Delhi District Court
State vs Parveen Kumar on 28 July, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-002979-2015
SC No.28059/2016
FIR No.137/2015
U/s 392/397/411/34 IPC
P. S. Kashmere Gate
STATE VERSUS PARVEEN KUMAR ETC.
(i) SC No. of the case : 28059/2016
(ii) Date of commission of offence : 23.03.2015
(iii) Name, parentage and address : 1. Parveen Kumar
of accused S/o Suraj Pal
R/o J-1141, J-Block
Jahangirpuri, Delhi
2. Chand Mohd.
S/o Mohd. Akbar
R/o J-1303, J-Block,
Jahangirpuri, Delhi
3. Sachin Kumar
(abated vide order
dated 02.05.2025)
S/o Late Sh. Ajit
Kumar
R/o H. No.I-710,
Jahangirpuri, Delhi.
(iv) Offences complained of : 392/397/411/34 IPC
Page 1 of 58
SC No.28059/2016
FIR No.137/2015
P. S. Kashmere Gate
State vs. Parveen Kumar Etc.
(v) Plea of the accused : Pleaded not Guilty
(vi) Final order : Acquittal
(vii) Date of such order : 28.07.2025
Date of Institution : 23.07.2015
Date of Judgment reserved on : 05.07.2025
Date of Judgment : 28.07.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Anil Kumar dated 23.03.2015 which is Ex.PW2/A. It is submitted by the complainant in his complaint that he is working as cleaning employee at Aruna Asif Ali Hospital. On 23.03.2015 he alongwith his wife Ms. Bharkha were coming on motorcycle No.DL 7SBL 3280. He was going on his duty. Around 6:45 AM when he reached Yamuna Bridge on his motorcycle then at that time another motorcycle rider came from right side, overtook his motorcycle and obstructed motorcycle of the complainant by obliquely putting his motorcycle before the motorcycle of complainant. The pillion Page 2 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. rider of the said overtaking motorcycle got down and came to the complainant and removed keys of the motorcycle of the complainant. At that time another person came from behind who placed pistol like object on the side of the complainant and gave threat to kill. At that time the pillion rider who had removed the keys of the motorcycle of the complainant under threat removed two gold rings from the right hand fingers of the complainant which were measuring 15 grams each. The person who came from behind had removed the purse from the backside pocket of the complainant. The purse was black in colour containing Voter ID Card, 1 passport photo and some visiting cards. It also contains 150/- - 200/- rupees. After that the said accused person ran away on 2 motorcycle. One motorcycle was of make Yamha FZ and both the motorcycle did not have number plate on them. One accused was aged about 25 to 30 years. The complainant called at 100 number.
2. FIR Ex.PW1/A was registered in the matter under Section 392/397/34 IPC. The site plan Ex.PW5/B was prepared at the instance of the complainant. On 11.04.2015 DD No.8A was received from Ct. Pawan from Kalkatia Gate Picket with the information that one motorcycle without number plate having 3 passengers was stopped. IO alongwith Ct. Kishan Lal Page 3 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. had reached at that spot at Lothiyan Road where accused No.1 Parveen, accused No.3 Sachin and accused No.2 Chand Mohd. were found with one motorcycle No. DL 9SAB 1699 make Yamaha FZ. The said Yamaha FZ motorcycle was wanted in FIR No.263/2015 under Section 379 IPC of PS Maurya Enclave Delhi. Disclosure statement was given by accused No.1 Parveen from whose possession at his house from the almirah one purse was recovered. Search was made for co-accused Sonu who could not be found. Another motorcycle No. DL 8SBQ 6353 was also recovered at the instance of accused No.1 Parveen from Nigam Bodh Ghat parking which was wanted being stolen from PS Sunlight Colony. Initially accused No.2 and 3 were sent before the Hon'ble Juvenile Justice Board. However both the accused were later on found major and sent for trial. From accused No.2 Chand Mohd. a motorcycle DL 55Q 5514 was recovered from Kudsia Ghat which was stolen in FIR No.158/2015 of PS Kashmere Gate. Accused No.3 Sachin got recovered motorcycle No. DL 8SAN 6672 which was stolen from the jurisdiction of PS Mahender Park. After completion of investigation chargesheet was filed. Accused were summoned.
