Delhi District Court
State vs Karan on 5 March, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 133/2014
PS.: Darya Ganj
U/s.: 392/397/411/34 IPC
State Vs. Karan & Anr.
(a) SC Case No. 27581/2016 (Old No. 97/2015)
(b) CNR No. DLCT01-000767-2014
(c) Date of commission 13.03.2014 from 09:30 a.m. to
of offence 10:55 a.m.
(d) Name of the Sonu, S/o. Sh. Ramji Choudhary,
complainant R/o. H. No. D-322, Inderpuri, Delhi;
Permanent Address: Vill. Dundhera,
PS. Kurtha, Dist. Jahanabad, Bihar.
(e) Name of the accused i) Karan, S/o. Sh. Ramesh, R/o.
person(s), parentage 8/78, Geeta Colony, New Delhi;
and residence ii) Kamal @ Sonu, W/o. Sh. Anand
Singh, R/o. 32/394, Trilokpuri,
New Delhi, Also at; C-122, New
Ashok Nagar, Delhi (since
deceased and proceedings abated
on 26.09.2024)
(f) Plea of the accused Not guilty
person(s)
(g) Final Order Accused Karan is convicted of
offence under Sections 392/34 IPC
(h) Date of institution of 14.07.2014
case
(i) Date when judgment 27.01.2025
was reserved
(j) Date when judgment 05.03.2025
was pronounced
JUDGMENT
INTRODUCTION:
1. Succinctly, the case of the prosecution is that on
receipt of PCR Call vide DD No. 11A, pertaining to an incident of
robbery of money and mobile phone by brandishing/display of
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:36:56 +0530
weapon/knife/chaku, the concerned police officials, namely, HC
Virender No. 208/C and Ct. Anil 2041/C reached at the spot , i.e.,
Rajghat bypass depot, Darya Ganj, Delhi (hereinafter referred to
as the ‘spot’). Upon reaching there, two cars bearing registration
nos. DL-2CG-7621and HR-60A-8888 of Maruti 800 make, white
in colour and Honda City make, respectively, are stated to be
found in accidental condition. Correspondingly, the complainant,
namely, Sonu, S/o. Sh. Ramji Choudhary, R/o. H. No. D-322,
Inderpuri, Delhi (hereinafter referred to as the ‘complainant’)
along with his brother (also named) Sonu S/o. Sh. Upender
Choudhary, were found present at the spot. It is further proclaimed
that the complainant and his brother apprised the concerned police
officials of the incident that had transpired with them, besides
declared that the persons involved in the commission of the
incident had fled towards the forest (तथा अपने साथ हु ई वारदात के बाबत
बतलाया तथा बतलाया कि वारदात करने वाले दोनो लडके जंगल की तरफ भाग गये
हैं ।). In the meanwhile, SI Jitender Kumar and Ct. Vineet are stated
to have reached at the spot in an ERV, while on patrolling duty.
Thereupon, HC Virender; Ct. Anil; SI Jitender Kumar and Ct.
Vineet commenced search of both the persons/accused persons,
who are stated to have fled from the spot. Consequently, upon
having made significant endeavour, two persons, whose names
and identities were later on revealed as; CCL ‘P’ 1 S/o. ‘R’, R/o.
‘XYZ’ and Karan S/o. Ramesh, R/o. 8/78, Geeta Colony, Delhi,
were apprehended by the said police officials. Concomitantly,
upon such apprehension, both the said persons were identified by
the complainant as the perpetrators of offence. In particular, as per
the complainant, the person’s whose name was revealed as CCL
‘P’, was the driver of the vehicle in question, while the other
1
Identity of Child in Conflict with Law/CCL has been deliberately withheld in the instant case, who is
asserted to be the driver of the aforenoted Maruti 800 car.
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person, namely, Karan, was asserted by the complainant to be the
one who had snatched his/complainant’s mobile phone. Further,
the person/accused Karan was further declared by the complainant
to be the one, who had kept the complainant’s money,
cumulatively amounting to Rs. 5,350/- (Rupees Five Thousand
Three Hundred and Fifty only), in an envelope and handed over to
their third companion, who had already jumped and fled from the
aforenoted car/vehilce (दोनों को देखते ही शिकायतर्ता ने बताया कि यह शख्स
जिसका नाम पप्पू है, गाडी चला तथा दूसरा शख्स जिसका नाम करण है, ने मेरा
Mobile छीना है तथा इसी करण नामक व्यक्ति ने मेरे पैसे लिफाफे में रखकर जो कु ल
4000+1350 रुपये थे, अपने तीसरे साथी, जो उतर कर भाग गया है, को दे दिये थे।).
At that point in time, HC Virender is asserted to have conducted a
formal search of the Karan and found one mobile phone of
Micromax make, red-black in colour, bearing IMEI No.
911241902540846 from the right side pocket of accused’s Karan’s
wearing pants. The said mobile phone, in turn, is declared to have
been identified by the complainant as the one which was snatched
from him (जिसे देखकर शिकायतकर्ता ने बतलाया की यह वही फोन है जो करण ने
मुझसे छीना है ).
