Delhi District Court
State vs Nijam Sheik on 18 March, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 407/2020
PS.: Old Delhi Railway Station
Under Section(s): 379/411/413 IPC
State Vs. Nijam Sheikh
(a) SC Case No. 136/2021
(b) CNR No. DLCT01-002725-2021
(c) Date of commission of 20.03.2020, between 08:00
offence p.m.-08:30 p.m. (S. 379 IPC); on
30.05.2020 (S. 411 IPC); and
12.05.2020 (S. 413 IPC).
(d) Name of the Shivam Kumar, S/o. Sh. Ajay
complainant Kumar, R/o. H. No. 245, near
Durga Mata Mandir, Railway
Colony-10, Ludhiana-141001;
presently at; Flat No. 60S, Gill
Chowk, Dashmash Nagar,
Ludhiana, Punjab.
(e) Name of the accused Nijam Sheikh, S/o. Mudasir, R/o.
person(s), parentage A-40, Shalimar Garden, Shaheed
and residence Nagar, Ghaziabad, UP; also at:
Jhuggi No. 611, Indra Gandhi
Camp, Taimur Nagar, Delhi;
presently at: C-24, Housing
Complex, Chhabra Chowk,
Shalimar Garden, Sahibabad,
Ghaziabad, Uttar Pradesh.
(f) Plea of the accused Not guilty
person(s)
(g) Final Order The accused is acquitted of all the
charges (charges under Sections
379, 411 and 413 IPC) levelled
against him.
(h) Date of institution of 22.02.2021
case
(i) Date when judgment 25.02.2026
was reserved
(j) Date when judgment 18.03.2026
was pronounced
SC No. 136/2021 State v. Nijam Sheikh Page 1 of 53
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2026.03.18
16:31:39 +0530
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on 18.05.2020 an e-FIR bearing no. 407/2020 was received at the concerned police station regarding an incident of theft of complainant's, namely, Shivam Kumar's (hereinafter referred to as the 'complainant') mobile phone. Markedly, under the said e-
FIR, the complainant inter alia proclaimed that he had to proceed to his house in Ludhiana from Delhi by train on 20.03.2020 and at around 08:00-08:30 p.m., he/the complainant was purchasing ticket from the ticket counter at Old Delhi Railway Station/ODRS. Suddenly, as per the complainant, he noticed that his mobile phone was not in his pocket and he checked around the area. Ergo, it was proclaimed by the complainant that his mobile phone of Vivo Y19 make of EMI no. 864706044770854/864706044770874, bearing two SIM card, i.e., Reliance Jio (bearing no. 8076241755) and Airtel (bearing no. 8448506205), was stolen from his possession. REGISTRATION OF e-FIR AND INVESTIGATION:
2. As aforenoted, under the aforenoted facts and circumstances, the complainant had registered the aforementioned e-FIR on 18.05.2020 under Section 379 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), chronicling the aforenoted incident. Markedly, upon such FIR being marked to the concerned police official, the complainant was contacted and his statement was recorded. Notably, under his statement/complaint, the complainant reiterated the entire incident of theft of his mobile phone, besides proclaimed that initially an e-FIR of the incident was registered and due to lock-down, he/the complainant could not tender his complaint at the concerned police station. In fact, it was only upon his return to Delhi on 30.05.2020, as per the SC No. 136/2021 State v. Nijam Sheikh Page 2 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:31:56 +0530 complainant, he reached at the concerned police station and tendered his statement, reiterating the aforenoted facts. Ergo, under the foregoing facts and circumstances, investigation ensued in the instant case.
3. Relevantly, during the course of ongoing investigation DD No. 4A dated 30.05.2020 was marked to the concerned police official inter alia regarding the factum of apprehension of one, Nijam Sheikh, S/o. Mudasir ( hereinafter referred to as the 'accused') in relation to case FIR No. 2/20, under Sections 356/379/411/413/120B/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), PS. Pandav Nagar and of the recovery of the complainant's stolen mobile phone from the possession of the said accused (दिनाक 30/5/20 को DO थाना हजा ने एक DD No 4A DT 30/5/20 बा हु कम जनाब SHO साहब मन ASI के हवाले की थी तथा मन ASI ने DD No 4A का मुलाहिजा किया तथा पाया कि मुकदमा हजा में चोरी शुदा मोबाईल व एक आदमी को थाना पांडव नगर मुकदमा 2/20, u/S. 356/379/411/413/120/34 IPC में ASI शैलेष कु मार No. 280/E Spl Staff ने गिरफ्तार किया है ). Consequently, the accused was arrested in the present case, and his disclosure statement was recorded, wherein the accused is asserted to have admitted to commission of offence inter alia pertaining to habitually receiving and/or dealing in stolen property. Concomitantly, the seized mobile phone in the present case was got deposited in the malkhana by the concerned investigating officer/IO, where the complainant identified the same as the one, which was stolen from his possession, which was eventually released in favour of the complainant on superdari, pursuant to the order of the concerned court (के स पोपर्टी को बजरिये रोड सर्टिफिके ट थाना Pandav Nagar से हासिल करके वि मालखाना थाना हजा की गई है दौराने तफ्तीश शिकायतकर्ता Shivam Kumar, S/o. Ajay Kumar हाजिर थाना आया जिसको मालखाना में रखे कई फोन दिखाए जिनको देखकर अपने मोबाईल फोन Vivo Y-19 की शिनाख्त की है ).SC No. 136/2021 State v. Nijam Sheikh Page 3 of 53 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:32:00 +0530 FILING OF CHARGESHEET AND COMMITTAL:
4. Markedly, upon conclusion of investigation in the instant case, chargesheet was filed by the concerned IO before the learned Additional Chief Metropolitan Magistrate-02/Ld. ACMM-02, Tis Hazari Courts on 17.07.2020 for the offences under Sections 379, 411 and 413 IPC. Subsequently, on 12.10.2020, cognizance of the said offence/offences under Sections 379/411/413 IPC was taken by the Ld. ACMM-02, Central, Tis Hazari Courts. Correspondingly, upon conclusion/compliance of the provisions under Section 207 Cr.P.C. on 23.12.2020, the matter was listed for scrutiny and thereafter, vide order dated 16.02.2021, Ld. ACMM-02, Central, Tis Hazari Court, directed committal of the present case before the Ld. Predecessor Judge, routed through, Ld. Principal District & Sessions Judge, inter alia noting as under;
"...Since the offence u/s. 413 IPC is exclusively triable by the Ld. Sessions Court, hence, the present case is hereby committed to the Court of Ld. Sessions Judge for further trial.
Accused to appear before the Court of Ld. Principal District & Sessions Judge (Central District), THC Courts on ..."
(Emphasis supplied) CHARGE FRAMING:
5. Relevantly, after committal of the case by Ld. ACMM-02, Central, Tis Hazari Court, before the Ld. Predecessor Judge, arguments on the aspect of charge were addressed by/on behalf of the accused as well as by/on behalf of State.
Consequently, upon such arguments having been addressed, the Ld. Predecessor Judge vide order dated 19.04.2022, directed framing of charge under Sections 379/411/413 IPC against the accused, inter alia under the following observations;
"...7. In identical facts and circumstances, SC No. 136/2021 State v. Nijam Sheikh Page 4 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:03 +0530 Hon'ble High Court of Delhi in Mohd. Musa vs. State, Crl. Appeal No. 271/2017 decided on 08.01.2021, Hon'ble High Court while dealing with contention that the appellant was not convicted and sentenced in any earlier case and therefore, the appellant could not be considered as a habitual offender, held as under:
*** *** ***
8. In the said case, an e-FIR was lodged pertaining to theft of a motorcycle. Special Staff apprehended the appellant with stolen vehicles including the motorcycle of the complainant of the said case. The appellant was convicted for committing an offence under Section 413 IPC and sentenced to 7 years rigorous imprisonment with fine.
9. In appeal, the appellant contended that no public witness was joined and he was falsely implicated. Hon'ble High Court of Delhi after considering involvement of the appellant and recovery of stolen motorcycles held that the appellant was habitually dealing in stolen property.
10. In the present case, an e-FIR was lodged pertaining to theft of mobile phone. The accused was apprehended alongwith 143 stolen mobile phones. He is involved in as many as 5 criminal cases of similar nature.
11. Prima facie, there is sufficient material for charging the accused for trial of offences punishable under Section 379/411/413 IPC.
12. Charges under Section 379/411/413 IPC are framed against the accused to which he pleaded not guilty and claimed trial ..."
(Emphasis supplied)
6. Further, it is apposite here to reproduce the charges, framed against the accused by the Ld. Predecessor Judge on 19.04.2022, as under;
"...I, ***, Addl. Sessions Judge-03 (Central), Tis Hazari Courts, Delhi, do hereby charge you accused, namely, Nizam Sheikh S/o Mr. Mudassir Present Add: C-24, Chhabra Chowk, Shalimar Garden, Shaheed Nagar, Ghaziabad, U.P., as under:-
Firstly, on 20.03.2020 between 08.00 p.m. - 08.30 p.m., at Ticket Counter, Old Delhi Railway Station, within jurisdiction of PS Old Delhi Railway Station, you stolen mobile phone model VIVO Y19 white having IMEI No. 864706044770854, 864706044770874 containing SIM of Airtel No. 8448506205 and Reliance Jio No. 8076241755 from SC No. 136/2021 State v. Nijam Sheikh Page 5 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:08 +0530 the complainant and as such, you committed an offence punishable under Section 379 IPC within my cognizance.
Secondly, on 30.05.2020, you got recovered mobile phone model VIVO Y19 white having IMEI No. 864706044770854, 864706044770874 belonging to the complainant from a blue bag kept in a drawer under slab of kitchen of your house at A-40, Ground Floor, Shalimar Garden, Shaheed Nagar, Ghaziabad, U.P. and as such, you dishonestly received or retained stolen property, knowing or having reason to believe the same to be a stolen property and as such, you have committed an offence punishable under Section 411 IPC within my cognizance.
Thirdly, on 12.05.2020, 45 mobile phones were recovered from you by Special Staff, East District, Delhi at Anand Vihar, Bus Stand, Delhi and on 30.05.2020, 98 mobile phones were recovered from a blue bag kept in a drawer under slab of kitchen of your house at A-40, Ground Floor, Shalimar Garden, Shaheed Nagar, Ghaziabad, U.P. at your instance, as mentioned in seizure memo, and you are involved in 5 criminal cases under Section 379 IPC, as mentioned in involvement-sheet, and as such, you habitually receive or deal in property which you know or has to reason believe to be stolen property punishable under Section 413 IPC within my cognizance.
And I hereby direct you to be tried by this Court for the aforesaid offences..."
(Emphasis supplied)
7. Apposite to note here that the accused, challenged the aforesaid order of framing of charge dated 19.04.2022 as well as charges, consequently framed against him/the accused by the Ld. Predecessor Judge on the aforesaid date by means of a criminal revision petition bearing; Nizam Sheikh v. State (Govt. NCT of Delhi), Crl. Rev. Pet. No. 324/2022, before the Hon'ble High Court of Delhi. However, the said petition was eventually disposed of by the Hon'ble High Court vide order dated 15.10.2025, inter alia under the following observations;
"...3. Mr. *** very fairly states that now that the prosecution evidence is complete, the Petitioner be given the liberty to raise all his grounds before the SC No. 136/2021 State v. Nijam Sheikh Page 6 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:12 +0530 Trial Court at the stage of arguments. He requests that the Trial Court be directed to consider the aforementioned contention, including the case laws cited, and take a decision thereon, at the appropriate stage.