3. On 09.03.2017 charge was framed against the accused Page 4 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. Parveen Kumar, Chand Mohd. and Sachin under Section 392/34, 397, 411 IPC to which all accused had pleaded not guilty and claimed trial. Prosecution had examined PW-1 to PW-10 as total number of prosecution witness in the present case.
4. Statement of accused No.1 Parveen Kumar and accused No.3 Sachin was recorded under Section 313 Cr. P. C. on 26.03.2025. Statement of accused No.2 Chand Mohd. was recorded on 28.04.2025. Accused No.1 Parveen Kumar and accused No.2 Chand Mohd. had preferred not to lead evidence in defence. Accused No.3 Sachin had preferred to lead evidence in defence. However during course of trial accused No.3 Sachin had expired and on the report of SHO PS Kashmere Gate the case against accused Sachin stands abated vide order dated 02.05.2025. Hence the matter was listed for final arguments. The statement of accused No.1 Parveen was recorded dated 11.04.2023 vide which he had admitted TIP proceedings Ex.A-1 conducted by the then learned MM on 15.04.2015. He had given the statement that he shall not claim any prejudice on account of non-examination of witness of the TIP proceedings.
Page 5 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc.
5. Final arguments are heard on behalf of both the parties and record perused.
6. The necessary ingredients are detailed in citation titled as State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom). Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a Page 6 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. Section 394 IPC is voluntarily committing robbery/ Section 392 IPC and in addition hurt is also caused voluntarily. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para are reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in Page 7 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be Page 8 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in Page 9 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel Page 10 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC
- 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term Page 11 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when Page 12 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section for acts of the co-accused.
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20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
7. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft Page 14 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc.
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when Page 15 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".Page 16 of 58 SC No.28059/2016 FIR No.137/2015
P. S. Kashmere Gate State vs. Parveen Kumar Etc.
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
Xxxxxxxxxx
8. The first ingredient the prosecution has to prove under Section 392 IPC is that the accused had attempted to commit theft. The accused No.1 Parveen had made disclosure and thereby he was taken to his home for the purpose of search on the basis of disclosure made by him. Accused Parveen got recovered one purse from the Almirah of his home. The disclosure statement of accused Parveen is Mark-P9/E. In the disclosure statement accused Parveen Kumar had allegedly stated that he can get recovered the robbed articles which are the golden rings and he can get arrested his 4 th accomplice. The disclosure statement is not recorded exactly in the words of the accused Parveen Kumar and therefore it cannot be said that whether the accused had meant to say what is actually recorded by the IO in the disclosure statement. Other than this the disclosure statement does not mention the specific place from which the accused can get recovered the articles which were robbed. Hence in the absence of it there is no such material Page 17 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. disclosure on record on the basis of which any recovery under Section 27 of Indian Evidence Act 1872 was effected from accused Parveen. Hon'ble Supreme Court of India in case titled Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) has laid down the law at para No.51 to 76 that how recovery under Section 27 of Indian Evidence Act 1872 has to be proved. It was laid down that the disclosure must be out of free will and volition. At that time when the disclosure statement was made the first thing the IO has to do was to call 2 independent witness at the police station itself. Thereafter in the presence of those independent witness the accused should be asked to make an appropriate statement. The said 2 independent witness will be Panch witness. The exact words uttered by the accused should be incorporated in the 1st part of Panchnama. In the present case neither the Panchanama was recorded at the police station nor the exact words uttered by the accused Parveen were recorded. The independent witness are also not joined in the present case. Hence prosecution has failed to prove that the alleged disclosure was made out of free will of the accused Parveen nor what was the exact disclosure is proved on record. Only after completion of the 1st part the police has to proceed for recovery of articles of offence which would form the 2 nd part of the Page 18 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. Panchnama. Similarly IO is expected to depose in evidence the exact words uttered by the accused at the police station to prove the contents of discovery Panchnama. The authorship of concealment has to be proved. The relevant para No.51 to 76 are reproduced hereasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his bloodstained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery. In such circumstances, while on the way the investigating officer picked up PW2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the investigating officer the accused led them to a coriander field and from a bush he took out the weapon of offence (Banka) and the bloodstained clothes. The weapon of offence and the bloodstained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon & clothes at the instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so.
Page 19 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc. In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus:
"27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral Page 20 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence.
56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is Page 21 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, Hamlet Amethi, original resident of village Basadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lockup, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, Page 22 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pant shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there."