2. Correspondingly, statement of the complainant was
recorded at the spot, wherein the complainant inter alia proclaimed
that he was residing at D-322, Inderpuri, Delhi at the relevant point
in time, along with his cousin, namely, Sonu S/o, Upendra
Choudhary, on tenancy basis. Further, as per the complainant, on
13.03.2014, he/the complainant along with his cousin, Sonu were
waiting at loha mandi bus stop, Inderpuri for boarding a bus,
headed towards Anand Vihar, in order to visit their home on the
occasion of Holi (आज दिनांक 13.03.14 को मैं अपने फु फे रे भाई सोनू के साथ
होली का उत्सव मनाने के लिये, घर जाने के लिये लोहा मडी बस स्टाप इंद्रपुरी पर
आनन्द विहार जाने वाली बस का इन्तजार कर रहे थे।). Further, as per the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:37:06 +0530
complainant, at around 09:00-09:30 am, one person, who was aged
around 27-30 years and of strong build-up, is avowed to have
reached the complainant and his brother and inquired from them as
to where they were headed, upon, which, the complainant
responded that they had to go to Anand Vihar, Delhi (समय करीब 9-
9.30 बजे दिन एक शख्स उम्र करीब 27-30 वर्ष के लगभग तथा शरीर मजबूत था,
जिसे मैं सामने आने पर पहचान हमारे पास आकर बोला कि कहाँ जाओगे, तो मैने कहा
आनन्द विहार दिल्ली जाना है।). Consequently, as per the complainant,
the person, who approached them also declared that he also had to
go to Anand Vihar. In the meanwhile, as per the complainant, one
white colour Maruti car came and stopped there ( जो वह व्यक्ति कहने
लगा कि मुझे भी वहीं जाना है। उसी वक्त एक मारुति कार रंग सफे द वहां आकर
रूकी). The complainant further proclaimed that the person sitting
next to the driver seat in the said vehicle/Maruti car enquired the
way to Anand Vihar from them, whereupon, the person standing
next to the complainant stated that they were also proceeded
towards Anand Vihar and requested the persons sitting in the car to
take them in car to Anand Vihar in lieu of Rs. 15/- (Rupees Fifteen
only) (जिसमे साथ एक व्यक्ति और मौजूद था. ड्राईवर के साथ वाली सीट पर बैठे
व्यक्ति ने पुछा, आनन्द विहार रास्ता किघर से हैं , तो हमारे पास मौजूद व्यक्ति
नामालूम ने कहा कि हम भी आनन्द विहार जा रहे हैं हमें भी कार में बैठा लो, 15-15
रुपये ले लेना). Accordingly, the complainant, his brother and the
person, who had approached them are affirmed to have boarded
the said vehicle/car and all three of them, sat on the rear seat of the
vehicle. Correspondingly, after covering some distance, as per the
complainant, the person sitting next to the driver seat stated to
them that the police would stop them and take their cash on the
way. Ergo, the complainant was asked to keep his cash in an
envelope and thereafter, to place the same in their drum.
Correspondingly, the said person further cautioned them to tell the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:37:10 +0530
police persons that if any enquiry is made, they should declare that
they were proceeding for post office to send out money (थोड़ी देर
चलने के बाद रास्ते में ड्राइवर के साथ वाली सीट पर बैठे व्यक्ति ने कहा कि रास्ते में
पुलिस पकड़ लेगी, पैसे ले लेगी तुम अपने रुपये लिफाफे में डाल कर डिब्बे में रख दो
तथा पुलिस अगर पूछे तो कह देना कि हम डाक घर पैसे भेजने के लिए जा रहे हैं ).
Upon this, the complainant’s brother is further proclaimed to have
handed over the money to the said person, sitting next to the driver,
who put the same in an envelope and handed over the envelope to
the person sitting next next to the complainant, who then, kept the
same in their drum (तो मेरे भाई सोनू ने पैसे ड्राइवर सीट के बगल में बैठे व्यक्ति
को दे दिये, जिसने लिफ़ाफ़े में पैसे डालकर हमारी बगल में व्यक्ति को दे दिया तथा उस
व्यक्ति ने लिफाफा हमारे ड्रम में डाल दिया). It was further avowed by the
complainant that on this, he got suspicious and declared that he
wanted to count his money. Whereupon, as the complainant is
asserted to have taken out his envelope, the person sitting next to
him started beating him, as well as stopped the vehicle at an
abandoned place and took out as well as brandished knife/chaku at
them. At the same time, the said person is proclaimed to have
threatened the complainant to get down from the vehicle, failing
which, the complainant was threatened that dire consequences
would ensue (जो मुझे शक हु आ तो मैं ने कहा कि मैं अपने रूपये, जो लिफाफे में है
गिनूंगा/ तथा मैं ने इम में रखा लिफाफा निकाला तो मेरी बगल में बैठे शख्स ने मेरे साथ
मारपीट शुरू कर दी तथा एक सुनसान जगह रोककर मेरे को चाकू दिखाकर कहने लगा
कि गाडी से नीचे उतर जाओ नहीं चाकू मार दूंगा). Further, as per the
complainant, in the meanwhile, when the complainant took out his
mobile phone to call 100 number, the person who brandished knife
at the complainant, fled from the spot with the complainant’s
envelope. Simultaneously, the person sitting next to the driver
seat, snatched complainant’s mobile phone from his possession
(इस दौरान मैने अपना फोन निकाल कर 100 न० पर फोन करने की कोशिश की तो
चाकू दिखाने वाला व्यक्ति हमारे लिफाफे लेकर भाग गया तथा ड्राईवर के बगल
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:37:14 +0530
वाली सीट पर बैठे व्यक्ति ने मेरा मोबाईल छीन लिया।). The complainant
further avowed that they did not get down from the vehicle, while
the driver thereof commenced driving the said vehicle in
haphazard manner and in the meanwhile, their tussle ensued ( हम
गाडी से नहीं उतरे और ड्राईवर गाडी लेकर टे ढी मेठी चलाने लगा, जो चलती गाड़ी में
हमारा झगडा होता रहा।). As they were proceeding further around
Rajghat depot, as per the complainant, one Honda City car, which
was moving adjacent to the aforesaid Maruti car, collided with it
and the persons sitting in the front seat from the said car, fled from
the spot. Subsequently, some unknown person is proclaimed to
have made a call at 100 number, leading to the police officials
reaching at the spot.
REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, under the aforenoted facts and
circumstances as well as on the basis of the complainant’s
complaint, the concerned police official/HC Virender prepared
tehrir and directed Ct. Anil to have the same taken to the police
station for the registration of the FIR. Consequently, the present
FIR was registered at PS Darya Ganj on 13.03.2014 for the
offences under Sections 394/397/411/34 of the Indian Penal Code,
1860 (hereinafter referred to as ‘IPC‘), which was marked to the
concerned SI and the investigation ensued. Upon this, the
concerned SI is proclaimed to have reached at the spot and met
with HC Virender, SI Jitender, Ct. Vineet, besides the
complainant, his brother Sonu, CCL ‘P’ and Karan.
