Delhi District Court
Nitin vs State Of Nct Of Delhi on 23 February, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-003081-2024
CRIMINAL APPEAL No.: 106/2024
NITIN @ NIKKA,
S/o. Shri. Naresh Kumar,
R/o. Vagabond, Footpath,
Gole Chakkar, Roshnara Road,
Delhi. ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI)
Through SHO,
PS. Sarai Rohilla. ... RESPONDENT
Date of e-filing : 27.02.2024
Date of institution : 20.03.2024
Date when judgment was reserved : 11.02.2026
Date when judgment is pronounced : 23.02.2026
JUDGMENT
1. The present appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 ( hereinafter, referred to as 'Cr.P.C./Code')/Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS') against the judgment dated 07.08.2023 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate-04/Ld. MM-04, Central, Tis Hazari Court, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing; 'State v. Nitin @ Nikka, Case No. 13876/2022', arising out of FIR No. 546/2022, PS. Sarai Rohilla, under Sections 394/411 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 1 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:01 +0530 appellant, namely, Nitin @ Nikka (hereinafter referred to as the 'appellant') of the offence under Section 394/411 IPC and the consequent order of sentence dated 14.10.2023 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, sentencing the appellant with simple imprisonment for a period of 03 (three) years for the said offences. Further, the appellant was directed to be entitled to the benefit of the provisions under Section 428 Cr.P.C. (hereinafter the impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Pithily put, the case of the prosecution is that on 22.08.2022, on receipt of PCR Call vide DD No. 22A, the concerned police official(s) proceeded to metro pillar no. 185, Veer Banda Bairagi Marg, towards Shastri Nagar, Sarai Rohilla, Delhi (hereinafter referred to as the 'spot'), where it was determined that the injured had been taken to Hospital. Consequently, the concerned police official, proceeded to Hindu Rao Hospital, where the victim/complainant, namely, Vicky Singh (hereinafter referred to as the 'complainant/victim') was found admitted vide MLC No. 5563/22. Pertinently, under the complainant's MLC, it was inter alia noted, "...A/H/O Physical Assault at around 7:30 AM on 22.08.22...", "...L/E:- swelling +nt over (R) side of neck...", "...difficulty in talking, throat pain, patient is drowsy...", nature of injury was recorded to be under observation at that point of time. Significantly, the complainant was determined not to be in a position to tender his statement at that point in time. However, subsequently, the complainant C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 2 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:05 +0530 reached at the police station and tendered his statement/complaint inter alia asserting that on 22.08.2022, he left his home for his work in the factory at around 07:00 a.m., on foot. At around 07:15 a.m., as per the complainant, when he was proceeding from Veer Bairagi Marg, Shastri Nagar, towards Inderlok and had reached near metro pillar 185, one person approached him/the complainant from behind (समय करीब 7:15 AM पर जब मै पैदल ही वीर बंदा बैरागी मार्ग पर shastri nagar side से इन्द्र लोक की तरफ जा रहा था और जब मैं metro पिलर no. 185 के सामने पंहु चा). Suddenly, as per the complainant the said person, choked his/complainant's neck and while squeezing his neck, asked him to hand over whatever he was carrying (फं दा कस दिया और मेरी गर्दन को दबाते हु ए बोला की मेरे पास जो कु छ है निकल कर दे दे।). It was further proclaimed by the complainant under his complaint that the said person had grabbed/squeezed his neck extremely firmly to the extent that he/the complainant found difficulty in breathing (उस लड़के ने बहु त जोर से कसके मेरी गर्दन को दबाया था। मेरा सास लेना भी मुश्किल हो गया।). The complainant's complaint further chronicles that he/the complainant made endeavour to free himself from the grip of the said person, and succeeded for a while, however, the said person grabbed/choked his/complainant's neck even firmer (फिर भी मैं ने उस लड़के से अपने को छु ड़ाने के लिए संघर्ष किया और मैं ने अपनी गर्दन एक बार उससे छु ड़ा भी ली लेकिन उस लड़के ने पहली बार से भी ज्यादा जोर से मेरी गर्दन पर फं दा कस दिया।).
2.1. As per the complainant, he had properly seen the said person, in the process, however, the said person forcefully took out his/complainant's mobile phone of Oppo make, silver in colour, bearing mobile no. 8882057244 as well as a sum of Rs.
C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 3 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:09 +0530
700/- (Rupees Seven Hundred only), from his pocket (अपने को छु ड़ाने की कोशिश करने के दौरान मैं ने उस लड़के को अच्छे से देखा है। उस लड़के ने मेरी जेब में रखा हु आ मेरा mobile फोन make oppo silver colour जिसमे मेरा mobile no. 8882057244 था को जबरदस्ती मेरी जेब से निकाल लिया । मेरे mobile फोन के इलावा मेरी pent की जेब में रखे हु ए 700 रूपये भी उस लड़के ने लिए ।). It was further asserted by the complainant that the said person had grabbed his neck with such force that he felt dizzy and got unconscious, whilst someone is asserted to have informed the police officials and he/the complainant was shifted to the Hospital (उस लड़के ने इतनी जोर से मेरी गर्दन पर अपने हाथों का फं दा कसा की मेरे को चक्कर आ गये और मैं बेहोश हो गया। मैं सामने आने पर उस लड़के को पहचान सकता है। किसी ने पुलिस को कॉल किया और पुलिस मुझे हिन्दू राव हॉस्पिटल ले गयी जहा पर मेरा इलाज हु आ।).
2.2. Markedly, under said facts and circumstances, the instant FIR came to be registered, and investigation ensued. Notably, during the course of ensuing investigation, the site plan was prepared and the CCTV footage of the surrounding area was obtained. Correspondingly, on the basis of information from secret informer, the appellant was apprehended, who is asserted to have confessed to have commission of the instant offence. Further, during the course of investigation, the appellant got recovered, one mobile phone, avowed to be the one which was robbed from the complainant. Noticeably, upon the inspection of the said mobile phone, same was found to bear IMEI No. 867912055078073, 867912055078065, corresponding with the IMEI No. of the robbed mobile phone. Congruently, the concerned police official(s) moved an application for conducting the Test Identification Parade/TIP proceedings of the appellant, however, C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 4 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:12 +0530 the appellant is stated to have refused to participate in the same (दौराने तफ्तीश मुलजिम नितिन उर्फ निक्का के TIP Proceeding के बाबत एक Application माननीय अदालत में पेश किया गया जो मुलजिम नितिन उर्फ निक्का ने अपनी TIP कराने से मना कर दिया). Correspondingly, the IO is avowed to have recorded the statements of various witnesses and on completion of investigation, chargesheet came to be filed before the concerned court.
2.3. Remarkably, upon such chargesheet being filed, Ld. Trial Court took cognizance of the offences, specified under the chargesheet and subsequently, on compliance of the provisions under Section 207 Cr.P.C. qua the accused as well as upon arguments on charge, having been addressed by/on behalf of the accused and State, charges under Section 394/411 IPC, were directed to be framed against the accused by the Ld. Trial Court vide order dated 18.11.2022, inter alia under the following observations;
"...No ground for discharge is made out. Prima facie offence u/s. 394/411 IPC is made out against the accused. Charge framed accordingly u/s. 394/411 IPC against the accused to which he pleaded not guilty and claimed trial.
Put up for PE on ..."