4. Leave and liberty as prayed for are granted.
5. The Trial Court shall consider the Petitioner's grounds urged in the present petition at the stage of final arguments, including the case laws cited above.
6. With the above directions, the present petitions are disposed of along with the pending application(s).
7. All rights and contentions of the parties are left open..."
(Emphasis supplied) PROSECUTION EVIDENCE:
8. Notably, during the course of trial/proceedings, prosecution examined 06 (six) witnesses/prosecution witnesses, who deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description witness no. the witness PW-1 Shivam Kumar Complainant/victim in the instant case, who inter alia deposed regarding the incident.
PW-2 Ct. Amit Deposed inter alia regarding him joining the investigation on 01.06.2020 and proceeding for Mandoli Jail along with the IO, where the accused was interrogated and arrested in the present case by the IO.
PW-3 ASI Shailesh Deposed inter alia regarding the Kumar apprehension of the accused on 12.05.2020; accused's arrest in case FIR No. 02/2020, PS. Pandav Nagar; as well as of seizure of recovered mobile phone.
PW-4 ASI Ram Dayal Deposed inter alia regarding the deposit of 45 mobile phones in a bag and 98 mobile phones in another bag in malkhana by ASI Shailesh vide entry Sr. No. 253 in reg. no. 19.
PW-5 ASI Suresh Deposed inter alia regarding the Chand deposit of mobile phone of Vivo make, bearing IMEI Nos.
SC No. 136/2021 State v. Nijam Sheikh Page 7 of 53 Digitally signedby ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:16 +0530 864706044770854 and 864706044770874 in malkhana by ASI Sukhpal vide entry at Sr. No. 1532. in Reg. No. 19.
PW-6 ASI Sukhpal IO of the present case and inter alia deposed regarding the investigation conducted in the present case, including the arrest of the accused, preparation of site plan, seizure of documents of stolen mobile phone from the complainant, etc. 8.1. Remarkably, the aforenoted witnesses/prosecution witnesses further exhibited/proved the following documents and material objects, during the course of their respective evidence;
Exhibit Description of Exhibit/Material Proved
no./Material Object by/Attested by
Object
Ex. PW1/A Complaint of the complainant, PW-1/Shivam
submitted to the SHO, PS. Old Kumar
Delhi Railway Station.
Ex. PW1/B Statement of the complainant PW-1/Shivam
dated 23.06.2020. Kumar
Ex. PW1/C Superdarinama pertaining to the PW-1/Shivam
mobile phone, released in favour Kumar
of the complainant.
Ex. PW1/D Photographs of the mobile PW-1/Shivam
(Colly.) phone, seized from the accused. Kumar
Ex. PW1/E Copy of Invoice of Vivo Y-19 PW-1/Shivam
(OSR) mobile phone dated 09.12.2019. Kumar Ex. P1 Mobile phone of Vivo Y19 make, PW-1/Shivam white in colour, bearing IMEI Kumar Nos. 864706044770854 and 864706044770847.
Ex. PW1/F Original train ticket dated PW-1/Shivam 23.06.2020. Kumar Ex. PW2/A Arrest memo of the accused in PW-2/Ct. Amit the present case.
Ex. PW2/B Disclosure statement of the PW-2/Ct. Amit accused in present case.
Ex. PW3/A Arrest memo of the accused in PW-3/ASI FIR No. 02/2020. Shailesh Kumar Ex. PW3/B Seizure memo of 45 mobile PW-3/ASI phones in case FIR No. 02/2020. Shailesh Kumar Ex. PW3/C Seizure memo of scooty bearing PW-3/ASI registration no. DL-5SCE-9139. Shailesh Kumar Ex. PW3/D Disclosure statement of the PW-3/ASI accused in case FIR No. Shailesh Kumar 02/2020.
SC No. 136/2021 State v. Nijam Sheikh Page 8 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:23 +0530 Ex. PW3/E Seizure memo of 98 mobile PW-3/ASI
phones in case FIR No. 02/2020. Shailesh Kumar Ex. PW3/F Seizure memo of A4 notebook PW-3/ASI (register) in case FIR No. Shailesh Kumar 02/2020.
Ex. PW3/G Seizure memo of personal mobile PW-3/ASI
phone of the accused. Shailesh Kumar
Ex. MO-1 Bag as well as 33 mobile phones, PW-3/ASI
(Colly.) asserted to be recovered from the Shailesh Kumar
accused.
Ex. MO-2 Bag as well as 87 mobile phones, PW-3/ASI
(Colly.) asserted to be recovered from the Shailesh Kumar
accused.
Ex. MO-3 Register, stated to be recovered PW-3/ASI
from the accused on which 'Class Shailesh Kumar Monitor Good Time A4 Notebook' is written Ex. PW4/A Entry at Sr. No. 253 in register PW-4/ASI Ram no. 19. Dayal Ex. PW4/B Entry at Sr. No. 255 in register PW-4/ASI Ram no. 19. Dayal Ex. PW4/C Entry at Sr. No. 258 in register PW-4/ASI Ram no. 19. Dayal Ex. PW4/D Copy of relevant page of register PW-4/ASI Ram no. 21 containing RC No. Dayal 32/21/20 Ex. PW5/A Entry at Sr. No. 1532 in register PW-5/ASI Suresh no. 19. Chand Ex. PW6/A Copy of DD No. 4A. PW-6/ASI Sukhpal Ex. PW6/B Seizure memo of the mobile PW-6/ASI phone of Vivo Y-19, white in Sukhpal colour.
Ex. PW6/C Site plan of the place of PW-6/ASI
occurrence. Sukhpal
8.2. Notably, all the aforenoted prosecution witnesses were cross-examined by/on behalf of the accused. EXAMINATION OF ACCUSED:
9. Apposite to note here that upon conclusion of prosecution evidence, statement of accused, in terms of the provisions under Section 313 Cr.P.C., was recorded on 30.01.2025 wherein the accused denied his involvement in the present case and proclaimed that he has been falsely implicated in the present case. In particular, it was asserted by the accused that the SC No. 136/2021 State v. Nijam Sheikh Page 9 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:27 +0530 complainant made a false complaint against him at the instance of the police officials of Special Staff, East District, Delhi, despite the fact that he/the accused was in judicial custody at the relevant point in time. Correspondingly, it was proclaimed by the accused that he was never convicted in any case and that the charges under Section 413 IPC were wrongly added in the instant case by IO/ASI Sukhpal to falsely implicate him in this case. Congruently, it was avowed by the accused that on 12.05.2020, he was lifted along with his scooty in the morning time from, nearby his house , i.e., C-24, Chhabra Chowk, Housing Complex, Shalimar Garden, Sahibabad, Ghaziabad, U.P., when he was returning on his scooty from mosque by some police officials in civil dress. Thereafter, as per the accused, he was taken to the office of Special Staff, East District, Kundali, Delhi, where he/the accused saw other boys were also detained by the said police officials. Further, as per the accused, the police officials demanded a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) from him and upon his refusal, as per the accused, he was falsely implicated in the present case. Notably, the relevant extracts from accused, Najim Sheikh's statement, recorded on 30.01.2025, under Section 313 Cr.P.C., are reproduced as under;
"...Q. 3: It is in evidence against you that PW-1/Mr. Shivam Kumar deposed that he had to go to Ludhiana and that he/PW-1 left for Ludhiana and could not make complaint. It is further in evidence that as per PW-1, thereafter, there was a lock-down due to Covid and that he was not able to make complaint. What do you have to say?
Answer: PW-1 made a false complaint at the instance of police officials of Special Staff, East District, Delhi. I was in judicial custody at that time.
*** *** *** Q. 8: It is in evidence against you that PW-2/Ct. Amit deposed that on 01.06.2020, he/PW-2 was posted as constable at PS Old Delhi Railway Station. It is further in evidence that as per PW-2, on the said SC No. 136/2021 State v. Nijam Sheikh Page 10 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:31 +0530 day, he/PW-2 joined the investigation of the present case. It is further in evidence that as per PW-2, he/PW-2 along with IO/ASI Sukhpal went to Mandoli Jail, Delhi and that IO interrogated the accused, namely, Nijam Sheikh with the permission of the Court. What do you have to say?
Answer: I never make any disclosure statement regarding my involvement in the present case. My signatures were obtained on some blank papers and semi-written papers by police officials at PS ODRS. Q. 9: It is in evidence against you that PW-2/Ct. Amit deposed that the IO arrested the accused, namely, Nijam Sheikh vide arrest memo Ex.PW2/A, bearing his/PW-2's signatures at point A. PW-2 further deposed that the IO recorded disclosure statement of accused, which is Ex.PW2/B, bearing PW-2's signatures at point A. PW-2 further correctly identified the accused, namely, Najim Sheikh before the Court. What do you have to say?
Answer: I never make any disclosure statement regarding my involvement in the present case. My signatures were obtained on some blank papers and semi-written papers by police officials at PS ODRS.
*** *** *** Q. 12: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed without wasting time, he/PW-3 laid a trap near EDM Mall, Anand Vihar, Delhi and apprehended one person who came on a scooty bearing registration No. DL 5SCE 9139, make; TVS Entork at the instance of secret informer. PW-3 further deposed that the name of said boy was revealed as 'Nijam Sheikh'. Further, PW-3 correctly identified the accused, namely, Nijam Sheikh who was present in the Court on that day. What do you have to say?
Answer: It is incorrect. On 12.05.2020, I was lifted along with my scooty in the morning time from nearby my house i.e. C-24, Chhabra Chowk, Housing Complex, Shalimar Garden, Sahibabad, Ghaziabad, U.P. when I was returning on my scooty from mosque by some police officials in civil dress and thereafter, they taken me to the office of Special Staff, East District, Kundali, Delhi. I saw that other boys were also detained by them and the police officials demanded a sum of Rs.5,00,000/- from me. When I denied to give he said amount, I was falsely implicated in the present case.
Q. 13: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed that one bag was kept on footrest of the said scooty. It is further in evidence that SC No. 136/2021 State v. Nijam Sheikh Page 11 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:35 +0530 as per PW-3, he/PW-3 checked the said bag and it was found containing 45 mobile phones. It is further in evidence that as per PW-3, he interrogated the accused Nijam Sheikh about the recovered mobile phone but he/the said accused could not give any satisfactory answer. What do you have to say? Answer: It is incorrect. Nothing was recovered from my possession.
Q. 14: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed that the accused disclosed that he had sold the stolen mobile phone of case FIR No. 02/2020, PS Pandav Nagar in Rajasthan. It is further in evidence that as per PW-3, he/PW-3 arrested the accused, namely, Nijam Sheikh in case FIR No. 02/2020, PS Pandav Nagar vide arrest memo Ex.PW3/A (original record seen from judicial file of case FIR No. 02/2020, PS Pandav Nagar produced by Mr. Khem Raj Chamoli, Ahlmad in the Court of Sh. Arun Sukhija, Ld. ASJ-03, Karkardooma Courts, Delhi and returned), bearing PW-3's signatures at point A. What do you have to say? Answer: It is incorrect. Police official of Special Staff obtained my signatures on some blank papers and some semi blank papers and later they were converted into seizure memo and disclosure statement. I never made any disclosure statement regarding my involvement in case FIR No. 02/2020, PS Pandav Nagar.
