S/o Sh. Prabhu Nath
R/o House of Vicky
Gali No. 9, Laxman Puri
Nabi Karim, Delhi
(iv) Offence complained of : 392/397/411/34
IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : ACQUITTAL
of Accused no. 1, 2 and 4
for the offence under
Section 392/411/34 IPC.
&
Proceedings adjourned
Sine-Die against
Accused no. 3.
Date of Institution : 23.04.2011
Date of Judgment reserved on : 27.10.2025
Date of Judgment : 29.11.2025
JUDGMENT
SC No. 28352/2016
FIR No. 96/2010
State Vs. Shyam Sunder Etc. Page 2 of 59
BRIEF FACTS AND REASONS FOR DECISION :-
1. FIR in the present matter was registered on the complaint of Sh.
Sunil Dutt vide Ex.PW1/A. On 14.12.2010 the complainant/PW-1 was carrying Rs.13 lakh for making payment to the owner of the house. He went to SBI, Baratuti chowk branch and took in cash Rs.8 lakhs from his account bearing currency note of Rs.1000/- and five wads of currency notes of Rs.100/-. Rs.5 lakhs were collected by him from his office and the employer Sh. Anil Nandwani which were also in denomination of Rs.1000/-. The currency of Rs.100/- containing 30 wads were exchanged by him from Sh. Manish Verma at 3rd floor against which he had collected currency notes of Rs.500/- which were six wads. He had kept the said money in a blue colour bag while sitting in an office. Between 5:15 PM to 5:30 PM he started on his motorcycle no. DL4SBJ6787 Bajaj XCD red colour. While standing at Deputy Ganj Hanuman Mandir he kept the bag containing money in the Dikki of motorcycle. He carried his motorcycle via old Rohtak road towards his home. Around 5:45 PM near Kishanganj dispensary two boys came from behind in black colour motorcycle. They threatened PW-1 and obstructed his way. They pushed PW-1 and snatched the motorcycle with the money containing in the Dikki and ran away from the spot. The boys were aged about 25-30 years having healthy built. The person sitting behind was wearing navy blue colour windcheater. In the process of stopping PW-1 both the said boys have driven their motorcycle parallel with PW-1 for sometime.
2. The previous involvement report of accused no. 1 Shyam S/o Raj is Ex.PW27/A whose previous involvement are six excluding present case. Three of which are in the nature of theft and one is in the nature of robbery.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 3 of 59The previous conviction record of accused Rakesh is Ex.PW27/B and he is involved in 15 cases. Three of which are in the nature of robbery and five in the nature of theft. Accused no. 1 Shyam Sunder S/o Raj Kumar was arrested in FIR no. 4/11 of PS Gulabi Bagh under Section 25 of Arms Act and he had made disclosure in that case about involvement in this case. Accused no. 2 Rakesh had got recovered in the Gali of his house the motorcycle Bajaj XCD no. DL4SBJ6787 and the letter B and letter 7 are found missing on the number plate. The engine number and chasis number got tallied and therefore accused no. 2 was charged under Section 411 IPC. Accused Rakesh had also used motorcycle bearing no. DL8SAM7022 which is registered in the name of Ms. Kusum wife of accused no. 2 Rakesh and she has deposed as PW-10. It is noted that Ms. Sunita has also deposed as PW-10 and to avoid common numbering Ms. Kusum is renumbered as PW-10B=PW-36 and Ms. Sunita is renumbered as PW-10A during the recording of this judgment. PW-10B Ms. Kusum is registered owner of the said motorcycle which is Ex.P1 and she got released it on superdari. It is deposed by her in cross-examination that police had taken the keys from her house which were handed over by her to the police and thereafter the motorcycle was seized. It is further case of the prosecution that accused no. 1 Shyam Sunder had used Pulsar motorcycle bearing no. DL6SAF6374 of grey colour during the commission of offence. PW-10A Ms. Sunita has deposed that she is registered owner of the said motorcycle. That motorcycle was used by her husband but at the relevant time her brother accused no. 1 Shyam Sunder had taken the motorcycle for shopping on account of marriage of his daughter which had occurred sometime in February 2011. She had given her motorcycle only once to accused no. 1 Shyam Sunder.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 4 of 593. Accused no. 1 Shyam Sunder has refused to participate in TIP proceedings. Accused no. 3 Jatin Khanna on 15.02.2011 has refused to participate in TIP proceedings. Accused no. 4 Shyam @ Chhotu had refused to participate in TIP proceedings on 24.02.2011. Accused Rakesh had got recovered Rs.1 lakh from his house and accused no. 1 Shyam Sunder had got recovered Rs. 2 lakh in cash from his house. Accused no. 3 Jatin Khanna was arrested vide DD No. 15A of PS Gulabi Bagh on 04.02.2011 in reference to FIR no. 10/11 of PS Saket. Accused no. 3 Jatin Khanna is declared as proclaimed offender by the present Court vide order dated 06.03.2017 who continued to remain PO till passing of this judgment. Accused no. 3 Jatin Khanna had disclosed that from the robbed money he had purchased a Tata Safari vehicle bearing no. DL4CU4252 which was deposited at PS Saket in FIR no. 10/11 under Section 102 Cr. PC of PS Saket. Another accused no. 5 namely Pravesh was arrested in FIR no. 9/11 under Section 21/61/85 NDPS Act of PS Gulabi Bagh. Accused Pravesh has allegedly shown the victim/complainant to the accused no. 2 Rakesh and accused no. 4 Shyam @ Chhotu. Accused no. 2 Rakesh had informed accused no. 1 Shyam Sunder and accused no. 3 Jatin Khanna that when the victim/complainant will go on his motorcycle and thereby accused no. 1 Shyam Sunder had traced the victim and robbed him near Kishanganj dispensary. On the motorcycle driven by accused no. 1 Shyam Sunder was pillion rider accused Jatin Khanna. On the motorcycle driven by accused Rakesh was having pillion rider accused Shyam @ Chhotu. As per the case of the prosecution the accused Jatin Khanna has received Rs.4 lakh. Accused no. 1 Shyam Sunder and accused no. 4 Shyam @ Chhotu has received Rs.3 lakh each and accused no. 2 Rakesh had received Rs.2 lakh.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 5 of 59Accused Pravesh had received Rs.1 lakh. Accused Jatin Khanna has also refused to participate in TIP proceedings. Accused no. 4 Shyam @ Chhotu had also refused to participate in TIP proceedings. Section 120B IPC was added after investigation. Section 397 IPC was added at the initial stage of investigation by the IO. Vide order dated 21.09.2011 at the stage of framing of charge accused Pravesh was discharged for the reason that he was arrested on the disclosure statement made by co-accused and no recovery was effected from his possession and sufficient material against him was not found on the record. Further, all the accused were also discharged under Section 120B IPC vide the same order as no material prima facie was found on record in this respect.
4. All the accused person were summoned and charge was given to them. Charge was given to all the accused under Section 392/34 IPC on 21.09.2011 to which they had pleaded not guilty and claimed trial. Further, accused Jatin Khanna @ Raj Kumar was further separately charged under Section 397 IPC and accused Shyam Sunder @ Shyamu, accused Jatin Khanna @ Raj Kumar and accused Rakesh @ Munim all were charged under Section 411 IPC on 21.09.2011 to which they had pleaded not guilty and claimed trial.
5. Prosecution has examined PW-1 to PW-37 as entire prosecution evidence against the accused person. Statement under Section 313 Cr. PC accused no. 1, 2 and 4 was recorded on 25.10.2024. All the accused did not prefer to lead evidence in defence. Hence DE stands closed by the order of this Court on 25.10.2024. Vide order dated 07.05.2025, accused no. 4 was allowed to lead evidence in defence on his application under Section 315 SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 6 of 59 Cr. PC. Accused no. 4 examined DW-1 and DW-2 in his evidence in defence and DE stands closed on separate statement of ld. Counsel for accused no. 4 vide order dated 06.06.2025. Accused no. 3 Jatin Khanna is Proclaimed Offender (PO) vide order dated 06.03.2017.
6. Final arguments are heard from both the parties and record perused.
6.1 Ld. Counsel for accused no. 1 has relied on following citations:
(i) Mangal Sain @ Monu Vs. State 2014 (3) JCC 1745
(ii) Mahender Singh Vs. State NCT of Delhi 2014 (4) JCC 2781
(iii) Deepak & Anr. Vs. State 2014 (2) JCC 1212
(iv) Mohd. Adil Vs. State Govt. of NCT of Delhi 2014 (3) JCC 1857
(v) Ramesh Vs. The State (Govt. of NCT of Delhi) 2013 (1) JCC 468
7. Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 7 of 59 hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 8 of 59 attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 9 of 5912.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 10 of 5912.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 11 of 59 cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon"
and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz.
"uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 12 of 59
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 13 of 59 of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253]."