Correspondingly, on the basis of the declaration of the
complainant and HC Virender, site plan was got prepared, and the
examination of the vehicles found in accidental condition was
conducted. Pertinently, from the aforenoted Maruti car, one yellow
colour envelope was found from inside the said car’s dashboard.
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Upon seeing the said envelope, the complainant declared that in
similar envelope, accused persons had kept his money
(DL-2CG-7621 की तलाशी ली जो तलाशी के दौरान कार के Dashboard के
बॉक्स के अदर एक पीले रंग का लिफाफा मिला जिसे देखकर शिकायतकर्ता Sonu ने
बतलाया कि इसी प्रकार के लिफाफे में मुल्जिमों ने उसके पैसे डाले थे।).
Consequently, the concerned police officials are asserted to have
seized the said envelope; car bearing registration no.
DL-2CG-7621; keys of the said car; and mobile phone recovered
from the possession of accused, Karan. Correspondingly, the
statement of the driver of vehicle bearing HR-60A-8888, namely,
Vishnu Mehto S/o. Chakkan Mehto was recorded, in terms of the
provisions under Section 161 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.P.C.’).
4. Markedly, during the ongoing investigation, CCL ‘P’
and Karan are stated to have been formally arrested, besides their
disclosure statements were recorded. Notably, as per the
prosecution, both the said accused persons are proclaimed to have
declared involvement of another person/accused, namely, Kamal
@ Sonu S/o. Anand Singh R/o. 34/397, Trilokpuri, Delhi with
them in the commission of incident, who had already fled with
robbed money, after jumping from their car, near Indira Gandhi
Stadium. Subsequently, on the basis of the said statement and on
identification of said accused persons, co-accused, Kamal @ Sonu
was apprehended on 13.03.2014 from Indira Market, Trilokpuri,
Delhi. Correspondingly, the police officials are stated to have
endeavoured to have recovered the knife used in the commission
of the incident and the robbed articles. However, accused, Kamal
@ Sonu is asserted to have not cooperated in the search
proceedings, which the said accused declared, he had thrown in
Yamuna river, while fleeing from the spot ( वारदात में शामिल चाकू व
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:37:21 +0530
छीने हु ए रुपेय की बरामदगी के लिए मुल्जिमान को 2 दिनका Police Remand
हासिल किया परंतु मुल्जिमान के असहयोग के कारण चाकू व 5350/- रुपये बरामद
नहीं हो सके । मुलजिम Kamal ने बतलाया उसने कार छोड़कर भागते वक्त चाकू और
छीने हु ए रुपेय यमुना में फें क दिया।). Congruently, the police officials
tried to get conducted, Test Identification Parade/TIP proceedings
of the said accused, to which he refused. Noticeably, during further
investigation, age determination proceedings of accused, CCL ‘P’
and Karan were conducted, whereupon, accused CCL ‘P’ was
determined to be a minor at the time of incident and the
proceedings qua him were directed to be transferred to JJB-1 by
Ld. MM-05, Central vide order dated 17.04.2014, whilst, accused
Karan was determined to be a major at the time of commission of
the offence. Apposite at this stage to reproduce the relevant
extracts from the order dated 17.04.2014 of Ld. MM-05, Central,
Tis Hazari Court, as under;
“…IO has filed the age verification report of the
accused [P] s/o. [R]. As per the same, the school
record of the accused shows the date of his birth as
10.06.1996. the offence is that on 13.03.2014.
Accordingly, at the time of offence accused [P] was a
juvenile.
Jail Superintendent is directed to shift the accused
[P] to child observation home. Child observation
home is directed to produce the accused to JJB-1 on
19.04.2014 at 10.00 am…”
(Emphasis supplied)
FILING OF CHARGESHEET AND COMMITTAL:
5. Markedly, upon conclusion of investigation in the
instant case, chargesheet was filed by the concerned IO before Ld.
MM-05, Central, Tis Hazari Courts under Sections
392/397/411/34 IPC, by placing accused Karan and Kamal @
Sonu (hereinafter collectively referred to as the ‘accused persons’)
under column no. 11 thereof. Markedly, as per the chargesheet,
during the investigation, it was further determined that the
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:37:24 +0530
complainant had sustained no injuries. Subsequently, on
27.06.2014, cognizance of offence(s) under Sections 392, 397,
411, 34 IPC, was taken by the Ld. MM-05, Central, Tis Hazari
Courts on 27.06.2014. Correspondingly, upon conclusion/
compliance of the provisions under Section 207 Cr.P.C., Ld.
MM-05 (Central), Tis Hazari Courts vide order dated 08.07.2014,
passed an order of committal of the present case before the Ld.
Predecessor Judge, routed via Ld. District & Sessions Judge (Head
Quarter), Tis Hazari Courts.
CHARGE FRAMING:
6. Relevantly, the Ld. Predecessor Judge heard the
arguments addressed on behalf of the accused persons as well as
by Ld. Addl. PP for the State and upon conclusion of the same,
charge(s) under Sections 392/411/34 IPC were framed against
accused, namely, Karan and charges under Sections 392/397 IPC
were framed against accused, namely, Kamal @ Sonu vide order
dated 01.08.2014, to which, both the accused persons pleaded not
guilty and claimed trial. Notably, the relevant extract of the said
order of charge is reproduced as under;
“…Arguments heard on the point of charge.
During course of arguments, counsel for defence
concedes that sufficient material is on record before
the court for framing the charge against accused
Karan and Kamal @ Sonu, therefore, charges may be
framed against the accused.
Having heard the submissions and gone through
the record, I observe that prima facie case is made out
against accused Kamal @ Sonu u/Section 392/397
IPC and against accused Karan u/s. 392/411/34 IPC.