Q. 15: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed that he/PW-3 seized the recovered 45 mobile phones along with bag vide seizure memo Ex.PW3/B (original record seen from judicial file of case FIR No. 02/2020, PS Pandav Nagar and returned), bearing PW-3's signatures at point A. It is further in evidence that as per PW-3, none of the recovered mobile phones contained any SIM cards. It is further in evidence that as per PW-3, he/PW-3 mentioned IMEI numbers of the recovered mobile phones in seizure memo; and seized the scooty bearing registration No. DL 5SCE 9139 along with its key vide seizure memo Ex.PW3/C, bearing his signatures at point A (original record seen from judicial file of case FIR No. 02/2020, PS Pandav Nagar and returned.). PW-3 further deposed that he recorded the disclosure statement of the accused Nijam Sheikh Ex.PW3/D bearing his signatures at point A, (original record seen from judicial file of case FIR No. 02/2020, PS Pandav Nagar and returned). What do you have to say?
Answer: It is incorrect. Police official of Special SC No. 136/2021 State v. Nijam Sheikh Page 12 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:39 +0530 Staff obtained my signatures on some blank papers and some semi blank papers and later they were converted into seizure memo and disclosure statement.
Q. 16: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed that PW-3 further deposed that he deposited the case property in malkhana of PS Pandav Nagar. It is in evidence that PW-3 deposed that on 13.05.2020, he obtained police custody remand of the accused, namely, Nijam Sheikh and pursuant to the disclosure statement of accused Nijam Sheikh, he led them to A-40, Shalimar Garden, Shaheed Nagar, Sahibabad, Ghaziabad, U.P. It is further in evidence that as per PW-3, there, the accused got recovered one bag from under kitchen slab on ground floor of the said house. What do you have to say?
Answer: It is incorrect. In fact, I had left H. No. A-40, Shalimar Garden, Shaheed Nagar, Sahibabad, Ghaziabad, U.P. in the month of November, 2019. Nothing was recovered from my instance and police never taken me to the abovesaid address. Q. 17: It is in evidence against you that PW-3/ASI Shailesh Kumar deposed that the aforesaid bag was found containing 98 mobile phones. PW-3 further deposed that he/PW-3 seized the recovered 98 mobile phones from the bag vide seizure memo Ex.PW3/E, bearing his/PW-3's signatures at point A (original record seen from judicial file of case FIR No. 02/2020, PS Pandav Nagar and returned.). It is further in evidence that as per PW-3, none of the recovered mobile phones had SIM cards. It is further in evidence that as per PW-3, he/PW-3 mentioned the IMEI numbers of the recovered mobile phones in seizure memo. What do you have to say?
Answer: It is incorrect. Nothing was recovered from my possession or instance.
*** *** *** Q. 32: It is in evidence against you that PW-5/ASI Suresh Chand deposed that on 03.06.2020, he was posted as MHC(M) in the PS ODRS and on that day, ASI Sukhpal deposited one mobile phone of make; Vivo having IMEI No. 864706044770854 and 864706044770874 in malkhana vide entry at Sl. No. 1532. in Reg. No. 19. PW-5 produced the original Reg. No. 19 containing entry at Sl. No. 1532 and copy of the relevant page of Reg. No. 19 containing Sl. No. 1532 is Ex. PW5/A (OSR). PW-5 further deopsed that till the aforesaid mobile phone remained with him in the malkhana, it was not tampered with. What do SC No. 136/2021 State v. Nijam Sheikh Page 13 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:43 +0530 you have to say?
Answer: It is incorrect. Entries in Reg. No. 19 are ante-timed and ante-dated and false one and the same were registered at the instance of IO.
*** *** *** Q. 40: It is in evidence against you that PW-6/ASI Sukhpal deposed that he added Section 413 IPC in the present case as large number of mobile phones were recovered from the possession of accused Nijam Sheik. It is further in evidence that as per PW-6, after completion of investigation, he/PW-6 prepared chargesheet and filed the same in the Court. It is further in evidence that as per PW-6, he/PW-6 recorded statements of witnesses during investigation. What do you have to say?
Answer: I have never been convicted in any case. Under Sec. Section 413 IPC was wrongly added by ASI Sukhpal to falsely implicate me in this case. Infact nothing was recovered from my possession or at my instance.
*** *** *** Q. 43: Why was this case registered against you? Answer: On 12.05.2020, I was lifted along with my scooty in the morning time from nearby my house i.e. C-24, Chhabra Chowk, Housing Complex, Shalimar Garden, Sahibabad, Ghaziabad, U.P. when I was returning on my scooty from mosque by some police officials in civil dress and thereafter, they taken me to the office of Special Staff, East District, Kundali, Delhi. I saw that other boys were also detained by them and the police officials demanded a sum of Rs.5,00,000/- from me. When I denied to give he said amount, I was falsely implicated in the present case.
Q. 44: Why have the PWs deposed against you? Answer: They are interested witnesses. Q. 45: Do you want to lead any evidence in your defence?
Answer: Yes.
Q. 46: Do you want to say anything else? Answer: I am innocent and falsely implicated in the present case. Nothing was recovered from my possession or at my instance..."
(Emphasis supplied) 9.1. Markedly, it is seen from above that though the accused, initially expressed an inclination to lead defence SC No. 136/2021 State v. Nijam Sheikh Page 14 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:46 +0530 evidence, however, during the course of proceedings held on 16.04.2025, the accused expressed disinclination to lead any evidence in his support. Consequently, separate statement of the accused to the said effect was recorded and the accused's right to lead evidence in support of his defence/DE was closed by this Court vide order of an even date.
CONTENTIONS OF STATE:
10. Ld. Addl. PP for the State outrightly submitted that from the material placed on record and, in particular, from the conjoint reading of the testimonies of various prosecution witnesses, role, complicity as well as active involvement of the accused in the instant case, stands proved. As per the Ld. Addl. PP for the State, the complainant's stolen mobile phone was recovered from/at the behest/instance of the accused, besides the accused was also found in possession of as many as 143 mobile phones, establishing the charges under Section 413 IPC against him. In this regard, Ld. Addl. PP for the State vehemently argued that the recovery of the said mobile phones has been duly proved from the testimony of the police officials, in as much as the said mobile phones were recovered from/at the instance of the accused, proving the said charge against the accused. Even otherwise, it was argued by Ld. Addl. PP for the State, on order to bring home conviction for the offence under Section 413 IPC, conviction of the accused in any of the previous cases and/or for the offences under Sections 379/411 IPC is not a mandate. Correspondingly, it was submitted by the Ld. Addl. PP for the State that the accused, despite being afforded an opportunity to lead evidence, deliberately opted not to lead any defence witnesses to belie the case of prosecution. Accordingly, Ld. Addl. PP for the State reiterated that from the material, evidence and documents, placed SC No. 136/2021 State v. Nijam Sheikh Page 15 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:50 +0530 on record the charges levelled against the accused stand duly proved, beyond a pale of doubt in the present case. In support of the said contentions, reliance was placed upon the decision in Mohd. Musa v. State, 2021 SCC Online Del 4044. CONTENTIONS OF DEFENCE:
11. Per contra, Ld. Counsel for the accused outrightly submitted that from the material placed on record, the ingredients of offence under Sections 379/411/413 IPC are not made out in the instant case. In this regard, Ld. Counsel vehemently asserted that the prime prosecution witnesses/PW-1, PW-3 and PW-6 have not supported the case of the prosecution, besides the said witnesses have even failed to attribute any specific role to the accused. Ld. Counsel further submitted that a scrupulous analysis of the material placed on record would demonstrate, various omissions, and lacunae in the material brought forth on record, belying the allegations against the accused. Even otherwise, it was further submitted that the prosecution has not been able to prove its case against the accused from cogent evidence, besides there are material lacunae in the case put forth against the accused. Correspondingly, it was argued that the prosecution has made no endeavour to prove the offence of theft in the instant case by any cogent evidence, besides the alleged recovery has also been planted on the accused in the instant case. In this regard, it was further submitted by the Ld. Counsel that the prosecution made no endeavour to obtain the CCTV footage of the alleged place of occurrence of the offence of theft or to even join any independent persons in the recovery proceedings. Correspondingly, it was argued that even the seized articles were not duly/promptly deposited by the concerned police officials in the malkhana, not ruling out a possibility of tampering of evidence. Further, it was SC No. 136/2021 State v. Nijam Sheikh Page 16 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:32:53 +0530 argued by the Ld. Counsel that the e-FIR in the instant case was registered by the concerned police official(s)/complainant, promptly, besides the reasons for such delay is not forthcoming from the material placed on record, casting further doubt in the story of the prosecution.
12. Ld. Counsel for the accused further submitted that the prosecution has further failed to prove appellant's previous conviction for the offence under Section 411 IPC, so as to successfully attract the provisions under Section 413 IPC against him. In this regard, Ld. Counsel vehemently asserted that in order to attract culpability under Section 413 IPC, it is incumbent on the prosecution to first establish the ingredients of offence under Section 411 IPC, which the prosecution has failed to make out/establish from any material on record. Correspondingly, it was argued that in order to label the accused, 'habitual offender', it was imperative on the part of prosecution to prove previous conviction for the offence under Section 411 IPC. However, in the instant case, bereft of any such conviction of the appellant's, no charges/culpability under Section 413 IPC can be even prima facie attributed to the accused. Ld. Counsel for the accused further vehemently reiterated that even the apprehension of the accused in the instant case is not beyond a pale of doubt, besides, the investigation in the present case was not been properly conducted as neither any endeavour made to join independent witnesses in the alleged search, seizure and recovery proceedings, nor any attempts made to retrieve CCTV footage of the vicinity of the alleged place of accused's apprehension and seizure or even of the alleged place of occurrence of the offence of theft. Accordingly, in view of the foregoing submissions, Ld. Counsel submitted that the accused be permitted to benefit of doubt and acquitted of the SC No. 136/2021 State v. Nijam Sheikh Page 17 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:32:57 +0530 charges levelled against him. In support of the said contentions, reliance was placed upon the decisions in; Harijana Thirupala v. Public Prosecutor, (2002) 6 SCC 470; Kotta Gopinarayan Choudhary v. State of Orissa, 2003 Cri. LJ 4050; Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294; Ajay Sethi v. State, Crl. A. No. 788/2017, dated 30.08.2017 (DHC); Kotta Gopinarayan Choudhary v. State of Orissa, 2003 SCC Online Ori 337; Mohd. Iqbal v. State of Chhattisgarh, 2022 SCC Online Chh 2532; Mohd. Azhar v. State of U.P., Crl. Appeal No. 1588/2013, dated 21.01.2014 (Allahabad High Court); and Pradhyumansinh Parbatsinh @ Pravinsinh Vaghela v. State of Gujarat, Crl. Rev. Appln. No. 508/2018, dated 31.01.2020 (High Court of Gujarat).
APPEARANCE:
13. The arguments of Ld. Addl. PP for the State and that of Ld. Counsel for the accused have been heard as well as the records, including the testimonies of various witnesses, documents/material/evidence (oral and documentary evidence) as well as the written submissions and case laws, placed on record, thoroughly perused.