8. The prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v.
State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 14 of 59
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 15 of 59
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
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9. The first ingredient which has to be proved by the prosecution is that the accused has committed theft. PW-1 has deposed that he had earlier paid Bayana to purchase a house no. WZ-A78, second floor, Arya Samaj road, Uttam Nagar and he had to pay final payment of the said house. For such final payment he had withdrawn cash of Rs.8 lakh from SBI branch, Baratuti, Sadar Bazar in denomination of Rs.1000/- (5 packets), (one packet containing 100 notes). 30 packets were in SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 16 of 59 denomination of Rs.100/-. After withdrawing money he had went to his workplace at M/s. Sindhu Plastic Ltd. situated at 2227, Bahardurgarh road, Sadar Bazar, Delhi. At his workplace he had exchanged 30 packets of Rs.100/- denomination into currency notes of Rs.500/- (six packets). He had also borrowed Rs.5 lakh from his employer Sh. Anil Nandwani. Hence the total cash amount of Rs.13 lakh was kept by him in a blue colour cloth bag. He left his workplace with the cash at about 5/5:15 PM to go to Deputyganj from front of Hanuman Mandir on his bike. After keeping the bag of cash in the Dikki of his bike no. DL4SBJ6787 he started first for his house. While leaving with his bike in front of Hanuman Mandir near his workplace he had noticed two boys/accused no. 4 Shyam @ Chhotu and accused no. 2 Rakesh (correctly identified during deposition before the Court). When he reached at the crossing which fall after crossing Azad market iron bridge, taking turn towards left side, then at about 5:45 PM near Kishanganj dispensary the said two person were following him on one bike had overtook the bike of PW-1 and obstructed their bike before the bike of PW-1. Thereby the bike of PW-1 was obstructed and forced to stop.
10. When PW-1 had asked the said bikers about his fault then the pillion rider got down carrying a pistol in his hand who pushed PW-1 and tried to snatch the bike of PW-1. The driver of the bike of accused extorted that if PW-1 does not leave the bike "pale de saale ko". The pillion rider had snatched the bike alongwith the cash amount lying in the Dikki and ran away from the spot. The pillion rider had driven the bike of PW-1. PW-1 had informed police at 100 number from his mobile phone 9810167896. PW-1 immediately took a cycle rickshaw and SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 17 of 59 reached at the house of his relative residing at Gali no. 7, Padam Nagar known as State Bank of India Wali Gali. He informed the PCR officials about his presence and shown PCR the place of incident. They took PW- 1 at the workplace at Sadar Bazar where his statement was recorded by police. His first statement is Ex.PW1/A. PW-1 has correctly identified accused no. 1 Shyam Sunder who was driving the bike and the accused no. 3 Jatin Khanna who was carrying pistol in his hand and snatched the bike from PW-1 alongwith Rs.13 lakhs. Accused no. 3 Jatin Khanna the pillion rider had driven the bike of PW-1.
11. On 03.02.2011 around 6 PM SI Sanjay Kumar, HC Sunil Kumar, Ct. Sohanpal, Ct. Anil Kumar and Ct. Om Prakash pertaining to Police Chowki, Andha Mughal old Rohtak road, Kishanganj when present near railway Akhara had received secret information that two boys are coming on one motorcycle from Azad market having illegal weapon in their possession. The special staff North district SI Ajay Singh Negi had also reached at the spot and he had also the same secret information. A raiding party was prepared. On pointing out of secret informer accused no. 1 Shyam Sunder S/o Raj Kumar was apprehended with motorcycle no. DL8SAM7022 of black colour from whose possession a countrymade revolver with two cartridge of 0.315 bore were recovered. Public witness were asked to join but nobody joined the investigation. The pillion rider of the motorcycle driven by accused no. 2 Rakesh Kumar was accused no. 1 Shyam Sunder S/o Raj Kumar. FIR no. 04/11 dated 03.02.2011 was registered at PS Gulabi Bagh/Pratap Bagh against above accused under Section 25 of Arms Act, 1959.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 18 of 5912. On 16.12.2010 Section 397 IPC was added. On 03.02.2011 in case FIR no. 04/2011 under Section 25 of Arms Act, 1959 of PS Gulabi Bagh accused no. 1 Shyam Sunder was arrested and he had made a disclosure in that case that before 1- 1½ month he alongwith accused no. 2 Rakesh and accused no. 4 Shyam @ Chhotu, on supply of information by one Sh. Pravesh, a person was robbed near Kishanganj Akhara who was going from Sadar Bazar on motorcycle with a sum of Rs.13 lakh. Accused no. 1 and accused no. 2 had disclosed that they have received one and a half lakh each and accused no. 4 had received Rs.50,000/- in the said robbery. The remaining money was with accused no. 3 Jatin Khanna who is proclaimed offender in this case. At the instance of accused no. 1 the accused no. 2 and 4 were got arrested and accused no. 1 had disclosed that he can get arrested accused no. 3 and 4 and another accused Pravesh. Accused no. 1 had disclosed that the robbed motorcycle after erasing its registration number was parked by him in the Gali near his house. Accused no. 2 Rakesh had got recovered motorcycle Bajaj XCD no. DL4SBJ6787 and the number 'B' and '7' were missing in the registration number. The motorcycle was identified by its engine number and chasis number. Thereafter Section 411 IPC was added.
13. Accused no. 2 Rakesh had got recovered one black colour Pulsar motorcycle no. DL8SAM7022 and accused no. 1 Shyam Sunder had got recovered his Pulsar motorcycle no. DL6SAF6374 of grey colour. Both the said motorcycles were used by the above accused during commission of offence in the case.
14. Accused no. 1 Shyam Sunder had refused to participate in TIP SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 19 of 59 proceedings. Accused no. 2 had got recovered Rs. 1 lakh from his house and accused no. 1 Shyam Sunder had got recovered Rs.2 lakh from his house. Accused no. 3 Jatin Khanna was apprehended on 04.02.2011 vide DD no. 15A PS Gulabi Bagh when he was arrested in FIR No. 10/11 of PS Saket. Accused no. 3 Jatin was formally arrested with the permission of ld. MM on 06.02.2011. Accused no. 3 Jatin had disclosed that he had purchased a Tata Safari vehicle no. DL4CU4252 from the robbed money which is already deposited at PS Saket. Accused Pravesh was arrested in FIR no. 09/11 of PS Gulabi Bagh under Section 21/61/85 of NDPS Act who was formally arrested in this case on 08.02.2011. It was disclosed by the accused person that on the information of the accused Pravesh, accused no. 2 Rakesh while driving his black Pulsar motorcycle had pillion rider accused no. 4 Shyam @ Chhotu and they had stopped the motorcycle near Hanuman Mandir. On another motorcycle driven by accused no. 1 Shyam Sunder had pillion rider accused no. 3 Jatin Khanna who were standing ahead of Azad market near police booth. Accused Pravesh had shown accused no. 2 Rakesh and accused no. 4 Shyam @ Chhotu on the description of complainant/PW-1. Accused no. 2 and 4 thereafter had shown PW-1 to accused no. 1 Shyam Sunder and accused no. 3 Jatin Khanna. Accused no. 1 and 3 had followed PW-1/complainant and robbed the PW-1 of his motorcycle and Rs.13 lakh which were carried in the Dikki of said motorcycle.
15. As per the case of the prosecution out of Rs.13 lakh, a sum of Rs.4 lakh came in the share accused no. 3 Jatin Khanna and Rs.3lakh each came in the share of accused no. 1 Shyam Sunder and accused no. 2 Rakesh, Rs.2 lakh came in the share of accused no. 4 and Rs.1 lakh is SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 20 of 59 received by accused Pravesh. Accused no. 4 Shyam @ Chhotu had disclosed that he was sitting behind accused no. 2 Rakesh and amount of Rs.2 lakh was received by him as his share was lost by him in gambling. The motorcycle was found in the name of sister of accused no. 1 Shyam Sunder and wife of accused no. 2 Rakesh and thereafter Section 120B IPC was added. The motorcycle was released to the complainant on superdari.
IDENTITY OF ACCUSED PERSON
16. PW-1 in his examination-in-chief has correctly identified accused no. 4 Shyam @ Chhotu and accused no. 2 Rakesh during his deposition before the Court in that they are the same person who were present near the place when PW-1 was starting his motorbike near Hanuman Mandir. PW-1 has further deposed that two person were following him on one bike who had overtaken his bike and stopped PW-1 by obstructing his way. The pillion rider got down from the motorcycle who had pistol and reached near PW-1. Pillion rider pushed PW-1 and tried to snatch motorcycle of PW-1. Hence PW-1 was at sufficient distance to see the face of pillion rider. The pillion rider has snatched the bike alongwith cash lying in the Dikki of the motorcycle. Pillion rider had driven the bike of PW-1. PW-1 has correctly identified accused no. 1 Shyam Sunder who was driving the bike which stopped PW-1 after crossing Azad market iron bridge when PW-1 was taking turn from left side from that crossing. PW-1 has further correctly identified accused no. 3 Jatin Khanna who was pillion rider of accused no. 1 Shyam Sunder. Accused no. 3 had pistol and he had snatched the bike and cash of Rs.13 lakh SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 21 of 59 from PW-1. Jatin Khanna has left the spot with cash while driving bike of PW-1.