Accordingly, the charges are framed u/Section
392/397 IPC against accused Kamal @ Sonu and
u/Sec. 392/411/34 IPC against accused Karan, to
which, they both pleaded not guilty and claimed
trial…”
(Emphasis supplied)
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.03.05
16:37:28
+0530
7. Further, it is apposite to reproduce the charges, as
framed by the Ld. Predecessor Judge, against the accused persons,
pursuant to the aforesaid order, as under;
“…I, ***, Additional Sessions Judge,
Central/Delhi do hereby charge you accused Kamal @
Sonu S/o. Sh. Anand Singh R/o. 32/394, Trilokpuri,
New Delhi as under:-
That on 13.03.2014 between 9.30 to 10:55 am
near Raj Ghat Bypass Depot, Darya Ganj, Delhi
within the jurisdiction of Police Station Darya Ganj,
you robbed one mobile phone make Micromax and
Rs. 1350/- from the possession of complainant Sh.
Sonu S/o. Sh. Ramji Chaudhary and Rs. 4000/- from
the possession of Sonu S/o. Sh. Upender Chaudhary
on the point of a deadly weapon i.e. knife and you
thereby committed an offence punishable u/s 392/397
IPC and within the cognizance of this court.
I therefore direct that you be tried by this court for
the aforesaid charge…
*** *** ***
“…I, ***, Additional Sessions Judge.
Central/Delhi do hereby charge you accused Karan
S/o. Sh. Ramesh R/o. 8/78, Geeta Colony, New Delhi
as under:-
That on 13 03 2014 at 9.30 to 10.55 am near Raj
Ghat Bypass Depot, Darya Ganj, Delhi within the
jurisdiction of Police Station Darya Ganj, you along
with co-accused Kamal @ Sonu (charged u/s 392/397
IPC separately framed) and Pappu (since juvenile) in
furtherance of your common intention robbed one
mobile phone of Micromax and Rs 1350 from the
possession of complainant Sh. Sonu s/o. Sh. Ramji
Chaudhary and Rs. 4,000/- from the possession of
Sonu S/o. Sh. Upender Chaudhary and both of you
thereby committed an offence punishable u/s 392/34
IPC and within the cognizance of this court.
Alternatively, on the above said date and time at
shrub near Raj Ghat bypass, Darya Ganj, you along
with co-accused Pappu (since Juvenile) were found in
possession of one stolen mobile phone make
Micromax of complainant Sh. Sonu S/o. Ramp
Chaudhary which we robbed from the possession of
the complainant on the same day at aforesaid place
and that you thereby committed an offence punishable
411 IPC and within the cognizance of this court.
I therefore direct that you be tried by this court for
the aforesaid charge…”
(Emphasis supplied)
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Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:37:52 +0530
PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings,
prosecution examined 17 (seventeen) witnesses/prosecution
witnesses, who deposed in their respective testimonies as under;
8.1. PW-1/Pramod S/o. Sh. Rishipal Singh deposed that
he/PW-1 had purchased one Maruti car bearing registration no.
DL-2CG-7621 in the month of December, 2012 from Indra Market
Trilokpuri through one dealer, namely, Shamsher and that the said
car was got registered in the name of his/PW-1’s mother, namely,
Raj Kumari. PW-1 further avowed that in the month of February,
2013 the said car was given to accused Kamal @ Sonu in lieu of
amount due upon him/PW-1. Notably, PW-1 correctly identified
accused, Kamal @ Sonu in the Court on the date of his deposition.
8.2. PW-2/Sonu S/o. Ramji Chaudhary deposed that on
13.03.2014, he/PW-2 along with his cousin brother, namely, Sonu
were going to Anand Vihar to board the train, as they had to go to
his/PW-2’s village. Further, as per PW-2, when they reached Loha
Mandi near Inder Puri, one accused, who was correctly identified
as accused Kamal before this Court, asked as to where they were
going. Consequently, as per PW-2, he told the said accused that
they were going to Anand Vihar. PW-2 further proclaimed that the
accused further told them that he was also proceeding towards
Anand Vihar, while, in the meanwhile, one car reached at the said
spot. As per PW-2, accused, Karan, who was correctly identified
by PW-2 in Court was sitting next to the driver of the said car and
enquired from them as to where they were headed. Upon this, as
per the complainant/PW-2, accused Kamal replied that all three of
them were going to Anand Vihar. At that point in time, the
complainant asserted, accused Karan told them that he was also
SC No. 27581/2016 State v. Karan & Anr. Page 11 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:37:56 +0530
going to Anand Vihar and that he could drop them. Further, as per
PW-2, accused Kamal told accused Karan they would pay fare of
Rs. 15/- (Rupees Fifteen only) and after that, they all boarded the
car for Anand Vihar. On the way, PW-2 proclaimed that accused
Kamal told them that he was an Army-man as well as, accused
Karan told them that he was a government employee and that he
used to deposit the money in post office. Correspondingly, it was
asserted that accused Karan further told them that in case police
officials asked them where they were going, they had to reply that
they were going to post office. Simultaneously, accused Kamal is
proclaimed to have asked them to keep their money in a yellow
colour envelope. Consequently, on asking of accused, Kamal, the
complainant/PW-2 and his cousin brother, namely, Sonu kept their
money in an envelope and after that, as per PW-2, accused Kamal
clandestinely exchanged the envelope of money kept by them and
another envelope kept in the drum carried by me. Thereupon, the
complainant asked the accused Kamal to let him/PW-2 count the
money and when he/PW-2 put his hand in drum to take out the
money from the envelope, accused Kamal is avowed to have
caught PW-2’s hand and he/accused Kamal started beating PW-2
for half an hour. At that time, PW-2 asserted that the associate of
accused persons was diving the car and at that point in time, PW-2
tried to make a call by his phone to the police, however, accused,
Karan snatched his/PW-2’s mobile phone. It was further deposed
by PW-2 that the driver of the car stopped the said car in a lonely
place and accused Kamal tried to take them out from the car,
however, the complainant and his brother did not oblige/did not
get down from the car. Concomitantly, PW-2 asserted that accused
Kamal took out the knife and proclaimed that in case they did not
come out from the car, then, he would cause injury to them. After
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:38:00 +0530
that accused Kamal is declared to have fled with the envelope,
where PW-2’s money was kept, on the asking the accused. After
that, PW-2 is stated to have made a request to the driver of the said
car to drop them to some distance and the said driver started the car
and covered some distance. Thereafter, as per PW-2, the driver of
the car stopped the same on PW-2’s asking and accused Karan
threw their luggage, whereupon PW-2 and his brother got down
from the car. After that driver of the said car is asserted to have
started the car and when the car was moving, PW-2 proclaimed
that he chased the said car and broke the glass of driver side and
removed the key, leading to the car getting stopped. Subsequently,
PW-2 asserted that he started running and accused Karan as well as
the driver of the said car, chased him/PW-2, however, could not
apprehend him. Subsequently, PW-2 asserted that the accused
persons returned to the car and the driver thereof, sat on the driver
seat and accused Karan pushed the car and started it. While the car
was moving, PW-2 asserted that another car collided with the car
of accused persons and after that, the accused persons fled away
from spot towards bushes. PW-2 further declared that he raised an
alarm and asked public persons for help, whereupon public
persons apprehended the accused Karan and driver of the car.