LEGAL PROVISIONS:
14. Before proceeding with the determination of the rival contentions of the parties, this Court deems it prudent to reproduce the relevant provisions under law/IPC as under;
"24. "Dishonestly"-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
*** *** ***
378. Theft-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
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379. Punishment for theft-Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
*** *** ***
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.
*** *** ***
413. Habitually dealing in stolen property- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
(Emphasis supplied)
15. Notably, it is observed from perusal of the aforesaid provisions that the essential ingredients1 to make out/establish the charges under Section 379 IPC are; '(i) the accused must have a dishonest intention to take the property; (ii) the property must be movable; (iii) the property must be taken out of the possession of another person, resulting in wrongful gain by one and wrongful loss to another; (iv) the property must be moved in order to such taking i.e., obtaining property by deception; and (v) taking must be without that person's consent.' Synchronously, the Hon'ble High Court of Delhi in State (NCT of Delhi) v. Narender, 2023 SCC Online Del 302, while explicating the ingredients of the offence under Section 379 IPC inter alia observed as under;
"7. Section 379 of the IPC requires four essentials viz. (a) that the accused had taken the movable property dishonestly, (b) property was taken out of possession of the complainant, (c) property was taken out without consent of complainant and (d) the property was moved to such taking. To fulfill the requirements under Section 379 of the IPC, the above mentioned ingredients must be fulfilled but the 1 K.N. Mehta v. State of Rajasthan, MANU/SC/0030/1957: AIR 1957 SC 369.
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statements of the prosecution witnesses failed to corroborate and fulfill the ingredients of Section 379 of the IPC."
(Emphasis supplied)
16. Quite evidently, in order to sustain conviction under the aforenoted provision, the prosecution is inter alia required to prove that the moveable property of another person was taken away by an accused from his/victim's possession, without his/victim's consent, either express or implied, with a dishonest intention. Relevantly, Section 24 of IPC defines the term, 'dishonestly' as doing of anything by any person with an intention of causing wrongful gain to one person or wrongful loss to another person. In turn, the terms wrongful gain and wrongful loss are defined under Section 23 of IPC, as under;
"23. "Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully-A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."
(Emphasis supplied)
17. Apropos the present discourse, this Court deems it further pertinent to note here that the superior courts have persistently avowed that in order for an act constitute theft, it is to be demonstrated that the accused took the movable property, out of possession of another person with the intention, not to return him. In fact, law is trite2 that, it would satisfy the definition of theft, if the accused takes away any movable property out of 2 Pyare Lal v. State, MANU/SC/0152/1962: AIR 1963 SC 1094.
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possession of another person, though, he/accused intends to finally return it. Correspondingly, for culpability under Section 411 IPC to attract, it is not necessary that an accused receives any stolen property with a culpable intention, knowledge or reason to believe, rather, even in the instance of retention of such stolen property with such mens rea or upon the failure of the accused to make enough inquires to comprehend the nature of good(s) procured by him, is sufficient. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Shiv Kumar v. State of M.P., (2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon'ble Court inter alia observed as under;
"16. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
(Emphasis supplied)
18. Here, this Court deems it pertinent to further make a reference to the decision in Sd. Shabuddin v. State of Telangana, 2025 SCC Online SC 1734, wherein the Hon'ble Apex Court, while scrupulously analysing the provisions under Section 411 IPC, explicated the ingredients of the said offence in the following terms;
"...15.3. Thus, to establish culpability under Section 411 IPC, it must be proved that the accused had dishonestly received or retained the stolen property and in doing so, he either had knowledge or reason to believe that the same is a stolen property. The natural corollary being if the courts upon trial reach a conclusion that the property in question is not a stolen property, therefore, the accused cannot be charged for the offence punishable under Section SC No. 136/2021 State v. Nijam Sheikh Page 21 of 53 ABHISHEK Digitally signed by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:33:13 +0530 411 IPC especially when the whole case of the prosecution relates to the events forming part of the same transaction.
15.4. Since the very beginning, the case of the prosecution is that accused-Moulana committed the homicide of the deceased, stole his belongings, including the sum of Rs. 2,92,629/-, while the deceased was on a business trip to the distant town of Warangal. The accused-Moulana had also paid Rs. 30,000/- out of the total money that he had stolen from the deceased to the present appellant. During the trial, the Trial Court has outrightly rejected this theory of theft, against which no appeal till date has been preferred by the prosecution or the complainant before the High Court.
15.5. Therefore, once the Trial Court has acquitted both accused-Moulana and the present appellant under Section 379 IPC, we fail to understand how the Trial Court reached a conclusion that the accused persons are liable under Section 411 IPC. In order to uphold conviction under Section 411 IPC, it is sine qua non that the property in the possession of accused is a stolen property. If the property is not a stolen property, the charge under Section 411 IPC cannot be sustained..."
(Emphasis supplied)
19. Germane for the purpose(s) of present discourse to further make a reference to the decision of the Hon'ble Allahabad High Court in Gopi Jaiswal v. State of U.P., 2011 SCC Online All 1775, wherein the Hon'ble Court unambiguously noted that a person cannot be held responsible, simultaneously3, for committing the offence of theft as well as for dishonestly receiving or keeping the stolen property, knowingly it to be stolen at the same time. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"...In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under section 379 IPC. His conviction under section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted 3 Sarwar Ali & Ors. v. State, Criminal Revision No. - 390 of 2006, dated 29.05.2015 (Allahabad HC).
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and sentenced for the offence of theft and as such he cannot be convicted and sentenced under section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under section 411 IPC cannot be upheld..."
(Emphasis supplied)
20. Reference in respect of the foregoing is further made to the decision in Sunil Mashi v. State (NCT of Delhi), 2014 SCC Online Del 2007, wherein the Hon'ble High Court of Delhi in akin context, remarked as under;
"43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside..."
(Emphasis supplied)
21. In as much as culpability under Section 413 IPC is concerned, this Court deems it pertinent here to make a reference is made to the decision of the Hon'ble High Court of Chhattisgarh in Mohd. Iqbal v. State of Chhattisgarh, (Supra.) , wherein the Hon'ble Court, while enunciating the ingredients of the provisions under Section 413 IPC, remarked as under;
"16. An offence under Section 413 of the IPC has two essential ingredients, firstly, that the accused habitually received or dealt in property and secondly, that he did so knowing or having reasons to believe that such property was stolen. The legislature inserted Section 413 in the Penal Code, 1860 where under it is provided that if a person is habitually dealing in stolen property, he will be charged for offence under Section 413 of the IPC. The terms of the provision (Section 413 of the IPC) make it clear that "habitually dealing"
means there is evidence on record that there are other instances other than the present instance of the accused found to be indulging in the act and he is facing a trial, then, it can be said that Section 413 of the IPC is attracted. This Section punishes severely, the common receiver or professional dealer in stolen property. (See Mir Nagvi Askari v. Central Bureau of SC No. 136/2021 State v. Nijam Sheikh Page 23 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:33:20 +0530 Investigation.)
17. The words "habitually dealing" used in Section 413 of the IPC means there is evidence on record that there are other instances other than the present instance of the accused found to be indulging in the act and he is facing a trial, it is not necessary that there must be conviction or finding against the accused for the purpose of framing charge under Section 413 of the IPC.
18. Therefore, to prosecute a person, the prosecution has to prove firstly, that the property in question has been 'stolen' from a place and thus, the prosecution must bring the property within the ambit of Section 410 of the IPC--within the definition of 'stolen property'. Secondly, the offender has been dealing with or receiving stolen property. Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e. twice or more than twice, of offence under Section 411 of the IPC. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is 'habitually dealing with or receiving stolen property' and in imposing the punishment as prescribed by Section 413 of the IPC. (See Banne Singh @ Pahalwan v. State of Rajasthan4 (paragraph
50).)."
(Emphasis supplied) APPRECIATION OF EVIDENCE:
22. Therefore, being wary of the aforenoted legal principles, judicial dictates and the rival contentions of the Ld. Addl. PP for the State as well as that of Ld. Counsel for the accused, this Court would now proceed with the determination on merits of the instant case. In particular, and outrightly to the effect as to, 'whether from the material placed on record, culpability under the provisions of law, i.e., Sections 379, 411 and/or 413 IPC can be attracted against the accused namely, Nijam Sheikh? '. In other words to ascertain, 'whether from the material brought forth on record, charges under Sections 379/411/413 IPC can be stated to be made out beyond a pale of doubt against the accused herein?'. Conspicuously, in order to deal with the said aspect, this SC No. 136/2021 State v. Nijam Sheikh Page 24 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:33:27 +0530 Court deems it apt to incipiently note that the case of prosecution primarily hinges on the version of the complainant/PW-1/Shivam Kumar, who inter alia deposed regarding the incident in question as well as the role of the accused. In particular, it is noted from the deposition of PW-1 that he testified before this Court that he was residing at 245, near Durga Mata Mandir, Railway Colony, Ludhiana, Punjab at the relevant point in time and that in year, 2020, he/PW-1 was working at readymade garments shop in Tank Road, Delhi. It was further proclaimed by the complainant/PW-1 in his deposition that on 20.03.2020, he had gone to Old Delhi Railway Station to purchase a ticket for Ludhiana and at around 08.30 p.m., he/PW-1 was standing at ticket counter to purchase the ticket. Correspondingly, PW-1 avowed that someone picked his pocket and took out his mobile phone of Vivo Y19 make, white in colour and containing two SIM cards, i.e., of Airtel and Reliance companies. Further, as per PW-1 since he had to proceed for Ludhiana, he left for Ludhiana and could not make a complaint. Subsequently, as per PW-1, there was a lock-down due to covid pandemic and he/PW-1 was again unable to make a complaint. In fact, it was only on 18.05.2020, as per PW-1 that he/PW-1 made an online complaint of theft with the help of his cousin at Ludhiana and sent a photocopy of his stolen mobile phone's bill to the Investigating Officer/IO. Correspondingly, as per PW-1, he could not return to Delhi due to lockdown it was only subsequently, upon his return to Delhi, he/PW-1 tendered his complaint (Ex. PW1/A) to the concerned SHO at PS. Old Delhi Railway Station. It was further proclaimed by PW-1 in his deposition that on 31.05.2020, he was informed by the IO that his stolen mobile phone had been recovered. Thereafter, on 12.06.2020, as per PW-1, he visited PS. Old Delhi Railway Station and identified his mobile phone. PW-1 SC No. 136/2021 State v. Nijam Sheikh Page 25 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:33:30 +0530 further proclaimed that on 23.06.2020, IO recorded his statement, Ex. PW1/B, besides, he/PW-1 also got released his mobile phone on superdari vide superdarinama, Ex. PW1/C. Pertinent to note that during the course of his deposition, PW-1 also identified his mobile phone from its photographs, Ex. PW1/D (Colly.), besides, produced the said mobile phone (Ex. P1) in Court. PW-1 also produced the original bill of mobile phone, copy of which was proved as Ex. PW1/E as well as train ticket dated 23.06.2020 as Ex. PW1/F.
23. Markedly, upon being so cross examined by/on behalf of the accused, PW-1/Shivam Kumar, proclaimed as under;
"XXXXXX by Mr. ***, Advocate for the accused.