In expectation of recovery of murder weapon and bloodstained clothes, I the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No. 7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealedstamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka5...." [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma Shankar Mishra who at the relevant point of time was serving as a SubInspector Chowki Incharge Bahjam, Police Station. It appears that the PW6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station Dhaurahara. That Page 23 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station Dhaurahara, domicile of village Basadhiya, Police Station Isha Ganj, District Kheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then Incharge Inspector and followers S.I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pantshirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet Amethi for the purpose of recovery."
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW7, investigating officer & PW6, Sub Inspector the exact statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination in chief of the PW6, Sub Inspector and PW7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub Inspector (PW6).
62. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive Page 24 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483
65. Two conditions for application -
(1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
66. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph- 71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating Page 25 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
68. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be Page 26 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
69. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
70. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Page 27 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively.
73. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the Page 28 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied] Page 29 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc.
74. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accusedappellants (Exts. P15 and P16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8....." [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the Page 30 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same. Xxxxxxxxxxxxxxxx
81. Confessions may be divided into two classes, i.e. judicial and extra judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise :
(i) were they made voluntarily? And
(ii) are they true?
As the Section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for Page 31 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement,
(a) does not have reference to the charge against the accused person, or (
b) it does not proceed from a person in authority; or
(c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Evidence Act. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors at the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that its opinion, the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of highest Page 32 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. credit, because it is presumed to flow from the highest sense of guilt. [See R.V. Warwickshall, (1783) Lesch 263)]. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So, where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence- alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused. (See State of Rajasthan v. Raja Ram, (2003) 8 SCC 180)
82. An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the Page 33 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
83. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.
84. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under:--
"15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that : (SCC p. 265, para 10) "10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it Page 34 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. loses its importance."
xxxxxxxxx 15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that : (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." The Court further expressed the view that : (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...." xxxxxxxxx 15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) 1 SCC (Cri) 79] held that : (SCC p. 611, paras 29-30) "29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra- judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2 SCC 105 : 1970 SCC (Cri) 320], Mulk Raj v. State of U.P. [AIR 1959 SC 902 : 1959 Cri LJ 1219], Sivakumar v. State [(2006) 1 SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Payaswami Tewari v. State of Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082]]""
[Emphasis supplied] Page 35 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc.
85. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, this Court after referring to Piara Singh v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.
86. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession.
9. Hence the prosecution has failed to prove the recovery from accused Parveen Kumar of the alleged golden rings as stated in the disclosure statement Mark-P9/E. The site plan about recovery of articles from accused Parveen is Ex.PW5/B (at page No.47 of the document file) and at point A is a place where the accused is staying and from the point B Almirah at first floor recovery was effected. From an Almirah inside the room the recovery of a black purse was effected. The site plan Mark-P9/F (page No.103 of document file) at point A shows the place where the accused Parveen were apprehended with bike No.DL 9SAB 1699. The place where the robbery was Page 36 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. committed is shown in the site plan Ex.PW9/B (at page No.95 of document file). The TIP of accused Parveen is Ex.A-1 which was conducted on 15.04.2015 (at page No.177A of the document file) where accused No.1 Parveen was correctly identified by witness Anil Kumar. The offence is dated 23.03.2015. The TIP proceedings were supplied to IO vide Ex.PW9/K1. With such correct identification of accused Parveen which is a corroborative piece of evidence the matter could be proceeded further against accused Parveen. However it still requires more evidence as it is settled law that merely on the basis of TIP evidence a person cannot be convicted.
10. The DD No.7A dated 23.03.2015 (at page No.49 of document file) was recorded at 7:05 AM. Vide the said DD information was given that at Yamuna Bridge two bikes carrying two boys each on each of the bike had robbed gold ring of the caller and ran towards ISBT. Hence as per the said DD No.7A there were 4 accused and not 3 accused whereas IO has apprehended only 3 accused in the present case. As per the said DD entry only 1 gold ring was claimed to be stolen and not a purse from the complainant whereas in the complaint it is alleged that 2 gold rings were robbed. Another point to be noted is that as per the complaint Ex.PW2/A and the deposition Page 37 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. of PW-2 he is the resident of H. No.B-294, Sangam Park, Rana Pratap Bagh, Delhi-07. He was going to his office at that time of the morning around 6:45 AM. His office is at Aruna Asif Ali Hospital. It is noted that if a person is to proceed from Rana Pratap Bagh to Aruna Asif Ali Hospital he need not go to Yamuna Bridge/ Yudhishtar Setu and therefore it creates doubt that the complainant was going from Yamuna Bridge / Yudhishtar Setu to his office if he had to proceed from his home.
