Delhi District Court
State vs Rafiq @ Babu on 28 March, 2025
IN THE COURT OF SH. VINEET KUMAR
ADDITIONAL SESSIONS JUDGE: E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.100/2020
FIR No. 341/2019
U/S: 392/397/411/34 IPC
P.S: Jagat Puri
State Vs. Rafiq @ Babu
S/o Sh. Vakil Ahmad
R/o Mohalla Khen Chowki
P.S. Vada, Sahaswan, District
Badaun, UP.
Date of Committal to Sessions Court : 13.03.2020
Date of Arguments : 18.03.2025
Date of judgment : 28.03.2025
Accused represented by : Counsel Sh. Nadeem Khan.
State represented by : Ld. Addl. PP Sh. Parmod Kumar.
JUDGMENT
Case of Prosecution
1. Criminal law was set into motion on 09.12.2019, upon receipt of DD No. 43B, ASI Shiv Kumar along with Ct. Sohan Lal reached at the spot Arjun Nagar Police Picket, where ASI Brij Bhushan had handed over a person namely Rafiq @ Babu and informed that said person was trying to flee away after committing robbery and public persons caught and gave VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:05:24 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.1 of 24 beatings to him. ASI Brij Bhushan further informed the IO that he took the accused Rafiq @ Babu to police booth, who had sustained injuries on his head and other body parts. IO sent the accused to Hedgewar hospital along with Ct. Sohan Lal for medical examination. Thereafter, IO recorded statement of complainant Aakashdeep Pandey, who was present at the spot. The gist of statement of complainant is that "he was a student of LLM and on the date of incident, he was coming from his college and he was standing at Arjun Nagar bus stand, at about 5.45 pm, someone called him on his mobile phone and while talking on phone he came 20 steps ahead of bus stand, suddenly someone caught hold of his neck from behind and another person having a paper knife in his hand, threatened the complainant while saying jo hai sab de de varna jaan se maar dunga and he snatched mobile phone from the hands of complainant and robbed his purse, containing Aadhar card, ATM card, Metro card and cash of about Rs.150/-, from his pant's pocket; that thereafter both the said persons started running, however complainant chased them while making hue and cry and at some distance with the help of public persons, complainant caught hold one of those persons, later on, whose name was revealed as Rafiq @ Babu s/o Vakil Ahmad. Thereafter, public persons started beating the accused, meanwhile a police official came there and took accused, who sustained some injuries on his head and other body parts, to VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:05:33 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.2 of 24 police booth. Upon search, purse of complainant and paper cutting knife were recovered from his possession and other offender fled away with mobile phone of complainant. On the basis of statement of complainant, present FIR was registered under Section 394/411/506/34 IPC. However, co-accused could not be arrested. Thereafter, upon completion of investigation, charge-sheet in the present case was filed only against the accused herein before the court concerned under Section 397/411/506/34 IPC.
2. On appearance, in compliance of section 207 IPC, copies were supplied to the accused, and as offence punishable under Section 397 IPC is triable exclusively by the Court of Sessions, present case was committed to Sessions Court. Charge against accused persons.
3. Charge against accused was framed, whereby accused was charged u/s 392/34 r/w 397 & alternatively under Section 411 IPC, to which he pleaded not guilty and claimed trial. Witnesses examined
4. To substantiate the charge, prosecution has examined 5 witnesses in all. The brief summary of the deposition of prosecution witnesses is as under:
PW-1 HC Jagpal Singh has deposed that on 09.12.2019, he was working as duty officer at PS Jagat Puri from 4.00 pm to 12.00 midnight; that he received information from ASI Brijbhushan regarding apprehension of a person, who had VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:05:40 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.3 of 24 snatched mobile phone; that he recorded the said information vide DD No. 43-B, which has been proved as Ex. PW1/A. He has further deposed that on the same day, at about 10.15 pm, he received rukka from ASI Brij Bhushan and on the basis of said rukka, he registered case FIR No.341/2019, which has been proved as Ex.PW1/B and made endorsement on the same as Ex.
