Delhi District Court
Rohit vs State on 22 August, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-013037-2024
CRIMINAL APPEAL No.: 348/2024
1. SHRI. ROHIT,
S/o. Late Shri. Pradeep,
R/o. H. No. C-192,
Multani Dhandha, Paharganj,
New Delhi.
2. SHRI. RAVI,
S/o. Late Shri. Ved Prakash,
R/o. H. No. C-126,
Chinot Basti, Paharganj,
New Delhi. ... APPELLANTS
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of filing : 21.08.2024
Date of institution : 22.08.2024
Date when judgment was reserved : 12.07.2025
Date when judgment is pronounced : 22.08.2025
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 03.04.2024 (hereinafter referred to as 'impugned judgment'), passed by learned Additional Chief Metropolitan Magistrate-01/Ld. ACMM-01, Central, Tis Hazari Court, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. ACMM') in case bearing; 'State v. Rohit, Etc., Cr. Case No. 296600/2016 ', arising out of FIR No. 189/2011, PS. Paharganj, under Sections 379/392/411/34 of the Indian Penal Code, 1860 ( hereinafter C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 1 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:51:45 +0530 referred to as 'IPC'), convicting the appellants, namely, Rohit and Ravi (hereinafter the appellants are collectively referred to as the 'appellants/accused persons') of the offences under Sections 392/411/34 IPC and the consequent order of sentence dated 05.08.2024 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court, sentencing the appellants, each, with rigorous imprisonment for a period of 02 (two) years along with fine of Rs. 10,000/- (Rupees Ten Thousand only) and in default of payment of which, to undergo simple imprisonment for a period of 03 (three) months, for the offence under Section 392 IPC; and imprisonment for a period of 06 (six) months, each, for the offence under Section 411 IPC, the period of said imprisonment being further directed to run concurrently. Further, both the appellants were directed to be entitled to the benefit of the provisions under Section 428 Cr.P.C. Correspondingly, both the appellants were directed to pay, in equal shares, a sum of Rs. 12,633/- (Rupees Twelve Thousand Six Hundred and Thirty Three only) against the expenditure, incurred by the prosecution (hereinafter the impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order').
2. Succinctly, the case of the prosecution is that on 19.12.2011, on receipt of PCR Call vide DD No. 42 PP, regarding an incident of snatching of mobile phone and money, the concerned police officials reached at the spot, i.e., Gali Dorwali, near Mod, House No. 799, Paharganj, New Delhi (hereinafter referred to as the 'spot'). Upon reaching at the spot, the concerned police officials, met the complainant, namely, Vinod Kumar (hereinafter referred to as 'complainant') and one, Manish, who presented one Rohit/appellant no. 1, herein. Thereupon, personal C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 2 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:51:49 +0530 search of appellant no. 1 was conducted and upon the same, a sum of Rs. 1,000/- (Rupees One Thousand only), i.e., one note of Rs. 500/- (Rupees Five Hundred only) and five notes of Rs. 100/- (Rupees One Hundred only) each, were seized from the possession of appellant no. 1. Correspondingly, statement of the complainant was recorded, wherein, he/the complainant inter alia asserted that on the said day, i.e., on 19.12.2011, he had gone to his/complainant's sister's house at H. No. 861, Gali Chandi Wali, Delhi and at around 11:15 p.m., he/the complainant was on his way to his home. Further, as per the complainant, as he halted on the road to relieve himself, three persons approached him and one of the said three persons, took out his/complainant's mobiles, i.e., Nokia 2310, bearing no. 9873404292 and TATA-Samsung, bearing no. 9210989606, from the right pocket of his wearing pants. Correspondingly, the complainant asserted that another/second person/boy took out his/complainant's brown colour purse, containing a sum of Rs. 3,000/- (Rupees Three Thousand only), i.e., six notes of Rs. 500/- (Rupees Five Hundred only) each and his Driver's license from the rear pocket of his wearing pants. Further, as per the complainant, the third person/boy took out, a sum of Rs. 1,000/- (Rupees One Thousand only), i.e., one note of Rs. 500/- (Rupees Five Hundred only) and five notes of Rs. 100/- (Rupees One Hundred only) each, from the pocket of the complainant's jacket. The complainant further proclaimed that as he raised an alarm, the said persons tried to flee from the spot, however, he/the complainant along with Manish caught hold of one person at the spot, whose identity was later on revealed as Rohit/appellant no. 1 herein and who was asserted to have taken out a sum of Rs. 1,000/- (Rupees One Thousand only) C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 3 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:51:53 +0530 from the jacket of the complainant. Ergo, under such facts and circumstances, and on the basis of the complainant's complaint, the instant FIR came to be registered, and the investigation ensued. Markedly, during the ensuing investigation, site plan was prepared and statements of various witnesses were recorded. Correspondingly, on a formal search of appellant no. 1 having been conducted, a sum of Rs. 1,000/- (Rupees One Thousand only) is asserted to have been recovered from his possession/possession of appellant no. 1, which were seized. Relevantly, co-accused, namely, Satish is asserted to have surrender before the Ld. Trial Court on 18.01.2012, while, appellant no. 2/Ravi surrendered before the Ld. Court on 24.01.2012. However, upon TIP proceedings qua both the said accused persons being proposed, co- accused Satish and appellant no. 2, refused to participate in the said proceedings/TIP proceedings on 18.01.2012 and 24.01.2012, respectively.
2.1. Noticeably, upon conclusion of the investigation, chargesheet was filed by the concerned police official/IO before the Ld. MM, upon which, cognizance of the offence(s) was taken by the Ld. Trial Court on 24.05.2013 and summons were issued against appellants and co-accused, Satish. Subsequently, on compliance of the provisions under Section 207 Cr.P.C. qua the said accused persons and arguments on charge, having been addressed by/on behalf of the appellants/co-accused Satish and the State, charges under Section 392/411/34 IPC, were directed to be framed by the Ld. Trial Court, pursuant to order dated 25.03.2015 of the Ld. Trial Court. Apposite at this stage, to reproduce the relevant extract(s) from order dated 25.03.2015 of the Ld. Trial Court, as under;C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 4 of 57 Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:51:57 +0530 "...Submissions heard. Chargesheet perused. Chargesheet, prima facie discloses the commission of offence punishable under Section 392/411/34 IPC. The accusation of charge under Section 392/411/34 IPC has been read over and explained to accused to which he pleads not guilty and claims trial. Put up for PE on..."
(Emphasis supplied) 2.2. Pertinent to reproduce the charges framed against the appellants and co-accused, Satish on 25.03.2015, as under;
"...I, ***, ACMM-01 (Central) do hereby charge you (1) Rohit S/o Pradeep, (2) Satish S/o Panna Lal and (3) Ravi S/o Ved Parkash as under:-
That on 19.12.2011 at around 11.15 pm at Gali Dorwali, near Mod, House No. 799, Paharganj, New Delhi within the jurisdiction of PS Paharganj all of you in furtherance of your common intention, committed robbery of two mobile phones make Nokia 2310 and TATA Samsung, Rs. 1000/- and purse containing Rs. 3000/- and driving license from the possession of complainant Vinod Kumar Thukral and thereby all of you committed an offence punishable under Section 392/34 IPC and within my cognizance. Alternatively, at the above said date time and place, you accused Rohit were found in possession of Rs. 1000/- (one currency note of Rs. 500/-and five currency notes of Rs. 100/-) belonging to complainant which you had, received/ retained knowing fully well that it was a stolen property and thereby you have committed an offence of theft punishable under Section 411 IPC and within my cognizance. I hereby direct all of you to be tried by this court for the aforesaid offence..."