Meanwhile the police officials are stated to have reached at the
spot as someone made a call on 100 number and he/PW-2 handed
over the keys of the car to police official. Concomitantly, as per
PW-2, his statement was recorded by the police officials as Ex.
PW2/A, bearing PW-2’s signatures at point A. Further, PW-2 also
deposed that at the time of incident, he/PW-2 was carrying a sum
of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty
only), however, PW-2 expressed his inability to recollect his
mobile number, though, proclaimed that the same was of
SC No. 27581/2016 State v. Karan & Anr. Page 13 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:04 +0530
Micromax make, black in colour. Relevantly, upon being cross
examined by Ld. Addl. PP for the State, PW-2 affirmed that his
mobile phone was recovered from the possession of accused,
Karan, upon his apprehension and that the seizure memo thereof
(Ex. PW2/B), bears his/PW-2’s signatures at point A. PW-2
further affirmed the presence of his signatures on the seizure
memo of yellow colour envelope (Ex. PW2/C); seizure memo of
car (Ex. PW2/D); and arrest memo of accused Karan (Ex. PW2/E).
Correspondingly, as per PW-2, the name of the person who was
driving the car was determined to be CCL ‘P’ and that he abetted
the accused persons, namely, Karan and Kamal to beat and throw
the complainant and his cousin from the car. PW-2 also deposed
that accused CCL ‘P’ was also arrested by the police and that
he/PW-2 could not recollect all the facts of the case, due to lapse of
time. Noticeably, PW-2 also identified his mobile phone ( Ex. P1)
and yellow colour envelope, recovered from the car (Ex. P2),
while he/PW-2 expressed inability to ascertain as to who the keys
(Ex. P3) belonged to, though, affirmed that the said keys were
taken out by him/PW-2 from the car and handed over the police.
8.3. PW-3/Sh. Vishnu Mahto deposed that on 13.03.2014,
he was driving a car bearing registration no. HR-60A-8888 and
was proceeding from Sarai Kala Khan towards Panipat. PW-3
further deposed that when he reached in front of the power house
Raj Ghat, one white colour Maruti Car 800 was standing in start
mode and when he/PW-3 reached near the said car, the driver the
of the said car, suddenly took turn towards right side. As per PW-3,
in order to save himself, he/PW-3 also took a turn on his right hand
side due to which, his/PW-3’s car hit the divider of the road.
Consequently, as per PW-3, half portion of his/PW-3’s car
remained stuck on the divider and he/PW-3 as well as his/PW-3’s
SC No. 27581/2016 State v. Karan & Anr. Page 14 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:08 +0530
employer, namely, Pankaj Gupta also got out of the said car. It was
further asserted by PW-3 that the persons siting in the white colour
Maruti car also got down from the said car and some of them fled
away towards Yamuna side. Public persons are further deposed by
PW-3 to have made search of the said persons who fled towards
Yamuna side and two persons were apprehended. Subsequently, as
per PW-3, Police officials reached there and started their
proceedings, as well as took the photographs. PW-3 however,
expressed his inability to identity or recollect the names of the
persons who were apprehended and brought at the spot by public
persons.
8.4. PW-4/Master Sonu deposed that on 13.03.2014,
he/PW-4 along with my cousin brother, namely, Sonu was going to
Anand Vihar from Inderpuri and they were on the way bus stand
Loha Mandi. Further, as per PW-4, accused, namely, Kamal, who
was correctly identified by PW-4 before Court, asked his/PW-4’s
brother that he was also going to Anand Vihar. In the meantime,
PW-4 proclaimed, one car of white colour reached there and
accused, Karan, who was correctly identified by PW-4 in Court,
was sitting at the adjacent seat of the driver. It was further deposed
by PW-4 that accused Karan asked the route for Anand Vihar from
accused, namely, Kamal. Whereupon, as per PW-4, accused
Kamal told accused Karan that they were also proceeded to Anand
Vihar and in case they would pay Rs. 15/- (Rupees Fifteen only),
then they would drop them to Anand Vihar. Thereupon, PW-4
asserted that they agreed and sat in the said car. However, in the
way, accused, Kamal is proclaimed to have asked them to keep
their money in an envelope from their drum. Thereupon, PW-4’s
cousin Sonu took out the money from the drum and put the same
into an envelope and subsequently, kept the envelope into their
SC No. 27581/2016 State v. Karan & Anr. Page 15 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:12 +0530
drum, after taking out the money from the envelope. At that point
in time, as per PW-4, his cousin Sonu wanted to count the money,
however, accused Kamal started beating him as well as threatened
to stab him/PW-4’s cousin with a knife. Correspondingly, as per
PW-4, both the accused persons gave fist blows to his/PW-4’s
cousin and that they got very scared. PW-4 further asserted that the
driver of the car, then, slowed down the car and accused Kamal got
down from the same. Further, it was asserted that at that time, cap
of PW-4’s drum fell down from the car and his/PW-4’s cousin,
Sonu, broke the window glass the car as well as removed the keys
of the car. Immediately thereafter, the said car is proclaimed to
have met with an accident and after the accident, accused Karan as
well as the driver thereof are asserted to have run away. PW-4
further declared that one sardarji, who was present at the spot,
came forward for help and the police officials are also avowed to
have reached there after some time. Further, as per PW-4, the said
police persons took his brother, besides, two accused, Karan and
the driver of the said car, who were apprehended. Subsequently,
PW-4 asserted that they went to the police station. Further, it was
deposed that total robbed amount was Rs. 5,350/- (Rupees Five
Thousand Three Hundred and Fifty only), out of which Rs. 4,000/-
(Rupees Four Thousand only) were PW-4’s and remaining amount
of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty
only belonged to PW-4’s cousin, namely, Sonu.