PW1/C and he has proved the certificate u/s 65-B Indian Evidence Act as Ex. PW1/D. During cross-examination by Ld. Defence counsel, PW1 has denied the suggestion that present FIR is ante dated and ante timed.
PW-2 Akashdeep Pandey is the complainant, who has deposed that in the year 2019, he was was pursuing LL.M and on 09.12.2019 at about 5:50-5:55 pm, he was coming back from Delhi University in Metro and de-boarded from Metro at Krishna Nagar Metro Station and when he reached at Arjun Nagar, Bus Stand Road no. 57, Jagatpuri, he was talking on phone, all of a sudden, one person came from behind and caught hold of him from his neck with his arms and another person put a paper cutter on his neck from the front and stated jo kuch hain sab de do nahi to mar dunga; that the robbers robbed his Redmi 5 A Mobile Phone and purse from back side of his wearing pant which was containing Aadhar Card, Metro Card, ATM and Rs. 150/- cash; that after robbing him they started running from there, he chased them while shouting and VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:05:48 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.4 of 24 at some distance, he managed to apprehend one of the robbers with the help of public persons whose name was revealed as Rafiq @ Babu; that public persons have beaten them. He has further deposed that in the meantime, one police official came there and took the apprehended robber to the police booth in order to save him from the public; that complainant also accompanied him to police booth; that on cursory search of apprehended boy, purse of complainant containing his Aadhar Card, Metro Card, ATM card of Union Bank and Rs.150/- cash along with one paper cutter of white colour were recovered from the pocket of apprehended robber; that local police also reached at the police booth and IO recorded statement of complainant Ex. PW2/A. He has further deposed that IO prepared site plan at his instance Ex. PW2/B and also prepared sketch of paper cutter Ex. PW2/C, recovered from the possession of accused Rafiq @ Babu; that IO wrapped the recovered paper cutter and sealed the same with the seal of 'SKS' and same was seized vide seizure memo Ex. PW2/D; that IO had also wrapped recovered purse containing Aadhar Card, ATM Card, Metro Card and Rs.150/- of complainant in a cloth pulanda and seized the same vide seizure memo Ex. PW2/E. He has further deposed that thereafter accused Rafiq @ Babu was arrested and personally searched vide memos Ex. PW2/F and Ex. PW2/F. Complainant has correctly identified the accused Rafiq @ Babu wearing red shirt standing in the court VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:05:55 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.5 of 24 room and stated that he is the same person who put a paper cutter on his neck and robbed mobile phone and his purse containing his belongings.
Initially, complainant was not cross examined by accused despite opportunity. However, upon conclusion of prosecution evidence as well as recording statement of accused under Section 313 Cr. PC, Ld. Defence counsel had moved an application under Section 311 Cr. PC seeking recall of complainant for his cross examination, which was allowed vide order dated 20.02.2025 and complainant was called for his cross-examination.
During his cross-examination, PW2/complainant deposed that he did not remember whether there were three persons at the time of incident, but he remembered that one person had held him from back side and accused, present in the court, had put knife on his neck. Complainant has denied the suggestion that accused persons were three in number. PW2/complainant further deposed that accused Rafiq @ Babu present in the court was over powered by him with the help of public persons and his custody was handed over by him to the police officials. He has further deposed that he was not aware, who made call at 100 number; that duration of incident was three minutes and on last minute, some public persons also reached at the spot, however, he did not know name of any public person, who reached at the spot during incident. Complainant has denied the VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:04 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.6 of 24 suggestion that accused persons involved in the present incident, were three in numbers or that they left the spot after the incident or that later on, accused Rafiq @ Babu was falsely implicated in the present case by the IO or that IO had shown him photograph of accused prior to judicial TIP. He has further denied the suggestion that accused Rafiq @ Babu was not present at the spot during incident.