(Emphasis supplied) 2.3. Relevantly, the appellants and the co-accused, Satish, pleaded not guilty to the aforesaid charges/offences and claimed trial. Markedly, during the course of trial, prosecution examined 06 (six) witnesses/PWs, i.e., PW-1/Manish; PW-2/ASI Mahesh Kumar; PW-3/Vinod Kumar Thakral; PW-4/SI Dalveer Singh; PW-5/HC Pramod Kumar; and PW-6/SI Raj Kumar. Pertinently, during the course of proceedings before the Ld. Trial C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 5 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:52:00 +0530 Court, co-accused, namely, Satish, left for heavenly abode and the proceedings qua the said accused/co-accused were abated, pursuant to verification of the said fact/death verification report and the consequent order dated 03.11.2017 of the Ld. Trial Court. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellants under Section 313/281 Cr.P.C. on 13.02.2018, an application under Section 311 Cr.P.C. was moved on behalf of the appellants before the Ld. Trial Court. Significantly, by virtue of order dated 18.07.2018, Ld. Trial Court, allowed the appellants' said application inter alia with the following observations;
"...An application u/s. 311 Cr.P.C. moved on behalf of the accused persons for recalling PW-1, PW-3, PW-4 & PW-5 for the reasons that they have not been cross-examined by the accused persons for the want of counsel.
Heard. Considered.
The same is strongly opposed by Ld. APP for the State stating that the accused persons had ample opportunity to cross-examine the witnesses and the present application is only moved for the purpose of delaying the proceedings.
However, in the interest of justice, the application stands allowed subject to cost of Rs. 2,000/- and subject to the availability of the witnesses. It is also directed that only one opportunity shall be granted to defence for cross examination of witnesses. On payment of such cost, let PW-1, PW-3, PW-4 & PW-5 be summoned for...' (Emphasis supplied) 2.4. Subsequently, PW-1 and PW-3 were cross-examined by/on behalf of the appellants. However, the appellants' opportunity to cross examine PW-4 and PW-5 were closed pursuant to orders dated 04.10.2018 and 14.04.2019, respectively, as the appellants failed to avail the said opportunity, despite indulgence. Thereafter, statements of the appellants under Section C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 6 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:52:21 +0530 313/281 Cr.P.C. were again recorded on 26.08.2019, wherein the appellants, expressed willingness to lead evidence/defence evidence. However, subsequently, on 18.11.2022, Ld. Counsel for the appellants submitted before the Ld. Trial Court that the appellants did not desire to lead any evidence in their support/DE, leading to the closure of the right of appellants to lead defence/DE. Consequently, on conclusion of said arguments, the Ld. Trial Court vide impugned judgment and order, while inter alia holding the appellants guilty of the offences punishable under Sections 392/411/34 IPC, sentenced them in the manner, as noted hereinabove.
3. Ld. Counsel for the appellants 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, deserving their setting aside at the outset. As per the Ld. Counsel, the Ld. Trial Court, miserably 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 reaching a finding of guilt of the appellants and convicting as well as awarding them sentence, in the manner, as specified under the impugned judgment and order. 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. In this regard, Ld. Counsel strenuously asserted that under the impugned judgment, the Ld. Trial Court erroneously reached a conclusion of guilt of appellant no. 2, namely, Ravi for the offence under Section 411 IPC, despite the fact that the said C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 7 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:52:25 +0530 appellant as neither charged with the said offence, nor any evidence brought forth on record, establishing even prima facie case for the said offence. Further, as per the Ld. Counsel, the Ld. Trial Court did not even consider the facts of the present case as well as erred in appreciating that the testimonies/depositions of PW-1 and PW-3 are not free from doubt, as in the manner they narrate the alleged incident, which also creates doubt about their presence at the spot and/or of the commission of the alleged incident.
3.1. Ld. Counsel for the appellant further submitted that the Ld. Trial Court even failed to consider that are several inconsistencies, improvements, discrepancies and/or variations in the case put forth by the prosecution on the account of seizure of the alleged recovered amount as the complainant/PW-3 himself asserted that he had handed over the said amount to the police officials, belying any recovery from the appellants. As per the Ld. Trial Court, while reaching a finding of appellant's guilt, failed to consider that the investigation in the instant case was not fairly and properly conducted, disproving the version put forth by the State against the appellant. Ld. Counsel further vehemently asserted 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, not appealing to the senses of a prudent man. Further, as per the Ld. Counsel, the Ld. Trial Court decided the matter in a mechanical manner and in an utter haste, without appreciating the evidence produced at the trial. It was further strenuously reiterated by the Ld. Counsel that a perusal of the testimonies of the various witnesses, who were examined before the Ld. Trial Court would C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 8 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:52:28 +0530 clearly demonstrate that there are glaring, and material contradictions and the Ld. Trial Court has committed grave error by not considering the same, leading to gross miscarriage of justice. Ld. Counsel further submitted that as per the prosecution's own case that appellant no. 1 also received injuries in the alleged incident, however, his injuries were not explained in the chargesheet or before the Ld. Trial Court, during the evidence. 3.2. Ld. Counsel for the appellants 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 asserted that even the investigation in the instant case was not fairly conducted and the police officials made no endeavour to join any independent public persons/witnesses in the entire investigation process. As per the Ld. Counsel, even the 'so called' recovery was planted on the appellants, with a sole intention to wrongfully and maliciously implicate them in the present case. In fact, Ld. Counsel vociferously reiterated that the prosecution has even failed to establish the identities of the appellants as the alleged perpetrators of offence in the instant case. Accordingly, in light of the foregoing, Ld. Counsel for the appellants submitted that not only did the Ld. Trial Court fail to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding the appellants guilty of the aforementioned offences. 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 appellants were of C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 9 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:52:33 +0530 young age at the relevant point in time, as well as responsible for the look after and take care of their respective family members. Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing the appellants with severe sentence would subject their 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 appellants, serious/severe repercussions may ensue to their physical and mental well-being. Consequently, the Ld. Counsel for the appellants inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside. In the alternate, Ld. Counsel submitted that the appellants be permitted/granted the benefit/relaxation in terms of the provisions under the Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act') and/or Section 360 Cr.P.C. In fact, as per the Ld. Counsel, the Ld. Trial Court erred in appreciating that the appellants were clearly covered within the ambit of provisions under Section 360 Cr.P.C. and entitled to the benefit of probation.
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 appellants. It was further contended by Ld. Addl. PP for the State that the depositions of the prosecution witnesses have not only been consistent, rather, unblemished as well as lucidly point towards the only inference of C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 10 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:52:37 +0530 guilt of the appellants. 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 appellants 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 appellants is made out, besides considering the gravity of offence involved, the appellants are not entitled to the benefit of the provisions under the Probation of Offenders Act. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Counsel for the appellants as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, thoroughly perused.
6. At the outset, this Court 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 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 11 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:52:41 +0530 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)
7. 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)
8. 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 conclusion of guilt or innocence of an accused. In fact, it is trite law1 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 1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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appeal and that such a presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.
9. Therefore, 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, for the purpose of present adjudication, as under;
"23. "Wrongful gain"- "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled.
"Wrongful loss"- "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.
Gaining wrongfully, losing wrongfully-A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
24. "Dishonestly"-Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
*** *** ***
34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
39. "Voluntarily"-A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
*** *** ***
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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 13 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:52:49 +0530 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 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.