(Emphasis supplied) 2.4. Pertinent to reproduce the charges framed against the appellant on 18.11.2022, as under;
"...I, ***, MM-04/Central, Delhi do hereby charge you accused Nitin @ Nikka S/o. Naresh Kumar, as under:-
That on 22.08.2022 at about 07:15 am in front of pillar no. 185, Veer Banda Veragi Marg, towards Shastri Nagar Metro Station, Sarai Rohilla, Delhi within jurisdiction of PS Sarai Rohilla you C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 5 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:16 +0530 committed robbery by snatching the mobile phone make OPPO Silver colour and cash Rs. 700/- from the pant of the complainant Vicky Singh in order to commit the said theft you voluntarily caused simple hurt to the complainant and thereby you committed an offence punishable under Section 394 IPC and within my cognizance.
Secondly, on 23.08.2022 at unknown time at divider of Roshnara Road, you were found in possession of above said mobile phone which you had retained/received the same with knowledge or reason to believe that same was a stolen property and accordingly, you committed the offence punishable u/s 411 IPC and within the cognizance of this court. And, I hereby direct that you be tried by Court for the said offence..."
(Emphasis supplied) 2.5. Relevantly, during the course of trial, prosecution examined 09 (nine) witnesses/prosecution witnesses, who deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Vicky Singh Complainant/victim, who inter alia
deposed of the incident as well as
identified the accused before the Ld.
Trial Court.
PW-2 Pradeep Singh Father of the complainant. Deposed
that his son/complainant, informed
him of the incident.
PW-3 Vikas Gupta Deposed inter alia regarding finding
the complainant in unconscious state
and of him/PW-3's making a call to
100 number.
PW-4 Ct. Deepak Deposed of him accompanying SI
Vinod to the spot along with SI Vinod
and subsequently proceeding for
Hindu Rao Hospital, where the MLC
of the complainant was obtained.
PW-5 ASI Sanjay Deposed regarding him taking the
Tyagi appellant to Tis Hazari Court for his
TIP proceedings and of appellant's
consequent refusal to participate in
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ABHISHEK GOYAL
GOYAL Date: 2026.02.23
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the same.
PW-6 ASI Birender Deposed of him being posted at PCR
Singh Sugar-33 and on him reaching a spot,
as well as of shifting the complainant
to Hindu Rao Hospital.
PW-7 W/Ct. Rekha The witness inter alia produced and
proved the e-form of PCR vide event
ID No. 5648952, dt. 22.08.2022.
PW-8 SI Vinod Nain Investigating Officer of the present
case who inter alia deposed of him
having conducted the investigation in
the present case, inter alia pertaining
to the arrest of the accused, etc.
PW-9 HC Sandeep Deposed of him having joined the
investigation, inter alia pertaining to the arrest of the accused, search for CCTV footage, etc. 2.6. Pertinent to note here that the aforenoted witnesses/prosecution witnesses further exhibited/proved the following documents/material objects, during the course of their respective evidence;
Exhibit Description of Exhibit Proved
no./Material by/Attested by
objects
Ex. PW1/A Statement/complaint of the PW-1/Vicky
complainant/victim. Singh
Ex. PW1/B Site plan of the incident spot PW-1/Vicky
Singh
Ex. P1 Robbed mobile phone of Oppo PW-1/Vicky
make, silver colour (with Singh
damaged speaker).
Ex. PW5/A TIP proceedings records of the PW-5/ASI Sanjay
(Colly.) appellant. Tyagi
Ex. PW6/A PCR form. PW-6/ASI
Birender Singh
Ex. PW7/A E-form of PCR vide event ID No. PW-7/W/Ct.
5648952, dated 22.08.2022 Rekha
Ex. PW8/A Endorsement on rukka. PW-8/SI Vinod
Nain
Ex. PW8/B Arrest memo on the accused. PW-8/SI Vinod
Nain
Ex. PW8/C Personal search memo of the PW-8/SI Vinod
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GOYAL Date:
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accused. Nain
Ex. PW8/D Disclosure statement of the PW-8/SI Vinod
accused. Nain
Ex. PW8/E Pointing out of the spot, at the PW-8/SI Vinod
instance of the accused. Nain
Ex. PW8/F Site plan of the spot, at the PW-8/SI Vinod
instance of the accused. Nain
Ex. PW8/G Seizure memo of the seized PW-8/SI Vinod
mobile phone. Nain
Ex. PW8/H Site plan where the camera was PW-8/SI Vinod
installed. Nain
Ex. P9 CD of the CCTV footage. PW-8/SI Vinod
Nain
Ex. P10 Photographs of the CCTV PW-9/HC
footage in the CD Sandeep
2.7. Relevantly, during the course of trial, the appellant admitted the genuineness of instant FIR (Ex. P2); certificate under Section 65B of the Indian Evidence Act, 1872/Evidence Act ( Ex. P3); DD no. 22A, dated 22.07.2022 (Ex. P4); DD No. 8A, dated 23.08.2022 (Ex. P5); MLC of the complainant/Vicky (Ex. P6); TIP proceedings (Ex. P7); and CAF of mobile no. 8882057244 ( Ex. P8), in term of the provisions under Section 294 Cr.P.C., on 08.02.2023. Consequently, the Ld. Trial Court, deleted/dispensed the corresponding witness, i.e., PW Duty Officer SI Narender; Ms. Aarushi, Ld. MM; Dr. Ankush; Dr. Md. Irfan; and Nodal Officer Jio from the list of prosecution witnesses, in view of such admission. Markedly, subsequently, to the conclusion of prosecution evidence, statements of the appellant, in terms of the provisions under Section 313 Cr.P.C. was recorded on 27.07.2023, wherein the appellant submitted that he did not desire to lead any evidence/witness in his defence. Consequently, on conclusion of arguments by/on behalf of the State and the appellant, the Ld. Trial Court vide impugned judgment and order, while holding the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 8 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:11:27 +0530 appellant guilty of the offence punishable under Sections 394/411 IPC, sentenced him in the manner, as noted hereinabove.
3. Ld. Chief Legal Aid Defence Counsel for the appellant outrightly contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law. As per the Ld. Counsel, the Ld. Trial Court, failed to consider the real facts of the case as well as various improvements, contradictions and discrepancies in the testimonies of various prosecution witnesses, while erroneously reaching a finding of appellant's guilt. As per the Ld. Counsel, the Ld. Trial Court failed to appreciate that there were material contradictions in the deposition of the witnesses which puts a serious doubt on the case of the prosecution against the appellant. In this regard, it was argued by the Ld. Counsel that though, the complainant/PW-1/Vicky initially asserted that he was choked from behind, however, it is only first time, during his deposition before the Ld. Trial Court that the complainant proclaimed that at the time of alleged occurrence, two other persons, were sitting on the bike at the some distance ahead, contrary to his initial deposition/assertion. Ld. Counsel for the appellant further submitted that PW-2/Pradeep Singh admitted in his cross-examination that he was not present at the time of the alleged incident and that he had not witnessed the same. Correspondingly, PW-3/Vikas Gupta admitted that he was not a witness to the said incident. However, despite the same, as per the Ld. Counsel for the appellant, Ld. Trial Court erroneously placed C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 9 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:31 +0530 reliance on the deposition of the said witnesses, while reaching a finding of appellant's guilt.
3.1. Ld. Chief Legal Aid Defence Counsel for the appellant further submitted that even the formal witnesses, adduced by the prosecution did not support the case of the prosecution in as much as, as per the Ld. Counsel, there are material variations/contradictions in the deposition of the said witnesses, sufficient enough to cast a significant dent in the prosecution's story. Correspondingly, Ld. Counsel for the appellant further strenuously argued that the complainant lodged a false case/FIR, while acting in collusion with the concerned police officials, thereby, converting his personal enmity into a criminal offence as well as by and falsely implicating the appellant in the present case. It was further vehemently asserted by the Ld. Counsel that the impugned judgment and order are not maintainable/sustainable in the eyes of law as the same were passed by the Ld. Trial Court in utter contradiction of the settled law/judicial dictates and facts of the present case. Congruently, it was argued by the Ld. Counsel that the impugned judgment suffers from mis-appreciation of evidence on record, thereby, resulting in miscarriage of justice.
