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Delhi District Court

State vs Abdul Matin Khan on 23 April, 2025

            IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
          ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
             CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI


      SC No. 868/2017                 CNR No. DLCT01-017520-2017
      FIR No. 175/2017
      U/Sec. 457/380/382/392/398/411/34 IPC
      & Section 25 of Arms Act
      P.S. Roop Nagar

                             STATE VERSUS ABDUL MATIN KHAN

(i)            SC No. of the case              :   868/2017

(ii)           Date of commission of offence   :   02.08.2017

(iii)          Name, parentage and address     :   Abdul Matin Khan
               of accused                          S/o Mohd. Rafiq Alam
                                                   R/o Jagat Pahalwan Ka
                                                   Makkan, 2nd Pusta
                                                   New Usmanpur, Delhi.

(iv)            Offence complained of          :   Section 380////
                                                   / IPC &
                                                   Section 25 of Arms Act

(v)             Plea of the accused            :   Pleaded not guilty

(vi)            Final order                    :   Acquittal


Date of Institution                            :   06.11.2017
Date of Judgment reserved on                   :   07.04.2025
Date of Judgment                               :   23.04.2025


JUDGMENT

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 1 of 37

BRIEF FACTS AND REASONS FOR DECISION :-

1. FIR in the present matter was registered on the complaint of Sh. Brij Mohan/PW-1 vide Ex.PW1/D. It is stated by the complainant that he is a milk vendor. On 02.08.2017 around 5:30 AM he was strolling outside his house at Kohlapur road. At that time he had seen two boys in suspicious condition outside shop no. 5155, Sindh Vastar Bhandar. The shutter of the shop was slightly open. PW-1 asked the said boys in loud voice that what are they doing there. At that time a boy inside the shop rushed outside having a Gathri/bundle of clothes in his hand alongwith a rod. PW-1 tried to stop him on which the boy standing outside aged about 20-22 years had threatened PW-1 by showing a knife. The said accused had started running away on which PW-1 had raised alarm and called at 100 number. On this PW-1 had started chasing the accused on his motorcycle standing nearby.

The PW-1 had also telephoned Sh. Nanak Chand, the owner of the shop/PW-3. After that PW-1 had seen the said three boys sat in auto no. DL1RN4458 and started running towards police station Subzi Mandi. Again PW-1 rang at 100 number and informed the police. Near PS Subzi Mandi PW-1 has indicated the PCR by sign language that the person sitting in auto are accused. On this the PCR gypsy started chasing the accused and at the red light of Barf Khana the boy sitting on the back side of auto had thrown chilli powder towards PW-1 on which PW-1 had slowed his motorcycle. Near ISBT where construction of Delhi Metro was going on and from where the flyover was going towards Shahdara the PCR had obstructed the path of the auto by putting the PCR vehicle in a slant angular position. PW-1 had seen that three boys had came out of the auto who had thrown chilli powder in the eyes of PCR personnel and started running away. The auto driver was also trying to run away after leaving his auto SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 2 of 37 who was overpowered by the PCR personnel. On personal search of auto driver namely Abdul Matin Khan a buttondar knife was recovered from right side of his pant pocket. The search of auto was conducted by PCR personnel on the back seat of which the same Gathri/cloth bundle was found with which the accused person had ran away from the shop of PW-3. On checking the Gathri it was found containing currency notes of denomination Rs.10, Rs.20, Rs.50, Rs.2, coin of Rs.1, 2, 5 and 10 and two silver idol of Lakshmi and Ganesh were also recovered from the said Gathri.

2. Charge was given to the accused on 02.05.2018 under Section 457/380/382/392/398/411/34 IPC and Section 25 of Arms Act to which accused has pleaded not guilty and claimed trial.

3. Prosecution has examined PW-1 to PW-14 the entire prosecution evidence against the accused. The Statement of Accused under Section 313 Cr. PC was recorded on 29.11.2024. Accused has preferred to lead evidence in defence and he has appeared himself as sole witness in his defence evidence as DW-1. DE was closed vide separate statement of the ld. Counsel for accused dated 11.03.2025. Accused has deposed in his defence that he was merely an auto driver. The real culprit had ran away and he has no role to play in the alleged theft nor he was known to the accused person. The accused person had forced him to drive fast by putting knife on his back.

4. Final arguments are heard and record is perused.

5. Section 395 IPC provides punishment for dacoity. It was held in case SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 3 of 37 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 then he 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 robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon......' can be punished. However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para is reproduced hereasunder:

12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to. The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 4 of 37

"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.

--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

391. Dacoity.--When five or more persons conjointly commit or 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.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 5 of 37

396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

397. Robbery, or dacoity, with attempt to cause death or grievous hurt.

--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."

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 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.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 6 of 37

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 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 SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 7 of 37 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 "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 SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 8 of 37 committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz.

"uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.

7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. 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.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 9 of 37

When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.

20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.