PW3 SI Brij Bhushan Tyagi has deposed that on 09.12.2019, he was posted at PS Jagat Puri as ASI and on that day, he was present on my picket duty at Arjun Nagar Police Booth, at about 5:45 pm, he noticed that 2-3 persons were scuffling across the road and public persons started running away behind two persons. He has further deposed that he also ran away towards those persons and one person was caught by public; that the said person disclosed his name as Rafiq @ Babu and this witenss has correctly identified the accused in the court. He has further deposed that accused was beaten by the public persons and meanwhile complainant namely Akash Deep Pandey among the crowd stated that he along with other person had snatched his purse and mobile and other person had managed to escape from the spot. PW3 has further deposed that he brought that person into police booth and complainant also came there; that upon conducting search of Rafiq @ Babu, one black colour purse from his pocket of pant was found and on checking, the purse was containing ATM Card of Union Bank, VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:11 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.7 of 24 Metro Card, Aadhar Card of complainant and cash of Rs.150/-; that complainant idenfitied the said articles were belonging to him; that one paper cutting knife of white colour was also recovered from the front pocket of his wearing pant and complainant also identified the same which was used by the offender in commission of robbery with complainant along with another offender who fled away from there. PW3 further deposed that accused Rafiq @ Babu disclosed that his companion Anil had run away with the mobile of complainant; that he informed the duty officer about the incident and after some time, ASI Shiv Kumar and Ct. Sohan Lal from PS Jagat Puri arrived at the spot and he handed over the apprehended person Rafiq @ Babu along with recovered articles to IO; that IO sent accused person Rafiq @ Babu for medical examination with Ct. Sohan Lal and IO recorded the statement of complainant. PW3 further deposed that IO prepared the rukka on the statement of complainant and handed over to him for registration of FIR.
This witness was extensively cross-examined by the Ld. Counsel for accused, however, nothing adverse to the prosecution case could be elicited out of him.
PW4 HC Sohan Lal deposed that on 09.12.2019, he was posted as Constable at P.S. Jagat Puri and on that day at about 6:36 pm, ASI Brij Bhushan on duty at Arjun Nagar Police Picket, gave information vide DD No. 43-B regarding Digitally signed VINEET by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:19 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.8 of 24 apprehension of an accused and the said DD was marked by Duty Officer to ASI Shiv Kumar. PW4 further deposed that upon receipt of said DD, he had accompanied ASI Shiv Kumar to the spot i.e. Arjun Nagar Police Picket, where one apprehended person namely Rafiq @ Babu was found in custody of ASI Brij Bhushan and he produced accused Rafiq @ Babu before IO and he further informed that after snatching the mobile phone and purse, accused tried to run away, but he was over powered by public persons and public persons gave beating to him, accordingly, he had brought accused Rafiq @ Babu to Arjun Nagar Police Picket. PW4 further deposed that on the instruction of IO, he had taken accused Rafiq @ Babu to Hedgewar Hospital for his medical examination and after medical examination, he along with accused Rafiq @ Babu returned to Arjun Nagar Police Station; that ASI Brij Bhushan handed over one paper cutter to IO, which was recovered from accused Rafiq @ Babu. PW4 has correctly identified the accused Rafiq @ Babu present in the court.
During cross-examination by Ld. Defence counsel, PW4 has denied the suggestion that he had not visited the spot with IO and never joined investigation with IO or that nothing was recovered from the possession of accused Rafiq or that paper cutter and purse have been planted upon the accused Rafiq.