17. In cross-examination PW-1 has deposed that he was called at Tihar jail but all the accused had refused to participate in TIP proceedings. PW-1 at page 3 of his cross-examination dated 17.02.2012 has deposed that he cannot tell the description of the pistol as he cannot identify the Desi Katta and pistol. The incident of snatching the money and bike has taken about 5 mins. It is denied by PW-1 that he cannot identify the description of person/accused who had snatched his motorcycle for the reason that he was very frightened. It is deposed that the pillion rider i.e. accused no. 3 Jatin Khanna was wearing blue colour jacket and it had white lining. During whole incident PW-1 remain standing on left hand side of his bike. He cannot tell about the clothes worn by the driver of the bike in which accused no. 3 Jatin was pillion rider came. He did not tell description of accused at the time of calling PCR nor the make of the bike. However the information to PCR has to be very brief and not telling such description by PW-1 of accused no. 1 and 3 does not harm the case of the prosecution. He had also told the colour of the bike to the police and the make of the bike was Pulsar bike. PW-1 was perplexed and he did not notice any other thing on the bike of the accused. It is denied that PW-1 had called the police while sitting at the house of Asha Ram the known to person of PW-1. It is deposed that both the accused person who are accused no. 1 and 3 were allegedly wearing helmet at the time of incident. He can identify the accused person as the glass of the helmet was open.
18. In cross-examination dated 17.02.2012 PW-1 has deposed that SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 22 of 59 number of his motorcycle was DL4SBJ6787. When he had received his motorcycle then letter 'B' and last digit '7' had been rubbed. He took the motorcycle on superdarinama Ex.PW1/B and the photographs of which are Ex.PW1/C1 to Ex.PW1/C3. The indemnity bond is Ex.PW1/D. The motorcycle is proved in evidence as Ex.P1 and the photocopy of currency notes are Ex.P2(colly).
19. Ld. Counsel for the accused has referred to deposition of PW-31 dated 07.09.2016 at first page where he has deposed that no public witness was available at that time as it was night of winter and visibility was very less and therefore PW-1 could not have identified and seen the accused person. The above submission on behalf of ld. Counsel for accused cannot be sustained for the reason that the alleged robbery was committed on 14.12.2010 at about 5:45 PM at old Rohtak road near dispensary Kishanganj whereas the IO must have reached at the spot during investigation much later in time which does not effect the visibility of the accused to PW-1. The site plan shows street lights. Even if believing that the sun was set at that time then it has to be seen in the light of facts and circumstances of the case. Such fact must have been put to PW-1 during his cross-examination. PW-1 has deposed that the incident had taken place at 5:30-5:45 PM. PW-1 at page 5 of his cross- examination dated 17.02.2012 has deposed that both the accused person were involved in snatching of his motorcycle. They were wearing helmet at the time of incident. It is further deposed that the glass of the helmet was open therefore PW-1 could have identified the accused person who were accused no. 1 Shyam Sunder and accused no. 3 Jatin Khanna. It is deposed by PW-1 in cross-examination dated 17.02.2012 that the spot SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 23 of 59 was deserted place at the time of incident as it was winter and therefore he could not have asked help from anyone. Ld. Counsel for the accused no. 1 has referred to the statement of PW-1 dated 17.02.2012 at page 2 that PW-1 had seen all the four accused for the first time at the police post Andha Mughal and therefore accused person were not seen by PW-1 before that. It is noted that no clarification was put to PW-1 whether such seeing of the accused was in reference to prior to commission of offence or after the commission of offence. When PW-1 had seen all person together then it was in the light of the fact that the answer was given post commission of the offence since it is not the case of the prosecution that all the accused person had robbed together. The incident is dated 14.12.2010. PW-1 has deposed at page 3 of same cross-examination that the accused person who were watching him near Hanuman Mandir namely accused no. 2 Rakesh and accused no. 4 Shyam @ Chhotu did not have helmet in their hand which means that the said accused person were not present with helmet and PW-1 could have identified them. He had seen accused no. 4 Shyam @ Chhotu only once when he was roaming around motorcycle of PW-1 at Sadar Bazar. This fact was not told by him to the police. This is material omission on the part of accused.
20. Now it has to be seen that what is the effect of TIP in the circumstances of the case. Accused no. 1 has refused to participate in TIP proceedings vide Ex.PW20/B for the reason that he had been shown to many person in the police station and the person came at the PS had taken his photographs in their mobile phone. The TIP proceedings of accused no. 1 was conducted on 04.02.2011. The accused no. 1 was SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 24 of 59 arrested on 03.02.2011 at 11 PM. The onus has therefore shifted on accused no. 1 to prove that he was shown to PW-1/Sunil Dutt by the police for such valid refusal of TIP proceedings. Even specific details of such showing of accused to PW-1 are not given in such details of statement of accused while refusing to participate in TIP proceedings. It is stated that his photographs were taken in the mobile phone by such person. The reference as to date, month and year the police personnel who were present on such date of showing the accused person are required to be mentioned by the accused person so that facts comes specific on record. This is not done by the accused. It is also not disclosed that how many person had taken photographs as only PW-1 had to identify the accused person and not many person. The statement of showing of accused at police station is vague and non-specific which is not rebutted by the accused person in their evidence and hence it is held that accused no. 1 has failed to rebut the onus shifted on him and therefore adverse inference may be drawn against him for not participating in TIP proceedings/Ex.PW20/B.
21. Similarly accused no. 3 Jatin Khanna who is PO had not participated in TIP proceedings whose TIP proceedings are Ex.PW33/B. The TIP proceedings of accused no. 4 Shyam @ Chhotu is Ex.PW34/B dated 24.02.2011 and he has also refused TIP on the ground that his photographs were taken at PS and he has shown to many witness. However the onus of such statement is not discharged by accused no. 4 by any specific averments or while reading rebuttable evidence. PW-1 has deposed in cross-examination dated 30.09.2011 that he has seen all the accused person at police post Andha Mughal. He had seen them SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 25 of 59 approximately after two months of the incident. IO had told him that accused was apprehended with his motorcycle and he had identified the accused person there. His statement is recorded by the police on that day. As per deposition of PW-32. He had recorded disclosure of accused no. 1 on 04.02.2011 at police post Andha Mughal. The countrymade pistol recovered from accused no. 1 Shyam Sunder was not identified by any of the witness during investigation of this case. At page 5 of cross- examination dated 19.05.2016 it is deposed that no live cartridge was recovered. Accused no. 1 Shyam Sunder and accused no. 2 Rakesh were arrested on 03.02.2011 and accused no. 3 Jatin Khanna was arrested in other case at PS Saket who was interrogated and arrested in this case after issuance of production warrant on 06.02.2011. PC remand of accused no. 3 Jatin Khanna was obtained for two days which means accused no. 3 Jatin remained in police custody till 08.02.2011. Accused no. 1 Shyam Sunder was also interrogated on 08.02.2011 and PC remand of accused no. 1 and 2 was also obtained. Accused no. 4 Shyam @ Shamu was arrested on 24.02.2011 at about 3:00 PM and nothing was recovered from his possession therefore he was sent to J/C and his PC remand was not obtained. The date of arrest of accused no. 3 Jatin is 06.02.2011 and the date of arrest of accused no. 1 and 2 is 03.02.2011. Hence all the accused cannot be present at the same time in the police station for identification by PW-1 and therefore the above facts are contrary to deposition of PW-1 that he had identified all the accused person at the police station. All the accused had remained at police custody maximum upto 08.02.2011. They could be together only between 06.02.2011 and 08.02.2011 since the date of arrest of accused no. 3 Jatin is 06.02.2011.As per deposition of PW-1 his statement was SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 26 of 59 also recorded by the IO after identification of accused person. The statement of PW-1 under Section 161 Cr. PC are dated 07.01.2011, 05.02.2011. It means that the accused person were shown to PW-1 on or before 05.02.2011 as his last statement was recorded on 05.02.2011. The refusal of TIP by accused no. 1 is dated 04.02.2011. The refusal of TIP by accused no. 3 is dated 15.02.2011. The refusal of TIP by accused no. 4 is dated 24.02.2011. The PW-1 has deposed that his statement was recorded after showing accused to him and the statement is dated 05.02.2011. Hence before 05.02.2011 there is probability that accused person were shown to PW-1 which means accused no. 1 and 2 were already shown to the PW-1 at police post Andha Mughal between 04.02.2011 and 05.02.2011. The above showing of all the accused together also create doubt in correct arrest of accused no. 3 and 4. One more fact to be noted is that date for TIP could be taken only when the accused person are in judicial custody whereas PW-32 has deposed at page no. 3 that on 04.02.2011 PC remand against accused no. 1 and 2 was obtained and they were taken to the police station. Whereas judicial TIP of accused no. 1 was conducted on 04.02.2011 vide Ex.PW20/A. It means that on the date of judicial TIP itself or before that the accused no. 1 and 2 were shown to PW-1 at the PS for the reason that only after taking judicial custody the date for TIP could be obtained. It shows that before sending the accused person to the judicial custody they were shown to PW-1. This has therefore created doubt in the case of the prosecution and adverse inference on refusal of TIP by accused no. 1 and 4 cannot be drawn against them.