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392. Punishment for robbery-Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
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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)
10. Appositely, from a conscientious perusal of the above, it is outrightly observed that the provisions under Section C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 14 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:52:54 +0530 34 IPC recognize the principle of vicarious liability 2 in criminal jurisprudence, attracting culpability against a person for an act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law3 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently4, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v.
State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between 2 Suresh v. State of U.P., (2001) 3 SCC 673.3
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
4Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 15 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:52:59 +0530
the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 16 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:03 +0530 incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
11. Markedly, from the above, it is noted that in the instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that there such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention5. Reference, in regard the foregoing is further made to the decision in Virendra Singh v.
State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the 5 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 17 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:53:07 +0530 commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
12. In so far as accountability under Section 390/392 IPC is concerned, this Court deems it pertinent at this stage to 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 18 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:53:11 +0530 the Hon'ble Court, while considering the ingredients and scope of the provisions under Section 390 IPC noted 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 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) C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 19 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:16 +0530
13. Conspicuously, in order to convict a person under Section 392 IPC, ingredients of Section 390 IPC 6 must be established, inert alia to the effect that the offender should voluntarily cause or attempts to cause to any person death or hurt or wrongful restrain, or put such persons in fear of instant death or of instant hurt, or of instant wrongful restrain, inter alia in order to commit or while committing theft or extortion, as the case may be. 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)
14. Correspondingly, reference is further made to the decision in State of U.P. v. Nawab, MANU/UP/1516/2014, wherein the Hon'ble High Court of Allahabad noted that 6 Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 20 of 57
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ABHISHEK GOYAL
GOYAL Date:
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+0530
conviction under Section 392 and Section 411 IPC cannot be maintained simultaneously7 against same accused. In this regard, it is pertinent to reproduce the relevant extracts from the said decision as under;
"17. 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)
15. Reference in respect of the foregoing is further made to the decision in Gopi Jaiswal v. State of U.P., MANU/UP/3723/2011, wherein the Hon'ble High Court of Allahabad in akin terms, remarked as under, "8. In view of the fact that the appellant Gopi Jaiswal was the real thief, his conviction could only be made under Section 379 IPC. His conviction under Section 411 IPC, in such situation, was not proper. A real thief cannot be a receiver of a stolen property. If a person is the real thief and the stolen property is also 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. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 21 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:23 +0530 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)
16. 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-3/Vinod Kumar Thakral, who inter alia deposed before the Ld. Trial Court that the incident was of 20.11.2011, when he/the complainant was proceeding from the house of his/complainant's sister, namely, Kiran Mehta's house, bearing; H. No. 861 Gali Chandi Wali, Paharganj. As per the complainant/PW-3, he left the said house at around 11:15 p.m. and, had reached near lane of his sister's house to ease himself, three accused persons attacked him/PW-3 from behind. Correspondingly, PW-3 proclaimed that one of the said boys, took two mobile phones from the right pocket of his/PW-3's wearing pants. As per PW-3, one of the said mobile phones bore number, i.e., 9873404292 and was Nokia 2310 make, whilst, the other mobile phone was of TATA Samsung make, bearing no.
9210989606. PW-3 further avowed that another boy took out his/PW-3's brown colour purse containing three thousand rupees (Rs. 3,000/-), which were of denomination of six notes of Rs.500/- (Rupees Five Hundred only) each and his/PW-3's driving license. Further, as per PW-3, the third boy/accused, took out one thousand rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs. 100/- (Rupees One Hundred only) currency notes. In the meanwhile, as C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 22 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:27 +0530 per PW-3, his/PW-3's nephew, namely, Manish reached at the spot, who was coming from his office and after seeing him/Manish, PW-3 is asserted to have raised an alarm. Consequently, as per PW-3 all the said three persons started to flee from the spot, on seeing PW-3's nephew, Manish, however, he/PW-3 apprehended one of the accused persons, with the help of Manish. PW-3 further proclaimed that the apprehended accused, sustained injury, as he fell on the ground in the process of escaping, whereas two accused persons fled from the spot. It was further deposed by PW-3 that his nephew, Manish called at 100 number and police reached at the spot, whereupon, the apprehended accused was handed over to the police. As per PW-3 the said person, who was apprehended on the spot, had taken out Rs. 1,000/- (Rupees One Thousand only) from the pocket of his/PW-3's jacket. PW-3 further proved his complaint to the police as Ex. PW3/A, bearing his signatures at point A. Correspondingly, PW-3 proclaimed that the IO seized Rs. 1,000/- (Rupees One Thousand only) in denomination of one Five Hundred currency note and five currency notes of Rupees One Hundred vide seizure memo, Ex. PW3/A, bearing PW-3's signatures at point B. Further, PW-3 also proved the arrest memo of Rohit ( Ex. PW3/B) and his personal search memo (Ex. PW3/C), both, bearing PW-3's signatures at point B. PW-3 further asserted that the IO prepared the instance memo of the spot vide Ex. PW3/D and prepared place of occurrence memo on his/PW-3's instance (Ex. PW3/E), both, bearing PW-3's signatures. PW-3 also asserted that the IO prepared the place where the accused thew his robbed/stolen mobile phone (Ex. PW3/F) and took the disclosure statement of appellant no. 1 (Ex. PW3/G), in his/PW-3's presence. Needless to C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 23 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:30 +0530 mention, the complainant/PW-3 correctly identified all the accused persons, i.e., appellants and co-accused, Satish before the Ld. Trial Court, as the perpetrators of offence, besides also identified the recovered currency notes, i.e., Rs. 1,000/- (Rupees One Thousand only), in the denomination of one currency note of Rs. 500/- (Rupees Five Hundred only) and five currency notes of Rs. 100/- (Rupees One Hundred only) as Ex. P1 (Colly.), upon production by MHC(M) and the ones, which were recovered from the possession of appellant no. 1.
17. Relevantly, upon being cross-examined by/on behalf of the appellant, the complainant/PW-3, asserted as under;
"XXXXXX By Sh. ***, Ld. counsel for both accused Ravi and Rohit.