PW5 ASI Shiv Kumar Solanki is the IO of the case. He deposed that on 09.12.2019, he was posted as ASI at PS Jagat Digitally signed VINEET by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:27 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.9 of 24 Puri and on that day at about 6:36 pm, upon receipt of DD No. 43-B from Duty officer of PS Jagat Puri, he along with Ct. Sohan Lal reached at Arjun Nagar Picket, where complainant Akashdeep Pandey, ASI Brij Bhushan and one apprehended accused namely Rafiq @ Babu were present. PW5 has further deposed that accused Rafiq @ Babu was in injured condition and upon enquiry, it was revealed that he was beaten by public persons; that he also made enquiry from complainant about the incident. PW5 further deposed that ASI Brij Bhushan handed over to him one purse belonging to complainant Akashdeep in which Aadhar Card, Metro Card, Union Bank ATM Card and Rs.150/- (in the denomination of one currency note of Rs.100/- and five currency notes of Rs.10) were kept, one white colour paper cutter recovered from accused. PW5 further deposed that thereafter, he had recorded statement of complainant Akashdeep Pandey and prepared rukka Ex. PW-5/A and sent statement of complainant and rukka to PS through ASI Brij Bhushan for registration of FIR, who got registered the present FIR and handed computerized copy of FIR no. 341/19 u/s 394/411/506/34 IPC PS Jagat Puri along with original statement and rukka to IO. Thereafter, upon completion of investigation, he had prepared charge sheet and submitted the same before the concerned court. PW5 has correctly identified the accused Rafiq @ Babu in the court.
Digitally signedVINEET by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:34 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.10 of 24 PW5 was extensively cross-examined by Ld. Counsel for accused person, however, his credibility could not be impeached during the course of cross examination.
Importantly, accused had admitted the following document vide statement u/s 294 Cr.PC recorded on 10.09.2024:
(1) MLC of accused himself bearing No. 170772 dated 09.12.2019, as Ex. PX1. Therefore, no witness in this regard was examined and accordingly, PE was closed.
Statement and Defence of accused
5. Statements of the accused under Section 313 Cr. P.C was recorded, wherein he denied all the incriminating evidence put to him and pleaded innocence. Accused has taken a plea that recovery has been planted upon him.
Arguments
6. Arguments have been addressed by the State as also by Ld. Counsel for the accused.
7. Ld. Addl. PP for the State has argued that prosecution has proved its case beyond reasonable doubt. It has been argued that the accused was arrested on the identification of the complainant and at the time of arrest, stolen purse containing belongings of complainant was recovered from the possession of accused, which was also identified by the complainant at the same time.
VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:41 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.11 of 24
8. Per contra, Ld. Counsels for accused has argued that the accused has been falsely implicated in the present case as the alleged incident has never happened and accused was not arrested on the spot. He has further argued that nothing has been recovered from the possession, however, whatsoever has been shown by police, the same is planted as no independent witnesses has joined the proceedings at the time of alleged recovery.
9. This court has duly considered the rival submissions on behalf of Ld. Counsel for accused as well as Ld. Addl. PP for the State and perused the entire material on record.
10. To begin with, it has been contended by Ld. Defence Counsel on behalf of accused person that there were two offenders, who committed the alleged incident and complainant also deposed that two offenders had committed robbery with him, but co-accused has not been arrested in the present case, therefore, accused herein alone could not have been prosecuted. Perusal of the testimony of complainant clearly reveals that two assailants robbed him and he managed to apprehend one of them with the help of public persons, whose name he came to know as Rafiq @ Babu. It is worthwhile to mention that as per charge-sheet, despite efforts, co-accused could not be arrested and mobile phone of accused also could not be recovered and upon arrest of co-accused and recovery of mobile phone of accused, supplementary charge-sheet shall be filed. Moreover, VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:48 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.12 of 24 complainant has specifically identified the accused who put knife on his neck and threatened him to kill while committing robbery. Therefore, as such, the plea raised does not have any merits and is accordingly rejected.
11. Further, it has also been contended that absence of MLC on record qua the complainant belies his version that he was given beatings at the time of committing robbery of money and his mobile. Regarding this, it may be stated that perhaps no physical or overt injury may have been caused to the complainant during the course of commission of robbery, when one person came from behind and caught hold of him from his neck with his arms, which perhaps may have only caused bodily pain, if any, to the complainant and perhaps this explains the lack of MLC of complainant on record. Moreover, the accused has not been charged with Section 394 IPC, although in hindsight, it may well be stated that Section 394 IPC could have been invoked for aforesaid act upon the complainant during robbery. Pertinently, charge may be amended at any stage before the judgment is pronounced, but this would lead to unnecessary wastage of precious judicial time, so be that as it may, this court is not too inclined to venture into this aspect at this belated stage.