21. In the instant case admittedly no injury has been inflicted. The use 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]."

6. 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 SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 10 of 37

(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 SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 11 of 37 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".

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.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 12 of 37

13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.

Xxxxxxx

7. At the outset it is noted that the accused is charged under Section 398 IPC in that he was armed with deadly weapon which is buttondar actuated knife at the time of committing robbery. However in view of citation referred above for the purpose of Section 398 IPC only the offender/person who committed voluntarily hurt or such attempt while committing robbery with a deadly weapon then such person only is liable for the said action. Other accused cannot be convicted on the basis of constructive liability and only the offender who uses the deadly weapon can be punished. In the present case as per deposition of PW-1 the two boys standing outside the shop of PW-3 one of which had shown knife to PW-1. Among the said two boys the accused who is auto driver was not standing there outside the shop and as per the case of the prosecution knife was not shown by the accused Abdul Matin Khan. Hence when accused was not even standing near the shop nor he had shown the knife to PW-1 it is therefore held that accused Abdul Matin Khan is not guilty under Section 398 IPC.

8. Now it has to be seen that whether the accused Abdul Matin Khan had committed offence under Section 392 IPC. The first ingredient which the prosecution has to prove is that the accused has committed theft. Fact of the case are already discussed above in preceding paragraph which are not repeated herein for the sake of brevity. As per deposition of PW-1 the accused Abdul Matin Khan did SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 13 of 37 not enter the shop of PW-3. PW-1 has deposed that TSR was standing 80 mtrs away from the shop of PW-3 Nanak Chand. The three boys who ran towards the TSR had came out of the shop of PW-3 could not be caught by the police person. It must have taken some time to PW-1 first to reach to his motorbike and then he had to run towards accused after starting his motorbike. It is noted that 03 accused person had ample time in the meanwhile to hire the auto of accused Abdul Matin Khan. As per deposition of PW-1 at page 2 in cross-examination dated 16.02.2019 shop of Nanak Chand/PW-3 was not visible from the shop of PW-1 therefore the accused person must not have been visible to PW-1 when he was walking outside his shop. Hence PW-1 had contradicted his statement that he has seen three accused person committing robbery inside the shop of PW-3 while PW-1 was standing outside his shop. Further, to the contrary to the complaint Ex.PW1/B PW-1 has deposed that accused person had fled from the spot when he had reached ISBT and PW-1 was informed by police person only that accused and his associates had thrown chilli powder on PW-1. In the complaint Ex.PW1/D it is stated that PW-1 was continuously behind the accused person till accused Abdul Matin Khan was brought and even chilli powder was thrown by the said three accused over PW-1 during such chase. Hence it has become doubtful that whether PW-1 was directly behind the auto till the place where the auto was caught by the police. It is deposed by PW-1 that he had not seen associate of accused throwing chilli powder on the officials of PCR. He had not seen accused running at ISBT. He had seen cloth bundle/Gathri in the TSR. He cannot tell who took personal search of accused Abdul Matin SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 14 of 37 Khan.

9. PW-4 the owner of the auto has deposed that he had not heard any complaint against the accused Abdul Matin Khan and he knows the said accused since last 10-12 years. Hence the prior conduct of accused Abdul Matin Khan is without any blame and doubt.

10. PW-3 Sh. Nanak Chand has deposed that he had received phone call from PW-1 at 6 AM. PW-3 had reached at his shop at 6:30 AM where he met PW-1. Whereas PW-1 has not deposed that he came back to the shop of PW-3 by 6:30 AM from the place where the accused Abdul Matin Khan was caught. Hence the above deposition of PW-3 is contradictory to the deposition of PW-1. PW-3 at page 2 of his cross- examination dated 21.08.2019 has deposed that few public person were found standing in front of his shop. However IO has not joined any public person in this case. PW-3 went to ISBT after 5-10 minutes of reaching his shop. PW-1 had left 2-3 minutes prior to PW-3 to ISBT it means around 6:35 AM PW-1 had left for ISBT. The time at which PW-1 had alleged that he had reached at ISBT following accused Abdul Matin Khan is between 5:15 AM as deposed at first page of cross- examination dated 16.02.2019 and it took 5-7 minutes to PW-1 to reach at ISBT which means that he must have reached ISBT by 5:30 AM which is so recorded at second page of the same cross-examination. It is deposed further that PW-1 may have reached ISBT between 5;30 AM to 6 AM. It is not deposed by PW-1 nor it is the case of the prosecution that after reaching ISBT PW-1 had returned immediately SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 15 of 37 thereafter to the shop of Nanak Chand/PW-3. PW-3 met PW-1 at his shop around 6:30 AM and he had also reached within 5-10 minutes at ISBT and therefore he must have reached at ISBT by 6:40 AM. To the contrary it is further deposed at page 3 of cross-examination dated 21.08.2019 by PW-3 that he had reached at ISBT between 7 AM to 7:15 AM. Neither PW-1 nor PW-3 are witness to site plan Ex.PW13/B from where the alleged theft was committed at the shop of PW-3. PW- 13 SI Kesar Singh has prepared the site plan. PW-13 at page 4 of his cross-examination has deposed that he had prepared the site plan at the instance of complainant/PW-1. Whereas PW-1 has neither signed the site plan nor he has deposed that the site plan was prepared at his instance.