I have studied upto 5th standard. I do not remember the name of police official who had informed me about recovery of my mobile phone. The said information was given to me through mobile phone of my friend, namely, Inderpreet Singh in last week of May, 2020. I do not remember the exact date. The mobile number of my friend, namely, Inderpreet Singh is 9711576073. I was told by police official of PS Old Delhi Railway Station to lodge on- line complaint. I do not remember the name of said official. I lodged on-line FIR, through laptop of my cousin, from my residence in Ludhiana. I was told by anyone as to how feed relevant information into on- line complaint. The name of my cousin is Varun Kumar. I did not inform any police official or visited police station at Old Delhi Railway Station immediately after theft of my mobile phone. I did ask the public persons present at the counter to provide their mobile phone for making call at 100. However, no one provided their mobile phone. My cousin brother made 5-6 efforts to lodge complaint with police in the meantime from the date of theft of mobile phone and lodging of on-line FIR. I did not lodge any complaint with GRP or concerned police station after reaching Ludhiana. IMEI number of my mobile phone was mentioned in its invoice / bill. I came to know about theft of my mobile phone before I purchased train ticket from counter. On the same day, SC No. 136/2021 State v. Nijam Sheikh Page 26 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:33:34 +0530 I went to Ludhiana. I had given train ticket to IO. I had not shown the place of incident to the police. The complaint Ex.PW1/A is in the handwriting of my cousin, namely, Varun Kumar. He had written the complaint in my presence on my dictation on my instruction on 18.05.2020. My cousin brother is a graduate.
Besides my phone, no other mobile phone was shown to me. The police had not written anything regarding receipt of bill from me. It is wrong to suggest that invoice of mobile bill is a forged document.
It is wrong to suggest that I have lodged false complaint at the instance of police. It is wrong to suggest that I have deposed falsely at the instance of police."
(Emphasis supplied)
24. Here, this Court deems it pertinent to further refer to the deposition of PW-3/ASI Shailesh Kumar, who inter alia testified before this Court that on 12.05.2020, he was posted as ASI in Special Staff, East District, Delhi. On that day, as per PW-3, he was engaged in investigation of FIR No. 02/2020, PS. Pandav Nagar and at around 05.00 p.m., he along with Ct. Anuj and Ct. Yogender was present near roundabout Gazipur, Delhi. PW-3 further proclaimed that he received a secret information that one boy would come on a scooty to sell robbed/snatched mobile phone near EDM Mall, Anand Vihar, Delhi and if raided, said boy could be apprehended. It was further avowed by PW-3 that he shared the said information with Inspector, Special Staff, East District, Delhi, who directed him/PW-3 to nab said boy. PW-3 also proclaimed that he shared the said information with 3-4 public persons and requested them to join investigation, however, no one agreed and left without telling their names and addresses. Congruently, as per PW-3, he laid a trap near EDM Mall, Anand Vihar, Delhi and apprehended one person who came on a scooty bearing registration no. DL-5SCE-9139 of TVS Entork make, at SC No. 136/2021 State v. Nijam Sheikh Page 27 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:33:38 +0530 the instance of secret informer. As per PW-3, the name of said apprehended person was revealed as 'Nijam Sheikh', who was identified by PW-3 as the accused before this Court. PW-3 also asserted that at the time of accused's apprehension, one bag was kept on the footrest of the said scooty and upon checking, the same was found containing 45 (forty five) mobile phones. Congruently, as per PW-3, he interrogated the accused, however, no satisfactory answer was forthcoming except to the extent that he/the accused had sold the stolen mobile phone of case FIR No. 02/2020, PS Pandav Nagar in Rajasthan. Consequently, the accused was arrested in the said FIR vide arrest memo Ex. PW3/A, his disclosure statement (Ex. PW3/D) was recorded, and the said mobile phones seized vide seizure memo Ex. PW3/B, wherein he/PW-3 mentioned the IMEI nos. of the said recovered mobile phones. It was also asserted by PW-3 that none of the said recovered mobile phones bore any SIM card(s). PW-3 further proved the seizure memo of scooty bearing registration no. DL-5SCE-9139 along with its key as Ex. PW3/C. Further, as per PW-3, he deposited the case property in malkhana of PS Pandav Nagar.
25. Markedly, during the course of his deposition, PW-3 further testified that on 13.05.2020, he obtained police custody remand of the accused and in pursuance to accused's disclosure statement, they were led by the accused to A-40, Shalimar Garden, Shaheed Nagar, Sahibabad, Ghaziabad, U.P. As per PW-3, from the said spot, the accused got recovered one bag from under kitchen slab on ground floor of the said house, which was found containing 98 (ninety eight) mobile phones. PW-3 further testified that he seized the said recovered 98 (ninety eight) mobile phones from the bag vide seizure memo Ex. PW3/E, which were found SC No. 136/2021 State v. Nijam Sheikh Page 28 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:33:41 +0530 not to contain any SIM cards. Further, as per PW-3, he mentioned IMEI numbers of the recovered mobile phones in seizure memo, as well as deposited case property in malkhana of PS Pandav Nagar. PW-3 also deposed that he sent the IMEI details of recovered mobile phone companies to the office of DCP to trace out the owner of recovered mobile phones. Subsequently, on receipt of a report from telephone companies, as per PW-3, it was determined that one of the said 98 (ninety eight) recovered mobile phones, of Vivo company make, white in colour and specified as serial no. 53 in seizure memo Ex. PW3/E, was stolen in case e-FIR No. 407/2020, PS. ODRS. Consequently, as per PW-3, he informed PS. ODRS regarding the recovery of said mobile phone. Further, as per PW-3, on 01.06.2020, ASI Sukhpal collected the relevant documents from him/PW-3 and recorded his/PW-3's statement. As per PW-3, a large number of recovered mobile phones were found to be stolen in different cases of different police stations of Delhi. Further, it was avowed that the accused had disclosed that he used to purchase stolen mobile phones from different persons and sell them in Bharatpur, Rajasthan. PW-3 also testified that one A-4 notebook register containing details of mobile phones and their prices was also recovered from the house of accused Nijam Sheikh on 13.05.2020, which was seized vide seizure memo Ex. PW3/F, besides the mobile phone of the accused was also seized vide seizure memo Ex. PW3/G, which is asserted to contain messages pertaining to transactions of mobile phones. Needless to mention that PW-3 identified the mobile phone make Vivo from its photographs (Ex. PW3/D); 33 (thirty three) mobile phones, produced by MHC(M) as Ex. MO-1 (Colly.); 87 (eighty seven) mobile phones, produced by MHC(M) as Ex. MO-2 (Colly.); and one register on which 'Class Monitor Good Time A4 SC No. 136/2021 State v. Nijam Sheikh Page 29 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:33:45 +0530 Notebook' was written and recovered from the house of the accused at his instance as Ex. MO-3.
26. Appositely, upon being cross-examined by/on behalf of the accused, PW-3/ASI Shailesh Kumar, proclaimed, as under;
"XXXXXX by Mr. ***, Advocate for the accused.
It is correct that the mobile phones make Redmi, Oppo, Nokia, Realme, Huawei, Tecno etc. of different colours and models are available in the market. It is wrong to suggest that the mobile phones mentioned in seizure memo Ex.PW3/B and Ex.PW3/E are not produced today in the Court. It is wrong to suggest that the aforesaid mobile phones were not recovered from the possession of the accused, namely, Nijam Sheikh.
I have been using the seal having impression 'S.K.' for 2-3 years. No record is maintained in our office in respect of seal used by us. I do not remember whether I had handed over the seal to any person after sealing the register Ex.MO-3. It is wrong to suggest that the register Ex.MO-3 was not recovered at the instance of the accused. It is wrong to suggest that I obtained signatures of the accused on blank papers of the said register and filled the details of mobile phone thereafter.
*** *** *** I conducted investigation of case FIR No. 02/2020, PS Pandav Nagar on written orders. The said written order has not been handed over to IO ASI Sukhpal by me. It is wrong to suggest that I was not assigned the investigation of case FIR No. 02/2020, PS Pandav Nagar. I do not remember whether place of recovery was prepared or not. It is wrong to suggest that nothing recovered from the possession of the accused. Chittha register is maintained in respect of duties of the police officials in PS. My duties dated 12.05.2020 must be maintained in records of Special Staff. I had not handed over the duty roster dated 12.05.2020 to IO ASI Sukhpal. It is wrong to suggest that I was not on duty on that day. I had made departure entry when I left my office on 12.05.2020. I had not placed the copy of said departure entry on charge-sheet of FIR No. 02/2020, PS Pandav Nagar. It is wrong to suggest that the said copy is not placed on record as I never conducted investigation on 12.05.2020 of the aforesaid case. The distance between Gazipur Chowk and Anand Vihar Bus Terminal is about 1-1.25 Km. I received secret SC No. 136/2021 State v. Nijam Sheikh Page 30 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:33:49 +0530 information after about ½ an hour of leaving my office. I went to Gazipur Chowk via Kundli Bridge, Shamshan Ghat, Gazipur on my own private vehicle i.e. Wagon R car.
Gazipur Chowk was around 2 ½ - 3 km. away from my office. I do not remember whether I stopped at any place on the way to Gazipur Chowk or not. It is wrong to suggest that I never visited Gazipur Chowk. No record is maintain pertaining to use of private vehicle by police officials to conduct raid. I had not get any reimbursement of patrol used in my car to conduct the raid. I do not remember whether I had placed the copy of Reg. No. 19 in record of case FIR No. 02/2020, PS Pandav Nagar *** *** *** I gave information to Insp. Special Staff regarding the secret information received by me at about 04.00 p.m. - 05.00 p.m. At that time, he was in his office. I did not register any DD regarding the said secret information in my office or at concerned PS. It is wrong to suggest that I had not received any secret information. No financial assistance is given to the secret informer. I remained at the spot for about 3-4 hours. I left the spot at about 10.00 p.m. After leaving the spot, I went to LBS Hospital. I do not remember the exact time when the accused was medically examined. At night at about 12.30 a.m., a general diary was recorded regarding arrest of accused and deposit of case property in malkhana. However, I do not remember its DD number.
The copy of said DD was not annexed with the judicial file of case FIR No. 02/2020 registered at PS Pahar Ganj. It is wrong to suggest that no such incident had ever happened. No passers-bye were going through the spot as it was lock-down due to COVID-19. I did not count as to how many vehicle had passed nearby the spot during my stay at the spot. It is wrong to suggest that on 12.05.2020, several labourers had gathered in front of ISBT, Anand Vihar for going to their destination. The spot is at a distance of about 300-400 meters from ISBT, Anand Vihar. The same is the distance from Bus Terminal, Kaushambi. It is wrong to suggest that all the bus terminals were operating at that time. Picket of paramilitary forces with local police was deployed at a distance of about 1 km from the spot. I did not go to request these forces to join the investigation. I made investigation regarding previous investigation of the accused, namely, Nijam Sheikh and he was involved in a case of PS New Usmanpur. That case was pending. As per my knowledge, the accused was not convicted under SC No. 136/2021 State v. Nijam Sheikh Page 31 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:33:53 +0530 Sec. 411 IPC in any case. It is wrong to suggest that the accused was never involved in trading of stolen property or that nothing was recovered from the possession or instance of the accused.
The accused was sent to JC on 17.05.2020. Question No. 1: After the arrest of the accused i.e. on 12.05.2020 to 18.05.2020, have you made efforts to find that if any case has been registered in respect of recovered mobile phone in the present case? Answer: During police custody remand on 13.05.2020, 98 mobile phones were recovered at the instance of the accused, namely, Nijam Sheikh from his house. All the IMEI numbers of the said recovered phones were sent to respective companies. When we received the reports, then we passed information to respective police stations.