3.2. Ld. Chief Legal Aid Defence Counsel for the appellant further submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth by the prosecution and that the prosecution's story does not inspire any confidence. Further, as per the Ld. Counsel, the Ld. Trial Court decided the matter in a mechanical C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 10 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:11:34 +0530 manner and in an utter haste, without appreciating the evidence/material brough forth on record. It was argued by the Ld. Counsel, that while reaching the finding of appellant's guilt, the Ld. Trial Court erred in not considering the settled law that where on the basis of evidence on record, two views are possible, one favouring an accused and other against him, the one favouring an accused should always be accepted. Simultaneously, it was argued by the Ld. Counsel, considering the material and cavernous lacunae in the investigation, the benefit of the same, must necessarily enure in favour of the appellant. Further, it was submitted by the Ld. Counsel that the Ld. Trial Court erred/failed in not appreciating that the prosecution has failed to prove the presence of the appellant at the spot of the alleged incident. Correspondingly, it was argued that the concerned police officials/IO, admittedly, failed to get any CCTV footage vis-à-vis the presence of the appellant at the spot of the alleged incident. In this regard, it was further argued by the Ld. Counsel that the concerned police officials collected the CCTV footages of camera bearing no. 194103, installed at H. No. F-182, Shastri Nagar, Delhi and of camera no. 194116, installed at H. No. E-137, Shastri Nagar, Delhi. Correspondingly, as per Ld. Counsel for the appellant that though, it is the case of the prosecution that the appellant was seen in the electronic recording of said cameras that the appellant was seen talking a stroll on the way, however, neither of the said recordings show that the appellant, choked the complainant or robbed him of his mobile phone. In fact, it was argued that the IO made no endeavour to collect the CCTV footage C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 11 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:11:38 +0530 of the alleged incident, despite the fact that the place was surrounded/under the surveillance of several CCTV cameras. 3.3. Further, as per the Ld. Counsel even the CDRs of the complainant or that of the appellant were not obtained by the concerned IO, to corroborate the version put forth against the appellant. Congruently, it was asserted that considering the material variations in the deposition of various witnesses, Ld. Trial Court also erred in not considering that the police official(s)/IO, failed to join any independent/public witnesses, creating serious doubts on the fairness of the investigation. In this regard, it was further argued by the Ld. Counsel that admittedly the incident took place at a public place, however, no endeavour was made to join in any independent person in the present case, proving fatal to the case put forth against the appellant. Ld. Chief Legal Aid Defence Counsel for the appellant further submitted that the impugned judgment and order were passed in utter violation/contradiction of the settled principles of law and judicial precedents, unmindful of the significant improvement in the versions put forth by the prosecution witnesses. Correspondingly, it was reiterated that even the investigation in the instant case was not fairly conducted and the police officials.
3.4. It was further submitted by Ld. Chief Legal Aid Defence Counsel for the appellant that the Ld. Trial Court recorded the appellant's statement under Section 313 Cr.P.C. in a casual and mechanical manner, in as much as, several facts and circumstances, were bundled in a single question. Ld. Counsel for the appellant further argued that even the alleged recovery was not C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 12 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:41 +0530 proved from the testimony of any independent witnesses. Ergo, Ld. Counsel reiterated that the impugned judgment was passed by the Ld. Trial Court in a casual manner, without application of judicial mind to the testimonies of the witnesses, brought on record. Accordingly, in light of the foregoing, Ld. Counsel for the appellant submitted that not only did the Ld. Trial Court fail to consider the truth of circumstances and passed its judgment/decision in haste, rather, the Ld. Trial Court also did not properly appreciate/examine the facts of the present case, wrongly holding the appellant guilty of the aforementioned offence(s).
Even otherwise, it was submitted by the Ld. Counsel that the order of sentence was also passed by the Ld. Trial Court, whimsically, while failing to appreciate that the appellant was of young age at the relevant point in time, as well as responsible for the look after and take care of his family members. Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing the appellant with severe sentence would subject his family members to grave depravity. Further, as per the Ld. Counsel, substantial time has lapsed since the incident in question and in case relaxation/leniency is not afforded to the appellant, serious/severe repercussions would ensue to their physical and mental well-being. Consequently, the Ld. Counsel for the appellant inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside. In support of the said contentions, reliance was placed upon the decisions in; State of U.P. v. Anil Singh (1988) Supp SCC 686; Jai Prakash Tiwari v.
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State of M.P., (2024) 15 SCC 424; Zindar Ali SK v. State of West Bengal, 2009 III AD (SC) 7; Gulam Mahmood A. Malek v. State of Gujarat, 1980 Supp SCC 684; Puran v. State of Punjab AIR 1953 SC 459; Rammi Rameshwar v. State of Madhva Pradesh (1999) 8 SCC 649; Sathya Narayanan v. State, (2012) 12 SCC 627; Ashish v. State of NCT of Delhi, Crl. Appeal No. 15/2006, dated 16.02.2010 (DHC); and Sonu v. State (Govt. of NCT), Crl. A. No. 633/2020, dated 06.09.2021 (DHC).
4. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. Ld. Addl. PP for the State further submitted that the testimonies of various witnesses placed on record, unambiguously prove the commission of the offences by the appellant. It was further contended by Ld. Addl. PP for the State that the deposition/testimonies of the prosecution witnesses have not only been consistent, rather, unblemished as well as lucidly point towards the only inference of appellant's guilt. As per the Ld. Addl. PP for the State, the facts and circumstances put forth as well as the evidence placed on record, unerringly point out towards the guilt of the appellant and that no fault can be attributed to the finding of the Ld. Trial Court, which is based on proper appreciation of facts as well as law. Concomitantly, it was submitted by the Ld. Addl. PP for the State that no ground of any indulgence or relaxation even in the sentence granted to the appellant is made out. Accordingly, Ld. Addl. PP for the State C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 14 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:11:49 +0530 submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Chief Legal Aid Defence Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the records, including the Trial Court Record and the other material, including the case laws relied upon have been thoroughly perused.
6. At the outset, this Court deems it pertinent to observe that against the impugned judgment dated 07.08.2023 and order on sentence dated 14.10.2023, the instant appeal has been preferred by the appellant only on 27.02.2024, with a delay of 104 (one hundred and four) days. Notably, under the application for condonation of delay, accompanying the instant appeal, the reasons for such delay are specified as occasioned due to appellant's inability to engage a private counsel due to his incarceration and poverty. In this regard, Ld. Chief Legal Aid Defence Counsel fervently argued that the appellant belongs to a poor strata of society and was suffering incarceration in another case. As per the Ld. Chief Legal Aid Defence Counsel, the appellant could approach DLSA only on 12.01.2024, whereupon necessary formalities were undertaken and subsequently, the instant appeal came to be drafted and filed by/on behalf of the appellant before this Court, leading to delay. Correspondingly, as per Ld. Chief Legal Aid Defence Counsel, the delay in preferring the present appeal was neither deliberate nor intentional, rather, attributed to reasons beyond the control of the appellant and it was further argued that in case the delay in preferring the present C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 15 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:11:54 +0530 appeal is not condoned, grave and irreparable loss would accrue to the appellant, whist, no loss/damage would be caused to the respondent/State, in case the prayer, as sought for is acceded to. Needless to mention here, Ld. Addl. PP for the State/respondent vehemently objected to the said prayer for condonation on the ground that considering the period of delay in filing the said appeal, no relaxation/indulgence may be granted in favour of the appellant, herein.