12. Before proceeding further with discussion, it is important to examine the necessary ingredients of each offence with which accused has been charged with in the present case. First VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:06:55 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.13 of 24 of all, it is important to refer to the definition of Robbery as the accused has been alleged to have committed the same with the complainant. Robbery is defined under section 390 IPC as:
"390. Robbery.-In all robbery there is either theft or extortion. When theft is robbery.-Theft is "robbery"
if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.-Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."
Robbery as defined above is punishable u/s 392 IPC, which reads as under:
"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."
13. Further, in the facts and circumstances of the present case, it is important to refer to other relevant provisions, which are as under:
"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 VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:03 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.14 of 24 death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
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."
Discussion and Findings.
14. At the outset, the prosecution was required to prove the case against accused beyond reasonable doubt. Now adverting to the facts of the present case, the accused was charged in the present case for the offences u/s 392/34 IPC r/w S.397 IPC as well as S.411 IPC alternatively. This court, for the purpose of adjudication of the present case, shall now proceed to ascertain as to whether the prosecution has been able to prove the charge of committing robbery u/s 392 IPC against the accused and while committing the same, whether accused used a deadly weapon so as to attract the ingredients of S.397 IPC and in the alternative, whether accused received or retained any stolen property or not. In order to sustain the said charges, prosecution has primarily examined PW-2 Akashdeep Pandey, who is the star witness of the prosecution and upon whom its entire case hinges.
15. In this regard, in a judgment titled as Alagupandi @ Alagupandian vs. State of Tamil Nadu AIR 2012 SC 2405, the Apex Court has observed that:
VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:10 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.15 of 24 "In the case of Govindaraju @ Govinda vs State by Sriramapuram P.S. and Anr., (Crl. Appeal No. 984 of 2007), this Court held as under:
11. It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses, if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had classified the oral testimony of the witnesses into three categories:
a. Wholly reliable;
b. Wholly unreliable; and c. Neither wholly reliable nor wholly unreliable
12. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable and trustworthy.
Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty."
16. Reference in this regard can also be made to the cases of Joseph Vs. State of Kerala, MANU/SC/1084/2002: (2003) 1 SCC 465 and Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC 760. Even in the case of Jhapsa Kabari and Ors. Vs State VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:17 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.16 of 24 of Bihar (2001) 10 SCC 94, this Court took the view that "there is no bar in basing the conviction on the testimony of a solitary witness so long as the said witness is reliable and trustworthy."
17. In the case in hand, PW-2 Akashdeep has largely deposed on the lines of prosecution case that on 09.12.2019 at about 5:50-5:55 pm, he was coming back from Delhi University in Metro and de-boarded the same at Krishna Nagar Metro Station and when he reached at Arjun Nagar, Bus Stand Road no. 57, Jagatpuri, he was talking on phone, when all of a sudden, one person came from behind and caught hold of him from his neck with his arms and another person put a paper cutter on his neck from the front and said jo kuch hai sab de do nahi to maar dunga; that the robbers robbed his Redmi 5 A Mobile Phone and purse from back side of his wearing pant, which was containing Aadhar Card, Metro Card, ATM and Rs. 150/- cash; that after robbing him they started running from there, he chased them while shouting and at some distance, he managed to apprehend one of the robbers with the help of public persons whose name was revealed as Rafiq @ Babu (accused herein). He has proved his statement as Ex. PW2/A, site plan as Ex. PW2/B, sketch of paper cutter as Ex. PW2/C, seizure memo of same as Ex. PW2/D, seizure memo of robbed articles as Ex. PW2/E, personal search and arrest memo of accused as Ex. PW2/F and Ex. PW2/F respectively. He has also identified the VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:24 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.17 of 24 Paper cutter as Ex. P1, his black color purse as Ex. P2 and the articles contained therein as Ex. P3 (colly).