8.5. PW-5/Mr. Israr Babu, Alternate Nodal Officer
produced the summoned record(s), i.e., Original Customer
Application Form (hereinafter referred to as the ‘CAF’) of mobile
no. 9711812902, issued in the name of Sh. Ramji Chaudhary,
photocopy of which is Ex. PW5/A (OSR). PW-5 further produced
the Call Detail Records (hereinafter referred to as ‘CDRs’) of the
SC No. 27581/2016 State v. Karan & Anr. Page 16 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.03.05
16:38:16
+0530
said mobile phone number for the period from 01.01.2014 to
13.03.2014 (Ex. PW5/B(Colly.), running into 16 pages). PW-5
also asserted that he issued a certificate under Section 65B of the
Indian Evidence Act, 1872 (hereinafter referred to as the
‘Evidence Act‘) regarding CDR (Ex.PW5/C), bearing PW-5’s
signatures and stamp at point A.
8.6. PW-6/Asha Ram, Record Keeper, Authority, IP
Estate (New Delhi Zone) produced the record of vehicle No.
DL-2CG-7621 (Maruti Car). Further, it was asserted by PW-6 that
as per the record, the said vehicle was earlier in the name of
Girdhari Lal Sharma, R/o. 35/11, Extn. Himmat Puri, Delhi and
was sold to Raj Kumari, W/o. Sh. Rishi Pal Singh, R/o. B-234,
Block B, Harijan Basti, Kondli, Delhi-96. PW-6 further proved the
copy of Form Nos. 29 and 30 as Ex.PW6/A (Original seen and
returned). Further, PW-6 proved the computer generated copy of
vehicle detail as Ex.PW6/B, bearing stamp of the authority at point
A. As per PW-6, due to inadvertence and typographical error,
under Ex.PW6/B, name of the existing owner was typed as Raj
Kumar instead of Raj Kumari.
8.7. PW-7/SI Anil deposed that on 13.3.2014, he/PW-7
was posted at PS Darya Ganj as a Constable and that on the said
day, he/PW-7 was on emergency duty. As per PW-7, on that day,
on receipt of DD No.11A, he/PW-7 along with HC Virender
reached the spot near ITO U-turn Rajghat. Further, as per PW-7,
there, the complainant Sonu S/o. Ramji Chaudhary met and
informed them that two persons had robbed mobile and cash, as
well as left the spot. PW-7 further asserted that at the spot, two
vehicles i.e. one Maruti 800, bearing registration no.
DL-2CG-7621 and Honda City car, bearing registration no.
HR-60A-8888 were also found in accidental condition. ERV Staff
SC No. 27581/2016 State v. Karan & Anr. Page 17 of 77
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.03.05
16:38:19 +0530
i.e. SI Jitender Kumar was also found present at the spot and he/SI
Jitender disclosed the entire incident to HC Virender. PW-7 further
deposed that they made efforts to search the accused person near
the bushes and that near the bushes, two persons were found who
disclosed their names as; Karan and CCL ‘P’. It was further
avowed that on a formal search, one mobile phone of Micromax
make was recovered from the possession of Karan, which was
identified by the complainant, Sonu as the one, robbed from him.
PW-7 further correctly identified accused Karan before the Court
as well as further deposed that HC Virender recorded the statement
of complainant, Sonu and prepared rukka which, he/PW-7 took to
the PS for getting the case FIR registered. After getting the case
FIR registered, as per PW-7, he/PW-7 returned to the spot along
with SI Parveen and copy of FIR and rukka were handed over to SI
Parveen, to whom further investigation was marked. Further as per
PW-7, the mobile phone of Micromax make, recovered from
accused Karan, was also seized and the IO also seized both the
accidental vehicles. It was further asserted that one yellow colour
envelope was also recovered from inside the Maruti 800 car, which
was also seized by the IO. During the course of investigation, as
per PW-7, accused Karan and JCL ‘P’ disclosed that their
associate, namely, Kamal @ Sonu managed to escape from the
spot and thereafter, they went in search of Kamal @ Sonu and the
said accused was apprehended at Indira Market, Trilok Puri. PW-7
further correctly identified accused Kamal @ Sonu before Court,
who was also avowed to be arrested by the IO. Lastly, as per PW-7,
the IO recorded his statement in the aforesaid regard.
SC No. 27581/2016 State v. Karan & Anr. Page 18 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:23 +0530
8.8. PW-72 (again wrongly numbered as PW-7)/Arvinder
Singh, Mechanical Expert, C-17, DDA Market, Vivekanand Puri,
Delhi-7 deposed that on 14.03.2014, he conducted the mechanical
inspection of vehicle bearing registration no. DL-2CG-7621
(Maruti 800 Car) at PS Darya Ganj at the request of IO. PW-7
further proved his detailed report as Ex. PW7/A, bearing his
signature at point A.
8.9. PW-8/HC Ramesh Chander deposed that on
13.03.2014, he was posted at PS. Darya Ganj as HC and was
working as duty officer from 08:00 a.m. to 04:00 p.m. On that day,
as per PW-8, at around 10:55 a.m., a call qua snatching of money
and mobile from children at knife point at Raj Ghat Bus Depot,
New Road, in front of Yamuna was received. Further, as per
PW-8, the said information was reduced into writing vide DD No.