7. Apropos the present discussion and before delving into the arguments addressed before this Court on the aspect of delay, it would be relevant to make a reference to Article 115 of the Limitation Act, 1963 (hereinafter referred to as the 'Limitation Act'), which provides for a period of 30 (thirty) days from the order of sentence or order, as the period/prescribed period of limitation in preferring appeal against any order or sentence, not being an order of acquittal. Correspondingly, reference is made to Section 5 the Limitation Act, which provides for condonation of delay in certain cases on demonstration of 'sufficient cause'. Needless to mention here that the words, 'sufficient cause' have been repeated asserted by superior courts to be quite elastic and necessitating liberal construction, in the interest of justice. In fact, in this regard, this Court deems it pertinent to make a reference to the decision of the Hon'ble Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein the Hon'ble Court, while meticulously collating the guiding principles, governing the exercise of court's power to condone C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 16 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:11:58 +0530 delay as well as the meaning of the said words, 'sufficient cause', enunciated as under;
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 17 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:12:02 +0530 weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters..."
(Emphasis supplied) C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 18 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:05 +0530
8. Unmistakably, the rules of limitation, which are premised on the principles enshrined in Latin maxim, 'interest reipublicae up sit finis litium1', are designed, not to destroy the legal rights of parties, rather, to ensure that the parties do not resort to dilatory tactics. Ergo, considering the objective of the law and further being wary of the fact that there is no presumption under law that the delay in approaching courts was deliberate, courts 2 have repetitively professed for adopting a pragmatic, justice- oriented approach, in variance to, technical interpretation, while determining 'sufficient cause' in a case. Needless to mention that it is equally a settled law3, "decisive factor for condonation of delay is not length of delay but sufficiency and satisfactory explanation." Apposite in regard the foregoing to make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. Satish Chand Shivhare & Brothers, 2022 SCC Online SC 2151 , wherein the Hon'ble Court, while professing for the adoption of a balanced as well as liberal approach in the determination of a prayer for limitation/condonation of delay, asserted as under;
"22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards 'sufficient cause' to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when 1 It is for the general welfare that a period be put to litigation.2
J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC Online Del 1082.3
Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC Online Guj 2610.
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some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is flimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning."
(Emphasis supplied)
9. Remarkably, reference in respect of the foregoing is further made to the recent decision of the Hon'ble Supreme Court in Inder Singh v. State of M.P., 2025 SCC Online SC 600 , wherein the Hon'ble Court, noted in an akin context, as under;
"14. There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation."
(Emphasis supplied)
10. Consequently, in light of the aforenoted judicial dictates/principles governing limitation; arguments addressed by the Ld. Chief Legal Aid Defence Counsel for the appellant and that of Ld. Addl. PP for the State; as well as upon appreciation of the facts and circumstances brought forth, this Court is of the considered opinion that the appellant's prayer for condonation of delay in filing the instant appeal, deserves to be allowed. As aforenoted, the reasons for delay in preferring the instant appeal are stated to have been attributed to the factum of appellant's incarceration and poverty, besides his inability to timely seek legal aid. Needless to reiterate that the instant appeal has been preferred by the appellant with the assistance of Ld. Chief Legal Aid Defence Counsel, besides the reasons for delay in preferring the present appeal have clearly been enunciated under the application C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 20 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:14 +0530 preferred by/on behalf of the appellant, under Section 5 of the Limitation Act, as annexed/appended along with the instant appeal. Clearly, in light of the foregoing, the reasons for delay in preferring the present appeal on behalf of the appellant have not only been properly explained/forthcoming in the instant application as well as the arguments addressed by the Ld. Chief Legal Aid Defence Counsel for the appellant, rather, the same, in the considered opinion of this Court, cannot be treated to be malicious and/or dilatory in any manner. Needless to mention that the appellant approached DLSA to assist him in preferring the present appeal and it was only to the entire process, delay occasioned. Consequently, in light of the foregoing, this Court unswervingly observes that the prayer for condonation of delay in filing the instant appeal deserves to be allowed and the period of 104 (one hundred and four) days delay in preferring the present appeal merits, to be condoned. Consequently, for the foregoing reasons, this Court allows the appellant's prayer for condonation of delay in preferring the present appeal and the period of delay in filing/preferring the present appeal is, hereby, condoned.
11. Proceeding further, this Court now deems it apposite to enunciate the scope of jurisdiction of this Court in an appeal against conviction. In this regard, this Court it is pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621, wherein the Hon'ble Court, while delving into the 'scope and ambit' of appellate court's jurisdiction inter alia noted as under;
"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 21 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:12:18 +0530 independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court..."
(Emphasis supplied)
12. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
13. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in an appeal extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as aforenoted, court(s), while exercising appellate power is not required to consider the question of law, rather, also question of facts to affirmatively reach a C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 22 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:23 +0530 conclusion of guilt or innocence of an accused. In fact, it is trite law4 that non-re-appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even the accused. Needless to reemphasize that the appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
14. Ergo, being wary of the aforesaid principles, however, before proceeding with the determination of the rival contentions of the parties, it would be pertinent to reproduce the relevant provisions under law/IPC, germane for the purpose of present adjudication, as under;
"378. Theft-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft...
*** *** ***
383. Extortion-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion".
*** *** ***
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 4 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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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.
*** *** ***
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 imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
*** *** ***
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."
(Emphasis supplied)
15. Conspicuously, from a conscientious perusal of the above, it is outrightly observed that in order to attract culpability under Section 390 IPC, it is required of the prosecution to inter alia prove that while commission of theft or extortion, as the case may be, the offender voluntarily caused or attempted 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. In this C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 24 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:12:30 +0530 regard, this Court deems it pertinent to further make a reference to the decision of the Hon'ble Supreme Court in Mohd. Wajid v. State of U.P., 2023 SCC Online SC 951 , wherein the Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC remarked, as under;
"15. Theft amounts to '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. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted 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 second necessary ingredient is that this must be 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 third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 25 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:12:34 +0530 committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."..."
(Emphasis supplied)
16. Apposite to further note here that in terms of the unambiguous provision under law, culpability under Section 394 IPC can be attracted in a given case, only when the offender while committing or attempting to commit robbery voluntarily causes hurt5. In fact, law is trite that the provisions under Section 394 IPC are attracted in instances, where during the course of robbery voluntary hurt is caused by6, "two distinct class of persons as follows: "(1) Firstly, those who actually cause hurt; and (2) Secondly, those who do not actually cause hurt, but are "jointly concerned" in the commission of offence of robbery." Relevantly, the Hon'ble Supreme Court in Aslam v. State of Rajasthan, (2008) 9 SCC 227, while articulating the contours of the said provision, observed as under;
"10. Section 394 describes punishment for voluntarily causing hurt in committing or attempting to commit robbery. The offence under this section is more serious offence than one under Section 392. Section 394 postulates and contemplates the causing of harm during commission of robbery or in attempting to commit robbery when such causing of hurt is hardly necessary to facilitate the commission of robbery. Section 394 applies to cases where during the course of robbery voluntary hurt is caused. Section 394 classifies two distinct class of persons. Firstly, those who actually cause hurt and secondly, those who do not actually cause hurt but are "jointly concerned" in the commission of offence of robbery. The second class of persons may not be 5 Dudhnath v. State of Maharashtra, 2011 SCC Online Bom 1390.
6Arab SK. v. State of W.B., 2015 SCC OnLine Cal 1435.
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Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.23
16:12:38
+0530
concerned in the causing of hurt, but they become liable independently of the knowledge of its likelihood or a reasonable belief in its probability."