11. As per PW-13 SI Kesar Singh the complainant/PW-1 as and when get close to the auto then accused person sitting inside used to throw chilli powder on him. PW-13 had recorded the statement of complainant/PW-1 at the spot vide Ex.PW1/D. The articles/case property was seized vide seizure memo Ex.PW1/A. The buttondar knife was seized sketch of which is Ex.PW1/B. The knife was seized vide memo Ex.PW1/C. The TSR was seized vide memo Ex.PW1/E after that the complainant/PW-1 alongwith PW-13 SI Kesar Singh had reached at Sindh Vastar Bhandar at the shop from where the theft was committed and Tehrir was recorded vide Ex.PW13/A. Hence PW-13 has nowhere deposed that PW-1 when he had already reached ISBT had any time left ISBT to the place of theft which is Sindh Vastar Bhandar and nor it is the case of the prosecution as per deposition of SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 16 of 37 PW-13 that PW-1 had returned after leaving the ISBT back again to ISBT. In fact after registration of FIR PW-13 had reached back with PW-1 at Sindh Vastar Bhandar. The FIR Ex.P1 was registered at 8:10 AM on 02.08.2017 which shows that between 5:30 AM to 8:10 AM PW-1 never did left the spot at ISBT. In such circumstances of the case PW-1 could not have met PW-3 at Sindh Vastar Bhandar at 6:30 AM or if he had met so PW-3 then PW-1 could not be present at ISBT where the accused person were caught. In view of such contradictory nature of evidence of the prosecution it cannot be said that the stolen articles were recovered from the TSR of the accused in presence of PW-1 or that accused was arrested in presence of PW-1 or that buttondar knife from the accused was recovered in the presence of PW-1.

12. As per the deposition of prosecution witness PW-4 the prior conduct of the accused was good. Had accused been involved in such commission of theft then he was not expected to stand at a distance of about 80 mtrs. Far away from the shop of Sindh Vastar Bhandar. If he was naturally part of the theft then in place of 80 mtrs. away the auto could stand very much near the shop from where the alleged robbery was committed which may save time to the accused to easily run away. The above facts lends support to the plea of the accused that he was merely an auto driver standing far away and under threat of knife from three accused who were not arrested then he has driven his auto under threat to his own bodily harm. Now two views are possible in this case. The accused has deposed witness in his favour as DW-1. As per deposition of DW-1 his auto was hired by the some person for Shakti SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 17 of 37 Nagar after dropping whom he was going towards ISBT when near Ghantaghar three boys called him on which he had stopped auto. The said boys hired his auto to go to ISBT. After some distance a police Gypsy was following the auto in which the said three accused in the auto on the back seat forced accused Abdul Matin Khan to drive away fast. One of the culprit had put a knife on his back. This is further supported by the fact that the Gathri/cloth bundle was found lying on the back seat of TSR. In fact the knife was found lying in the said Gathri/cloth bundle. As per Ex.AD-1 which is PCR form-1 where it is mentioned that on checking the TSR one bundle of cloth/Gathri and one buttondar knife was found. Hence the knife was not on the person of the accused Abdul Matin Khan. The accused had little chance to so place the knife in Gathri when he was suddenly caught by the police official present in the Gypsy. Finding knife in the TSR shows that this knife was with the other three accused who ran away leaving the articles in the TSR. The above evidence of DW-1 has remained consistent and unimpeached during the entire evidence of DW-1. Since two views are possible then one view which goes in favour of the innocence of the accused is desirable to be taken. Further, it is not the case of the prosecution that PW-1 was near the Sindh Vastar Bhandar whereas the accused Abdul Matin Khan was standing 80 mtrs away from the shop. Hence the above deposition gives credence to the evidence of DW-1 that accused Abdul Matin Khan was going from there or that he was waiting for some passengers to board his TSR. Hence benefit of doubt is extended to the accused and it is held that the Gathri/cloth bundle so found on the back seat of the TSR was not that SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 18 of 37 of accused Abdul Matin Khan but it belongs to those three accused who ran away leaving the said Gathri/cloth bundle in the TSR.

13. Further, PW-9 HC Rang Lal in his examination-in-chief dated 11.09.2023 at first page has deposed that when he had reached at the shop where robbery was committed then he and PW-1 were present at the spot. When PW-9 had left the spot then SI Kesar Singh had left the spot with complainant for ISBT. After 1-1½ hr. SI Kesar Singh had returned to the spot with the complainant. A Tehrir was prepared by SI Kesar Singh at the spot which is the shop. However before preparation of Tehrir and registration of FIR the seizure memo Ex.PW1/A of the Gathri/cloth bundle, the knife Ex.PW1/C, the TSR seized vide Ex.PW1/E was already prepared. The arrest memo Ex.PW1/F mentions that the accused was arrested at about 11:15 AM. Hence the correct preparation of above documents are in doubt.