11A and same was handed over to HC Virender, who left the
police station and proceeded to the spot along with Ct. Anil. PW-8
further proved the DD as Ex. PW8/A, asserted to be in his/PW-8’s
handwriting. PW-8 further asserted that on the said day, Ct. Anil
Kumar came at the PS along with rukka at about 02:40 p.m., sent
by HC Virender. On the basis of rukka, as per PW-8, case FIR was
registered, computer generated copy of which is Ex. PW8/B,
bearing PW-8’s signatures at point A (OSR). PW-8 further
deposed that he made an endorsement on the rukka as Ex. PW8/C,
bearing PW-8’s signatures at point A. PW-8 further proved the
certificate under Section 65 B of the Evidence Act as Ex. PW8/D,
bearing PW-8’s signatures at point A. Further, as per PW-8, after
registration of case FIR, copy of FIR and rukka were handed over
2
Perusal of the records reveal that the witnesses, commencing from Arvinder Singh, Mechanical Expert,
C-17, DDA Market, Vivekanand Puri, Delhi-7 have been wrongly numbered/labelled as PW-7, PW-8, etc., so
on, whereas the said witness should be labelled/numbered as PW-8 as SI Anil had already been adduced as
PW-7. Nevertheless to avoid any confusion, between the records and the finding in the present judgment, this
Court has deliberately opted not to change/re-number the witnesses herein. Rather the same are specified as
per the record, with the observation in respect of such typographical/inadvertence as herein.
SC No. 27581/2016 State v. Karan & Anr. Page 19 of 77 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:38:28 +0530
to Ct. Anil and that further investigation was marked to SI Parveen
Barshara.
8.10. PW-9/Ct. Vineet deposed that on 13.03.2014,
he/PW-9 was posted as constable in PS Darya Ganj and on the said
day, he was deputed as driver of the ERV Gypsy No.
DL-1CM-4577. PW-9 further proclaimed that SI Jitender (in-
charge of said ERV Gypsy), Ct. Hakesh and he/PW-9 were on
patrolling duty and during patrolling, they reached at Rajghat bye-
pass near Rajghat Bus depot U-turn where they saw two cars i.e.
one Maruti 800 and one Honda City, in an accident condition. HC
Virender and Ct. Anil are further asserted to be found present at the
spot, as per PW-9, who told SI Jitender that two boys involved in
the incident were hiding themselves in the bushes. Thereafter, they
all searched for the said boys and CCL ‘P’ as well as accused
Karan were apprehended. PW-9 further correctly identified
accused, namely, Karan in the Court, whilst CCL ‘P’ was
proclaimed to be a juvenile. Further, as per PW-9, on the random
search of accused Karan, two mobile phone instruments were
recovered; one was of make Micromax black and red in colour,
which was identified by the complainant Sonu as his/Sonu’s
mobile. Further, as per PW-9, HC Virender recorded the statement
of the complainant Sonu and sent Ct. Anil to the police station to
get the case registered after making endorsement. As per PW-9,
Ct. Anil thereupon, went to the PS and got the case registered. It
was further proclaimed that the recovered mobile phone of the
complainant Sonu was converted into pulanda and sealed with the
seal ‘DRGNJ-II’ by the IO and seized vide seizure memo.
8.11. PW-10/SI Jitendra Kumar deposed that on
13.03.2014, he/PW-10 was posted as SI in PS Darya Ganj and on
the said day, he/PW-10 was on ERV Gypsy No. DL-1CM-4577
SC No. 27581/2016 State v. Karan & Anr. Page 20 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:33 +0530
with Ct. Rakesh and driver Ct. Vinit, while on patrolling duty.
PW-10 further proclaimed that he/PW-10 was the in-charge of
ERV gypsy and during patrolling, they reached Rajghat bye-pass
near Rajghat Bus depot U-turn where they saw two cars i.e. one
Maruti 800 and one Honda City in an accident condition. PW-10
further asserted that HC Virender and Ct. Anil were found present
at the spot, who told him/PW-10 that two boys involved in the
incident were hiding themselves in the bush. Thereafter, they all
searched for the those boys and one CCL ‘P’ and accused Karan
were apprehended. PW-10 correctly identified accused Karan in
the Court. Further, as per PW-10, CCL ‘P’ was a juvenile and that
on a random search of accused Karan, two mobile phone
instruments were recovered, one of which was of Micromax make,
black and red in colour, which was identified by the complainant,
Sonu to be his mobile. It was further asserted by PW-10 that HC
Virender recorded the statement of the complainant Sonu and sent
Ct. Anil to PS to get the case registered after making endorsement.
Thereupon, Ct. Anil went to the police station and got the case
registered. Subsequently, as per PW-10, IO/SI Parveen reached at
the spot along with Ct. Anil, to whom the further investigation was
entrusted. Further, as per PW-10, the recovered mobile phone of
complainant Sonu was converted into pulanda and sealed with the
seal ‘DRGNJ-II’, by the IO and seized vide seizure memo.
8.12. PW-11/Ms. Ambika Singh, Ld. Metropolitan
Magistrate (Central), Tis Hazari Court, Delhi deposed that on
01.04.2014, she was posted as Metropolitan Magistrate in Tis
Hazari Court, Delhi and working as Link MM to the Court of Sh.
Sachin Sangwan, Ld. MM, Central, Delhi. Further, as per PW-11,
an application for conducting TIP ( Ex. PW11/A) of the accused
Kamal was marked to her, being Link MM, on the said date, which
SC No. 27581/2016 State v. Karan & Anr. Page 21 of 77
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:38:36 +0530
was moved by the IO/SI Parveen Badsara. It was further asserted
by PW-11, since the accused was not produced from judicial
custody, the application was adjourned to 02.04.2014 and
production warrant was ordered to be issued against the accused
Kamal. Subsequently, on 02.04.2014, as per PW-11, accused
Kamal was produced from judicial custody in a muffled face and
identified by IO. Thereafter, as per PW-11, accused was asked
whether he desired to participate in the TIP proceedings, however,
he/accused Kamal refused to participate in the TIP proceedings
stating that he had already been shown to the witness.