It is correct that when FIR No. 407/2020, PS ODRS was registered, the accused, namely, Nijam was in judicial custody. It is wrong to suggest that I have registered a false and fabricated case against the accused in connivance of the complainant of present case. It is wrong to suggest that nothing was recovered from the possession of the accused. The case property was deposited in malkhana at about 12.30 a.m. after its recovery. I started preparing seizure memo Ex.PW3/E at about 05.00 p.m. and concluded it at about 07.30 p.m. - 08.00 p.m. on 13.05.2020. I started preparing seizure memo Ex.PW3/B at about 06.00 p.m. and concluded it at about 07.30 p.m. on 12.05.2020.
All the recovered mobile phones were charged at that time. I did not request my senior officer to come to the spot after the apprehension of the accused. It is wrong to suggest that there were residential flats near the spot. I do not remember how many storeys were built up in property No. A-40, Shalimar Garden, Sahibadad, Ghaziabad, U.P. When I reached at Ground Floor of property No. A-40, Shalimar Garden, Sahibadad, Ghaziabad, U.P., mother and sister of the accused were present there. I did not serve any notice to mother and sister of the accused to join investigation. Property No. A-40, Shalimar Garden, Sahibabad, Ghaziabad, U.P. is situated in the jurisdiction of PS Sahibabad, Ghaziabad, U.P. I did not make any entry in PS Sahibabad, Ghaziabad. I did not call police officials of PS Sahibabad, Ghaziabad to join the investigation of this case at the time of search and seizure. I did not call any lady police official from local police or from Special Staff office to join the investigation at the time of search of the aforesaid SC No. 136/2021 State v. Nijam Sheikh Page 32 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:33:57 +0530 property. I had not supplied copy of documents Ex.PW3/E to accused or his mother. The case was investigated by me under the guidance of my senior officers including gazetted officers i.e. Insp. Special Staff and ACP (Operation). I do not remember the exact date when I met with the aforesaid officers. All the relevant facts are mentioned in my CD on all the dates. It is wrong to suggest that I have not followed the settled provisions under Section 100, 165 Cr. P.C. as well as Chapter 25 rule 23 of Punjab Police Rules. It is wrong to suggest that the accused had already vacated the aforesaid property in November, 2019. I told the name of raiding team members to IO of the present case. IO did not enquire Ct. Yuvender and Ct. Anuj in my presence. It is wrong to suggest that I have obtained the signatures of accused on blank papers in forceful manner and the same were converted into documents of the present case. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
27. Conspicuously, PW-4/ASI Ram Dayal avowed in his deposition that on 13.05.2020, while he was posted as MHC(M) in PS Pandav Nagar, ASI Shailesh of Special Staff deposited 45 (forty five) mobile phones in a bag and 98 (ninety eight) mobile phones in another bag in malkhana vide entry at serial no. 253 in reg. No. 19. Correspondingly, PW-4 asserted that on the same day, ASI Shailesh also deposited one parcel sealed with the seal having impression 'SK' containing one mobile phone make Vivo of blue colour of the accused, Nijam Sheikh and one parcel sealed with the seal having impression 'SK' containing one notebook in malkhana vide entry at serial no. 255 in Reg. No. 19. Further, as per PW-4, on 16.05.2020, ASI Shailesh also deposited two mobile phones in malkhana vide entry at serial no. 258 in Reg. No. 19. Needless to mention, PW-4 produced the original register no. 19 containing the aforesaid entries and proved the said entries at serial nos. 253, 255 and 258 in the said register as Ex. PW4/A, Ex. PW4/B and Ex. PW4/C, respectively. Thereafter, as per PW-4, on 03.06.2020, IO/ASI Sukhpal collected one mobile phone of SC No. 136/2021 State v. Nijam Sheikh Page 33 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:01 +0530 Vivo make and shifted the same to PS. ODRS vide RC No. 32/21/20, copy of which relevant page of register no. 21 containing RC No. 32/21/20 was proved as Ex.PW4/D. Correspondingly, PW-4 asserted that as long as the case property remained in his possession in the malkhana, same was intact and not tampered with. Markedly, upon being cross examined by/on behalf of the accused, PW-4 asserted, as under;
"XXXXXX by Mr. ***, Advocate with the accused.
The entries in Reg. No. 19 are in my handwriting. ASI Shailesh deposited the malkhana in evening hours at about 04.00 p.m. - 05.00 p.m. I cannot tell how much time he remained with me during depositing the case property. I used to produce the aforesaid register before SHO. I had got inspected the register by ACP also. I do not remember when ACP inspected the register containing the aforesaid entries. The entries does not bear signature of ACP. It is wrong to suggest that the records were never inspected by the concerned ACP. It is wrong to suggest that the aforesaid entries are ante-dated and ante-timed and were made as per convenience of ASI Shailesh."
(Emphasis supplied)
28. Germane for the present discourse to refer to the deposition of PW-5/ASI Suresh Chand, who testified that on 03.06.2020, while he was posted as MHC(M) in PS. ODRS, ASI Sukhpal deposited one mobile phone make Vivo having IMEI No. 864706044770854 and 864706044770874 in malkhana vide entry at serial no. 1532. in Reg. No. 19, copy of which entry was proved as Ex. PW5/A. Further, as per PW-5, as along as the said mobile phone remained with him/PW-5 in the malkhana, same was not tampered with. Needless to mention, inn his cross examination, PW-5 inter alia denied manipulation of said entry in register no. 19, in connivance with IO/ASI Sukhpal. Correspondingly, reference is made to the deposition of PW-2/Ct. Amit, who SC No. 136/2021 State v. Nijam Sheikh Page 34 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:05 +0530 proclaimed that on 01.06.2020, he was posted as Constable at PS Old Delhi Railway Station and on the said day, he joined the investigation of the present case. PW-2 further deposed that he along with IO/ASI Sukhpal went to Mandoli Jail, Delhi on the said day, where the IO interrogated the accused, with the permission of the court and arrested him/accused, Nijam Sheikh vide arrest memo Ex.PW2/A, as well as recorded accused's disclosure statement, Ex.PW2/B. PW-2 further correctly identified the accused before the court, during the course of his deposition. Needless to mention, PW-2 was not cross examined by/on behalf of the accused, despite opportunity.
29. Here, this Court deems it further pertinent to refer to the deposition of PW-6/IO/ASI Sukhpal, who proclaimed before this Court that on 18.05.2020, while being posted as ASI at PS. Old Delhi Railway Station, he was assigned investigation of the present case, and had received a copy of FIR from MHCR. PW-6 further asserted that he talked to the complainant, Shivam Kumar telephonically as he/the complainant was a resident of Ludhiana, Punjab. Further, as per PW-6, the complainant sent his written complaint to him/PW-6 through WhatsApp. Subsequently, on 30.05.2020, as per PW-6, MHCR informed him/PW-6 about DD No. 4A (Ex. PW6/A) vide which it was informed that accused, Nijam Sheik was arrested in a case FIR No. 2/2020, PS Pandav Nagar and mobile phone, which was stolen in the present case, was recovered from the possession of the said accused. As per PW-6, he talked to the IO of case FIR No. 2/2020, PS Pandav Nagar and collected the documents pertaining to the arrest of accused Nijam Sheik and recovery of mobile phone from his/said IO's possession.
Thereafter, as per PW-6, on 01.06.2020, he along with Ct. Amit went to Mandoli jail, filed an application before Ld. Duty MM for SC No. 136/2021 State v. Nijam Sheikh Page 35 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:09 +0530 interrogation of the accused and thereafter, interrogated the accused as well as arrested him in the present case vide memo Ex. PW2/A. It was further proclaimed by PW-6, he recorded the disclosure statement of accused vide Ex. PW2/B as well as recorded the statement of IO of case FIR no. 2/2020, PS Pandav Nagar. Thereafter, on 03.06.2020, as per PW-6, he went to PS Pandav Nagar and collected the mobile phone Vivo Y-19 make, white colour from MHC(M), PS Pandav Nagar and seized the same vide seizure memo, Ex. PW6/B, which was eventually deposed in the malkhana of PS. ODRS. Further, it was avowed by PW-6 that on 23.06.2020, the complainant came to Delhi and gave a hardcopy of his written complaint (Ex. PW1/A), which was sent to him/PW-6 through WhatsApp. Consequently, as per PW-6, he recorded the statement of the complainant and seized his travel ticket dated 23.06.2020 (Ex. PW1/F), as well as prepared the site plan (Ex. PW6/C) at the instance of the complainant. As per PW-6, the complainant handed over a copy of Tax invoice of his mobile phone, which was proved as Ex. PW1/E. PW-6 further asserted that the said mobile phone was shown to the complainant from malkhana, PS ODRS and he/the complainant identified the said mobile phone, which was eventually got released by the complainant on superdari. Further, as per PW-6, he added Section 413 IPC in the present case and on completion of investigation, filed the chargesheet before the concerned court. Needless to mention, PW-6 further identified the accused as well as the case property, i.e., the mobile phone during the course of his deposition.
30. Relevantly, upon being cross examined by/on behalf of the accused, PW-6 asserted as under;
"XXXXXX by Sh. ***, Ld. Counsel for the SC No. 136/2021 State v. Nijam Sheikh Page 36 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:34:12 +0530 accused.
I had not verified as to in which FIRs and PS the other phones recovered from the accused Nijam Sheik were connected. I had not verified as to whether the accused had been convicted for any offence prior to registration of present FIR. I cannot admit or deny that the accused was not convicted for any offence prior to registration of present FIR. I had visited the house of accused Nijam Sheik. I had not visited the PS Sahibabad in the area of which the house of accused Nijam Sheik is situated. I had not received any complaint from any of the neighbours of accused Nijam Sheik. I had not visited the place of recovery of mobile phone of complainant.
I recorded statement of ASI Shailesh only once. It is correct that the statement under Section 161 Cr. PC of ASI Shailesh recorded by me is already Ex. PW3/D-1 and it bears my signatures at point A. It is correct that I had not recorded any other statement of ASI Shailesh.