14. Hence the above discussion shows that the accused has successfully raised probable defence that he was merely an auto driver and he was used by the three accused person who were not caught in this case. The accused has successfully proved his defence by preponderance of probability and hence it is held that prosecution has failed to prove the first ingredient of the offence that accused has committed the theft of articles belongs to PW-3 from Sindh Vastar Bhandar.

15. The second ingredient which the prosecution has to prove SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 19 of 37 beyond reasonable doubt that the accused has attempted or caused such fear of instant death, hurt or wrongful restraint. As discussed above it has come in evidence that accused Abdul Matin Khan was standing about 80 mtrs. away from the shop owned by PW-3 by the name Sindh Vastar Bhandar. Hence the accused Abdul Matin Khan has admittedly as per the case of the prosecution did not show any knife to PW-1 nor did he shown any knife to police officials. Section 398 IPC is invoked against the accused by the prosecution on the ground that he had used the button actuated knife during commission of this robbery. However there is absence of evidence to the same. Other than this it is settled law that for the purpose of Section 398 IPC only the offender/person who has committed that robbery and voluntarily caused hurt or attempted to cause such robbery and uses any deadly weapon or caused grievous hurt or commits to cause death or grievous hurt to any person at the time of committing such robbery or dacoity only then Section 398 IPC can be invoked. The word used under Section 398 IPC is "offender". Hence in absence of any such evidence of use of such knife by accused Abdul Matin Khan it cannot be said that he had attempted to cause such hurt during commission of alleged robbery. Hence it is held that the prosecution has failed to prove the second ingredient of the offence as laid down under Sections 382/392/398 IPC.

16. The last ingredient which prosecution has to prove that accused did either for the end to carry away or attempt to carry away the property obtained by theft. The last ingredient is dependent on the first two ingredients to complete the offence in absence of which in any case SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 20 of 37 it cannot be said that the offence is complete. When the first two ingredients are not proved then it cannot be said that such act was done by the accused Abdul Matin Khan for the end to carry away or attempt to carry away property obtained by theft. In such view of the matter accused Abdul Matin Khan is acquitted under Sections 382/392/398 IPC.

17. Another offence with which the accused is charged with is Section 457/34 IPC in that accused has committed lurking house trespass at the Sindh Vastar Bhandar at night in order to commit theft of currency of about Rs.6000/- to Rs.7000/-, silver coins, silver idols of Ganesh and Lakshmi. To establish constructive liability under Section 34 IPC it may not be necessary for prosecution to establish common intention or object. It will be sufficient for the prosecution to establish that accused person had acted jointly and committed the offence. Section 460 IPC provides for constructive liability of the person committing or concerned "inter-alia" house breaking by knife in the course of which other offence was also committed under Section 302 IPC. It was held that it matters little who actually caused the death and everyone jointly concerned in house breaking are liable to enhanced penalty. No matter who is really responsible for the death. Hence Section 457 IPC in the present case can attract the principle of joint/constructive liability when the predicate offence which are Sections 392/398 IPC in the case also attracts the principle of joint/constructive liability. Section 457 IPC is therefore a dependent offence when the main predicate offence does not attract the principle SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 21 of 37 of joint/constructive liability then in such case Section 457 IPC also does not attract the principle of joint/constructive liability. In such view of the matter Section 34 IPC is held not applicable in this case against accused Abdul Matin Khan. The relevant para of citation titled Sri Pranesh Nath @ Khokan vs The State of Tripura from Hon'ble High Court of Tripura, Agartala in Crl. A(J) No. 03 of 2021 dated 27.07.2022 (DB) is reproduced hereasunder:

[27] In Ram Narain v. State of Rajasthan reported in (AIR 1973 SC 1188. 1192), Dua, J. while speaking for the Court dealt with the subject and observed:

―An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief credit. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions in that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.' [28] After meticulous appreciation of the evidence on record and the submission as advanced by Mr. S. Ghosh, learned Addl. P.P., we are of the view that the present case may not come within the purview of the definition of Section-302 of IPC rather, it comes within the ambit of the definition of Section-460 of IPC.