18. It is pertinent to mention that PW-2 has deposed in a cogent and convincing manner, whereby he has specifically deposed that he chased the robbers while shouting and at some distance, he apprehended one of them with the help of public persons whose name he came to know as Rafiq @ Babu. Further, it is also in evidence of PW1/complainant that accused Rafiq @ Babu was arrested by the police on the spot in his presence and even the arrest memo of the accused i.e. Ex. PW2/F bears the signature of complainant at point A. This further confirms the identity of the accused as the one who had committed robbery with the complainant. He was cross- examined at length by Ld. Counsel for accused, wherein while denying all the suggestions to the contrary, he has largely supported the case of prosecution regarding commission of robbery by the accused and his testimony could not be discredited and nothing adverse to the prosecution case, as such, could be elicited out of him. Moreover, apart from mere suggestions, nothing else has been brought on record on behalf of accused to indicate as to why complainant would otherwise falsely implicate the accused in the present case, as there seems to be no enmity between the complainant and accused so as to warrant false implication. Thus, in the light of above, it may well be stated that PW2/complainant has turned out to be a VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:30 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.18 of 24 wholly reliable witness, who has corroborated the prosecution version fully.
19. Further, PW3/SI Brij Bhushan Tyagi, who was on picket duty in the area, where incident occurred, has also substantiated the version of complainant. His testimony is important to this case, as he was the first police official to have responded to the occurrence on the spot. In fact, it is not out of place to state that although he has not been cited as an eye witness by the prosecution, but considering the facts of this case, he is almost an eye witness to the latter part of the incident when the accused was trying to flee, as he has deposed that on 09.12.2019, he was posted at PS Jagat Puri as ASI and on that day, he was present on his picket duty at Arjun Nagar Police Booth when at about 5:45 pm, he noticed that 2-3 persons were scuffling across the road and public persons started running behind two persons. He has further deposed that he also ran towards those persons and one person was caught by public; that the said person disclosed his name as Rafiq @ Babu and this witness has correctly identified the accused in the court. He has further deposed that accused was beaten by the public persons and meanwhile complainant namely Akash Deep Pandey among the crowd stated that he along with one other person had snatched his purse and mobile and other person had managed to escape from the spot. PW3 has further deposed that he brought that person into police booth and complainant also VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:37 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.19 of 24 came there and cursory search of accused was conducted, in which one black colour purse containing ATM Card of Union Bank, Metro Card, Aadhar Card of complainant and cash of Rs.150/- as well as paper cutter were recovered by him from the possession of accused. Thus, by way of his categorical testimony he has corroborated the version of complainant.
20. Also, IO/ ASI Shiv Kumar has stated that on 09.12.2019, upon receipt of DD No. 43-B from Duty officer of PS Jagat Puri, he along with Ct. Sohan Lal reached at Arjun Nagar Picket, where complainant Akashdeep Pandey, ASI Brij Bhushan and one apprehended accused namely Rafiq @ Babu, who was in injured condition, were present and ASI Brij Bhushan handed over the custody of accused to the IO and they revealed that he was beaten by public persons. During course of investigation, first of all, accused was medically examined and thereafter he was arrested in the present case. The version put forth by PW2 along with arrest memo, seizure memos as well as sketch and site plan along with other documents which were duly proved by the complainant, have been further corroborated by the IO, who has stated that a purse containing belongings of complainant and cash amount of Rs.150/- and paper cutter, used by him during the incident, were recovered from the possession of accused Rafiq @ Babu.
21. In addition to the above, PW4/HC Sohan Lal, who had joined investigation with the IO, has also deposed on the same VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:43 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.20 of 24 lines and has supported the version of prosecution. Also, Accused in his statement u/s 313 Cr.PC, while responding to an incriminating circumstance/question put to him regarding his medical examination after the incident, has answered in affirmative, which only goes about to strengthen the prosecution story that accused was indeed beaten after the incident.