It is wrong to suggest that Manish PW 1 was resident of Rajori Garden at the time of incidence, however presently he is residing in Rajori Garden only. My nephew is/was running a cyber cafe near Vishal Hotel, Pharganj. House of my sister was at the distance of 50 meters from my residence. I was perfectly fine in the period of December 2011 there was no medical ailment. I did not hand over bill of my mobile phones to the police officials. I did not hand over any documentary proof of SIM of two phone numbers. Manish had thrown his bike hardly 2-3 meters asway from me. All the three accused persons ran towards Manish only. It is wrong to suggest that Rohit was apprehended only because he already lying on the road. It is wrong to suggest that accused Rohit was apprehended on the basis of assumptions and presumptions. It is wrong to suggest that nothing was recovered from the possession of accused Rohit. It is correct that it was me who handed over recovered money of Rs. 1000/- to the police officials. It is wrong to suggest that I handed over recovered amount in the PS itself. It is correct that other two accused persons were not apprehended in my presence. On 18.12.11, accused Satish was brought to the spot and I identified him at the spot itself. It is wrong to suggest that police officials had shown the faces of all accused persons to me in the PS or in the court before the evidence. It is wrong to suggest that I have falsely identified the accused persons in the court at the instance of police officials. It is wrong suggest that I have falsely C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 24 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:53:34 +0530 implicated accused persons at the instance of police. It is wrong to suggest that there was no reason or occasion for the Manish to be present at the spot. It is wrong to suggest that Manish is a planted witness introduced at belated stage. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
18. Here, it is further pertinent to refer to the testimony of PW-1/Manish, who inter alia deposed before the Ld. Trial Court that he was working as a computer engineer and in the business of CCTV, at the relevant point in time. As per PW-1, on the intervening night of 19/20.12.2011, he was returning to his residence, after finishing day's work and at around 11:15 p.m., had reached at Doar Wali Gali. As per PW-1, he heard loud voice of his mamaji (maternal uncle), claiming, "bachaoo bachaoo" and he/PW-1 saw that three persons started running. Further, as per PW-1, he chased the said persons and one of them, fell down. PW-1 further proclaimed that he caught the said person with the help of his mamaji, whose name was later on revealed as Rohit/appellant no. 1, who was correctly identified by PW-1 before the Ld. Trial Court. Further, as per PW-1, two associates of the accused managed to escape from the spot. However, PW-1 correctly identified appellant no. 2/Ravi and co-accused, Satish before the Ld. Trial Court, as the said persons, who had fled from the spot on the said day. PW-1 also avowed that he made a call at 100 number from his/PW-1's mobile phone and the police reached at the spot. As per PW-1, upon search of appellant no. 1/accused Rohit, Rs. 1000/- (Rupees One Thousand only) in the denominations of one currency of Rs.500/- (Rupees Five Hundred only) and five currency notes of Rs. 100/- (Rupees One Hundred only), which were robbed in the incident, were recovered. As per PW-1, the said recovered money was taken into police possession C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 25 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:39 +0530 vide seizure memo (Ex. PW1/A), bearing PW-1's signatures at point A. Correspondingly, PW-1 asserted that appellant no. 1/accused Rohit was arrested vide arrest memo and personal search memo Ex. PW1/B and Ex. PW 1/C, respectively, bearing PW-1's signatures at point A. Needless to mention, PW-1 correctly identified the seized money. Pertinent to note that PW-1, upon being cross examined by/on behalf of the accused persons, asserted as under;
"XXXXXX by counsel Shri. *** for accused Ravi.
I am doing the business of CCTV camera and sale and purchase of computers at 2211, Chuna Mandi, Paharganj. There is only one employee. I open my office at 1.30 but there is no closing timing of my office. I used to go to my office by bike from my residence to office. The accused persons were caught hold my mamaji in my presence. Rohit had caught hold of my mamaji from his neck. I threw my motorcycle on the road to save my mamaji. The distance between where I threw my bike and the place of incident is about 15/20 ft. The said motorcycle was of make Yamaha bearing registration DL6SM 7376. I had not stated to the police in my statement that I had reached at the spot by motorcycle (Vol. as the same was not asked from me.). There was a street light at the spot and where I threw my motorcycle there was also a light. Police reached at the spot after 10 minutes of my call. 10-15 persons were gathered at the spot. It is correct that the house of my mamaji is adjacent to my house. My mamiji and her son also came at the spot after the incident when they received the information. I remained at the spot for about 25 minutes. Police recorded my statement at police chowki on the next day of incident, however, I do not know the exact time. Police recorded statement of my mamaji at the spot as well as at the police chowki. It is wrong to suggest that there was a dark at the spot or that I was not present at the spot. It is further wrong to suggest that I did not see incident or that I am a planted witness. On hearing the noise Bachaoo Bachaoo, nobody came at the spot except me. No other person except my mamaji and the accused persons were present in the gali at the time of incident. It is correct that I had not seen any person removing the alleged articles from the possession of my mamaji.
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 26 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:53:49 +0530
It is correct that I had seen two other associates of accused Rohit while they were running. I had seen them from their front side. There was no need to rescue my mamaji at that time as the accused persons were running and my mamaji was also chasing them. The accused persons started running towards Babli Chowk. It is correct that I was coming from the side of Main Bazar, Paharganj. I had seen the accused Ravi at the spot at Gali Dorr wali at the time of incident. Thereafter I had also seen him at the police station. It is wrong to suggest that the accused Ravi was not present at the spot. It is wrong to suggest that I have identified the accused at the instance of IO. My house is situated at 150 sq. Yds from the spot. XXXXXX by *** counsel for accused Satish and Rohit as adopted above..."
(Emphasis supplied)
19. Significantly, PW-1, upon being recalled for his cross examination, pursuant to order dated 18.07.2018, proclaimed, under his cross-examination, conducted on 17.09.2018, as under;
"XXXXXX by Sh. ***, Ld. counsel for both accused Ravi and Rohit.
My statement was recorded once or twice by the police officials but I do not remember exact number of statements recorded. My statement was recorded once in the intervening night of 19-20.12.2011 and second at the time of arrest of the accused Rohit. No other accused in the present case was arrested in my presence except accused Rohit. I had not parked my bike rather 1 threw my bike without properly parking it because of which bike fell down. My mamaji was at a distance of less than 10 mts of the place where I had thrown my bike. All the three accused when I saw the accused persons for the first time, all the three accused persons were running in the same gali from where I was coming and they were running towards me only. I had thrown my bike at 2-3 meter prior to T-paint. From the T-point I had taken U turn and I ran on foot behind the accused person. Accused Rohit was apprehended as he fell down in the street. Mamaji and I was running simultaneously behind the accused persons. It is wrong to suggest that since I was running behind the accused persons there was no occasion to see the face of any of the accused persons. It is wrong to suggest that I had not seen anybody nor I caught C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 27 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:53 +0530 anybody on 11.12.2011 rather I have identified Rohit as the person involved in the incident merely on the asking of police officials. It is wrong to suggest that I am not the resident of Paharganj area rather I was called at belated Lane al Police Station, where I have signed the statements and documents on the asking of IO in a mechanical manner. It is wrong to suggest that the accused persons were shown to me in the PS as well as prior to my deposition before the court. It is wrong to suggest that I falsely identified accused persons on the asking of police officials in the court. It is wrong to suggest that nothing was recovered from the possession of accused Rohit. It is wrong to suggest that it was me and my mamaji who handed over the amount of Rs. 1000/- to the police to be falsely planted as the case property so as to frame the accused persons in the present case. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
20. Correspondingly, reference is here made to the testimony of PW-2/ASI Mahesh Kumar, who deposed before the Ld. Trial Court that on 20.12.2011, while he was working as Duty Officer at PS. Paharganj, since 01:00 a.m. to 09:00 a.m., at around 01:20 a.m., Ct. Pramod reached at the police station and handed over rukka to him/PW-2, sent by ASI Dalbir Singh for registration of FIR. On the basis of the same, as per PW-2, he registered the present FIR under Sections 379/411/34 IPC through computer operator. PW-2 further proved the copy of instant FIR as Ex. PW-2/A, bearing PW-2's signatures at point A. Further, PW-2 proclaimed that he made an endorsement on the rukka, Ex. PW-2/B, bearing his signatures at point A. After registration of the FIR, as per PW-2, he handed over the copy of FIR and original rukka to Ct. Parmod to be handed over to ASI Dalbir Singh for further investigation. As per PW-2, he also issued certificate under section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'), regarding the recording the said FIR, as C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 28 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:53:57 +0530 Ex. PW2/C, bearing PW-2's signature at point A. Appositely, PW-2 was not cross examined, despite opportunity.