(Emphasis supplied)
17. In so far as the culpability under Section 411 IPC is concerned, law is settled that to attract culpability under the said provision, it is not necessary that an accused receives any stolen property with a culpable intention, knowledge or reason to believe, rather, even in the instance of retention of such stolen property with such mens rea or upon the failure of the accused to make enough inquires to comprehend the nature of good(s) procured by him, is sufficient. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in Shiv Kumar v. State of M.P., (2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon'ble Court inter alia observed as under;
"16. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable."
(Emphasis supplied)
18. Correspondingly, reference is further made to the decision in State of U.P. v. Nawab, 2014 SCC Online All 14976 , wherein the Hon'ble High Court of Allahabad noted that conviction under Section 392 and Section 411 IPC cannot be C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 27 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:42 +0530 maintained simultaneously7 against same accused. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"20. When an accused is guilty of robbery he is to be convicted under section 392, I.P.C. When accused is found guilty under section 392 for committing robbery and under section 411 for retaining stolen property, his conviction under section 411 I.P.C. is improper. For considering the language of section 411, dishonest retention is contradistinguished in that section from dishonest reception. The act of dishonest removal within section 379 constitutes dishonest reception within section 411 and so the thief does not commit the offence of retaining stolen property merely by continuing to keep possession of the property he stole. The theft and taking and retention of stolen goods form one and the same offence and cannot be punished separately."
(Emphasis supplied)
19. Reference in respect of the foregoing is further made to the decision in Gopi Jaiswal v. State of U.P., 2011 SCC Online All 1775, wherein the Hon'ble High Court of Allahabad in akin terms, remarked as under, "...In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be 7 Reference is further made to the decision in Sunil Mashi v. State NCT of Delhi, MANU/DE/3768/2014, wherein the Hon'ble High Court of Delhi, noted; "41. Even as regards offence under Section 379 IPC, the appellant was rightly convicted inasmuch as he was found in possession of the stolen articles immediately after the commission of theft and, therefore, the presumption under Section 114A of Indian Evidence Act, 1872 arises against him.***42. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, MANU/SC/0694/2001: (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:***"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case, illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."***43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside." (Emphasis supplied) C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 28 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:46 +0530 made under Section 379 IPC. His conviction under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also recovered from his possession, he should be convicted and sentenced for the offence of theft and as such he cannot be convicted and sentenced under Section 411 IPC. Therefore, the order of conviction and sentence passed against the appellant under Section 411 IPC cannot be upheld..."
(Emphasis supplied)
20. Consequently, being mindful of the principles hereinunder observed, this Court would now proceed with the appreciation of the evidence and material placed on record. In particular, at the outset, this court deems it pertinent to make a reference to the testimony of the complainant/PW-1/Vicky Singh, who inter alia deposed regarding the incident in question as well as the role of the appellant. In this regard, it is apposite to note that the complainant/PW-1 inter alia avowed in his deposition that on 22.08.2022, when he was proceeding from his house at Shastri Nagar, Sarai Rohilla, Delhi, to his factory, it was around 07:00 a.m. The complainant further proclaimed that he was on foot and at around 07:15 a.m., when he reached at Banda Bairagi Marg, Shastri Nagar, near Metro Pillar no. 185, one person suddenly came from behind and caught of his/PW-1's neck as well as choked him. As per PW-1, due to said choking, it became difficult for him/PW-1 to breath. However, as per PW-1, he was somehow, able to save himself, however, the said person again caught him/PW-1 from his neck and applied a tighter choke. Thereafter, as per PW-1, the said person, snatched his/PW-1's mobile phone make of Oppo make, silver in colour and cash amount of Rs. 700/-
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(Rupees Seven Hundred only). Congruently, PW-1 asserted that due to the said tight choke, he got unconscious and fell down. Further, as per PW-1, somebody made a call at 100 number. Thereafter, when he regained consciousness, PW-1 asserted that he was in Hindu Rao Hospital. Needless to mention that PW-1 proved his statement Ex. PW1/A as well as correctly identified the aforesaid perpetrator as the appellant herein, before the Ld. Trial Court. It was further proclaimed by the complainant/PW-1 that after recording his statement, he/PW-1 along with the IO, visited the place on incident and the IO prepared the site plan (Ex. PW1/B) at his/PW-1's instance. Correspondingly, as per PW-1, after the incident, the accused had fled from the spot, however, during the investigation, when he/PW-1 visited the police station, he/PW-1 found the appellant/accused present there. Ergo, as per PW-1, he informed the concerned police official(s) of appellant's identity and his/PW-1's statement was recoded to the said effect. Needless to mention that PW-1 also identified the case property , i.e., mobile phone of Oppo make, silver colour (with damaged speaker) before the Ld. Trial Court, as Ex. P1.
21. Relevantly, upon being cross-examined by/on behalf of the appellant, the complainant/PW-1, asserted as under;
"XXXXXX Sh. ***, Ld. Counsel ...
At the time of incident, accused came from back side on foot. Two other persons were sitting on the bike at the some distance ahead, however they did not came at the spot. During scuffle, I had seen the face of the accused. The face of accused while following me can be seen in the CCTV footage. In my presence, no public persons were examined by the police. After the incident, I became unconscious and 1 do not know who had made the PCR call. It is wrong to suggest that C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 30 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:54 +0530 I had not seen the face of accused at the time of accident, as he came from my back side. It is wrong to suggest that I identified the accused today in the court as he was shown to me in the PS by police. It is correct that the recovery of mobile phone did not took place in my presence. It is wrong to suggest that the accused has been falsely implicated in the present case. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
22. Here, it is further pertinent to refer to the testimony of PW-3/Vikas Gupta, who deposed before the Ld. Trial Court that at the relevant point in time, he was a resident of Shastri Nagar, Delhi and that on 22.08.2022, he had gone to drop his children to School on main road Bir Banda Bairagi Marg. Correspondingly, as per PW-3, at around, 07:15 a.m., when he was present near metro pillar no. 185, he/PW-3 saw one boy in unconscious condition. Consequently, as per PW-3, he moved towards the said boy to provide aid. Further, as per PW-3, when the said boy regained consciousness and informed the number of his/victim's father. Thereafter, as per PW-3, he/PW-3 made a call at 100 number, while someone made a call to the victim's father. It was further avowed by PW-3 that the victim informed his name as Vicky. Further, it was proclaimed by PW-3 that after some time, victim's father reached at the spot and when police reached at the spot, he/PW-3 left from there. However, the police had recorded his/PW-3's statement. Markedly, during the course of his cross- examination, PW-3 affirmed he was not an eyewitness to the incident.
23. Correspondingly, reference is here made to the testimony of PW-2/Pradeep Singh, father of the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 31 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:12:58 +0530 complainant/victim, who deposed that on 22.08.2022, in the early morning hours, an incident of robbery took place with his/PW-2's son near pillar no. 185, Shastri Nagar, Delhi. After the incident, as per PW-2, some public persons made a phone call to him/PW-2, whereupon, he/PW-2 visited the spot and there his/PW-2's son was found unconscious. After some time, as per PW-2, police came at the spot as some public person had made a PCR call, whereupon, PW-1/victim was taken to Hindu Rao Hospital. After medical treatment of PW-1, as per PW-2, he/PW-2 along with PW-1, visited PS. Sarai Rohilla on 23.08.2022 and PW-1's statement was recorded and the instant FIR registered. Relevantly, during the course of his cross-examination by/at the behest of the appellant, PW-2, proclaimed as under;
"XXXXXX by ***, Ld. Counsel ...