22. As far as the plea taken by the Ld. Counsel for accused persons regarding planting of recovery upon the accused Rafiq @ Babu is concerned, it is worthwhile to mention that PW-3 ASI Brij Bhushan Tyagi and complainant have specifically deposed during their evidence that accused was apprehended from the spot and during the personal search, purse containing belongings of complainant and paper cutter were recovered from the pocket of wearing pant of accused Rafiq @ Babu, which was identified by the complainant immediately. The complainant had identified the currency notes of the said amount and paper cutter, which was put on his neck by accused at the time of alleged incident as well. Accused in his statement u/s 313 Cr.P.C. has taken a defence that no recovery was effected from him in this case and recovery has been planted upon him, however, he has not led any evidence in defence to substantiate his plea and in fact has neither brought anything on record to even remotely suggest that he has been falsely implicated in the present case on purpose nor has he been able VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:07:51 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.21 of 24 to point out any reason or enmity for doing so by the police or the complainant.
23. Therefore, in view of above discussion as well as upon appreciating the entire evidence on record, it is clear that a charge u/s 392 IPC is sustainable against the accused person, whereby it stands proved that he committed robbery against the complainant along with one more person, who could not be apprehended.
24. Now adverting to the discussion as to whether accused used a deadly weapon during the course of committing the offence of robbery so as to attract S.397 IPC. In order to sustain a charge under the said provision, the prosecution was required to prove the following ingredients:
(1) Accused committed robbery or dacoity; (2) While committing such robbery or dacoity the accused:-
(a) used a deadly weapon; or
(b) caused grievous hurt to any person; or
(c) attempted to cause death or grievous hurt to any person.
25. Importantly, the first requirement of having committed robbery has already been proved by the prosecution, as discussed above. As far as the 2nd requirement is concerned, if any of the conditions as enumerated above are met, then it may be said that S.397 IPC is attracted. The first condition states that uses a deadly weapon while committing robbery. It is settled law that the word 'uses' for the purpose of S.397 IPC means VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:08:00 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.22 of 24 that robbery being committed by an offender who was armed with a deadly weapon, which was within the vision of the victim, so as to be able to instil fear and terror in the mind of the victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be (Ashfaq Vs State Govt of NCT of Delhi AIR 2004 SC 1253).
26. In the case in hand, PW2/Complainant categorically deposed that accused herein put a paper cutter on his neck from the front and stated jo kuch hain sab de do nahi to mar dunga and robbed his Redmi 5 A Mobile Phone and purse from back side of his wearing pant which was containing Aadhar Card, Metro Card, ATM and Rs. 150/- cash. Pertinently, it has been settled by the Hon'ble Delhi High Court in Gulfam @ Zahoor vs State CRL.A. 391/2016 that a paper cutter would qualify as a 'deadly weapon' for the purpose of S.397 IPC. In view of the above, it may well be stated that accused 'used' a deadly weapon while committing robbery against the complainant, which instilled fear in his mind. Suffice it to state that a charge u/s 397 IPC is also sustainable against the accused person.
27. Pertinently, as far as the alternative charge u/s 411 IPC is concerned, the same is not sustainable, as in the facts and circumstances stated above, accused is either liable of committing robbery or for receiving stolen goods. However, in the present case, it has been sufficiently proved that accused committed robbery along with one more co-accused in VINEET Digitally signed by VINEET KUMAR KUMAR Date: 2025.03.28 17:08:07 +0530 FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.23 of 24 furtherance of their common intention and while doing so, used a deadly weapon. Moreover, the accused has been proved to be apprehended on the spot itself, therefore, there is no question of receiving stolen property from anyone by any stretch of imagination.
28. Thus, it is crystal clear from the foregoing discussion that prosecution has been able to prove the charges under S.392/34 IPC r/w S. 397 IPC against the accused person beyond reasonable doubt.
Accordingly, accused Rafiq @ Babu is convicted for the offences u/s 392/34 IPC r/w 397 IPC.
Let the accused be heard on the point of sentence.
VINEET Digitally signed by
VINEET KUMAR
KUMAR Date: 2025.03.28
17:08:23 +0530
Announced in the open court (Vineet Kumar)
On 28.03.2025 ASJ-02/E-Court (Shahdara)
KKD/Delhi.
FIR No. 341/2019, PS. Jagat Puri State Vs. Rafiq @ Babu Page No.24 of 24