[29] A bare reading of the above provision shows that every person who is SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 22 of 37 jointly concerned in committing the offence of lurking house trespass by night or house breaking by night is to be punished with life imprisonment where death has been caused or with imprisonment which may extend to ten years where grievous hurt has been caused to any person. This joint liability is based upon the principle of constructive liability. Thus, the person who has actually committed the death or grievous hurt would be liable to be punished under the relevant provisions i.e. Section 302 or Section 326, as the case may be, while committing the offence of lurking house trespass by night. It is possible that common intention or object be not the foundation of an offence under Section 460 IPC. Thus, to establish an offence under Section 460, it may not be necessary for the prosecution to establish common intention or object. Suffice it will be to establish that they acted jointly and committed the offences stated in Section 460 IPC. The principle of constructive liability is applicable in distinction to contributory liability. This Court in the case of Abdul Aziz v. State of Rajasthan [(2007) 10 SCC 283], clearly stated that if a person committing housebreaking by night also actually commits murder, he must attract the penalty for the latter offence under Section 302 and the Court found it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him while he was committing the offence of housebreaking and that he can only be dealt with under Section-460.

[30] In the case of Sohan Singh Kesar Singh v. State of Punjab, reported in AIR 1964 Punjab 130, Sohan Singh was convicted under Sections 302, 380 and 457 IPC; he was sentenced to death under Section 302 IPC and to rigorous imprisonment for three years under each of the Sections 457 and 380 IPC. Sohan Singh preferred an appeal against his conviction and sentence. One of the arguments advanced on behalf of Sohan Singh was that the offence in question fell within the purview of Section 460 IPC and not under Section 302 IPC. It was argued that while committing the offence of house-breaking by night, the accused could be punished only under Section 460 IPC. It was in the context of this argument that the High Court held as follows:

"Section 460 merely provides for constructive liability of persons committing or concerned in, 'inter alia' house-breaking by night in the course of which death is caused by one of the offenders and it prescribes enhanced penalty for the joint offenders. To attract this section it matters little as to who actually causes the death, for, everyone jointly concerned in committing the house-breaking is liable to the enhanced penalty under this section if death is caused in the course of the offence, no matter who is really responsible for the death. It does not, as indeed it cannot, be considered to serve as an exception to Section 302, Indian Penal Code. If a person committing house- breaking by night also actually commits murder he must attract the penalty for this latter offence under Section 302 and I find it almost impossible to hold that he can escape the punishment provided for murder merely because the murder was committed by him SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 23 of 37 while he was committing the offence of house- breaking, and that he can only be dealt with under Section 460. Neither the language of Section 460 nor the scheme of Indian Penal Code nor logic and common sense would seem to support this contention which I unhesitatingly repel."

[31] Though the evidence of approver in the present case has not been demolished by the counsel for the appellant, the circumstantial evidence read in the light of PW-1, the approver evidence has relevance to hold the accused-person, the appellant herein as guilty. Now, the point for consideration before this Court as to who killed the deceased. As per evidence of PW-1 both accused entered into the house but who attacked the deceased with dao, the weapon of offence causing death of the deceased is not established. In view of the same, this Court feels it is not a case for 302 of IPC as the crime is not proved beyond reasonable doubt. But admittedly, both the accused entered into the house trespassing and deceased is found dead, thus attracts Section-460 of IPC. [32] In our opinion this section was intended to provide for the punishment of persons who are jointly concerned in the committing of the house-trespass or house-breaking altogether irrespective whether they were the persons who caused or attempted to cause death or grievous hurt. This may be interpreted to mean that Section-460 provided for the punishment of the person who actually caused or attempted to cause death or grievous hurt while committing lurking house-trespass or house- breaking.

18. Secondly, the accused Abdul Matin Khan did not enter the premises of Sindh Vastar Bhandar. The prosecution has failed to bring anything on record to show that accused Abdul Matin Khan in any manner known to or related to the remaining three accused who fled away and who had allegedly committed the robbery to attract the principle of joint/constructive liability. The accused had his auto with him and he was an auto driver is further substantiated by the fact that he did not try to run away when caught at gate no. 5 at ISBT metro station by the police and the remaining three accused has ran away together. It is noted that the prosecution has not charged the accused Abdul Matin Khan under Section 457/380/34 IPC in alternative to Section 392/398/34 IPC and both the charge at the same time cannot SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 24 of 37 stand together other than in the alternative. There is absence of ingredient against accused Abdul Matin Khan under Section 457/380/382/34 IPC. Hence it is held that prosecution has failed to prove charge under Sections 457/380/34 IPC against the accused Abdul Matin Khan and there is no evidence that accused Abdul Matin Khan had any link or connection with the remaining accused fled away from his auto at gate no. 5 at ISBT Metro station and therefore accused Abdul Matin Khan is acquitted under Sections 457/380/34 IPC.

19. The prosecution has also charged the accused under Section 411 IPC. The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.