USE OF WEAPON BY THE ACCUSED NO. 3 JATIN KHANNA WHO SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 27 of 59 IS PROCLAIMED OFFENDER
22. Ld. Counsel for the accused has referred to statement of PW-1 which is complaint Ex.PW1/A dated 14.12.2010 (at page no. 33 of document file) where it is not mentioned in the complaint that while snatching away the motorcycle the accused no. 3 Jatin had used a weapon of offence. PW-31 SI Raj Kumar was the first IO in the case who went with Ct. Krishan Kumar at the spot. In cross-examination dated 07.09.2016 it is deposed by him that no fact about the involvement of any weapon or use of any weapon by any accused came in his knowledge through complainant or ASI Daljit/PW-30 who was already present at the spot when PW-31 reached at the spot with copy of FIR and Rukka. It is deposed that he remained at the spot for about one and a half hour with complainant during that period. PW-30 SI Daljit Singh on receipt of DD No. 19PP reached at the spot with Ct. Kishan Kumar. He has also not deposed regarding use of pistol by accused person if told by complainant to him. It is deposed by PW-30 that at his instance the site plan was prepared contrary to deposition of PW-31 that the site plan was prepared at the instance of complainant. Hence correct preparation of site plan has become doubtful.
23. It is noted that the complaint Ex.PW1/A was recorded on 14.12.2010 and the statement under Section 161 Cr. PC of the complainant Sunil Dutt was recorded once on 07.01.2011 and another statement was recorded on 05.02.2011. The said statement were recorded later in time then the complaint Ex.PW1/A and in the above statement under Section 161 Cr. PC it is stated by the complainant that one of the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 28 of 59 accused has used pistol who came to snatch the motorcycle containing money in the Dikki of the motorcycle. He had pistol/countrymade revolver in his hand. With that countrymade pistol the said accused had threatened. Hence it is found that significant material omission has come on record during recording of evidence of prosecution. The PCR form Ex.PW19/A is available on record (at page no. 55 of document file) which mentions about the use of revolver by the two accused person who came on motorcycle. They had snatched the motorcycle of PW-1 and ran away. PW-32 Insp. Sanjay Kumar at page 5 of his cross-examination dated 19.05.2016 has deposed that complainant had made his first statement on 14.12.2010 which was recorded by ASI Daljit Singh which does not mention use of weapon by any accused person. He has further deposed that countrymade pistol recovered from accused no. 1 Shyam was not identified by any of the witness during investigation of this case. No such fact has come to notice of PW-32 during investigation that any fire was shot or not during commission of offence. No live cartridge was recovered in the present case. Hence as per deposition of PW-32 the countrymade pistol was allegedly used in commission of offence has remained unidentified. PW-1 in his cross-examination dated 30.09.2011 (at page 325 of evidence file) has deposed that he was reading his statement when it was being recorded and his statement was recorded on his instruction. It is also deposed that he disclosed all the information in his first statement. It is also admitted that all the facts regarding incident were mentioned in his statement. Hence PW-1 has admitted that his statement Ex.PW1/A was correctly recorded where it contain material omission of use of any weapon by accused no. 3. In view of such material omission it is found in the nature of material contradiction.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 29 of 59However constructive liability is not applicable under Section 397 IPC and therefore it is held that the prosecution has failed to substantiate necessary ingredients under Section 397 IPC against accused no. 1 Shyam Sunder. Hence it is held that prosecution has failed to prove the necessary ingredients of use of weapon and causing of threat by the accused no. 1, 2 and 4 and therefore accused no. 1, 2 and 4 are acquitted under the said provision of law.
WHETHER COMPLAINANT HAD RS. 13 LAKH IN HIS POSSESSION AT THE TIME OF COMMISSION OF OFFENCE
24. Now it has to be seen that whether the case of the prosecution comes under Section 392 IPC. The first ingredient the prosecution has to prove is that accused person has committed theft. The details of possession of amount is already discussed above. The PW-1 is required to prove that he had withdrawn Rs.8 lakh from SBI Baratuti branch, Sadar Bazar. He is also required to prove that he has borrowed Rs.5 lakh from his employer Anil Nandwani. PW-2 has deposed that he is running a motor repairing shop at Uttam Nagar. PW-1 is his customer. He had arranged a property K-78, 2nd floor for purchase by PW-1. The deal was done for a sum of Rs.20 lakh. Rs.3 lakh had been given in advance on 17.09.2010. The last date of complete payment was 15.12.2010. In cross- examination it is deposed that Rs.3 lakh was given in cash to Sh. Gopal Bansal in his presence prior to the incident. Prior to this he had reminded PW-1 on 14.12.2010 about remaining payment. He has no idea about source of cash. However, Mr. Gopal is best evidence to say whether he received Rs.3 lakh for the purpose of sale of property and he SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 30 of 59 is not produced in witness box.
25. PW-5 Sh. Manish Kumar had deposed that he had received Rs.3 lakh in currency notes from PW-1 on 14.12.2010 in denomination of Rs.100/- and he had returned Rs.3 lakh in currency notes in denomination of Rs.500/- to PW-1. He had helped PW-1 being employee of his neighbour shopkeeper namely Sh. Rajan. Whereas vide Ex.PW1/A the currency notes were in denomination of Rs.1000/- and Rs.100/- which were received from bank.
26. PW-6 Sh. Guru Prasad has deposed that he went with PW-1 to SBI Sadar Bazar and in his presence PW-1 has withdrawn the money from bank in cash for a sum of Rs.8 lakhs. He had asked cashier to give currency of higher denomination to PW-1. However bank official had given Rs.5 lakhs in higher currency denomination and Rs.3 lakhs in Rs.100/- currency denomination. After receiving payment of Rs.8 lakhs they have left together from bank to reach shop where PW-1 was working. He went to the shop at ground floor and PW-1 went at the shop situated at first floor. PW-1 was known to PW-6 for last 6-10 years.
27. PW-7 Sh. Ramesh Kumar, Chief Mgr. SBI Kirti Nagar has deposed that at about 2:15 PM on 14.12.2010 PW-1 had withdrawn Rs.8 lakhs from his savings bank account no. 10753826173. The CCTV footage of bank was copied in CD/Ex.PX-7 and the statement of account/PW7/B of PW-1 was given by him to the IO. In cross- examination it is deposed by PW-7 that the CD Ex.PX7 was prepared in SBI Sadar Bazar branch in his presence which was done after 5-7 days of SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 31 of 59 the withdrawal of amount by PW-1 since IO had approached him within 2 days of withdrawal. The capacity of CCTV footage is 30 days in which date and time is also displayed. The PW-7 had seen the CCTV footage in CD in which PW-1 was withdrawing the amount and identified by the then cashier. Hence prosecution has successfully proved that on 14.12.2010 PW-1 has withdrawn Rs.8 lakh from his savings bank account in SBI bank and the deposition of PW-5, PW-6 and PW-7 is found unrebutted, consistent and reliable.
28. PW-19 W/Ct. Kalpana has deposed that at about 5:58 PM on 14.12.2010 information was received at PCR from PW-1 that two person came on red colour motorcycle no. DL4SBJ6787 who had robbed him of Rs.13 lakhs near Kishanganj dispensary. The copy of information is Ex.PW19/A (at page no. 55 of document file). The PCR form records that the information was given by PW-1 Sunil Dutt and it also records that Rs.13 lakh was kept in Dikki of motorcycle when two boys who had revolver with them had snatched away the motorcycle with the money contained in Dikki and robbed PW-1. The first PCR call was received by one Suman and the second call was received by PW-19. The first call was received at 7:54 PM and it also mentions the use of revolver by the said two boys who robbed PW-1. Hence PW-19 has proved that a gun was used by said two robbers who as per the case of the prosecution are accused no. 1 Shyam Sunder and accused no. 3 Jatin Khanna.