21. Here, it is further pertinent to refer, the deposition of PW-4/SI Dalveer Singh, who proclaimed in his testimony that on the intervening night of 19/20.12.2011, he was posted at PP. ST Sangat Rashan, Pahar Ganj and on that night, day, he/PW-4 was on night duty from 08:00 p.m. to 08:00 a.m. Further, as per PW-4, he received an information of the present case at around 11:32 p.m. vide DD No. 42PP (Mark-A), regarding snatching of mobile and cash from the complainant by the accused persons at 861 Gali Chandiwali Pahar Ganj. Thereafter, on the information received, he along with Ct. Parmod went to the spot where they met with complainant and his nephew, namely, Manish. PW-4 further asserted that one accused was apprehended by the complainant and his nephew, who was handed over to them by the complainant and Manish. As per PW-4, on a cursory search of accused Rohit, they recovered one thousand rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs. 100/- (Rupees One Hundred only) currency notes. Correspondingly, PW-4 avowed that he prepared the seizure memo of the recovered currency notes (Ex. PW1/A), bearing PW-4's signatures at point C and thereafter, recorded the statement of the complainant (Ex. PW3/A), also bearing my signatures at point B. PW-4 further asserted that he prepared the rukka (Ex. PW2/B) and handed the same over to Ct. Pramod for the registration of the FIR. As per PW-4, Ct. Pramod, consequently, got the FIR registered and returned to the spot with a copy of FIR and original tehrir, which was handed over him. Further, as per PW-4, he prepared the site plan (Ex. PW4/A) at the instance of the C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 29 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:54:01 +0530 complainant, investigated the matter and arrested accused Rohit/appellant no. 1 as well as carried out his personal reach. Correspondingly, PW-4 avowed that he prepared the instance memo of the spot (Ex. PW3/D) and also took the disclosure statement of accused Rohit (Ex. PW3/G) as well as the disclosure statement of accused Satish (Ex. PW4/B), when he surrendered in court on 18.01.2012. PW-4 also deposed that he arrested accused Satish and prepared the arrest memo (Ex. PW4/C) and conducted his personal search vide personal search memo, Ex. PW4/D. Needless to mention that PW-4 deposed that he endeavoured to arrest accused, Ravi/appellant no. 2, however, was unable to find him. Pertinent to note that despite being afforded repeated opportunities, PW-4 was not cross examined by/on behalf of the appellants/co-accused, Satish.
22. Germane for the purpose(s) of the present discourse to refer to the deposition of PW-5/HC Pramod Kumar, who deposed on the same lines as PW-4. As per PW-5, in the intervening night of 19/20.12.2011, he was working as Constable at PS Pahar Ganj, New Delhi and was posted at PP Sangat Rashan. On that night, as per PW-5, at around 11:30 p.m., a DD entry regarding snatching was received in the Police Post vide DD No. 42 and he/PW-5 along with ASI Dalbir Singh went to the spot in the comer of Gali Chandi Wali, Door Wali, H. No. 799, Pahar Ganj. PW-5 further asserted that there, they met the complainant Vinod and his nephew Manish, who had apprehended one person namely Rohit. As per PW-5, complainant and Manish handed over Rohit to them and on his/Rohit's cursory search, a sum of Rs. 1,000/- (Rupees One Thousand only), in the denomination of one, Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs.
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100/- (Rupees One Hundred only) currency notes, were recovered, which were asserted by the complainant to belong to him. IO/ASI Dalbir Singh, as per PW-5, seized the above said notes by keeping the same in one pulanda sealing with the seal of 'DS' vide seizure memo Ex. PW1/A. Further, as per PW-5, thereafter, the IO recorded the statement of the complainant and prepared the rukka as well as handed over the same to him/PW-5 for the registration of FIR. Consequently, PW-5 deposed that he went to the police station and got the FIR registered and return to the spot with the copy of FIR and original rukka. PW-5 further proclaimed that he handed over the copy of FIR and original rukka to the IO. As per PW-5, thereafter, accused Rohit was arrested and his personal search was conducted vide memo Ex. PW3/B and Ex. PW3/C. The pointing out memo of the spot was also prepared, as per PW-5 and thereafter, disclosure statement of the accused Rohit was recorded (Ex. PW3/G). PW-5 also proclaimed that they returned to the police station and the accused was kept in custody. Further, as per PW-5, the case property was deposited in malkhana. PW-5 correctly identified accused, namely, Rohit before the Ld. Trial Court. Needless to mention, PW-5 was not cross examined by/on behalf of the appellants, despite repeated opportunities.
23. Strikingly, PW-6/SI Raj Kumar deposed before the Ld. Trial Court that on 24.12.2012, he was posted as SI at PS. Pahar Ganj and on the said day, he formally arrested accused Ravi/appellant no. 2 in the Tis Hazari Courts, when the accused surrender before the court vide arrest memo Ex PW6/A, bearing PW-6's signatures at point A. PW-6 further deposed that personal search of accused Ravi was conducted vide memo Ex. PW6/B and an application for TIP proceedings of appellant no. 2/accused Ravi C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 31 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:54:10 +0530 was made. However, as per PW-6, accused Ravi refused to participate in the TIP proceedings. Thereafter, as per PW-6, he took police custody of the accused for one day and no recovery was effected from accused Ravi. However, as per PW-6, two pointing out memos Ex. PW3/E and Ex. PW3/F were prepared at the instance of accused Ravi. PW-6 further asserted that he inter alia recorded the statements of witness under Section 161 Cr.P.C. and subsequently, prepared the chargesheet, which was filed in court by SI Khazan Singh. Needless to mention, PW-6 correctly identified accused Ravi before the Ld. Trial Court, however, was not cross examined by/on behalf of the accused persons/appellants.
24. 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 the State. However, before proceeding further, this Court deems it pertinent to deal with the contention of Ld. Counsel for the appellants inter alia to the effect that the prosecution made no endeavour to join any public independent witnesses, despite the occurrence allegedly having taken place in public gaze, in presence of members of public. However, in the considered opinion of this Court, mere non-joining of public persons is not always fatal to the prosecution case. In fact, this Court is conscious that even on a general proposition, superior courts have persistently avowed8 that there is no legal hurdle in convicting a person on the testimony of a single/sole eyewitness 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 8 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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regard, the Hon'ble Supreme Court in Sunil Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, noted as under;
"9. Vadivelu Thevar case [AIR 1957 SC 614: 1957 Cri LJ 1000] was referred to with approval in the case of Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160: AIR 1994 SC 1251] This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise."
(Emphasis supplied)
25. Congruently, this Court unambiguous observes that mere fact that the prosecution, opted not to produce other public persons, asserted to be allegedly present or would have been present at the spot of occurrence at the time of incident, as prosecution witnesses before the Ld. Trial Court, as otherwise contended by Ld. Counsel for the appellants, 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 33 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:54:19 +0530 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)
26. Pertinently, Ld. Counsel for the appellants 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 order of conviction against the appellants in the instant case. However, in order to precisely 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. 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 34 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:54:24 +0530 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)
27. 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)
28. 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 9 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 35 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:54:29 +0530 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 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)
29. 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 36 of 57 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.08.22 16:54:33 +0530 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, when the testimonies of prosecution witnesses in the instant case are analysed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. 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-3 and his nephew/PW-1 that they have consistently deposed of the incident in question, as well as of the involvement of the appellants therein. In particular, it is seen from the testimony of the complainant/PW-3 that when he was proceeding from his sister's house to his house and at around 11:15 p.m., had reached near lane of his sister's house to ease himself, three accused persons attacked him/PW-3 from behind. Correspondingly, PW-3 proclaimed that one of the said boys, took two mobile phones from the right pocket of his/PW-3's wearing pants. As per PW-3, one of the said mobile phones bore number , i.e., 9873404292 and was Nokia 2310 make, whilst, the other mobile phone was of TATA Samsung make, bearing no. 9210989606. PW-3 further avowed that another boy took out his/PW-3's brown colour purse containing three thousand rupees (Rs. 3,000/-), which were of denomination of six notes of Rs.500/- (Rupees Five Hundred only) each and his/PW-3's driving license. Further, as per PW-3, the third boy/accused, took out one thousand rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs. 100/- (Rupees One C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 37 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:54:38 +0530 Hundred only) currency notes. In the meanwhile, as per PW-3, his/PW-3's nephew, namely, Manish reached at the spot, who was coming from his office and after seeing him/Manish, PW-3 is asserted to have raised an alarm. Consequently, as per PW-3 all the said three persons started to flee from the spot, on seeing PW-3's nephew, Manish, however, he/PW-3 apprehended one of the accused persons, with the help of Manish, who was determined to be appellant no. 1/Rohit and from his possession, complainant's robbed amount of Rs. 1,000/- (Rupees One Thousand only) was recovered. Needless to reiterate, PW-3 not only identified the seized/said recovered amount of Rs. 1,000/- (Rupees One Thousand only) before the Ld. Trial Court, rather, also correctly identified the appellants and co-accused Satish as the perpetrators of offence.