13. Section 411 IPC:

"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

14. "Dishonestly" is defined under Section 24 of the IPC as, "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -

"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 25 of 37 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 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 SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 26 of 37 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.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 27 of 37

20. The first ingredient that prosecution has to prove that the stolen property was in the possession of the accused Abdul Matin Khan. When the accused Abdul Matin Khan was apprehended at gate no. 5 of ISBT then the said Gathri/cloth bundle was received from back seat of auto from where three of the other accused had ran away. The accused Abdul Matin Khan is an auto driver. Immediately before driving the auto near from Sindh Vastar Bhandar the accused Abdul Matin Khan did not have possession of the stolen property. Property was not with him till gate no. 5 of ISBT metro station where the remaining three accused sitting on the back seat were having Gathri/cloth bundle. The accused person sitting on the back seat of the auto who ran away and could not be caught. Immediately when the accused Abdul Matin Khan was apprehended the Gathri/cloth bundle was found on the back seat which is a passenger sitting area. Hence it is a common area and at that time was not in exclusive possession of accused Abdul Matin Khan and the three accused who ran away had occupancy of the said area. The plea of accused Abdul Matin Khan that he was driving auto due to threat to his life from the said three accused is a probable defence. The alleged knife was held not recovered from accused Abdul Matin Khan which is discussed under paras following hereunder. In absence of possession of this knife with the accused Abdul Matin Khan it can be said that accused Abdul Matin Khan was driving the auto under threat of his life and therefore he is able to raise a successful probable defence that he was so driving the auto under the threat from three accused ran away at gate no. 5 near ISBT metro station. Hence it is held that prosecution has failed to prove that accused Abdul Matin Khan is found with possession of stolen property.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 28 of 37

21. The next ingredient the prosecution has to prove that some person other than the accused had possession of the property before the accused got possession of it. The deposition of PW-1 and PW-3 successfully proved that this Gathri/cloth bundle recovered from the auto of accused Abdul Matin Khan and articles contained therein were in prior possession of PW-3 at his shop Sindh Vastar Bhandar and taking of such articles was seen by PW-1 at 5:30 AM in the month of August, 2017. The said articles are proved as Ex.P3 and Ex.P4 on record and the evidence of PW-1 and PW-3 read with evidence of remaining police witness namely PW-7, PW-8 to PW-13 has sufficiently proved on record that the said articles belongs to PW-3. The same is also proved during identification in TIP proceedings conducted by PW-12. Hence it is held that prosecution has successfully proved the second ingredient of Section 411 IPC.

22. The third ingredient the prosecution has to prove is that the accused had knowledge that the property was stolen property. The accused Abdul Matin Khan is admittedly standing away from Sindh Vastar Bhandar. The said articles were in a cloth bundle and they continued to remain in cloth bundle till such articles were seized at gate no. 5 near ISBT metro station. Hence it cannot be said that accused had knowledge that what was contained in such Gathri/cloth bundle moreso when prosecution has failed to establish any link of accused Abdul Matin Khan with the remaining three accused ran away and could not be caught. Hence it cannot be said that accused Abdul Matin Khan had knowledge of the stolen goods recovered from his auto and therefore it is held that prosecution has failed to prove Section 411 IPC and accused Abdul Matin Khan stands acquitted for the offence under Section 411 IPC.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 29 of 37

23. The accused Abdul Matin Khan is further charged with Section 25 of Arms Act as one buttondar knife was recovered from him. The relevant Section 25 Arms Act, 1959 is reproduced hereasunder:

25. Punishment for certain offences.―(1) Whoever--

(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.

(1AAA) Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 2 [three years, but which may extend to seven years] and shall also be liable to fine.

(1B) Whoever-- (a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or

(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or

(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer's number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or

(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause

(a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or

(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or

(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 30 of 37

(g) transports any arms or ammunition in contravention of section 12; or

(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or

(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 3 [one year] but which may extend to three years and shall also be liable to fine:

Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 3 [one year] (1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation.―For the purposes of this sub-section, "disturbed area"

means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

24. The prosecution has to prove that this knife was recovered from the accused. In the chargesheet at page 11 the complaint is detailed which records as per statement of complainant that on search of auto SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 31 of 37 driver/accused Abdul Matin Khan a button actuated knife was recovered from right side pocket of pant of the accused Abdul Matin Khan. To the contrary PW-1 at page 1 of his examination-in-chief dated 06.08.2018 has deposed at page 2 that knife was recovered from the pant pocket of accused and it does not state that from which side of pant pocket the knife was recovered. The PCR Form-1 which is Ex.AD-1 on record, records that on checking the TSR currency notes and one buttondar knife was recovered from the Gathri/cloth bundle. The said documentary evidence of the prosecution is contradictory to deposition of PW-1 in his examination-in- chief and also to his complaint. Hence the alleged knife was not recovered from the right pocket of accused Abdul Matin Khan and it was recovered from the said Gathri/cloth bundle.