It is correct that I was not present at the spot when incident took place. It is correct that I had not seen any person committing robbery f alleged mobile phone and cash from the pocket of pant of my son."
(Emphasis supplied)
24. Germane for the purpose(s) of the present discourse to further refer to the deposition of PW-4/Ct. Deepak, who inter alia avowed before the Ld. Trial Court that on 22.08.2022, he was posted as Constable at PS. Sarai Rohilla and on the said day, SI Vinod received DD No. 22A. Thereafter, as per PW-4, he/PW-4 along with SI Vinod went to the spot, i.e., near Metro pillar no. 185, Bir Banda Bairagi Marg, Shastri Nagar, Sarai Rohilla, Delhi, where it was determined that the injured had been taken to Hindu Rao Hospital by PCR. Consequently, they went to Hindu Rao Hospital, where the MLC of the victim was obtained, however, the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 32 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:13:02 +0530 victim was determined, not to be in a position to give the statement at that time. Thereafter, as per PW-4, he and SI Vinod returned to the police station and the IO recorded his/PW-4's statement. Remarkably, in his cross examination, PW-4 avowed that the said MLC of the victim was collected at around 08:20 a.m. Here, it is further pertinent to make reference to the deposition of PW-6/ASI Birender Singh, who deposed in his testimony that in the intervening night of 21/22.08.2022, he/PW-6 was posted at PCR Sugar-33. Correspondingly, as per PW-6, on 22.08.2022 at around 07:40 am, he received one PCR call regarding an incident near metro pillar no. 185, Veer Banda Bairagi Marg. Thereafter, he/PW-6 along with the accompanying PCR official went to the spot, where they met injured, Vicky S/o. Pradeep as well as the PCR caller, namely, Vikas. As per PW-6, the injured was not able to speak at that time, whereupon, he/victim was shifted to Hindu Rao Hospital. Further, as per PW-6, the PCR caller had informed them that the said injured was lying unconscious. Needless to mention, PW-6 was not cross examined by/on behalf of the appellant, despite opportunity.
25. Correspondingly, reference is further made here to the deposition of PW-8/IO/SI Vinod Nain, who testified that on 21/22.08.2022, he was posted at PS Sarai Rohilla as Sub-Inspector and was on night emergency duty from 08:00 p.m. to 08:00 am. At about 07:30 am, as per PW-8, he received a call vide DD no. 22A, whereupon, he/PW-8 along with Ct. Deepak, reached at pillar no.185, Veer Banda Bairagi Marg way toward Shastri Nagar Metro Station, where it was determined that the injured had been C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 33 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:13:05 +0530 shifted to Hindu Rao Hospital by PCR official. Consequently, they reached at Hindu Rao Hospital and found that the injured, namely, Vicky was under treatment, however, not fit for statement. Ergo, as per PW-8, he collected the MLC of injured and thereafter returned to the police station, along with Ct. Deepak. Further, as per PW-8, in the night of 22/23.08.2022, injured Vicky Singh came to the police station and gave his statement (Ex. PW1/A), whereupon the instant FIR was registered. PW-8 further avowed that he prepared the site plan (Ex. PW1/B), at the instance of the complainant and relived him/the complainant, thereafter. PW-8 also avowed that he searched of the accused, checked the CCTV cameras of the spot and nearby area, and found movements of the suspect at the time of alleged incident in a CCTV camera near the spot. Further, as per PW-8, he collected footage of that movement of the suspect in his/PW-8's mobile. Thereafter, in the intervening night of 23/24.02.2022, at around 11:00 p.m., the appellant was arrested (Ex. PW8/B) on the pointing of a secret informer, whereupon, he/the appellant was personally searched (Ex. PW8/C) as well as his/appellant's disclosure statement (Ex. PW8/D) was recorded. As per PW-8, the said accused also got recovered the robbed mobile phone of Oppo make from Roshnara gol chakkar, Ghanta Ghar Road, which was seized vide memo, Ex. PW8/G. As per PW-8, he also checked the IMEI number of the said mobile phone, which was determined to match with the IMEI number of the robbed mobile phone of the complainant. It was further asserted by PW-8 that the appellant was kept in muffled face during all proceeded and handed over to C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 34 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:13:09 +0530 ASI Sanjay Tyagi for his TIP proceedings, however, the appellant/accused refused to participate in the same. Pertinently, PW-8 further proved the PCR form (Ex. PW6/A) and ownership of the mobile number (Ex. P8), determined to be in victim's father's name. PW-8 further asserted that he collected the CCTV footage through a CD (Ex. P9) and took out print out of the same (Ex. P10), wherein the appellant was seen visible. PW-8 also proved the site plan (Ex. PW8/H), where the camera was installed and also recorded the statements of witnesses, whereupon the chargesheet was filed before the concerned court. Needless to mention that PW-8 inter alia further identified the appellant as the perpetrator of the aforesaid offence, during the course of his deposition.
26. Significantly, during the course of his cross- examination, PW-8/IO/SI Vinod Nain, deposed as under;
"XXXXXX by ***, Ld. LAC for accused.
It is correct that I reached at the spot around 08:00 am. There were around 2-3 persons present near the place of incident. Complainant was not present at that time. The person who made 100 number call was present at the spot but I do not remember his name. Vol. I had recorded his statement. Site plan of the spot of recovery was not prepared. Vol. Seizure memo was prepared. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
27. Conspicuously, in light of the foregoing, this Court would now proceed with the evaluation of the material placed on record, in light of the arguments addressed by/on behalf of the appellant and by the State. However, before proceeding further, this Court deems it pertinent to deal with the contention of Ld. C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 35 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:13 +0530 Chief Legal Aid Defence Counsel for the appellant inter alia to the effect that the conviction of the appellant could not have been premised on the deposition of the complainant in the instant case, without any corroboration. However, in this regard, this Court deems it pertinent to outrightly note that the superior courts have persistently avowed8 that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness/victim, if his version is clear and reliable, for the principle of law/rule of evidence is that the evidence has to be weighed and not counted. Relevantly, in this regard, reference is made to the decision of the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, wherein the Hon'ble Court in unambiguous terms, remarked as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied) 8 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 36 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:17 +0530
28. Congruently, this Court unambiguous observes that mere fact that the prosecution, opted not to produce the other public persons as prosecution witnesses before the Ld. Trial Court, asserted to be present at the spot of occurrence, cannot, in the considered opinion of this Court, be read against the prosecution in light of the decision of the Hon'ble Supreme Court in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200 , wherein the Hon'ble Court in a similar situation, held as under;
"34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it."