RECOVERY OF ROBBED MOTORCYCLE
29. PW-21 SI Sunder Singh had informed IO/SI Sanjay/PW-32 that SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 32 of 59 accused no. 1 Shyam Sunder and accused no. 2 Rakesh had made their disclosure statement regarding involvement in this case. The first disclosure statement of accused no. 1 Shyam Sunder dated 04.02.2011 is Ex.PW24/I (at page no. 91 of document file) and second disclosure statement is Ex.PW24/L (page no. 109 of document file). The third disclosure statement of accused no. 1 Shyam Sunder is Ex.PW24/T (at page no. 119 of the document file). Ex.PW24/I does not advance the case of the prosecution as it is more in the nature of confession and it does not record the place from where the recovery is going to be effected. The Ex.PW24/L is the disclosure which also does not advance the case of the prosecution in which it is mentioned that Rs.2 lakh was already recovered from accused no. 1 Shyam Sunder. The Ex.PW24/T is a disclosure in the nature that various robberies were committed by the accused including robbery in this case and the above disclosure is more in the nature of confession and does not advance the case of the prosecution. Further, all the disclosures are not in compliance of Section 27 of Indian Evidence Act r/w Section 100 of Cr. PC and as per law laid down by Hon'ble Supreme Court of India in case titled Rajesh Vs. The State of Madhya Pradesh on 21 September, 2023 in Criminal Appeal No(s). 793-794 of 2022 wherein the disclosure is required to be taken before two independent public witness at the police station in the first part and in the second part the said recovery has tobe effected while taking the said two independent public witness alongwith police to the place from where the recovery has to be effected. The relevant para are reproduced hereasunder:
22. Section 26 of the Indian Evidence Act, 1872 (for brevity, 'the Evidence Act'), provides that no confession made by any person SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 33 of 59 whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27, thereafter, is in the nature of an exception to Section 26 of the Evidence Act. It states that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore, it is essential under Section 27 of the Evidence Act that the person concerned must be 'accused of an offence' and being in the 'custody of a police officer', he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him. In effect, both aspects, viz, being in 'the custody of a police officer' and being 'accused of an offence', are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act.
23. In this regard, reference may be made to Bodhraj alias Bodha and others vs. State of Jammu & Kashmir 7, wherein this Court had observed that the requirement of 'police custody' is productive of extremely anomalous results and may lead to the exclusion of valuable evidence in cases where a person, after committing a crime meets a police officer and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him, and he is subsequently taken into custody and becomes an 'accused'. This Court pointed out that this information, which would otherwise be admissible, becomes inadmissible under Section 26 of the Evidence Act as it did not come from a person in the 'custody of a police officer' or rather, came from a person not in the 'custody of a police officer'. In other words, the exact information given by the accused 'while in custody', which led to recovery of the articles can be proved. It was noted that this doctrine is founded on the principle that if any fact is discovered as a search was made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.
(2002) 8 SCC 45
24. Thereafter, in State of Karnataka vs. David Rozario and another 8, this Court held that information which is otherwise admissible under Section 27 of the Evidence Act would become inadmissible, if it did not come from a person in the 'custody of a police officer' or came from a person 'not in the custody of a police officer'. It was further held that what is admissible is the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 34 of 59 information and not the opinion formed on it by the police officer and, in other words, the exact information given by the accused while in 'custody' which led to recovery of the articles has to be proved.
The two essential requirements, per this Court, are that:
(i) the person giving the information must be 'accused of an offence'; and (ii) he must be in 'police custody'.
25. Again, in Ashish Jain vs. Makrand Singh and others 9, this Court held that once a confessional statement of the accused is found, on facts, to be involuntary, it would be hit by Article 20(3) of the Constitution of India, rendering such a confession inadmissible. It was further noted that there is an embargo on accepting self-incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. This Court further cautioned that if such a statement is made under undue pressure and compulsion from the Investigating Officer, the evidentiary value of such a statement leading to the recovery is nullified.
(2002) 7 SCC 728, (2019) 3 SCC 770
26. More recently, in Boby vs. State of Kerala10, this Court referred to the decision of the Privy Council in Pulukuri Kotayya vs. King Emperor 11, wherein Section 27 of the Evidence Act had been considered at length and it was noted that Section 27 provides an exception to the prohibition imposed by the preceding provisions and enables certain statements made by an 'accused' in 'police custody' to be proved. It was observed that the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person 'accused of any offence' in the 'custody of a police officer' must be deposed to, and thereupon so much of the information, as relates distinctly to the fact thereby discovered, may be proved. It was observed that normally, Section 27 is brought into operation when a person in 'police custody' produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused. However, the Privy Council concluded that the exception to Section 26 added by Section 27 should not be held to nullify the substance of the provision and it would be fallacious to treat the 'fact discovered' as equivalent to the object produced; the 'fact discovered' embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. By way of example, it was elucidated that information supplied by a Criminal Appeal No. 1439 of 2009, decided on 12.01.2023. AIR 1947 Privy SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 35 of 59 Council 67 person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; as knives were discovered many years ago, but if it leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. Noting this principle, this Court observed that Section 27 of the Evidence Act requires that the 'fact discovered' embraces the place from which the object is produced and the knowledge of the 'accused' as to this and the information given must relate distinctly to the said fact.
Xxxxxxxxxxxx
28. That apart, the manner in which the Investigating Officer (PW-
16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case. In Yakub Abdul Razak Memon vs. State of Maharashtra through CBI, Bombay 12, this Court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when (2013) 13 SCC 1 the respectable person who is a witness thereto gives evidence in the Court of law under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Cr.P.C. stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Cr.P.C. for the purposes of a valid panchnama:
(a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.
(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.
(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 36 of 59 spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.
(d) The I.O. can take the assistance of his subordinates for search of places.If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.
(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.
(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.
(g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.
(h) If a search is conducted without warrant of court under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued. It was held that a panchnama would be inadmissible in a Court of law if it is recorded by the Investigating Officer in a manner violative of Section 162 Cr.P.C. as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Cr.P.C. This Court concluded, by stating that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure and if the deviation occurred due to a practical impossibility, then the same should be recorded by the Investigating Officer so as to enable him to answer during the time of his examination as a witness in the Court of law.
29. Recently, in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh13, a 3-Judge Bench of this Court observed that the requirement of law that needs to be fulfilled before accepting the evidence of discovery is by proving the contents of the panchnama and the Investigating Officer, in his deposition, is obliged in law to prove the contents of the panchnama. It was further observed that it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law that the prosecution would be justified in relying upon such evidence and Court may also accept the same. It was held that, in order to enable the Court to safely rely upon the evidence of the Investigating Officer, it is necessary that the exact words attributed to the accused, as the statement made by him, be brought on record and, for this purpose, the Investigating Officer is obliged to depose in his evidence the exact statement and not merely say that the discovery panchnama of the weapon of the offence was drawn up SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 37 of 59 as the accused was willing to take it out from a particular place.
30. In Khet Singh vs. Union of India 14, this Court held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the Court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. However, this Court pointed out that if the search and seizure were in complete defiance of the law and procedure and there was any possibility of the evidence collected having been tampered with or interpolated during the course of such search and seizure, then that evidence could not be admitted. Though these observations were made in the context of a search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985, they would have relevance generally.
30. Further, the seizure memo of cash for a sum of Rs.2 lakh in the denomination of Rs.500/- is Ex.PW24/C which were allegedly recovered from the iron almirah of the residence of accused no. 1 Shyam Sunder at 10685, Gali no. 9, Pratap Nagar, Delhi. Now it has to be seen that whether accused person has the capacity to possess the amount of Rs.2 lakh on 04.02.2011. In this respect the burden of proof is on the prosecution is that accused no. 1 Shyam Sunder does not have capacity to possess the amount of Rs.2 lakh on such date and time. Other than this it is also required to prove that if there are any identification mark on the said currency notes. Three bundles of Rs.500/- currency notes were recovered and one bundle containing 50 notes of Rs.1000/- was recovered. However the PW-7 from SBI has not stated anything about denomination of currency notes and PW-6 has not deposed if the denomination of currency notes of Rs.1000/- was given at the time of payment to PW-1. PW-21 has not pointed out any special identification mark on the said currency notes. Similarly PW-32 has not deposed about any special identification mark on the currency notes to show that these are same currency notes which were withdrawn from the bank. In fact no SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 38 of 59 identification mark on currency notes by way of any slip also is proved on record by PW-32 or other witness while recovering the money from accused no. 1 and accused no. 2. Regarding the capacity to possess the relevant amount the relevant citation Manish Sharma @ Pappan Vs. State of NCT of Delhi AIR Online (2018) Delhi 145 at para no. 78 and 79 is reproduced hereasunder:
78. Secondly, PW-1 is only a junk dealer. A-2 would have known he simply could not afford this kind of money. Therefore, the story of demand of Rs. 15 lakhs as ransom appears a far reach and wholly unrealistic. The motive plays an important role in a case of circumstantial evidence where the other circumstances are not proved convincingly by the prosecution. As explained by the Supreme Court in Surinder Pal Jain v. Delhi Administration 1993 Supp (3) SCC 681:
"In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
79. In Arjun Mallik v. State of Bihar 1994 Supp (2) SCC 372 the Supreme Court further explained the position and the following words:
"...mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 39 of 59 circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anybody else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."
30.1 It is also not proved that in whose ownership the searched premises exist and whether accused had possession of such premises.