11. In his complaint Ex.PW2/A it is claimed by the complainant that his purse had Rs.150/- -
Rs.200/- amount of money whereas in his examination dated 04.05.2017 it is deposed that his purse was containing Rs.500/-
- Rs.800/- amount of money. Accused Parveen is correctly identified by PW-2 before the Court. However he could not identify the other accused as one of them was wearing helmet and other had come from behind. He could not identify any other accused except accused Parveen. PW-2 could not produce invoice of purchase of said 2 gold rings and it is claimed that the said gold rings were given to him in his marriage. However no such evidence of gifting of such gold ring is produced by PW-2. The gold rings were also not got Page 38 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. recovered by the prosecution.
12. Learned Counsel for the accused has submitted that as per the case of the prosecution PW-2 was robbed of his 2 gold rings, purse and still mobile phone of the complainant was not taken by the accused. PW-2 in his cross examination dated 14.07.2017 has deposed that he had made call at 100 number after the incident at about 6:45 AM from his mobile number 9953226012. Within 5 minutes police had reached at the spot. Vide DD No.7A the call to the police was made at 7:05 AM from the said mobile number belonging to the complainant. Therefore any doubt cannot be created as delay is not seen in calling the police when the robbery was allegedly committed at 6:45 AM and intimation was given to the police by 7:05 AM. A person who was so robbed remains in the state of shock and it may take sometime to him to come to his senses. The argument by learned Counsel for the accused that it cannot be believed that the mobile phone was not robbed and therefore no robbery was committed cannot be sustained as it is not necessary that in every case of robbery every article could be robbed. It cannot be said that at that time the accused person came to know about the possession of mobile phone with the complainant and in such process of commission of robbery which was performed in Page 39 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. quick time shows that accused themselves were in hurry and therefore not robbing of mobile phone does not create doubt in the case of the prosecution. It affirms the case of the prosecution as from the same mobile phone police was called immediately.
13. At page No.157 of document file there is statement under Section 161 Cr.P.C. of Ms. Barkha the wife of the complainant Anil Kumar wherein it is recorded that one person on motorcycle had overtook and obstructed the motorcycle of the complainant. The pillion rider on the said motorcycle had robbed the 2 gold rings and the person who came from behind had robbed the purse of her husband from backside pocket. In his deposition dated 04.05.2017 PW-2 has improved his version that the person who was pillion rider on the motorcycle overtook his motorcycle after getting down started scuffling with the complainant. It is deposed that the person who had taken his gold rings was identified by him at Rohini Jail which means that accused No.1 Parveen was identified in TIP by PW-2 at Rohini Jail is the accused who is the pillion rider who had taken out the gold ring. Hence accused Parveen had not taken out the purse of PW-2 but it was robbed by another person who came from behind. The purse was recovered from Page 40 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. accused Parveen. The gold rings were not recovered in the case. The TIP of purse was not conducted in the matter. In absence of conducting of TIP proceedings of the said purse it cannot be said that this purse belongs to the complainant. Hence in the absence of TIP of articles it cannot be said that it is the same purse which was robbed from the complainant by the accused person. Further the ownership of the house from where the said purse was recovered is also not proved on record and exclusive possession of the said premises with accused No.1 is also not proved on record. Hence recovery of said purse from the accused No.1 Parveen is held not proved on record. The relevant citation is this regard is Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396 (Coram:3) (supra).
14. In the statement (at page No.157A of the document file) additional statement under Section 161 Cr. P. C. of the complainant is recorded wherein he has stated that he does not have any bill of the gold rings. It can be believed that the complainant does not have bills of gold ring which were gifted to him in marriage. However prosecution could have examined the person who had gifted such ring to the complainant in his marriage.Page 41 of 58 SC No.28059/2016 FIR No.137/2015
P. S. Kashmere Gate State vs. Parveen Kumar Etc.
15. In examination in chief dated 04.05.2017 PW-2/ complainant has deposed that he resides at address H. No.294, Sangam Park, Rana Pratap Bagh, Delhi. However in the complaint Ex.PW2/A it is stated that the complainant was coming from Yamuna Pul. In the statement under Section 161 Cr.P.C. (at page 157 of the document file) Ms. Barkha / PW-6 has stated that she was coming with her husband via Pusta from their tenanted house at Usmanpur. However the PW-6 has not stated so in her deposition nor PW-2 the complainant has stated so in his deposition. No rent deed and proper address of Usmanpur is filed. Hence the prosecution has not proved that the complainant would be coming from Yamuna Pul to his office at Aruna Asif Ali Hospital when the complainant is residing at H. No.294, Sangam Park, Rana Pratap Bagh, Delhi. Learned Counsel for the accused has submitted that no gold ring was recovered nor any ring was recovered from accused Chand Mohd.