(Emphasis supplied)
29. Pertinently, Ld. Chief Legal Aid Defence Counsel for the appellant has further strenuously contended that the Ld. Trial Court did not consider the contradictions, variations and/or improvements, in the testimonies of various prosecution witnesses while pronouncing the impugned judgment. However, in order to appreciate the said contention, this Court deems it apposite to iterate and explore the judicial precedents governing the law of contradictions in the testimony of the witness. In particular, in this regard, this Court deems it apt to outrightly make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. M.K. C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 37 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:13:21 +0530 Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied) C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 38 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:13:24 +0530
30. Similarly, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
(Emphasis supplied)
31. Evidently, from the conspectus of the above, it is clearly deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, cannot be permitted to be annexed with any undue weight. In fact, it is trite law9, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a 9 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 39 of 52 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:28 +0530 contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."... Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied)
32. Ergo, to recapitulate, in order to disregard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession to marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Consequently, being wary of the foregoing, when the testimonies of prosecution witnesses in the instant case are analysed, this Court finds itself difficult to be convinced with the contention of the Ld. Chief Legal C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 40 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:13:32 +0530 Aid Defence Counsel for the appellant that there are any material contradictions to belie the testimonies of the said witnesses. On the contrary, it is seen from a conscientious scrutiny of the evidence of the complainant/PW-1/Vicky Singh that he has consistently deposed of the incident in question, as well as of the involvement of the appellant therein. In particular, it is seen from the testimony of the complainant/PW-1 that he deposed before the Ld. Trial Court that on 22.08.2022, when he was proceeding from his house at Shastri Nagar to his factory and at around 07:15 a.m., when he reached at Banda Bairagi Marg, Shastri Nagar, near Metro Pillar no. 185, one person, who was identified by the complainant as the appellant herein, suddenly came from behind and caught of his/PW-1's neck as well as choked him, making it difficult for him/PW-1 to breath. Correspondingly, as per PW-1, he was somehow, able to save himself, however, the appellant again caught him/PW-1 from his neck and applied a tighter choke. Thereafter, as per PW-1, the said person, snatched his/PW-1's mobile phone make of Oppo make, silver in colour and cash amount of Rs. 700/- (Rupees Seven Hundred only). Congruently, PW-1 asserted that due to the said tight choke, he got unconscious and fell down. However, as per PW-1, during the scuffle, he was able to see the face of the perpetrator, who was identified as the appellant herein before the Ld. Trial Court. Undoubtedly, PW-2 and PW-3 were not the eyewitnesses of the incident, however, this Court concurs with the finding of the Ld. Trial Court that the deposition of PW-1, inter alia to the extent of him getting unconscious and lying at the spot on the date of occurrence, and C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 41 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:36 +0530 subsequently, being transferred to Hospital, stands corroborated/supported with the deposition of PW-2 and PW-3. Needless to further mention that the factum of appellant's being hurt owing to the incident stands proved not only from the deposition of the said witnesses, rather, further stands affirmed with the MLC of the victim/PW-1 (Ex. P6), wherein it was inter alia noted, "...swelling +nt over (R) side of neck...", nature of the victim's injury being subsequently, opined to be 'simple'.
33. Congruently, the depositions of the foregoing witnesses, further find corroboration from the testimony of PW-6/ASI Birender Singh, who asserted that when in response to the PCR Call, received on 22.08.2022, the PCR team reached at the incident spot, i.e., near metro pillar no. 185, Veer Banda Bairagi Marg, they met the victim/PW-1 there, who was unable to speak and was consequently shifted to Hindu Rao Hospital. Needless to mention that PW-4/Ct. Deepak and PW-8/IO/SI Vinod further corroborated that when they reached at the aforesaid spot, while responding to DD No. 22A, it was determined that the victim had been shifted to Hindu Rao Hospital where his MLC was collected, however, the said victim/PW-1 was found to be unable to tender his statement, at that point in time. Apposite to note that though, the said witnesses were thoroughly cross examined by/on behalf of the appellant, however, nothing has emerged under their cross-examination to discredit the version of incident put forth by the said witnesses. Here, it is further pertinent to note that not only did the appellant, refused to participate in the TIP proceedings (Ex. P7) during the course of investigation on 24.08.2022, however, C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 42 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:40 +0530 during the course of entire trial proceedings, no explanation regarding the reasons for such refusal was forthcoming on the part of the appellant. In fact, neither during the course of cross examination of the complainant/PW-1 or PW-5/ASI Sanjay Tyagi, who proved the records of TIP proceedings, was any suggestion put forth to any of the said witnesses to explain such refusal rather, no reasonable justifiable reason is even forthcoming under the statement of the appellant dated 27.07.2023, recorded in terms of the provisions under Section 313 Cr.P.C. Pertinent here to reproduce the relevant extracts from the appellant's statement, recorded under Section 313 Cr.P.C., as under;
"...Q. 2. It is in evidence against you that PW-1 Vicky Singh deposed against you and narrated the incident of robbery against him which occurred on 22.08.2022 and he had specifically identified you during his testimony. He also made a complaint Ex. PW1/A and stated that site plan was prepared at his instance Ex. PW1/B. He identified his mobile phone Ex. P1. What do you have to say?
Ans. It is incorrect.
*** *** *** Q. 6. It is further in the evidence against you that PW5 ASI Sanjay Tyagi deposed that on 24.08.2022, he along with IO took accused Nitin @ Nikka at Tis Hazari Court in muffled face, there IO moved an application for conducting TIP proceedings Ex. PW5/A (Colly.), where the accused refused to participate in TIP proceedings and accused was remanded to JC. What do you have to say?
Ans. It is matter of record.
*** *** *** Q. 11. What have PWs deposed against you? Ans. Police witnesses and other witnesses have been won over by the complainant to depose falsely against me..."
(Emphasis supplied) C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 43 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:13:44 +0530
34. Ergo, in light of the foregoing, it is reiterated that no reasonable/justifiable reason was tendered by the appellant for his refusal to participate in the TIP proceedings, besides neither any suggestion nor any question was posed to any of the prosecution witnesses, regarding his/appellant's identification as the perpetrator of offence before the Ld. Trial Court. Consequently, under such circumstances, in the considered opinion of this Court, appellant's unexplained refusal10 to join the TIP proceedings, is another factor, sufficient to raise an adverse inference against the appellant in the instant case. Correspondingly, this Court further finds itself in consonance with the finding of the Ld. Trial Court that PW-8/SI Vinod Nain as well as PW-9/HC Sandeep have proved the factum of recovery of the robbed mobile phone at the instance/from the possession of the appellant and that there is nothing in the cross-examination of the said witnesses, to discredit their testimonies. Consequently, in light of the foregoing facts and circumstances as well as on the basis of material brought forth, this Court is in consensus with the finding of the Ld. Trial Court that the prosecution has been able to prove the commission of incident of robbery upon the victim/PW-1 by the appellant, wherein inter alia the victim's mobile phone was robbed from him, by causing hurt to the victim/PW-1. In fact, even in the considered opinion of this Court, the appellant has failed to bring forth any material even under the cross examination of any of the foregoing witnesses, so as to demolish the case put forth against him by the prosecution. Correspondingly, the appellant has not even been able to bring 10 Firoz Khan v. State (NCT of Delhi), 2014 SCC OnLine Del 6617.
C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 44 of 52
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.23
16:13:48
+0530
forth any malice/ill will or wrongful intention on the part of the complainant to falsely implicate him in the present case. In fact, not only has the appellant not even given any suggestion to any of the witnesses so as to suggest any reasons for his false implication. In fact, even the explanation(s) tendered by the appellant in his statement, recorded in terms of Section 313 Cr.P.C. is quite uninspiring of confidence, and seemingly specious. Needless to note that except for the general assertion of Ld. Chief Legal Aid Defence Counsel for the appellant that the questions put forth to the appellant while recording his statement, under Section 313 Cr.P.C. were lengthy, nothing is forthcoming to demonstrate actual prejudice or even averment of prejudice to the appellant owing to such alleged omission. In fact, the law is trite that any omission on the part of the court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Ergo, under such circumstances, absence of demonstration of any prejudice to the appellant, owing to such alleged omission, no fault, in the considered opinion of this Court, can be attributed to his conviction in the instant case. Pertinent at this stage, to make a reference to the decision of the Hon'ble Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496, wherein the Hon'ble Court in an akin context, remarked as under;
"16. Undoubtedly, the importance of a statement under Section 313 CrPC, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 45 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:13:52 +0530 circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 CrPC statement is taken at the earliest stage, the court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 CrPC statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 CrPC, failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance with mandatory provisions of Section 313 CrPC is concerned it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the court, the same has to be corrected or rectified in the appeal.