USE OF MOTORCYCLE BY ACCUSED DURING COMMISSION OF ROBBERY
31. Ld. Counsel for the accused has argued that none of the police witness has deposed that those bikes were used by the accused persons in the commission of offence. It is argued that registration number of bike was given by the complainant/PW-1. PW-1 at page no. 4 of his cross- examination dated 17.02.2012 has deposed that he did not tell the make of the bike when he made a call at 100 number but he told about the use of the bike. It is further deposed that the make of the bike was Pulsar as it was told by him to the police. He had told the colour of the bike to the police. He did not notice anything of the bike since he was perplexed at that time and it came to his mind that he has to go to his relative living at Padam Nagar. It is further deposed that he did not notice the colour of the bike while going towards Padam Nagar. However it is deposed that he remember for sure that two boys came on Pulsar bike colour black while committing the robbery. The pillion rider was wearing blue jacket with white lining. The same is also deposed in the first three lines of the same page. PW-21 has deposed that three motorcycle were recovered from the Gali near the house of accused no. 1 Shyam Sunder. He do not SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 40 of 59 remember the registration number and make of motorcycle which were recovered from the Gali. PW-21 at first page of his examination-in-chief dated 05.01.2016 has deposed that three motorcycles were recovered. One was belonging to the complainant which was Bajaj motorcycle and the other two motorcycle which are Bajaj Pulsar of black colour and of grey colour were also seized. All the motorcycle were seized vide memo Ex.PW24/B, Ex.PW24/D and Ex.PW24/J. The said motorcycles were recovered from Gali which is an open place i.e. Andha Mughal, Pratap Nagar which is so deposed at page no. 2 of cross-examination of PW-21 dated 29.11.2019. Hence one of the motorbike recovered is Bajaj Pulsar which corroborates with deposition of PW-1 that it was a Pulsar bike. PW-32 in his examination-in-chief has deposed that accused no. 2 Rakesh has disclosed that motorcycle was parked in the Gali. The seized motorcycle was having no. DL4SBJ6787 which was seized vide memo Ex.PW24/B and this was the motorcycle belonging to the complainant. PW-32 in his cross-examination dated 19.05.2016 at page 3 has deposed that when the accused no. 1 Shyam Sunder was arrested in another case under Arms Act then perhaps his bike no. was 6374 which was Pulsar grey. He does not remember in which documents he was made to sign by ASI Sunder Singh. ASI Sunder Singh has not called any public witness to join the investigation. The same bike which was seized under Arms Act was used in the commission of crime. To the contrary PW-23 in cross-examination dated 18.02.2015 Insp Ajay Singh Negi has deposed that the last four digits of motorcycle of accused was 7072 which was the motorcycle used by the accused during commission of offence under Arms Act. No public person was joined during investigation. No public person was with them at the time of apprehension of accused no. 1 SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 41 of 59 Shyam and accused no. 2 Rakesh. ASI Sunder Singh has taken the measurement of weapon. The accused person had came around 6:15 PM on motorcycle and they remained at the spot till 8 PM. It is deposed again that name and address of public person who refused to join the investigation was not recorded. Hence there is contrary deposition of PW-32 and PW-23 whether the accused person have used motorcycle no. 7072 in the commission of alleged robbery or the motorcycle as deposed by PW-32 was used in commission of alleged robbery. As per PW-32 three motorcycles were recovered whereas PW-24 at page 7 of his cross- examination has deposed that accused Rakesh has got recovered motorcycle no. 7022 make Pulsar grey colour which was parked near his house and accused no. 1 Shyam Sunder had got recovered motorcycle make Pulsar of red colour parked near his house. Hence PW-24 has deposed that the two motorcycles were recovered. The motorcycle which was robbed from the complainant was parked near the house of accused Rakesh.
32. The motorcycle no. DL8SAM7022 was seized at the instance of accused no. 2 Rakesh colour black of make Pulsar while the accused no. 2 Rakesh was driving the motorcycle. It was seized vide memo Ex.PW24/J dated 03.02.2011. PW-10B Ms. Kusum is registered owner of the said motorcycle who had got it released on superdari. She is wife of accused no. 2 Rakesh and the motorcycle is in her name and the same is Ex.P1. As per PW-10B the motorcycle was seized from her house. PW-24 HC Sunil Kumar is witness to the seizure of the motorcycle who had deposed that a secret informer had informed PW-32 Insp. Sanjay Kumar that two boys are coming on motorcycle. The boys were SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 42 of 59 apprehended at 6 PM from Azad market which was checked at Kishanganj Akhara. From the person sitting on rear seat who is accused no. 1 Shyam Sunder had loaded countrymade pistol with one live cartridge recovered from right side pocket of his pant. As per PW-24 both the accused were interrogated at the spot who confessed there at the spot. Thereafter the accused person were taken to PS. Whereas PW-32 has deposed that he had interrogated the accused person at PS Gulabi Bagh and PP Andha Mughal on 03.02.2011 in the evening time. He had recorded disclosure of accused no. 1 in his own handwriting on 04.02.2011. As per PW-32 the countrymade pistol was recovered from accused no. 1 between 5-5:30 PM. He does not remember the police official who apprehended the accused. Nor does he remember the exact number of officer present. It is also admitted that it was a busy place where accused was apprehended. It is deposed that ASI Sunder Singh/PW-21 came to the spot after apprehension of accused person and he does not remember time of his arrival. Hence deposition of PW-24 and PW-32 is contradictory about the place where the disclosure statement of the accused person was recorded. Contrary to deposition of PW-32, the PW-21/SI Sunder Singh has deposed that he had informed PW-32 about disclosure statement of accused no. 1 and 3 and after which PW-32 Insp. Sanjay reached at the spot and joined the investigation which is contrary to deposition of PW-32 that ASI Sunder Singh had came at the spot after apprehension of accused no. 1 Shyam Sunder and accused no. 2 Rakesh.
33. PW-21 has deposed that in pursuance of disclosure statement Ex.PW21/A made by accused no. 1 Shyam Sunder and accused no. 2 SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 43 of 59 Rakesh led the police team to his house at Andha Mughal Pratap Nagar and he got recovered three motorbike. One motorcycle was belonging to PW-1 and the other two motorcycles the Bajaj Pulsar of black and grey colour were seized. PW-21 has deposed that no public witness was joined. It is deposed that from the spot they had went to the house of accused no. 1 which means only on the same day on 03.02.2011 they had went to the house of the accused person for recovery. He does not remember the address of accused no. 1 Shyam Sunder. From ground floor of house of accused no. 1 Rs.1 lakh was recovered. Three motorcycles were recovered from the Gali near house of accused no. 1 Shyam Sunder. Thereafter they went to house of accused no. 2 Rakesh. To the contrary PW-24 has deposed that on 03.02.2011 they went alongwith accused person to the police station and the accused person were put in the lock up. It is further deposed to the contrary that the accused person was taken out from the lock up on 04.02.2011 when their sustained interrogation was conducted for about one and a half hour. The accused person had taken the police team to their respective house. First they had went to the house of accused no. 2 Rakesh and from the first floor Rs.1 lakh was recovered from the bed. Money was hidden under the mattress lying on his bed. The motorcycle was also parked near his house. Thereafter they had went to the house of accused no. 1 Shyam Sunder. Similarly PW-32 has deposed that accused no. 2 Rakesh got recovered Rs.2 lakh under the quilt lying on bed.
34. PW-21 has deposed that accused no. 1 Shyam Sunder had got recovered Rs.2 lakh from his house which had three wads of Rs.500/- and 50 currency notes of Rs.1000/-. To the contrary PW-24 has deposed at page 6 of his cross-examination dated 19.03.2014 (at page 4 to 9 of the evidence SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 44 of 59 file) that accused no. 1 Shyam Sunder had got recovered Rs.1.5 lakh from the almirah which was seized vide memo Ex.PW24/C. PW-32 has deposed that accused no. 1 Shyam Sunder had got recovered Rs.2 lakh from the almirah in his house. Hence there is contrary deposition of prosecution witness regarding recovery that exactly what amount was recovered from accused no. 1 Shyam Sunder and also that whether the said recovery was effected on 03.02.2011 or on 04.02.2011. This has created doubt in the case of the prosecution if the alleged amount was recovered from the above accused person. It has also created doubt if the motorcycle belonging to PW-1 was so recovered from the possession of accused no. 2 Rakesh.
35. PW-21 in cross-examination dated 29.11.2019 has deposed that one motorcycle was seized from the spot from accused no. 1 and from accused no. 2 it was recovered Bajaj Pulsar of black colour. He does not remember the registration number of motorcycle. Accused no. 2 Rakesh was driving the motorcycle. Whereas PW-32 at page 3 of his cross-examination dated 19.05.2016 has deposed that perhaps the bike number was 6374 and it was Pulsar grey which was seized from the above two accused when they were apprehended by the police picket in Andha Mughal. PW-22 at page 7 of his examination-in-chief dated 19.03.2014 has deposed that motorcycle no. 7022 of make Pulsar of grey colour was recovered on pointing of accused no. 2 near his house.