16. Learned Counsel for the accused has referred to the deposition of PW-7 dated 11.04.2023 at page No.3 where it is deposed that they made call to the PS Kashmere Gate at about 4:15 AM. SI Ashok came to police picket within 5 minutes whereas PW-8 in his examination in chief dated 22.05.2023 has Page 42 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. deposed that at about 4:45 AM 3 boys came riding on motorcycle from Lal Quila side after which Ct. Pawan/PW-7 had informed at PS Kashmere Gate. After that SI Ashok with staff came there. Hence there is contradiction in the deposition of PW-7 and PW-8 regarding the apprehension of accused persons at police picket and the time at which SI Ashok came alongwith staff at the said police picket. SI Ashok / PW-9 at page No.2 of his examination in chief dated 11.01.2024 has deposed that 4:30 - 4:45 AM information was received by him from DO vide DD No.8A regarding apprehension of 3 culprits at GPO Kashmere Gate. When PW-8 was apprehended the accused person at 4:45 AM then how the above DD No.8A was made at PS at 4:15 AM or at 4:30 - 4:45 AM. There could be gap of few minutes but it cannot extend for a period of ½ an hour regarding arrest of accused person. Hence the arrest of 3 accused person at police picket had become doubtful. PW-7 therefore has deposed that SI Ashok had reached at the spot by 4:20 AM within 5 minutes. Hence the prosecution witness are deposing contrary to each other. Learned Counsel for the accused has submitted that the approximate distance between PS Kashmere Gate to police picket is about 100-150 meters only. PW-8 HC Amit at page No.3 of his cross examination has deposed that they handed over accused persons to SI Ashok at Page 43 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. 5:15 AM and accused persons were with them for about ½ an hour till SI Ashok had arrived.
17. Ex.PW9/G1 is apprehension memo of accused Chand Mohd. who had initially pleaded as JCL. The Kalandra in respect of apprehension of the accused is Mark-P9/C (at page No.93 of document file). The page No.94 of the Kalandra records that parents of the accused Chand Mohd. could not be contacted whereas in the apprehension memo Ex.PW9/G1 records that mother of JCL Chand Mohd. namely Ms. Parveen was informed about the apprehension of accused Chand. Mohd. and her mobile No.9999153092 is also recorded in the apprehension memo. Hence the correct preparation of record by the investigating agency is not seen regarding the arrest of accused person. In Ex.PW9/G1 (at page No.119 of document file) bears signature of parent. The social report is Ex.PW9/G2 of JCL. The apprehension memo of accused Sachin Kumar is Ex.PW9/G3 which is at page No.125 of document file and it also bears the signature of Smt. Aman who is the mother of accused and it also bears her mobile No.8866900539. Hence parents of the accused were contacted by investigating agency and contrary to which is recorded in the Kalandra Mark-P9/C. Page 44 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc.
18. PW-3 at page No.4 of his cross examination dated 01.09.2017 (at page No.217 of the evidence file) records that the accused person were interrogated at PS. At page No.3 records in the evidence of PW-3 that Duty Officer had informed him about the call around 7-8 AM of the morning dated 11.04.2015 and at about 8:20 AM the accused person and the said motorcycle was brought to the PS. At PS accused person were interrogated by SI Ashok Kumar and recorded their disclosure. The seizure memo of motorcycle and document of arrest were prepared at the spot itself. To the contrary PW-8 at 1st page of his examination in chief dated 22.05.2023 has deposed that SI Ashok interrogated the above boys at the spot.
They had handed over the accused to SI Ashok at about 5:15 AM which is recorded at page No.3 of the same examination. Hence there is doubt that proper disclosure of accused person was recorded and there is doubt about the place at which the disclosure of accused persons was recorded.