I had not verified as to vide which order of Senior police official, ASI Shailesh was involved in investigation of case FIR No. 2/2020, PS Pandav Nagar. I had not prepared site plan of place of recovery of case property in case FIR No. 2/2020, PS Pandav Nagar. I had not made any inquiry from any public person regarding the said place of recovery. It is wrong to suggest that no recovery was effected from the possession of accused Nijam Sheik. I had not checked the duty roaster of Ct. Anuj, Ct. Yogender dated 12.05.2020 and 13.05.2020 and the DD entries regarding their movement from PS Pandav Nagar in respect of recovery of mobile phones. I had not checked the lock up of PS Pandav Nagar. I had checked the entries of register no. 19 in respect of deposit of recovered mobile phones. It is correct that I have not specifically mentioned the copies of entries of register no. 19 in list of documents in chargesheet. (Vol. It is in other documents as mentioned in list of documents). It is wrong to suggest that the entries in register no. 19 are ante-dated and ante-timed and manipulated by the police officials of PS Pandav Nagar. I had not recorded the statement of other recovery witnesses apart from ASI Shailesh. I had not recorded statement of senior police officials of ASI Shailesh who was carrying out investigation of the case FIR No. 2/2020, PS Pandav Nagar. It is correct that the complainant lodged the FIR on 18.05.2020 after incident of theft on 20.03.2020. It is correct that I had not received any call or complaint SC No. 136/2021 State v. Nijam Sheikh Page 37 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:17 +0530 of theft of mobile phone of complainant from 18.05.2020 and prior to 20.03.2020. I do not remember on which date the accused Nijam Sheik was arrested in case FIR No. 2/2020, PS Pandav Nagar. I do not remember whether the accused was arrested in that case on 12.05.2020. It is wrong to suggest that I had got registered a false case FIR No. 407/2020 at PS ODRS at instance of police officials of PS Pandav Nagar on 18.05.2020. It is wrong to suggest that the accused has been falsely implicated in the present case. It is correct that no date is mentioned on the complaint already Ex. PW1/A. It is wrong to suggest that the complaint Ex. PW1/A was got prepared as per my convenience and same is manipulated at my instance. It is wrong to suggest that complainant had never shown the place of theft or that the site plan was prepared by me on my own. I had not verified the bill from the shop by which it was issued. I had not prepared seizure memo while taking possession of the bill. It is wrong to suggest that the said bill was false and fabricated. It is wrong to suggest that accused had not given any disclosure statement to me or that I obtained his signatures on blank papers.
I had verified the residence of accused Nijam Sheik. I had not visited the house of accused and I can not tell whether his address was A-40, Shalimar Garden, Sahibabad, District Ghaziabad, UP or not. It is wrong to suggest that nothing was recovered from the possession of accused Nijam Sheik. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
31. Consequently, in light of the foregoing deposition/testimonies, however, before proceeding with the evaluation thereof, this Court deems it pertinent, to outrightly note that it is conscious of the settled law 4 that there is no legal hurdle/impediment in convicting a person on the testimony of a single/sole eyewitness if the version of said witness is clear and reliable. Quite lucidly, the rationale behind the same is that the evidence has to be weighed and not counted. Reference in this regard, the Hon'ble Supreme Court in Sunil Kumar v. State 4 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
SC No. 136/2021 State v. Nijam Sheikh Page 38 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:34:20 +0530
(GNCT of Delhi), (2003) 11 SCC 367, wherein the Hon'ble Court unambiguously noted, as under;
"9. ...Vadivelu Thevar case [AIR 1957 SC 614:
1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.
That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise..."
(Emphasis supplied)
32. Correspondingly, the Hon'ble Apex Court in Bhimapa Chandapa Hosamani & Ors. v. State of Karnataka, (2006) 11 SCC 323, expressed similar views, inter alia by noting, as under;
"...This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."
(Emphasis supplied)
33. Clearly, it is seen from above that for the testimony of a sole witness/sole eyewitness to form the basis of conviction SC No. 136/2021 State v. Nijam Sheikh Page 39 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:34:24 +0530 of an accused, same has to be of sterling quality/sterling witness, which expression in criminal jurisprudence has been repeatedly declared by superior courts to mean a witness who is5, "worthy of credence, one who is reliable and truthful." Reference in this regard is further made to the decision in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , wherein the Hon'ble Supreme Court, catalogued the quality of a 'sterling witness', under the following observations;
"22. ...In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any 5 Kuriya v. State of Rajasthan, (2012) 10 SCC 433.
SC No. 136/2021 State v. Nijam Sheikh Page 40 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:34:30 +0530
corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged..."
(Emphasis supplied)
34. Consequently, being wary of the aforenoted judicial dictates, when the material brought forth on record is conscientious analysed, this Court finds itself difficult to be convinced that the testimony of the complainant/PW-1, either itself or seen in conjunction with other prosecution witnesses, in particular, that of PW-3 or PW-6, is sufficient to bring home the charges levelled against the accused, beyond a pale of doubt in the instant case. In this regard, this Court deems it apposite to outrightly note that in the present case, no investigation whatsoever has been conducted by the concerned police official(s)/IO on the aspect of alleged theft of complainant's mobile phone on 20.03.2020 at Old Delhi Railway Station. In particular, it is noted that the IO made no endeavour to retrieve the CCTV footage, if any, of the alleged place of occurrence or even to ascertain the presence of the complainant at the alleged place of offence of theft. Needless to mention that the IO did not even seize any ticket/any other document or investigate any public persons/officials to establish the presence of the complainant at Old Delhi Railway Staion on the alleged date of occurrence. Correspondingly, the IO did not even make any attempt to enquire about the alleged place of work or of residence, if any, of the complainant in Delhi at the relevant point in time, besides the CDRs of the complainant on the alleged date of incident of theft SC No. 136/2021 State v. Nijam Sheikh Page 41 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:34 +0530 were not even retrieved by the IO of the present case. Ergo, under such circumstances except for the assertion of the complainant that his mobile phone was stolen on 20.03.2020 at Old Delhi Railway Station, nothing else is forthcoming to corroborate the version put forth by him/the complainant/PW-1.
35. Ominously, the bleakness of the circumstances in the instant case gets further accentuated for the reason that against the alleged incident of theft on 20.03.2020, the e-FIR came to be registered by/on behalf of the complainant only after a substantial delay on 18.05.2020. However, despite such substantial period of delay, no reason/explanation for such delay is forthcoming on the part of the complainant. On the contrary, during the course of his cross-examination, PW-1/complainant admitted that he did not inform any police officials or visit PS. Old Delhi Railway Station, immediately after theft of his mobile phone. Gloomily, PW-1 went ahead to proclaim under his cross examination that he did not lodge any complaint with GRP or concerned police station, after reaching Ludhiana. In fact, during the course of his cross- examination, PW-1 explicitly avowed that he was told by the police officials of PS. Old Delhi Railway Station to lodge an online complaint. Correspondingly, PW-6 affirmed in his cross examination that the complainant lodged the FIR only on 18.05.2020 and also that he had not received any call or complaint of theft of mobile phone of complainant, prior to 20.03.2020. Ergo, under such circumstances, it is reiterated that such a substantial and unexplained delay in the registration of present FIR/ e-FIR becomes a noteworthy factor, casting a sizeable dent in the case put forth against the accused. Correspondingly, as aforenoted, though PW-6 asserted in his deposition that he had received a copy of complaint (Ex.PW1/A) from the complainant/PW-1 on SC No. 136/2021 State v. Nijam Sheikh Page 42 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:38 +0530 18.05.2020, through WhatsApp mode and subsequently, hard- copy of the said complaint (Ex.PW1/A) was received by him on 23.06.2020. However, PW-6 has not produced or proved any such WhatsApp correspondence during the trial. Further, nowhere during the course of his deposition, PW-1 asserted that he had in fact sent the complaint (Ex.PW1/A) to PW-6, through WhatsApp mode to PW-6, as otherwise asserted by the said IO/PW-6. Even otherwise, it is pertinent to reiterate here that the delayed reporting of the incident/registeration of FIR has not been explained by any of the proseuction witnesses. Needless to further observe that it is trite law6 that delay in lodging the FIR creates a doubt in the prosecution case, if the said delay is not properly explained.
Reference in this regard is made to the decision in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 , wherein the Hon'ble Supreme Court, on the aspect of delay in registration of FIR, remarked as under;
"50. Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by the courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused."
(Emphasis supplied)
36. Similarly, the Hon'ble Supreme Court in Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, reiterated in an akin context, as under;
"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the 6 Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775; and Jasbir Singh v. State, 2022 SCC OnLine Del 1427.
SC No. 136/2021 State v. Nijam Sheikh Page 43 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:34:42 +0530
commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question..."
(Emphasis supplied)
37. Noticeably, another disconsolate feature in the instant case is that though, PW-3/ASI Shailesh Kumar asserted that he had sent the IMEI details of recovered mobile phone companies to the office of DCP to trace out the ownership of the recovered mobile phones and subsequently, received a report from telephone companies regarding the said fact, however, the said report has neither been produced nor proved before this Court. Correspondingly, though, PW-3 asserted that he informed of the recovery of the mobile phone of the present case to PS. ODRS on receipt of aforesaid report from the telephone companies, however, even the date of transmission of said information to the IO of the present case is not forthcoming under the deposition of PW-3. It is further pertinent to note that though, PW-3 further proclaimed in his testimony that on 13.05.2020, mobile phone of the accused was also seized vide seizure memo Ex. PW3/G, asserted to contain messages pertaining to transactions of mobile phones, however, the prosecution opted not to produce/prove the said correspondence/messages before this Court. Further, the prosecution did not even endeavour to produce any report regarding the authenticity of such correspondences by means any SC No. 136/2021 State v. Nijam Sheikh Page 44 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:34:47 +0530 scientific/forensic evaluation. Needless to mention that it is nowhere asserted in the deposition of any of the prosecution witnesses that the said messages/correspondences pertained to the mobile phone in question.
38. Quite distressingly, it is further seen from a thorough scrutiny of the material brought forth that nowhere during the course of his deposition, PW-3 avowed that he had properly seized as well as sealed the mobile phones, allegedly recovered from the possession of the accused. In this regard, it is noted that from a perusal of the seizure memos Ex. PW3/B and Ex. PW3/E, pertaining to the seizure of a bag with 45 (forty five) mobile phones and bag with 98 (ninety eight) mobile phones, respectively, from/at the behest of the accused, that there is no specification of affixation any official seal on the said bags or otherwise at the time of such seizure, not ruling out a possibility of tampering with the said case property. Needless to mention, it is further seen from a conjoint reading of the depositions of PW-4/ASI Ram Dayal and PW-3/ASI Shailesh Kumar, in light of the aforesaid seizure memos, Ex. PW3/B and Ex. PW3/E that even for the seizure of 45 (forty five) mobile phones, allegedly recovered from the possession of the accused on 12.05.2020, the said case property was deposited by PW-3 in the malkhana, PS. Pandav Nagar only on 13.05.2020, with a substantial and unexplained delay. Needless to mention that no reason for such delay in deposit of said case property in the malkhana is forthcoming under the deposition of any of the prosecution witnesses, creating a further doubt in the search, seizure and recovery proceedings as well as pertaining to proper and safe custody of the case property.
SC No. 136/2021 State v. Nijam Sheikh Page 45 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:34:51 +0530
39. Inconsolably, the IO of the present case/PW-6 further made no endeavour to seal the mobile phone, which is asserted to have been collected by him/PW-6 from the MHC(M) of PS. Pandav Nagar on 03.06.2020, stated to be that of the complainant. In fact, from a conscientious perusal of the record, in particular, from an analysis of the seizure memo of said mobile phone of Vivo Y-19 make, white colour (Ex. PW6/B), it is specifically noted that the same was obtained by PW-6 in an unsealed condition from the said MHC(M). Pertinent to further observe that though, both the complainant/PW-1 as well as IO/ASI Sukhpal/PW-6 asserted that the complainant identified his mobile phone upon its recovery, however, quite mournfully, no test identification parade/TIP proceedings were got conducted by the concerned IO before the concerned court, in respect of the said mobile phone. On the contrary, admittedly, such identification was conducted in PS. ODRS, as also deposed by PW-6 in his examination in chief, wherein he/PW-6 inter alia proclaimed, "... aforesaid mobile phone was shown to the witness from malkhana, PS ODRS and witness identified the said mobile phone..." . Needless to mention that the said facts/conduct on the part of the IO further demonstrate that the case property, was well within the reach of the concerned police officials/IO, not ruling out a possibility of manipulation/tampering with the case property in the present case.