36. Hence it is noted that the recovery was allegedly made after about 1 and a half month and there is long gap between the alleged recovery of money and the robbery and there is absence of connecting link between the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 45 of 59 recovered money and the robbery. Hence it cannot be said that the said recovered money belongs to PW-1 or it is the same robbed money. Further, prosecution witness are deposing contrary to the fact of motorcycle seized by its make and number from accused no. 1 and accused no. 2 on 03.02.2011. Hence the above recovery has become doubtful from accused no. 1 and 2. Moresowhen no public witness was joined though police raiding team had beforehand information of the coming of accused person and sufficient time was available with them to submit compliance to Section 100 Cr. PC r/w Section 27 of Indian Evidence Act, 1872. The joining of public witness has become more necessary keeping in view the inconsistency pointed out above in the evidence of PW-21, PW-24 and PW-32. The relevant citation for non-joining of public witness titled Mustakeen @ Bhura vs. State (Govt. of NCT Delhi) on 2 nd November, 2020 in CRL. A. 419/2018 & CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63, 65, and 69 are reproduced hereasunder:
56. It is a settled principle of law that the prosecution has to stand on its own legs and cannot draw strength from the lacuna in the defence case. The appellant may have taken a wrong defence, but it was for the prosecution to prove its case. In "Sharad Birdhichand Sarda Vs. State of Maharashtra", Criminal Appeal No. 745 of 1983 decided on 17.07.1984 by the Supreme Court of India it has been held that the absence of explanation and /or post explanation, or a false plea taken by an accused was not sufficient to convict the accused. It was observed in this case that "it is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence". This is trite law and no decision has taken a contrary view. What some cases have held is only that:
"where various links in a chain are in themselves complete, then a false plea for a false decence may be called for aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 46 of 59 there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by the Court." In the instant case, we have already held that PW 11 is not an eye witness of this case. Considering PW 11 to be the eye witness of this case, and throwing all settled principles of law relating to TIP to winds, constable Kuldeep was joined in the raiding party alongwith secret informer and other police officials for apprehending the accused persons of the incident which took place on 6.3.2011, but PW 11 has categorically stated to PW 44 SI Bhim Sain that appellant Arshad was not involved in the crime which took place on 6.3.2011, but despite that his disclosure statement was recorded and recovery of Rs. 40,000/- was effected from him. No doubt, the appellant has not been able to give proper explanation as to how he was in possession of Rs. 40,000/-, but burden was upon the prosecution to prove that the appellant was involved in the crime which took place on 6.3.2011, which the prosecution has miserably failed to do, as discussed hereinabove. Therefore, the Ld. Trial Court was not correct in drawing presumption against the appellant Arshad U/s 114 of the Indian Evidence Act and to convict him. The only evidence which remains on record against appellant Arshad is his disclosure statement which is not admissible in evidence. Apart from this, there is not even an iota of evidence against appellant Arshad to connect him with the crime which took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which lays down that unless and until the testimony of the police official is corroborated by some independent evidence, the same cannot be believed. But it is a Rule of Prudence, that a more careful scrutiny of the evidence of the police officials is required, since they can be said to be interested in the result of the case projected by them.
63. In the instant case, we have already observed hereinabove in the judgment that PW 11 Ct. Kuldeep who has been projected as an eye witness by the IO of this case, is not an eye witness and has been planted in order to "solve" the case. Therefore, we have find it hard to believe the testimonies of the police officials in the absence of corroboration from any public witness, looking into the facts and circumstances of this case and also the manner in which the IO and the SHO have conducted themselves. For the sake of repetition, the IO had made no efforts to join the public witnesses. Had he made any such efforts, then the things would have been different, but in the instant case, the manner in which the investigation has been done and the non joining of any public witnesses reduces the arrest and search of the appellant untrustworthy, and the same does not inspire confidence.SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 47 of 59
65. We fail to understand as to why a person who had allegedly killed a man and is the BC of the area would be carrying with him all the articles mentioned hereinabove with him, that too after 11 days of the incident. In our opinion, 11 days were sufficient for the appellant Mustakeem to get rid of these articles but, strangely enough, as per the prosecution, he was roaming around with all this stuff of the deceased attached to his chest. It is also a matter of common sense that whenever an offence is committed in the jurisdiction of a police station, as a matter of routine, the concerned SHO places suspicion on the local goons and specially BC of the area. So, when such is the situation, we fail to digest the theory of the prosecution that on the day of his arrest-which is after 11 days of the date of the incident, appellant Mustakeem would be carrying with him the articles of the deceased. There would have been record of the accused maintained in the Police Station and the same could be used to identify him and establish his involvement. Where was the necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the offence, again the Ld. Trial Court has raised presumption U/s 114 (a) of the Indian Evidence Act. The presumption U/s 114 (a) of the Indian Evidence Act may be available if the goods in question found in possession of the person in question after the theft, are proved to be stolen property. Unless the goods are proved to be stolen property, the presumption U/s 114 (a) of the Act is not available. In the instant case, the prosecution has not been able to prove that it was the appellant who had committed the offence on the date of the incident as alleged by the prosecution. It was also not justified on the part of the Ld. Trial Court to draw presumption U/s 114 (a) of the Evidence Act as the possession, if any, cannot be said to be recent possession. Therefore, if the prosecution has not been able to prove that the sum of Rs. 70,000/- which according to the prosecution was allegedly recovered from the appellant Mustakeem, was the looted amount, the appellant cannot be convicted with the crime by raising presumption U/s 114 (a) of the Indian Evidence Act.
37. The case of the prosecution is that accused no. 3 Jatin Khanna who had allegedly used pistol during commission of the offence had purchased a Tata Safari car no. DL4CU4252 which was seized vide memo Ex.PW24/P (page no. 139 of the case file). The same was seized on 06.02.2011 which was already under seizure in FIR no. 10/11 PS Saket SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 48 of 59 under Section 392/34 IPC and Section 102 Cr. PC. Four keys were also seized. The seizure memo in the said FIR no. 10/11 dated 03.02.2011 is Mark PW26/3 (at page 143 of document file). The accused no. 3 Jatin could not produce documents of ownership of vehicle in the said case. The colour of Tata Safari car was black and the seizure memo mentions that the accused has disclosed that he had purchased the Safari car from the robbed money which came in his share. The seizure memo/Ex.PW8/A of RC, receipt/Ex.PW8/B, Form 29/30/Ex.PW9/A and the delivery receipt/Ex.PW8/C of the said Tata Safari. The said vehicle was sold by one Seema Rathore in favour of accused no. 3 Jatin on which Rs.3,10,000/- was paid by accused no. 3 Jatin Khanna on 16.12.2010. The date of offence is 14.12.2010. Hence the payment of this amount is huge and the payment is very near to the date of commission of offence. Accused no. 3 Jatin Khanna is proclaimed offender in this case. Ex.PW8/A mentions that the car dealer Anil Kumar had stated that the above document were not given to the accused though signed by him because accused has to pay commission of Rs.5000/- to the car dealer which are remained unpaid.
38. Ms. Seema Rathore has deposed as PW-9. She has deposed that the said Tata Safari car was sold by her through dealer Sh. Anil Kumar and his surname is Khanna. The vehicle is sold by her for Rs.3.10 lakh. She has identified the receipt Ex.PW8/B and Form 30 Ex.PW9/A which bears her signature at point B and at point A respectively. She has admitted that this vehicle was sold by her to accused no. 3 Jatin Khanna. PW-37 has deposed that he is husband of Ms. Seema Rathore/PW-9 and on 16.12.2010 he had handed over the Tata Safari car to Sh Anil Kumar who is running business of seat cover of cars in the name and style of New Modern Car. The car SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 49 of 59 was sold for a sum of Rs.3,10,000/- to accused no. 3 Jatin Khanna and cross-examination of this witness is Nil after grant of opportunity. Since accused no. 3 Jatin Khanna is proclaimed offender in this matter therefore the present matter against accused no. 3 Jatin Khanna is kept pending and adjourned SINE-DIE for the purpose of his trial which will be taken up again as and when the said accused is arrested and brought back to trial.
39. It is deposed by PW-32/IO in the case at page 5 of his cross- examination that the complainant has not mentioned use of any weapon by the accused during commission of offence. The countrymade pistol allegedly recovered from accused no.1 was not got identified from any of the witness during investigation of this case. No sketch of countrymade pistol is proved on record. No live cartridge is recovered in this case. The cash amount was deposited in the Malkhana on 04.02.2011 which is so deposed by PW-35 whereas the accused were apprehended on 03.02.2011. At one place prosecution witness has deposed that the recovery was effected on 03.02.2011 and at another place it is deposed that the recovery was effected on 04.02.2011 from accused no. 1 and 2.
40. Now the only evidence stood proved on behalf of prosecution is identification of the accused before the present Court by PW-1. PW-33 the then ld. MM had recorded TIP proceedings Ex.PW33/B of accused no. 3 Jatin Khanna in which accused has refused to participate in TIP proceedings despite warning given to him that adverse inference could be drawn against him in the event of refusal of TIP. PW-34 the then ld. MM had recorded TIP proceedings Ex.PW34/B of accused no. 4 Shyam @ SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 50 of 59 Chhotu in which accused has refused to participate in TIP proceedings despite being warning given to him that adverse inference could be drawn against him in the event of refusal of TIP. PW-20 the then ld. MM had recorded TIP proceedings Ex.PW20/B of accused no. 1 Shyam Sunder in which accused has refused to participate in TIP proceedings despite being warning given to him that adverse inference could be drawn against him in the event of refusal of TIP. The accused no. 1 and 3 had allegedly committed robbery with gun at the place of incident. However the use of gun is not proved. PW-1 has identified the accused person in the Court during his deposition on 30.09.2011. Whereas the date of offence is 14.12.2010.