19. The apprehension memo of accused Chand Mohd. was prepared vide Ex.PW3/B on 11.04.2015 at about 5:40 AM (at page No.67 of the document file) and in the version of JCL Chand Mohd. Ex.PW9/I records the signature of father of accused Chand Mohd. To the contrary in the Kalandra Mark-
Page 45 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc. P9/C (at page No.94 of the document file) records that the family members of the accused No.2 Chand Mohd. and accused No.3 Sachin Kumar could not be contacted. Mark-P9/G (at page No.97 of document file) records at page 98 that the family members of the accused person could not be contacted on the mobile number provided.
20. PW-2 has deposed in cross examination dated 14.07.2017 as correct that nothing was recovered from any of the accused whereas it is the case of the prosecution that purse was recovered from the accused Parveen. Hence the only link in the entire chain of evidence produced by the prosecution is the evidence of TIP conducted against accused No.1 Parveen. The said accused Parveen was also identified in the Court. However it is settled law that merely on the basis of evidence of TIP in the absence of any other corroborative evidence the accused cannot be held guilty. The relevant citation in this regard is reproduced hereinunder:
Hon'ble High Court of Orissa, Cuttack in case titled Baikuntha Bhoi and Another Versus State of Odisha 2024 SCC OnLine Ori 1264 has laid down as under:
Whether the evidence of identification of the appellants is acceptable?:
8. P.W.4, the informant has not named any of the accused persons in the F.I.R. (Ext.1) and that is how it was lodged against four unknown persons. In the examination-in-chief, P.W.4 has stated Page 46 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. that he knew the appellants Bishnu Bishnu Charan Nayak and Raju @ Rajesh Behera. He further stated that while he was waiting near Master Canteen, a Maruti Omni vehicle being driven by appellant Raju @ Rajesh Behera arrived there. He further stated that the appellant Raju @ Rajesh Behera assaulted on his head, squeezed his neck and asked him to deliver his belongings. He further stated that the appellant Bishnu Nayak was all along assaulting him.
Thus, from the examination-in-chief, it appears as if P.W.4 knew the two appellants, namely, Bishnu Nayak and Raju @ Rajesh Behera beforehand. If that be so, it was expected of him to mention their names in the F.I.R., but since the names of these two appellants do not find place in the F.I.R., their involvement in the crime becomes a doubtful feature. In the case of Tukuna Rauta v. State of Odisha, (2021) 84 Orissa Criminal Reports 55, this Court has held that despite knowing the name of the accused, omission on the part of the informant to mention the same in the F.I.R. affects the probabilities of the case and such omission is relevant under section 11 of the Evidence Act in judging veracity of the prosecution case and also gives rise to the reasonable doubt that the appellant was not a participant in the crime.
In the cross-examination, P.W.4 has stated that he did not know appellant Raju @ Rajesh Behera prior to the occurrence and the police conducted T.I. parade wherein he identified appellant Raju @ Rajesh Behera. It is the prosecution case that only one T.I. parade has been conducted in Jharpada Jail, Bhubaneswar on 26.06.2010 in connection with this case by the Magistrate, who has not been examined. However, the T.I. parade report (Ext.2) has been proved by none else than the informant (P.W.4). If P.W.4 got the scope to identify the appellant Raju @ Rajesh Behera in the T.I. parade conducted by the police, then the sanctity of T.I. parade which was conducted at a later point of time by the Magistrate is lost. The Hon'ble Supreme Court has made it clear that the requirement to hold an identification parade can only arise when the accused are not previously known to the informant/witnesses. In the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310, the above position of law has been clarified as follows:
"13...The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who Page 47 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the crime."
The Hon'ble Supreme Court has time and again held that test identification parade of accused persons known to the informant/witnesses is of no value and meaningless. In the case of Dhananjay Shanker Shetty v. State of Maharashtra, (2002) 6 SCC 596, the Hon'ble Court held as follows:
"8. Next circumstance against the appellant was his so-called identification in the test identification parade by P.W.s 1, 3 and 9. The trial court as well as the High Court has found various legal infirmities in the holding of test identification parade, as such no reliance has been placed thereon. Moreover, as the appellant was named accused person, his so-called identification in the test identification parade could not be of any avail to the prosecution as it was meaningless."