25. The witness to the seizure memo of knife Ex.PW1/C is PW-1 whose deposition is contradictory to Ex.AD-1 the PCR Form-1. The second witness to seizure memo of knife Ex.PW1/C is ASI Kiran Pal who has deposed as PW-8. He has also deposed in contradiction to Ex.AD-1 claiming that the buttondar knife was recovered from right side pant pocket of the accused Abdul Matin Khan. PW-9 HC Rang Lal was on emergency duty with ASI Kesar Singh. He went alongwith ASI Kesar Singh at the spot which is shop no. 5155, Kolhapur road, Roop Nagar where PW-1 the complainant Sh. Brij Mohan was found present at the spot. Thereafter they left with the complainant with ASI Kesar Singh to ISBT and after about one and a half hour they returned back to the spot which is a shop Sindh Vastar Bhandar. They returned with the complainant. The Tehrir was prepared at the spot/shop. After registration of FIR the site plan was prepared at the spot/shop. The accused Abdul Matin Khan was brought to SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 32 of 37 the spot in an auto. The Pulanda of knife was prepared by ASI Kesar Singh at the spot/shop. It means that Pulanda of knife was not prepared at the place at gate no. 5 of ISBT metro station where personal search of accused Abdul Matin Khan was conducted. The disclosure statement of accused Ex.PW9/A was recorded at the spot/shop and he was arrested vide Ex.PW1/F and his personal search was conducted vide Ex.PW1/G. All of which was done at the spot/shop. On the same spot/shop statement of PCR officers was recorded by ASI Kesar Singh. The above deposition of PW-9 shows that personal search of accused Abdul Matin Khan was conducted at another place and memo of personal search and seizure were prepared at other place which is spot/shop. Since the disclosure was not recorded at gate no. 5 of ISBT metro station where it was allegedly made nor the seizure memo of knife was prepared from where it was searched and seized and therefore it creates doubt that whether the accused had made any disclosure as claimed by the prosecution or that the alleged recovery of knife was effected from the accused Abdul Matin Khan and hence the recovery memo and seizure memo have lost their sanctity and cannot be relied upon to support the conviction. The relevant citation titled Raja Khan Vs. State of Chhattisgarh at relevant para are reproduced hereasunder:

Raja Khan vs. State of Chattisgarh (07.02.2025 - SC) :

MANU/SC/0157/2025=Neutral Citation: 2025 INSC 167

22. In the present case, the prosecution has produced Tirath Dhruv (PW-

22) and Bhuvan Dhimar (PW-26) as the panch witnesses to prove the recovery pursuant to the disclosure made by the Appellant-Accused. A bare perusal of the testimonies of the said witnesses raises serious doubts regarding the version of the prosecution with respect to the alleged disclosure made by the Appellant-Accused herein and the recoveries pursuant to such alleged disclosure.

23. Tirath Dhruv (PW-22) has deposed that when the Appellant-Accused was questioned in his presence, the Appellant-Accused stated that he could SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 33 of 37 recover the stone, axe and the pipe. However, during his cross- examination, Tirath Dhruv (PW-22) admits that he along with another witness (not produced during trial) stayed in police station for about 5 (five) minutes during which period, the police made them sign many papers. The said witness further admits that the Memorandum of Statement (Ex.P-23) of the Appellant-Accused had been taken and he signed the same on the instructions of the police, without reading or understanding the contents of the said document. He admits that none of the seizure memos were prepared or signed at the spot. He states that the same were prepared and signed at the police station. Therefore, from the testimony of Tirath Dhruv (PW-22), there is grave doubt as to whether the Appellant-Accused had made any disclosure in front of the said witness or that any alleged recovery had in fact been witnessed by Tirath Dhruv (PW-

22).

24. Ex. P-25, i.e., the seizure memo for the stone and gandasa states that the said items were taken out at the behest of the Appellant-Accused. Similarly, in Ex. P-29, it has been stated that the chains were taken out by the Appellant-Accused. However, Tirath Dhruv (PW-22) nowhere states that the Appellant-Accused was present along with the said witness and the police during the seizure proceedings (i.e. when Ex. P-25 to Ex. P-31 were prepared). In fact, none of the seizure memos apart from Ex. P-29 and Ex. P-25 state that the recoveries therein were at the instance of the Appellant-Accused or the acquitted co-Accused.

25. Further, a perusal of the disclosure statement made by the Appellant- Accused indicates that the Appellant-Accused had allegedly hidden the gold chains allegedly belonging to the deceased by wrapping them in a red wrapper and then hiding them at the terrace of his house behind a green- coloured container. However, the seizure memo being Ex. P-29 states that the chains were recovered from a green-coloured blanket on the roof of the house. The said seizure memo further states that the police took possession of the articles after they were taken out by the Appellant-Accused in presence of the witnesses. On the other hand, the IO-G.S. Singh (PW-25), states that at the time of seizure proceedings of Ex. P-29, he himself had not gone to the roof and the Appellant-Accused and the witness had gone to the roof. Pertinently, Tirath Dhruv (PW-22) in his deposition, without making any reference to the presence of the Appellant-Accused, states that a policeman had climbed the roof of the house of the Appellant-Accused from the outside and, thereafter, he along with Bhupender Dhruv climbed on the said roof from which the recovery of chains was made. Therefore, there are glaring inconsistencies with respect to the manner in which gold chains were recovered from the house of the Appellant-Accused and further, the presence of the Appellant-Accused at the time of the said recovery is itself doubtful.