40. Apposite to further note that there are material contradictions/variations in the depositions of various prosecution witnesses. In particular, it is noted in this regard that the complainant/PW-1 asserted during the course of his cross- examination that he had not shown the place of incident to the police. However, PW-6 asserted during his examination in chief SC No. 136/2021 State v. Nijam Sheikh Page 46 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:34:56 +0530 that he prepared the site plan, Ex. PW6/C, at the instance of the complainant and even denied in his cross examination that the complainant had never shown the place of theft or that the site plan was prepared by him/PW-6 on his own. Here, it is further pertinent to note that from a thorough perusal of the deposition of PW-6, it is noted that the IO of the present case conducted no independent investigation on several material aspects. As aforenoted, no investigation in respect of offence under Section 379/380 IPC was conducted by the IO/PW-6 in the instant case. Correspondingly, PW-6 admitted in his cross-examination that he made no investigation as to the authority of PW-3/ASI Shailesh to conduct investigation of case FIR No. 2/2020, PS. Pandav Nagar or made any independent investigation as to the recovery of case property or that he made any investigation into the duty roster of Ct. Anuj and Ct. Yogender on 12.05.2020 and 13.05.2020 or pertaining to the DD entries regarding their movement from PS Pandav Nagar, in respect of recovery of mobile phones. Correspondingly, PW-6 admitted that he had not verified the bill which was produced by the complainant, from the shop specified therein as well as, conceded that he/PW-6 had not prepared a seizure memo while taking possession of the said bill. Congruently, PW-6 inter alia admitted that he had not verified as to whether the accused had been convicted for any offence prior to registration of present FIR. Needless to mention that even during the course of trial or even at the stage of argument in the instant case, no material has been brought forth on record to demonstrate that the accused was convicted at any prior point in time, for any offence, including the offence under Section 411 IPC.
41. Consequently, in conspectus of above as well as being wary of the material/evidence brought forth on record, this SC No. 136/2021 State v. Nijam Sheikh Page 47 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:35:01 +0530 Court reiterates that the prosecution has not been able to prove the charges levelled against the accused herein. In particular, it is outrightly recapitulated that nothing has been brought on record to establish the ingredients of offence under Section 379 IPC against the accused herein. As aforenoted, the IO conducted no investigation on the aspect of alleged theft of the complainant's mobile phone on 20.03.2020 at Old Delhi Railway Station, besides, even the presence of the complainant at the said spot is not determinable either from the CCTV footage or any CDRs or from even the seizure of any ticket/any other document from the complainant or from any inquiry from any public persons/officials, persons at alleged place of work or of residence, if any, of the complainant in Delhi at the relevant point in time. Ergo, under such circumstances, this Court reiterates that except for the assertion of the complainant that his mobile phone was stolen on 20.03.2020 at Old Delhi Railway Station, nothing else is forthcoming to corroborate the version put forth by him/the complainant/PW-1, which itself, in the considered opinion of this Court quite unworthy of credence and uninspiring. In this regard, this Court ingeminates that there has been a substantial and unexplained delay in the registration of FIR on 18.05.2020 for the incident of theft that allegedly transpired on 20.03.2020. Further, considering that the complainant himself proclaimed under his cross-examination that he was asked by the police officials to register e-FIR in the instant case, by which time, admittedly, the accused was already arrested in FIR No. 02/2020 and the recovery already effected from him on 12.05.2020/13.05.2020, possibility of false implication/foul play in the instant case, cannot be ruled out in its entirety.SC No. 136/2021 State v. Nijam Sheikh Page 48 of 53 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:35:06 +0530
42. Conspicuously, in the considered opinion of this Court, considering the various lacunae/omissions in the search, seizure, proper care and custody of the case property. In particular, in the absence of proper seal on the seized articles, specified under seizure memos Ex. PW3/B and Ex. PW3/E; the articles being easily accessible to the concerned police officials, including PW-3 and PW-6; delayed deposit of the case property in the concerned malkhana; absence of TIP proceedings of the recovered mobile phone, asserted to belong to the complainant; as well as want of proper verification of the bill produced by the complainant with the alleged vendor thereof by PW-6, in the considered opinion of this Court, even the recovery of the mobile phone in question cannot be attributed to the accused, beyond reasonable doubt in the instant case. Needless to mention that the same is notwithstanding the fact that in the absence of proof that the complainant's mobile phone was in fact, stolen or that the said mobile phone was procured, received or retained by the accused, knowing or having reason to believe the same to be stolen property, in the considered opinion of this Court, prosecution has further failed to successfully bring home charge under Section 411 IPC, against the accused. However, presuming for the sake of argument that the prosecution has been able to prove recovery of the said mobile phone from/at the behest of the accused, even then, in light of the foregoing discussion/judicial dictates, this Court is of the considered opinion that mere recovery of the property from the accused, without proving that it was previously stolen and in possession of someone else, would not satiate the foundational requirements of Section 411 IPC in the instant case.
43. Further, in as much as the charges under Section 413 IPC are concerned, this Court concedes with the submissions of SC No. 136/2021 State v. Nijam Sheikh Page 49 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:35:10 +0530 the Ld. Counsel for the appellant that in the absence of proof of previous conviction of the appellant for the offence under Section 411 IPC, no conviction for the offence under Section 413 IPC can sustain against the accused. Reference in this regard is made to the decision of the Hon'ble High Court of Rajasthan in Banne Singh v. State of Rajasthan, 2014 SCC Online Raj 169, wherein the Hon'ble Court explicated the law in this regard, as under;
"46. Sections 411 and 413 IPC prescribe two distinct, but interrelated offences. There are certain similarities and differences between the two: both are concerned with 'stolen property'. Under both the provisions, the offender must have the 'knowledge' or a 'reason to believe' that the property is stolen as defined in Section 410 IPC. But while Section 411 IPC deals with 'dishonestly receiving' or 'retaining' stolen property, Section 413 IPC deals with habitually 'receiving or dealing' with stolen property. There is a difference between 'retaining' and 'dealing'. 'To retain' means to keep it in one's possession or custody; 'to deal' implies that the offender has certain concern with the property either by keeping it in his possession, or parting with the ownership, or possession of the property through any of the modes of transfer of property. Hence, the verb 'to deal' is broader in its scope than the verb 'to retain'. Most importantly, while Section 411 IPC lays down punishment for one time act, Section 413 IPC prescribes punishment for a series of similar acts which would prove the 'habit' of the offender. Furthermore, while Section 411 IPC punishes a single act with a term of three years, or with fine, or with both, Section 413 IPC punishes a series of act with life imprisonment. Thus, Section 413 IPC is a more aggravated form of Section 411 IPC. It prescribes harsher and 'a punishment different kind' as the person has been indulging in similar act of receiving and retaining stolen property over a period of time.
*** *** ***
49. Something more is required to establish that the offender is in 'the habit of dealing with' or 'receiving stolen property'. Since the offence under Section 413 IPC is inter-related with and is an aggravated form of Section 411 IPC, the State would have to prove and establish that the offender was convicted repeatedly, twice or more than twice, for offence under Section 411 IPC so as to establish beyond a reasonable doubt that he is in the 'habit of SC No. 136/2021 State v. Nijam Sheikh Page 50 of 53 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.03.18 16:35:14 +0530 dealing with or receiving stolen property'. Therefore, the conviction under Section 413 IPC is based on repeated convictions for offence under Section 411 IPC. Due to previous conviction, 'a punishment of different kind' is prescribed in Section 413 IPC which the accused is required to undergo.
50. Hence, while prosecuting a person for offence under Section 413 IPC, the prosecution has to prove the following factors: firstly, the property in question has been 'stolen' from a place. Thus, the prosecution must bring the property within the ambit of Section 410 IPC-within the definition of 'stolen property'. Secondly, the offender has been dealing with or receiving stolen property. Thirdly, the offender knew or had a reason to believe the property to be stolen. Fourthly, he has been repeatedly convicted, i.e twice or more than twice, of offence under Section 411 IPC. It is only after the prosecution establishes these factors that the court would be legally justified in concluding that the offender is 'habitually dealing with or receiving stolen property' and in imposing the punishment as prescribed by Section 413 IPC."
(Emphasis supplied)
44. Correspondingly, reference is made to the decision of the Hon'ble High Court of Delhi in Ajay Sethi v. State, (Supra.), wherein similar sentimentalities were expressed by the Hon'ble Court inter alia noting as under;
"12. There is no evidence on record to show that the appellant herein has been convicted in any of the FIRs and in fact stands discharged in FIR No.43/1990. In order to convict a person under Section 413 of the Indian Penal Code, the most important ingredient is that a person must be a habitual receiver of stolen goods. He must be a person, who is in the habit of receiving stolen properties and this Section cannot be applied in case of a single act. The element of repetition is mandatory. Mere pendency of FIRs or a person facing trial but in the absence of a conviction, a conviction under Section 413 of the Indian Penal Code would be unjustifiable."
(Emphasis supplied)
45. Pertinently, it is reiterated that nothing has been brought on record, either during the course of trial or argument or during the deposition of any of the prosecution witnesses, to SC No. 136/2021 State v. Nijam Sheikh Page 51 of 53 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.03.18 16:35:20 +0530 demonstrate that the accused, was in fact, convicted for the offence under Section 411 IPC. In fact, as aforenoted, PW-6 admitted that he conducted no investigation on the said aspect. Ergo, under such circumstances, in light of the foregoing exposition of law, this Court is of the considered opinion that in the absence of proof of accused's previous conviction for the offence under Section 411 IPC, no culpability for the offence under Section 413 IPC can be attributed to/attracted against the accused. CONCLUSION:
46. Conclusively, in light of the foregoing, it is reiterated that from the material placed on record and arguments addressed on behalf of the State as well as by/on behalf of the accused, in the considered opinion of this Court, the prosecution has failed to discharge the burden to prove its case 'beyond reasonable doubt' against the accused, namely, Nijam Sheikh. On the contrary, in light of the various contradictions, lacunae, and material omissions, as hereinunder observed, benefit of doubt, in the considered opinion of this Court, must accrue in favour of the accused. Correspondingly, it is noted that it is trite law 7 that the prosecution has to prove the charge beyond reasonable doubt against an accused and that an accused should be treated to be/considered innocent, until it is established otherwise. It is equally a settled law8 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
47. Accordingly, accused, namely, Nijam Sheikh is acquitted of the charges levelled against him under Sections 379, 411 and 413 IPC. Consequently, accused, namely, Nijam Sheikh is 7 Meena v. State of Maharashtra, (2000) 5 SCC 21.
8Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
SC No. 136/2021 State v. Nijam Sheikh Page 52 of 53
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.03.18
16:35:26
+0530
admitted to bail on him furnishing of a personal bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand) along with one surety of the like amount, as per the provisions under Section 437A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Further, as requested, the bail bond be furnished by the accused within a period of ten days from the date of this judgment. Needless to lastly observe that though this Court holds highest regard for the decision(s) relied upon by the Ld. Addl. PP, however, the same would not come to the aid of the State, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
48. File be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.03.18 16:35:32 +0530 Announced in the open Court (Abhishek Goyal)
on 18.03.2026. ASJ-03, Central District, Tis Hazari Courts, Delhi SC No. 136/2021 State v. Nijam Sheikh Page 53 of 53