30. Undoubtedly, though, PW-1, affirmed that he had not witnessed the entire occurrence, however, he/PW-1 deposed that in the intervening night of 19/20.12.2011, while he was returning to his residence and at around 11:15 p.m., had reached at Doar Wali Gali, he heard loud voice of his mamaji (maternal uncle)/PW-3, claiming, "bachaoo bachaoo". Correspondingly, PW-3 testified that thereupon, three persons started running, who were chased by him and PW-3 and one of the said three persons was caught by him/PW-1 with the help of his mamaji, whose name was later on revealed as Rohit/appellant no. 1. Needless to mention that even PW-1 correctly identified the appellants and co-accused Satish as the perpetrators of offence and specifically proclaimed that appellant no. 2 and co-accused Satish were successful in escaping from the spot. As aforenoted, PW-1 further avowed that he made a call at 100 number from his/PW-1's mobile phone and C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 38 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:54:42 +0530 the police reached at the spot. Significantly, during the course of his deposition, PW-1 specifically avowed that upon search of appellant no. 1/accused Rohit, Rs. 1000/- (Rupees One Thousand only) in the denominations of one currency of Rs.500/- (Rupees Five Hundred only) and five currency notes of Rs. 100/- (Rupees One Hundred only), which were robbed in the incident, were recovered. Here, it is significant to note that both, PW-1 and PW-3 have been consistent in their depositions before the Ld. Trial Court and despite vigorous cross examination, nothing has emerged under the deposition of either of the said prosecution witnesses, so as to belie the version put forth by them. Correspondingly, the appellants further failed to attribute any motive/intention on any of the prosecution witnesses to falsely implicate the appellant in the instant case. On the contrary, the declaration(s) made by the said witnesses in their respective cross examination, further strengthens the case put forth by the prosecution against the appellants.
31. Relevantly, in respect of the foregoing, it is noted that PW-3 under his cross examination specifically proclaimed that all the three accused persons, i.e., the appellants and co- accused Satish, ran towards Manish. Correspondingly, PW-1/Manish upon being cross examined, corroborated the version of PW-3 that all the said three accused persons were running in the same gali/street from where he/PW-1 was coming and that they were all running towards him/PW-1 only. In fact, PW-1 further proclaimed under his cross examination that he had, "thrown my bike at 2-3 meter prior to T-paint. From the T-point I had taken U turn and I ran on foot behind the accused person. Accused Rohit was apprehended as he fell down in the street."
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Correspondingly, PW-1 denied the suggestion to the effect that he had seen anybody on the date of occurrence and even denied that he had not caught anyone at the spot. Further, PW-1 also denied that the accused persons were shown to him in the police station as well as prior to his deposition before the court. Concomitantly, during his cross examination, PW-1 further specifically asserted that there was a street light at the spot and deposed that when he threw his motorcycle, there was also a light. Ergo, under such circumstances, the contention of Ld. Counsel for the appellants that the complainant/PW-3 and PW-1/Manish wrongly/mistakenly identified the appellants as the perpetrators of offence or that owing to darkness, PW-1 and/or PW-3 could not have identified the appellants, does not find credence with this Court, from the material placed on record. Needless to reiterate that not only, PW-1 and PW-3 consistently identified the appellants as the perpetrators of offence, rather, nothing is forthcoming on record to, even to the extent of disproving the presence of the appellants at the place of occurrence at the relevant point in time. Needless to mention, appellant no. 1 was apprehended on the spot and immediately handed over to PW-4/SI Dalveer Singh and PW-5/HC Pramod Kumar, upon their arrival on the spot.
32. Correspondingly, it is seen from the material placed on record that though, appellant no. 2, is asserted to have initially evaded from the spot, however, he surrendered before the Ld. Trial Court only on 24.01.2012. Further, as aforenoted, despite such surrender, appellant no. 2 specifically refused to participate in the TIP proceedings inter alia under an assertion that there was, "... also a possibility of my having been shown to the witness when I appeared in the Court in unmuffled face on my application for C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 40 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:54:50 +0530 surrender...". Here, it is pertinent to observe that despite such assertion, appellant no. 2 deliberately opted not to put any question/suggestion to any of the prosecution witnesses, including PW-1, PW-3 and/or PW-6, to affirm his version that he was shown to the witness or identified as one of the perpetrators of the offence, prior to such proceedings/proposed TIP proceedings, so as to justify his said refusals. Ergo, under such circumstances, in the considered opinion of this Court, such unexplained/unjustified refusal of appellant no. 2 to participate in the TIP proceedings, despite warning of adverse inference being drawn against him in trial, followed by his subsequent, in-dock identification, both, by PW-1 and PW-3 as the one of the perpetrators of offence, is sufficient to attract criminality against appellant no. 2, in the instant case. In this regard, this Court deems it pertinent to make a reference to the decision of the Hon'ble High Court of Delhi in Nazim Khan @ Guddu v. State, Crl. Appeal No. 532/2012, dated 08.05.2014, wherein the Hon'ble Court, in an akin situation, remarked, as under;
"17. It, therefore, is clear that the test identification parade report although is not a substantive evidence but can be used only for the purpose of corroboration. There can be two results of test identification parade. Firstly, the refusal to participate in the test identification parade by the appellant is without any justification. Such a refusal is a piece of evidence and the courts can take an adverse inference against the accused that if he would have participated in the test identification parade, he would have been identified by the witness and the refusal can be used to corroborate the dock identification by witness. Secondly, the accused has a justifiable reason to refuse to participate in the test identification parade. Where accused has justifiable reason, no adverse inference can be taken against him."