26. Similarly, Bhuvan Dhimar (PW-26), i.e., the diver who allegedly recovered the stone and the gandasa from the Kachna pond, in his testimony admits that he recovered the said items upon the instruction SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 34 of 37 from the police and from the place told by the police without making any reference to the presence of the Appellant-Accused or the fact that the said items were recovered upon being pointed out by the Appellant-Accused. The fact that the items from Kachna pond were seized upon the instructions from the police is corroborated by the statement of Tirath Dhruv (PW-22), who unequivocally states that it was the police who instructed the divers to go into the pond and take out the items.

27. This Court, in Varun Chaudhary v. State of Rajasthan, MANU/SC/0911/2010 : 2010:INSC:757 : (2011) 12 SCC 545 and Mustkeem alias Sirajudeen v. State of Rajasthan, MANU/SC/0795/2011 :

2011:INSC:487 : (2011) 11 SCC 724, has held that if the recovery memos have been prepared in the police station itself or signed by the panch witnesses in the police station, the same would lose their sanctity and cannot be relied upon by the Court to support the conviction.

26. As per deposition of PW-1 dated 06.08.2018 knife was shown by the accused who have fled from the auto at gate no. 5 ISBT metro station. PW- 8 ASI Kiran Pal has deposed in his examination-in-chief dated 13.02.2023 at page 1 that ASI Mohan Lal has conducted the casual search of accused Abdul Matin Khan and one buttondar knife was recovered from his right side pant pocket. The accused was apprehended by ASI Mohan Lal. The said search was allegedly conducted at gate no. 5 ISBT metro station.

Thereafter ASI Mohan Lal handed over the custody of accused Abdul Matin Khan with buttondar knife and the Potli/Gathri/cloth bundle to SI Kiran Pal/PW-8. This shows that the Gathri/cloth bundle and the knife was searched and seized by ASI Mohan Lal. ASI Mohan Lal has not been examined in this case nor he is witness to the seizure memo of knife Ex.PW1/C or to seizure memo of coins Ex.PW1/A. ASI Mohan Lal is also not witness to arrest memo Ex.PW1/F. Hence it cannot be said that the alleged recovery of knife and Gathri was made from accused Abdul Matin Khan and the same is not proved on record.

27. PW-6 in his deposition dated 02.12.2012 has deposed that the SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 35 of 37 incident did not occur in his presence and they had reached at the spot later in time. The chilli powder was not thrown by the accused in his presence. PW-7 HC Angira Muni has deposed that the three absconding accused sitting on the back seat of the auto had thrown chilli powder into his eyes and it was not thrown by the accused Abdul Matin Khan the driver of TSR. Accused has appeared for himself as witness as DW-1 who has deposed that he had stopped his auto at gate no. 5 ISBT metro station where the three accused on back seat had fled after throwing chilli powder on the police person. PW-1 is silent on the aspect that which of the police person had conducted the personal search and recovered the alleged knife from the accused Abdul Matin Khan. It is not the case of the prosecution that accused Abdul Matin Khan had made an attempt to run away from the spot at gate no. 5 ISBT metro station though the other three accused had ran away immediately. No connection is brought by the prosecution that accused Abdul Matin Khan is anyway related with the said three absconding accused. The above circumstances shows that the knife was not recovered from accused Abdul Matin Khan and there is considerable doubt in the case of the prosecution to this effect. Accordingly it is held that prosecution has failed to prove the case against accused Abdul Matin Khan under Section 25 of Arms Act, 1959.

28. At this stage this Court also appreciates in rendering fair/sincere assistance vide his duly articulated, well prepare and read arguments by Sh. N.K. Jauli, Ld. Legal Aid Counsel for accused Abdul Matin Khan.

29. In such view of the matter, it is held that prosecution has failed to prove all the charges levelled against the accused Abdul Matin Khan.

SC No. 868/2017 FIR No. 175/2017 State Vs. Abdul Matin Khan Page 36 of 37

Hence the accused Abdul Matin Khan stands acquitted for all the above offences. In terms of Section 481 of BNSS, 2023/437A Cr. P.C, the accused has furnished his personal bond of Rs.10,000/- as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.

File be consigned to Record Room.

Announced in the open Court      JOGINDER Digitally signed
                                          by JOGINDER
on 23.04.2025.                   PRAKASH PRAKASH NAHAR
                                          Date: 2025.04.23
                                 NAHAR    15:41:15 +0530
                                 (JOGINDER PRAKASH NAHAR)
                             ADDITIONAL SESSIONS JUDGE (FTC-01)
                                 CENTRAL/TIS HAZARI COURT
                                          DELHI




SC No. 868/2017
FIR No. 175/2017
State Vs. Abdul Matin Khan                                       Page 37 of 37