*** *** ***
20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance with Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 CrPC, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that the accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 CrPC. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. The facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 46 of 52 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:13:57 +0530 (Emphasis supplied)
35. In so far as the fulfilment/establishment of ingredients of offence under Section 394 IPC against the appellant is concerned, this Court is in concurrence with the finding of the Ld. Trial Court, under the impugned judgment. In fact, this Court concedes with the observations of the Ld. Trial Court that PW-1, consistently deposed regarding him being choked by the appellant, leading to him getting unconscious and in the meanwhile of the appellant's removing/taking away his mobile phone of oppo make, silver in colour as well as sum of Rs. 700/- (Rupees Seven Hundred only). Needless to reiterate that the factum of complainant's sustaining hurt stands further corroborated with the testimonies of PW-2/Pradeep Singh, PW-3/Vikas Gupta, PW-4/Ct. Deepak, PW-6/ASI Birender Singh and PW-8/SI Vinod Nain as well as the victim's MLC (Ex. P6). Clearly, under the said facts, there is clear evidence that the appellant, caused hurt to the victim/complainant/PW-1 and in the said process, he took away movable property, i.e., mobile phone of oppo make, silver in colour as well as sum of Rs. 700/- (Rupees Seven Hundred only), out of the possession of the complainant, without his consent and moved the same, in order to such taking. Ergo, under such circumstances, this Court concedes with the finding of the Ld. Trial Court that the ingredients of offence under Section 394 IPC stand proved beyond reasonable doubt against the appellant herein.
36. Conclusively, in conspectus of the above and inter alia keeping in view consistent testimonies of the C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 47 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:14:05 +0530 complainant/PW-1/Vicky Singh and other witnesses, i.e., PW-2/Pradeep Singh, PW-3/Vikas Gupta, PW-4/Ct. Deepak, PW-6/ASI Birender Singh and PW-8/SI Vinod Nain as well as considering the other material on record, including the seizure and recovery memos, etc., the only conclusion which can be unambiguously arrived at in the facts and circumstances brought forth is that the prosecution has been able to prove its case 'beyond reasonable doubt' against the appellant for the offences under Section 394 IPC. On the contrary, the appellant has failed to raise a probable defence/defence by 'preponderance of probabilities' in his favour and/or to belie the case put forth by the prosecution for the reasons, hereinunder, observed. However, in as much as the allegations/charges under Section 411 IPC is concerned, this Court unambiguously reiterates that in light of the aforementioned dictates, in particular, in terms of the decisions in State of U.P. v. Nawab (Supra.) and Gopi Jaiswal v. State of U.P. (Supra.), once a finding of guilt of accused for the commission of offence under Section 394 IPC has been reached by this Court, it would not be proper to convict the appellant for the offence under Section 411 IPC in the instant case.
37. In so far as the quantum of sentence to be awarded to the appellant is concerned, this Court deems it pertinent to outrightly observe that though the penal provisions under law, in particular that under IPC, prescribe for penalties to be imposed for offences, however, do not lay down any set guidelines for the same. Nonetheless, the persistent avowals of the superior courts 11 11 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.
C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 48 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2026.02.23 16:14:09 +0530
have laid down certain guidelines, which may be considered by the courts, when confronted with conundrum regarding such determination. Undoubtedly, the inclination of courts is usually tilted towards the reformation and rehabilitation of the accused, however, at the same time, court have incessantly cautioned that sentencing should be adequate as undue sympathy, by imposing inadequate sentence may result into causing more harm to the justice system. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516, wherein the Hon'ble Court observed as under;
"17. ...We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
(Emphasis supplied)
38. Concurrently, the Hon'ble Supreme Court in Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while iterating the objective behind sentencing enunciated as under;
"9. ...Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers...The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further offences) and the maintenance of public C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 49 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:14:13 +0530 confidence..."
(Emphasis supplied)
39. Apposite to further observe that besides the tenacious affirmations of the superior courts, inclined towards the grant of just and appropriate sentence, there has also been a cautionary word12 that mere long pendency of case is no ground to award lesser sentence. However, this Court is equally cognizant that the superior courts have incessantly asserted that while determining the quantum of sentence, courts cannot be oblivious to the mitigating circumstances, which are required to be accorded due weightage, alongside aggravating factors. In fact, law is settled13 that the discretion in the matter of sentence is to be exercised by court(s), after balancing all the aggravating and mitigating circumstances of the crime. Further, as per the superior courts14, a balance sheet of aggravating and mitigating circumstances has to be drawn up at such a stage.
40. Ergo, in light of the foregoing principles, when the facts and circumstances of the present case are scrupulously analyzed in the context of the attendant factors such as the manner of commission of crime; role of the appellant; and appellant's previous conduct and involvement/conviction in another case of similar kind/nature, as per even the appellant's recent nominal roll dated 28/29.01.2026, i.e., FIR No. 521/2022, under Section 392 IPC, PS. Sarai Rohilla (convicted and sentence already undergone); FIR No. 233/2022, under Section 392 IPC, PS. Gulabi 12 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
13Bachan Singh v. State of Punjab, (1980) 2 SCC 684 14 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 50 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:14:17 +0530 Bagh (convicted and presently undergoing sentence); and FIR No. 49/2018, under Section 392/411/34 IPC, PS. Sarai Rohilla (on trial), this Court unswervingly observes that the Ld. Trial Court has acted justly and reasonably by awarding sentence/simple imprisonment for a period of 03 (three) years to the appellant.
Needless to further mention that the appellant has failed to demonstrate any mitigating factor, convincing this Court to grant any relaxation in his/appellant's favour. Clearly, under such circumstances, this Court is of the considered opinion that no interference in the quantum of sentence awarded by Ld. Trial Court is warranted by this Court in so far as it pertains to the substantive sentence for offence under Section 394 IPC, as the sentence awarded to the appellant by the Ld. Trial Court not only corresponds with the crime involved, rather, falls in tandem with the resolute declarations of the superior courts, as hereinunder noted.
41. Conclusively, in view of the above discussion, the present appeal is party allowed in so far as while upholding the conviction of the appellant under Section 394 IPC, his/appellant's conviction under Section 411 IPC is set aside under the judgment dated 07.08.2023 passed by Ld. MM-04, Central, Tis Hazari Court, Delhi in case bearing; 'State v. Nitin @ Nikka, Case No. 13876/2022', arising out of FIR No. 546/2022, PS. Sarai Rohilla, under Sections 394/411 IPC. However, the order of sentence dated 14.10.2023 of the Ld. Trial Court is upheld only to the extent that the appellant would undergo the substantive sentence/simple imprisonment for a period of 03 (three) years for the offence C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 51 of 52 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2026.02.23 16:14:22 +0530 punishable under Section 394 IPC, nonetheless, be entitled to the benefit of the provisions under Section 428 Cr.P.C./Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Pertinently, the appellant is already in custody and undergoing sentence in case FIR No. 233/2022, under Section 392 IPC, PS. Gulabi Bagh. Consequently, the appellant is taken into custody, even in the present case, to serve the remainder period/serving the said sentence. Needless to further observe at this stage that though this Court holds highest regard for the decisions relied upon by the Ld. Chief Legal Aid Defence Counsel for the appellant in support of appellant's case, however, the same would not come to the aid of the appellant, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
42. Trial Court Record be sent back along with a copy of this order/judgment. Copy of this judgment be also given dasti to the appellant. Further, compliance of the decision of the Hon'ble Supreme Court in Suhas Chakma v. Union of India, (2024) 16 SCC 1 has been carried out.
43. Appeal file be consigned to record room after due compliance. Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2026.02.23 16:14:26 +0530 Announced in the open Court (Abhishek Goyal) on 23.02.2026. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 52 of 52