(Emphasis supplied) C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 41 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
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33. In so far as the fulfilment/establishment of ingredients of offence under Section 392/34 IPC against the appellants is concerned in the instant case, this Court is in concurrence with the finding of the Ld. Trial Court, under the impugned order. In fact, this Court concedes with the observations of the Ld. Trial Court that both PW-1 and PW-3 deposed regarding the appellants and co-accused Satish, attacking the complainant from behind, wrongfully restraining him and in the said process, each of the said three accused persons, dishonestly taking movable property out of the possession of the complainant, without his consent and moving the said property, in order to such taking. As aforenoted, PW-3 specifically deposed in his testimony that the said three accused persons attacked him and restrained him from behind, whereupon, one of the said boys/persons, took two mobile phones from the right pocket of his/PW-3's wearing pants; another boy took out his/PW-3's brown colour purse containing three thousand rupees (Rs. 3,000/-), which were of denomination of six notes of Rs.500/- (Rupees Five Hundred only) each and his/PW-3's driving license; and the third boy/accused, took out one thousand rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs. 100/- (Rupees One Hundred only) currency notes. Correspondingly, PW-1/Manish inter alia asserted in his cross examination that when he reached at the spot, the accused persons, including the appellants herein, had caught hold of his/PW-1's mamaji/PW-3, while appellant Rohit had caught hold of his/PW-1's mamaji/PW-3 from his neck. Further, as aforenoted, PW-3 asserted that upon him raising and alarm and upon seeing PW-1 emerge at the scene, all the three accused persons started to C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 42 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:54:58 +0530 flee from the spot, whereupon, appellant no. 1 was apprehended on the spot with the assistance of PW-1. Needless to mention that even the said version stands corroborated under the deposition of PW-1, who proclaimed that he heard loud voice of his mamaji (maternal uncle), claiming, "bachaoo bachaoo" and he/PW-1 saw that three persons started running. Further, as per PW-1, he chased the said persons and one of them, fell down. PW-1 further proclaimed that he caught the said person with the help of his mamaji, whose name was later on revealed as Rohit/appellant no.
1. Ergo, under such circumstances, this Court concedes with the finding of the Ld. Trial Court that the ingredients of offence under Section 392 IPC read with Section 34 stand proved beyond reasonable doubt against the appellants herein. Needless to reiterate that the role attributed against the appellants and concert/commonality of action and common intention on the part of the appellants, in the considered opinion of this Court, also stands proved beyond doubt against the appellants herein, in light of the facts and circumstances brought forth and the aforenoted judicial dictates. Needless to further reiterate that not only the appellants and co-accused Satish are arrested by PW-3 to be acting in concert with each other, while they committed the incident of robbery on the complainant, rather, they all endeavoured to flee together, immediately, upon the complainant's raising an alarm and upon seeing PW-1 emerge at the spot, decidedly attributing the said charges/offences against the appellants herein.
34. Conclusively, in conspectus of the above and inter alia keeping in view consistent testimonies of the complainant/PW-3 and PW-1/Manish, as well as other material on record, including the testimonies of other witnesses, seizure and C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 43 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:55:02 +0530 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 appellants for the offences under Section(s) 392/34 IPC. On the contrary, the appellants has failed to raise a probable defence/defence by 'preponderance of probabilities' in their 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 notes 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 persons for the commission of offence under Section 392/34 IPC has been reached by this Court, it would not be proper to convict the appellant, Rohit for the offence under Section 411 IPC in the instant case. Needless to mention that this Court concedes, admittedly, no charge for the offence under Section 411 IPC was framed against appellant no. 2/accused Ravi in the instant case and in fact, it is not even the case of the prosecution that any robbed article was even recovered from his possession. Ergo, under such circumstances, this Court concedes with the submission of the Ld. Counsel for the appellants that the finding of appellant no. 2's guilt for the offence under Section 411 IPC under the impugned order is per se, unsubstantiated from the material brought forth.
35. In so far as the quantum of sentence to be awarded to the appellants 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 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 44 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:55:06 +0530 offences, however, do not lay down any set guidelines for the same. Nonetheless, the persistent avowals of the superior courts 10 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)
36. 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. 10 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.
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putting it out of the power of the offender to commit further offences) and the maintenance of public confidence..."
(Emphasis supplied)
37. 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 word11 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 settled12 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 courts13, a balance sheet of aggravating and mitigating circumstances has to be drawn up at such a stage and while doing so, "the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." In this regard, reference is made to the decision of the Hon'ble Apex Court in Vasanta Sampat Dupare v. State of Maharashtra, (2017) 6 SCC 631, wherein the Hon'ble Court while delving into the aspect of award of sentence/sentencing, enunciated as under;
"20. It is thus well settled, "the court would consider the cumulative effect of both the aspects (namely, aggravating factors as well as mitigating circumstances) and it may not be very appropriate for 11 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.12
Bachan Singh v. State of Punjab, (1980) 2 SCC 684 13 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 46 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:55:15 +0530 the Court to decide the most significant aspect of sentencing policy with reference to one of the classes completely ignoring other classes under other heads and it is the primary duty of the Court to balance the two". Further, "it is always preferred not to fetter the judicial discretion by attempting to make excessive enumeration, in one way or another; and that both aspects, namely, aggravating and mitigating circumstances have to be given their respective weightage and that the Court has to strike the balance between the two and see towards which side the scale/balance of justice tilts". With these principles in mind, we now consider the present review petition."' (Emphasis supplied)
38. Here, it is further apposite to make a reference to the decision of the Hon'ble Supreme Court in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, wherein the Hon'ble Court, while iterated the law as under;
"76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh [(1980) 2 SCC 684: 1980 SCC (Cri) 580] and thereafter, in Machhi Singh [(1983) 3 SCC 470: 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartments-- one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.
Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 47 of 57 Digitally signed by ABHISHEK
ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:55:20 +0530 (2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.
(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.
(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold-blooded murder without provocation.
(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
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(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused."
(Emphasis supplied)
39. At this stage, this Court deems it apposite to further reproduce the relevant provisions under the Probation of Offenders Act, as under;
"4. Power of court to release certain offenders on probation of good conduct-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 49 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:55:30 +0530 of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1) is made, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order or impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
*** *** ***
11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision-(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision***"
(Emphasis supplied)
40. Notably, the Probation of Offenders Act was brought into force, in view of the increasing emphasis on the reformation C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 50 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:55:34 +0530 and rehabilitation of the offenders as useful and self-reliant members of society without subjecting them to deleterious effects of jail life, however, law is trite14 that no one can claim the benefit of Sections 3/4 of the Probation of Offenders Act as a matter of right and the court has to, "pass appropriate orders in the facts and circumstances of each case having regard to the nature of the offence, its general effect on the society and the character of the offender, etc." Correspondingly, superior courts have persistently avowed15 that for the benefit under Probation of Offenders Act to enure in favour of an accused, court must be cognizant of the nature of offence, conditions stipulated under Section 4 of the said enactment, as well as judicial precedents governing the field.
41. Whence, in light of the foregoing principles, this Court would now proceed with the determination of rival contentions of Ld. Counsel for the appellants as well as Ld. Addl. PP for the State. Appositely, Ld. Counsel for the appellants strenuously averred that the appellants belong to poor strata of society as well as struggling for their daily sustenance. Further, as per Ld. Counsel, the appellant have suffered the rigours of litigation, as early as 2011 and have ever since, been diligently appearing before court; besides, nothing has come on record to demonstrate that the appellants misused the condition of bail/suspension of sentence during the interregnum period. Ld. Counsel for the appellants further reiterated that the appellant have always cooperated during the trial as well as pendency of present appeal, besides the appellant are obligated to take care of their old/ailing family members/parents as well as other family members. Accordingly, Ld. Counsel for the appellants have 14 Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, (2001) 5 SCC 317.
15Mohd. Hashim v. State of U.P., (2017) 2 SCC 198.
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entreated for a lenient view in awarding sentence. However, Ld. Addl. PP for the State, in contrast, has asserted that no relaxation in sentencing ought to be granted in favour of the appellants, considering the gravity of offence, besides the appellant be conferred no indulgence of probation, as prayed for.