[Emphasis added] Above all, the prosecution has not offered any explanation as to why the Magistrate, who conducted T.I. parade was not examined to prove the report, inasmuch as many things the defence could have brought out by way of cross-examination of the Magistrate regarding the irregularities or procedural infirmities, if any, made during conduct of the T.I. parade. Recently, in the case of Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616, the Hon'ble Supreme Court has expressed concern about non-examination of Magistrates to prove the sanctity of T.I. parade and observed as follows:
"10. But more important than that, the test identification parade being a part of the investigation, has to be proved by the prosecution as having been held in accordance with law. The onus lies on the prosecution to establish that the T.I parade was held in accordance with law. It is only after the prosecution prima facie establishes a valid T.I parade having been held, the question of Page 48 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. considering any objection to the same arises. If the prosecution has failed to establish that a T.I parade was properly held by examining the witnesses to the same, there is nothing for the accused to disprove. In the present case, a Magistrate is stated to have conducted the T.I parade. The Magistrate has not been examined. No explanation is forthcoming why the Magistrate was not examined."
Thus, it is undisputed that the Public Prosecutor has a duty to examine the Magistrate who conducts the T.I. parade so that the legal sanctity of the T.I. parade report can be ascertained during the trial. Non-examination of the Magistrate strikes a severe blow not only to the prosecution case but also to the cause of justice as irregularities, if any, committed in such T.I. parade cannot be canvassed and discussed by the trial Court in his absence from the witness box. In the present case, no plausible explanation has been offered as to why the Magistrate was not examined in the Court to prove the T.I. parade report. In the case in hand, the prosecution has proved the T.I. parade report through P.W.4, the informant who has stated that he had signed the T.I. parade report and accordingly, the report was marked as Ext.2 and the signature of P.W.4 was marked as Ext.2/1. Mere marking of the T.I. parade report is not enough inasmuch as the person who conducted the T.I. parade could only highlight what precautions he took, what procedure he followed during such T.I. parade. Lapses, if any, on his part during the proceedings of the T.I. parade which strikes at the root of the identification evidence, can be brought out by the defence counsel in the cross-examination. If the Magistrate is dead or his attendance could not be procured during trial for any reason, the trial Court has to specifically mention the same in the order- sheet and thereafter the prosecution can adduce cogent evidence to prove such T.I. parade report. Identification proceedings are not conducted for the pleasure of the prosecution. It has got a valuable purpose even though the identification test does not constitute substantive evidence.
There is absolutely no material on record against the appellants Baikuntha Bhoi and Prasanta Nayak except the confessional statement of the appellant Raju @ Rajesh Behera, which has been marked as Ext.4. No T.I. parade has also been conducted in respect of those two appellants and the informant has also not identified these two appellants in Court during trial.
Page 49 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc. P.W.4, the informant has stated that the accused persons took away his mobile phone and money purse from his pant pocket. He has not stated that his passport photograph was there in his money purse. He has not stated that the xerox copy of the matriculation certificate and original PAN allotment letter were taken away by the accused persons. He has also not stated that the money purse was having six nos. of hundred rupees notes. Even though as per the evidence of the I.O. (P.W.8), at the instance of the appellant Raju @ Rajesh Behera, one black colour money purse, passport photograph of P.W.4 and xerox copy of the matriculation certificate of P.W.4 and original PAN allotment letter and six nos. of hundred rupees notes, which were kept inside the money purse, were seized as per the seizure list (Ext.5), but since no T.I. parade has been conducted in respect of the money purse and even P.W.4 has not identified the money purse and other documents seized as per seizure list Ext.5 in Court during trial, recovery of such articles cannot be a factor to hold the appellant Raju @ Rajesh Behera guilty. The articles seized under seizure list Ext.5 were marked as M.Os. when the I.O. (P.W.8) was examined.
21. It is further noted that even the purse allegedly recovered from accused Parveen is not proved and identified during evidence and the same cannot be relied upon. Further the accused Parveen had allegedly robbed the gold rings and the other accused came from behind had robbed the purse whereas the purse was recovered from accused No.1 Parveen and the gold rings in the matter are not recovered which were allegedly robbed by the accused Parveen.