41. It was held by Hon'ble Supreme Court of India in case titled Ramesh Vs. State of Karnataka that the evidence of mere identification of accused person at the trial for the first time from its very nature is inherently of a weak character. Though the identification of the accused before the Court is substantive evidence. It was held by Hon'ble Supreme Court of India in case titled Amrik Singh Vs. The State of Punjab dated 11 th July, 2022 wherein Hon'ble Supreme Court of India in Criminal Appeal no. 993 of 2012 at para no. 6.6 and 6.7 that it would not be safe and prudent to convict the accused solely on the basis of identification first time in the Court. Therefore corroborative evidence has to be looked into. In the present case the prosecution has failed to bring on record any conclusive corroborative evidence which can connect the accused no. 1, 2 and 4 to the commission of crime. In absence of which it cannot be conclusively held that accused no. 1, 2 and 4 had participated in commission of alleged robbery and therefore benefit of doubt in this respect is given to the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 51 of 59 accused. The relevant para of citation are reproduced hereasunder:
6.6 Similarly, another decision of this Court in the case of Md. Kalam (supra) relied upon by learned counsel appearing on behalf of the State also shall not be applicable to the facts of the case on hand. It is observed in the said decision that the evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. It is observed that the purpose of TIP therefore is to test and strengthen the trustworthiness of that evidence. It is observed that it is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. It is further observed that the said rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Therefore, on facts it was observed that failure to hold a TIP would not make inadmissible the evidence of identification in Court. It is further observed that the weight to be attached to such identification should be a matter for the courts of fact.
6.7 Even applying the law laid down by this Court in the aforesaid decisions and looking to the facts narrated hereinabove, we are of the opinion that it would not be safe and/or prudent to convict the accused solely on the basis of their identification for the first time in the Court.
42. Hence it is held that prosecution has failed to prove that accused person had committed theft. Prosecution has also failed to prove that accused no. 1, 2 and 4 had voluntarily caused or attempt to cause death, hurt or wrongful restraint or fear of the above for the end of commission of theft to carry away the property obtained by theft. Hence accused no. 1, 2 and 4 are acquitted under Section 392/34 IPC. Further, keeping in view the law discussed above the principle of constructive liability is not liable under Section 392 IPC and therefore it is held that the accused person could not be tried jointly under Section 34 IPC.SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 52 of 59
43. Further, the accused no. 1 Shyam Sunder, accused no. 2 Rakesh and accused no. 3 Jatin Khanna are also charged under Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
"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."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. 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.
14. "Dishonestly" is defined under Section 24 of the IPC 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 Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 53 of 59 follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. 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 SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 54 of 59 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.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (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...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 55 of 5944. The discussion of law and evidence under Section 392/34 IPC made above in respect of accused no. 1, 2 and 4 is equally applicable under the present case and the same is not repeated herein for the sake of brevity. On 04.02.2011 Rs.2 lakh was allegedly recovered from accused no. 1 and on 03.02.2011 the stolen motorcycle belonging to PW-1 bearing no. DL4SBJ6787 make Bajaj XCD was recovered from Gali no. 8 Pratap Nagar, Delhi near the house of accused no. 2 Rakesh and on 04.02.2011 Rs.1 lakh was recovered from first floor of house no. 10685, Gali no 8 Pratap Nagar, Delhi.
45. It was held in case titled Amrik Singh Vs. State of Punjab (supra) at para no. 6.1 the prosecution is required to prove not only that the relevant amount was possessed by the complainant who is the person from whom the amount was looted and thereafter prosecution is required to further established and prove that the amount which is recovered from the accused either very amount which was looted from the complainant. Hence it is required to be proved that the recovered amount is the very looted amount which was recovered from the accused. The accused cannot be convicted on the basis of recovery of some cash. In the present case there is contrary deposition of PW-24 and PW-32 whereas PW-24 has deposed that Rs.1.5 lakh was recovered from the almirah of accused no. 1 whereas PW-32 has deposed that Rs.2 lakhs were recovered. This creates doubt in the case of the prosecution about the recovery of said amount from accused no. 1. Secondly, the prosecution has failed to substantiate on record that the recovered amount is the same very amount which was possessed by PW-1 at the time of robbery. Hence ownership of this amount has not been proved on record by the prosecution. Hence when the ownership of PW-1 SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 56 of 59 of the above recovered amount is not proved by the prosecution therefore no question arises of knowledge with accused no. 1 that this amount recovered from him is the stolen property. Hence it is held that prosecution has failed to prove the offence under Section 411 IPC against accused no. 1 Shyam Sunder S/o Raj Kumar. The relevant para 6.1 is reproduced hereasunder:
6.1 Now so far as the conviction based on the recovery of Rs.1 lakhs each from the accused is concerned, at the outset it is required to be noted that even the learned Trial Court has also specifically given the finding that the prosecution has failed to prove that the original complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter as alleged. To connect the accused for having conducted the evidence of loot of Rs.5 lakhs, primarily the prosecution was required to establish and prove that the person from whom the amount which was having to have looted. Thereafter the prosecution is required to establish and prove that the amount which is recovered from the accused is the very amount which the complainant/the person from whom the amount is looted. Even the learned Trial Court has also not given much stress on the recovery of Rs.1 lakh each from the accused. Be that it may we are of the opinion that when the prosecution has failed to prove that the complainant and the deceased were carrying Rs.5 lakhs cash in the dicky of the scooter and it was the very looted amount which was recovered from the accused, the accused cannot be convicted on the basis of recovery of some cash.
46. Similarly the law and fact discussed above are equally applicable in reference to recovery from accused no. 2 Rakesh. The motorcycle was not robbed by accused no. 2 and as per the case of the prosecution it was robbed by accused no. 3. The motorcycle was allegedly found outside the house of accused no. 2 in the Gali. The recovery was effected not immediately but after about 1½ month. The ownership of the motorcycle has remained admitted that it belongs to complainant and the first ingredient under Section 411 IPC stood proved that PW-1 was owner of the SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 57 of 59 motorcycle. When the motorcycle was lying in an open Gali then it cannot be said that accused no. 2 has exclusive possession of the same or that he has special knowledge about it. The immediate possession of the motorcycle after the robbery was not proved. How it had shifted hands to accused no. 3 to accused no. 1 is also not proved on record. The animus to possess the motorcycle by accused no. 2 is not proved on record and it has created doubt when investigating agency has sufficient time to join public witness and conduct raid which was not done in the present matter. There is absence of compliance of Section 27 of Indian Evidence Act r/w Section 100 Cr. PC in making search and seizure in the present case. There is absence of any evidence to show that accused no. 2 has knowledge that this motorcycle is the robbed motorcycle which belongs to PW-1. Hence it is held that the prosecution has failed to satisfy any of the ingredients of Section 411 Cr. PC in respect of stolen motorcycle.
47. Further, the recovery of cash of Rs.1 lakh from the possession of accused no. 2 is also not proved on record that it belongs to PW-1 by any particular identity. It is also not proved that accused no. 2 does not have capacity to possess the said amount of Rs.1 lakh. Nor its seizure was in compliance of Section 27 of Indian Evidence Act r/w Section 100 Cr. PC. When the prosecution has failed to prove that this cash belongs to PW-1 then it has failed to prove that it is a stolen property and it has also failed to prove that accused has possessed the said Rs.1 lakh with the knowledge that it is a stolen property. Hence it is held that prosecution has failed to prove the offence under Section 411 IPC against accused no. 2 Rakesh.
SC No. 28352/2016 FIR No. 96/2010 State Vs. Shyam Sunder Etc. Page 58 of 5948. In such view of the matter, it is held that prosecution has failed to prove the charges levelled against accused no.1, accused no. 2 and accused no. 4. Hence accused no. 1 Shyam Sunder @ Shyamu and accused no. 2 Rakesh Kumar @ Munim and accused no. 4 Shyam @ Shamu @ Chhotu stands acquitted for the offence under Section 392/411/34 IPC. The earlier personal bond of the accused no. 1, 2 and 4 stands cancelled and surety bond stands discharged. The documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 481 of BNSS/437A Cr. P.C, accused no. 1, 2 and 4 have furnished their bail bond as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
Accused no. 3 Jatin Khanna @ Rajkumar @Raju Khanna is proclaimed offender (PO). Since accused no. 3 Jatin Khanna is proclaimed offender in this matter therefore the present matter against accused no. 3 Jatin Khanna is kept pending and adjourned SINE-DIE for the purpose of his trial which will be taken up again as and when the said accused is arrested and brought back to trial.
File be consigned to the record room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 29.11.2025. PRAKASH PRAKASH NAHAR
Date: 2025.11.29
NAHAR 14:44:42 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28352/2016
FIR No. 96/2010
State Vs. Shyam Sunder Etc. Page 59 of 59