42. Ergo, in light of the foregoing submissions of the Ld. Counsel for the appellant and that of Ld. Addl. PP for the State, further, being wary of the facts and circumstances of the present case, aggravating as well as mitigating factors brought forth, antecedents/previous involvement, nominal roll of the appellants and the possibility of reformation in view of the reports of the probation officer, both, dated 22.02.2025, this Court is of the considered opinion that in the matter at hand, the appellants deserve the benefit of probation16/provisions under Probation of Offenders Act. Apposite at this stage to reproduce the relevant extracts from the report of probation officer qua the appellants, as under;
"...Name of Offender: Rohit S/o. Pradeep Current Address (Place of residence): H. No. 16 Reference is made to the decision of the Hon'ble Apex Court in Chhanni v. State of Uttar Pradesh, Crl. Appeal No. 721 of 2006, dated 06.07.2006: AIR 2006 SC 3051: 2006 (5) SCC 396: 2006 Cri. LJ 4068 , wherein the Hon'ble Court, noted the provisions under Section 360 Cr.P.C. vis-à-vis provisions under the Probation of offenders Act to inter alia observe, "Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.*** Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.*** Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area." (Emphasis supplied) C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 52 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.08.22 16:55:43 +0530 C-192, Sidharth Basti Gali N. 11, Multani Dhanda Phar Ganj Delhi.
*** *** *** Offender's own reaction to the offence and his attitude towards possible punishment: He is worried and strained about the possible punishment for this act. The Accused stated that if the Hon'ble Court is pleased to release him on Probation, he undertakes to maintain good behavior and peace in future. Any special information required by court: This social investigation report is specifically prepared to observe and explore the scope of reformations and rehabilitation of the Accused, to analyze the social background of the Accused family and to extend an opportunity for self-rectification to the Accused in the society Summary:
(a) Factual background of offender and his environment and offence: The accused is a 40 year old unmarried man. He resides in a flat, area around 25 square yards. The accused works as a Sweeper and earns 8000 Rs. per month.
(b) Diagnosis (Offender's attitude, defects in character of Family, Motivation and other Factory regarded as Causal Factors for the Offence): The Accused denied any mistake in the present case.
However, he also stated that now he wants to live a normal life. Further he also shared that his family is totally dependent on him for their livelihood.
(c) Prognosis (treatment considered most suitable and estimate of chances of improvement): There is a possibility of improvement in the behaviour of the Accused.
(d) Recommendation (if asked for you by court):
The Accused has been facing the present case since 2011. He has suffered socially, mentally as well as economically throughout this period of trial..."
*** *** *** "...Name of Offender: Ravi S/o. Late Ved Prakash Current Address (Place of residence): H. No. C-126 Chinyot Basti, Nabi Karim Phar Ganj Delhi *** *** *** Personal History: The accused is 39 years old married man. The accused is living with his Mother. Brother, wife, Daughter and a Son in Delhi. He lives in an apartment of 25 yards. The locality in densely populated with pour hygiene conditions.
*** *** *** C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 53 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:55:49 +0530
Offender's own reaction to the offence and his attitude towards possible punishment: He is worried and strained about the possible punishment for this act. The Accused stated that if the Hon'ble Court is pleased to release him on Probation, he undertakes to maintain good behavior and peace in future.
*** *** ***
Summary:
(a) Factual background of offender and his environment and offence: The Accused is a 39 year old married man. He resides in a flat area around 25 square yards. The accused is the sole bread earner of his family. The accused works as a car mechanic and earns 10000 rs per month.
(b) Diagnosis (Offender's attitude, defects in character of Family, Motivation and other Factory regarded as Causal Factors for the Offence): The Accused denied any mistake in the present case.
However, he also stated that now he wants to live a normal life. Further he also shared that his family is totally dependent on him for their livelihood.
(c) Prognosis (treatment considered most suitable and estimate of chances of improvement): There is a possibility of improvement in the behaviour of the Accused.
(d) Recommendation (if asked for you by court):
The Accused has been facing the present case since 2011. He has suffered socially, mentally as well as economically throughout this period of trial..."
(Emphasis supplied)
43. Quite evidently, it is seen from above that the probation officer, in the probation reports has tendered a favorable opinion regarding the chance of reformation of the appellants, besides favored the grant of benefit of probation to the appellants. Correspondingly, from a report of previous involvement/ antecedents of the appellants, submitted by the concerned SHO, it is noted that besides the present case, appellants are found involved in no other cases. Needless to mention that there is nothing on record to demonstrate that the appellants preserved to harass or trouble the victim/complainant, subsequent to the day of incident; appellants have expressed their inclination to lead normal C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 54 of 57 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:55:54 +0530 life as well as undertaken not to repeat similar offences in future the appellant have remained on bail throughout, even during the appeal and faced the ordeal of litigation as early as year, 2013, when the chargesheet was filed and cognizance of offence taken by the Ld. Trial Court; besides, there is nothing negative in the probation reports against the appellants, rather, as aforenoted, the probation officer has recommended that the cases of the appellants may be considered for the benefit of probation, as well as the offences proved against the appellants are not punishable with death or imprisonment for life. Conclusively, this Court is of the considered opinion that having regard to the foregoing circumstances, it is expedient to release the appellants, namely, Rohit and Ravi on probation of good conduct. Needless to further mention that as per the aforesaid reports of the probation officer, the appellants have fixed abode in the local limits of NCT of Delhi, the appellants further have favorable and positive report qua their behavior as well as there are no complaints of anti-social behavior against them.
44. Conclusively, in light of the foregoing discussion, while partially allowing the present appeal, the conviction of the appellants, namely, Rohit and Ravi by Ld. ACMM-01, Central, Tis Hazari Court, Delhi in case bearing; ' State v. Rohit, Etc., Cr. Case No. 296600/2016', arising out of FIR No. 189/2011, PS. Paharganj, for the offences under Sections 392/411/34 IPC is modified to the extent that the appellants, namely, Rohit and Ravi are held guilty/stand convicted of the offences punishable under Section 392/34 IPC. However, the conviction of the appellants under Section 411/34 IPC is, hereby, set aside. Nonetheless, for the foregoing reason, it is directed that the appellants, namely, Rohit C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 55 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.08.22 16:55:58 +0530 and Ravi, be now released on probation/entitled to benefit under Section 4 of the Probation of Offenders Act, upon the appellants' furnishing a personal bond in a sum of Rs. 15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount each , subject to the satisfaction of this Court, with an undertaking to appear and receive punishment when called upon and in the meantime, to keep the peace and be of good behavior maintain peace during the period of 02 (two) years, as well as further subject to the following conditions;
(a) The appellants shall not involve themselves in any offence and registration of any further case shall make them liable for cancellation of probation;
(b) The appellants shall receive the sentence as may be given by the court, if the benefit of probation is withdrawn;
(c) The appellants shall maintain peace and harmony and refrain from criminal activity; and
(d) The appellants are further directed to deposit Rs. 5,000/- (Rupees Five Thousand only) each, before the Ld. Trial Court, to be released as compensation to the victim, namely, Vinod Kumar, in terms of the provisions under Section 5 of the Probation of Offenders Act.
45. Needless to mention that since the appellants, namely, Rohit and Ravi, have been dealt under Section 4 of Probation of Offenders Act, they shall not suffer any disqualification attached with conviction, in terms of Section 12 of the said enactment17/Probation of the Offenders Act.
46. At request of the appellants and the Ld. Counsel for the appellants, the bonds and sureties aforesaid be filed by the appellants within a period of 15 (fifteen) days from the date of this judgment, as per law and rules.
17Radhey Shyma And Another v. State of U.P. & Anr., Crl. Rev. No. 436 of 2014, dated 20.09.2023 (Honble Allahabad HC).
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47. Trial Court Record be sent back along with a copy of this judgment/order.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.22
16:56:09
Announced in the open Court (Abhishek Goyal)
+0530
on 22.08.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 57 of 57