22. PW-6 Ms. Barkha has deposed that the persons who overtook their motorcycle had thrown the keys in the Yamuna Page 50 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. river. This fact is not stated by PW-6 in her statement under Section 161 Cr.P.C. nor the same is proved in evidence by PW-2 Sh. Anil Kumar. Further PW-6 has deposed that the person / pillion rider got removed a gold ring from the right hand finger of her husband wherein in complaint Ex.PW2/A it is claimed by PW-2 that 2 gold rings were robbed. Hence the deposition of PW-6 and PW-2 is contradictory in this regard. PW-6 does not remember the face of robbers and she cannot identify them. The purse is Ex.P-1 on record which is correctly identified by PW-6. Whereas the purse belongs to PW-2 and the same was not got identified by PW-2 by the prosecution. TIP of the purse is not proved. The sketch of the accused person was not prepared by the police. It is admitted by PW-5 Ct. Amit Kumar in cross examination as correct that IO had not seen the recovered purse. Hence the tampering of purse and its contents cannot be over-ruled. PW-5 has further deposed that when they had went to recover the purse at the house of accused Parveen then IO had asked the neighbours to join the investigation but none agreed. PW-5 cannot tell the description of building due to lapse of time. PW-9 SI Ashok Kumar the IO has not deposed that while making search for said purse at the alleged house of accused Parveen any public person was asked to join the investigation. There was sufficient time with the Page 51 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. investigating agency to arrange for joining the public person which they did not join. In view of the above circumstances of the case the recovery of purse from accused Parveen has become doubtful.
23. Further, the charge is levelled against accused No.1 that he had used the pistol while committing the robbery. Whereas PW-2 and PW-6 has deposed that the pillion rider had used the pistol. Nor there is any averment in the complaint Ex.PW2/A that pistol was used at all by the accused No.1 Parveen. Nor any pistol is recovered in this matter. Nor it is case of the prosecution witness that they had seen the pistol. The PW-2 and PW-6 have deposed that they cannot identify the accused person who had used the pistol. Under Section 397 IPC, only the offender / person who had committed the robbery and has attempted or caused voluntarily hurt or threaten to cause such hurt and who had used deadly weapon can only be held liable and punished. The principle of constructive liability does not extend under Section 397 IPC and therefore it cannot be extended in respect of accused No.1 Parveen. There is absence of any evidence on record to lead accused No.2 and 3 with the alleged use of pistol. There is absence of any evidence on record except unproved disclosure statement of accused person Page 52 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. amongst each other about their involvement in the present case. Hence this is a case of no evidence for the applicability of Section 397 IPC.
24. The next offence with which accused persons are charged with is Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022 are reproduced hereinasunder:
13. Section 411 IPC:
"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
Page 53 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc. "9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example:
"A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation Page 54 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
25. The para No.11, 13, 18, 20, 21 and 22 above has laid down the reasons that recovery of purse from accused Parveen cannot be imputed and the reasons stated there are not repeated herein for the sake of brevity. Ownership of purse is not proved. PW-2 has not proved the purse in his evidence. The recovery of purse from accused Parveen has also not been proved on record in view of which it cannot be said that there is applicability of Section 411 IPC against any of the accused in the present case.
Page 56 of 58 SC No.28059/2016 FIR No.137/2015P. S. Kashmere Gate State vs. Parveen Kumar Etc.
26. In view of the above discussion it is held that the prosecution has failed to prove that the accused No.1 Parveen Kumar and accused No.2 Chand Mohd. have committed offence under Section 392/397/411/34 IPC.
27. Hence the accused No.1 Parveen Kumar and accused No.2 Chand Mohd. are acquitted of all the offence charged against under Section 392/397/411/34 IPC and it is held that prosecution has failed to prove the charge levelled against the accused Parveen Kumar and Chand Mohd. under Section under Section 392/397/411/34 IPC. Accordingly, the accused Parveen Kumar and Chand Mohd. stand acquitted of the offence under Section under Section 392/397/411/34 IPC. The earlier personal bond of accused No.1 Parveen Kumar is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de- endorsed. In terms of Section 437A Cr. P. C., accused No.1 has furnished his bail bond as directed which will be in force for period of six months from the date of this judgment. Accused No.2 Chand Mohd. has furnished his personal bond only in a sum of Rs.5000/- under Section 437A Cr. P. C. as directed which will be in force for period of six months from the date of Page 57 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc. this judgment. He be released henceforth if not wanted in any other case. Jail Superintendent to comply immediately and accordingly. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2025.07.28 on dated 28.07.2025 NAHAR 15:07:01 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/28.07.2025 Page 58 of 58 SC No.28059/2016 FIR No.137/2015 P. S. Kashmere Gate State vs. Parveen Kumar Etc.