Correspondingly, as per PW-11, accused Kamal was warned that
his refusal to participate in the TIP proceedings would draw
adverse inference against him during the trial, however, the
accused is asserted to have persisted in his refusal. Further, as per
PW-11, the TIP proceedings is Ex. PW11/B and the statement of
accused Kamal is Ex. PW11/C, bearing the signatures of accused
Kamal at point A. Further, as per PW-11, she appended her
signatures at point X and X-1. Further, as per PW-11, the copy of
the above TIP proceedings was supplied to the IO on the
application which is Ex. PW11/D and thereafter the above
proceedings were sent to the concerned Court in a sealed cover
under PW-11’s seal; ‘AS’.
8.13. PW-12/HC Ramesh Chander deposed that on
13.03.2014, he/PW-12 was posted in PS Darya Ganj and was
assigned the duty of duty officer in PS Darya Ganj. Further, as per
PW-12, his duty hours were from 08:00 a.m. to 04:00 p.m. PW-12
further deposed that a call was received about the person running
away after robbing and that he/PW-12 reduced the call at serial no.
11, in register A and PW-12 produced the original register
containing the said call as Ex. PW12/A. Further, as per PW-12, the
SC No. 27581/2016 State v. Karan & Anr. Page 22 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:40 +0530
said call was given to HC Virender for enquiry and thereafter at
about 02:15 p.m., HC Virender sent a written tehrir through Ct.
Anil for registering the case. Further, as per PW-12, on the basis of
the written tehrir, case was registered. PW-12 further produced the
register, containing the said FIR (OSR), copy of which is Ex.
PW12/B.
8.14. PW-13/HC Virender deposed that on 13.03.2014,
he/PW-13 was posted as HC at PS Darya Ganj and on that day,
he/PW-13 was on emergency duty in the PS. PW-13 further
proclaimed that on receipt of DD no. 11A, he/PW-13 along with
Ct. Anil went to the spot i.e., near U-Turn of Rajghat Bus Depot,
Bypass where he/PW-13 found complainant, Sonu along with his
associate whose name was also Sonu and two cars, in an accidental
condition. As per PW-13, one Maruti Car bearing registration no.
DL-2C***7621 of white colour was stationed in the middle of the
road and one Honda City car bearing registration HR-60A-8888
was stationed near the divider and one wheel of the car had
climbed over the divider. Further, as per PW-13, the complainant
Sonu told him/PW-13 that the persons who had robbed him had
run towards bushes near Rajghat Dept and in the meantime,
patrolling ERB comprising of SI Jitender and Ct. Vineet reached at
the spot and joined them. Further, as per PW-13, he along with Ct.
Anil, SI Jitender and Ct. Vineet searched in the bushes and two
persons were found in the bushes. On interrogation, as per PW-13,
their names were revealed as Karan and CCL ‘P’. PW-13 correctly
identified accused Karan in Court. Further, as per PW-13, on
further enquiry, CCL ‘P’ was found JCL and proceedings qua him
were conducted, separately. Further, on formal search of accused
Karan, one Micromax mobile phone of black and red colour was
recovered from him, which was identified by the complainant as
SC No. 27581/2016 State v. Karan & Anr. Page 23 of 77
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:38:44 +0530
his mobile phone. PW-13 further avowed that he recorded the
statement of the complainant Sonu, S/o. Ramji which is Ex.
PW-2/A, bearing PW-13’s signatures at point B and also made
his/PW-13’s endorsement vide Ex. PW-13/A, bearing PW-13’s
signature at point A. PW-13 further deposed that he got the case
registered through Ct. Anil and after registration of the FIR, the
investigation was assigned to SI Parveen who reached at the spot
along with Ct. Anil. PW-13 further deposed that he handed over
the custody of accused Karan and CCL ‘P’ along with the mobile
phone to SI Parveen and the IO prepared the site plan. Further, as
per PW-13, the mobile phone was seized by the IO vide seizure
memo Ex. PW 2/B, bearing PW-13’s signature at point B. It was
further asserted by PW-13 that on the formal search of Maruti car,
one yellow colour envelope was found, which was also seized by
the IO vide seizure memo Ex. PW-2/C, after converting the same
in a sealed parcel and the memo of the said seizure bears PW-13’s
signatures at point B. PW-13 further deposed that the cars were
also taken into possession and that the Maruti car was taken into
possession vide seizure memo Ex. PW-2/D, bearing PW-13’s
signature at point B. PW-13 further deposed that as per the version
of accused persons the money had been taken by their other
associate, namely Kamal. PW-13 further avowed that the keys of
Maruti car was also seized vide seizure memo Ex. PW-13/B,
bearing PW-13’s signature at point A and accused Karan was
arrested, whose disclosure statement was recorded as Ex.
PW-13/C, bearing PW-13’s signatures at point A. Further, PW-13
proved the copy of disclosure statement of CCL ‘P’ as Mark
P-13/1, bearing PW-13’s signatures at point A. PW-13 also
deposed that pursuant to the disclosure statement of the accused,
namely, Karan, they went to the area of Trilok Puri in search of his
SC No. 27581/2016 State v. Karan & Anr. Page 24 of 77
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:38:47 +0530
associate Kamal and accused Kamal, who was correctly identified
by PW-13 in Court, was apprehended from Indira Market,
Trilokpuri at the instance of accused Karan. Further, as per PW-13,
accused Kamal was interrogated and arrested vide arrest memo
Ex. PW-13/D, bearing PW-13’s signature at point A. Further,
Kamal’s personal search was conducted vide memo Ex. PW-13/E,
bearing PW-13’s signature at point A and Kamal’s disclosure
statement is Ex. PW-13/F, bearing PW-13’s signature at point A.
PW-13 also correctly identified accused Kamal before the Court.
PW-13 also identified the Micromax mobile phone of red and
black colour, as recovered from the possession of accused Karan,
as Ex. Р-1. Further, PW-13 also identified one yellow colour
envelope, recovered from the box of the car, as Ex. P-2. Further,
PW-13 also identified the keys of car, as seized in his/PW-13’s
presence, as Ex. P-3.
8.15. PW-14/S.B. Dabas deposed that on 13.03.2014,
he/PW-14 was going from his residence to his office at Kashmere
Gate via ITO bypass at about 10:30 a.m., and noticed that two
vehicles were stationed in accidental condition as well as two boys
aged between 20-21 years were weeping, while standing on the
road. PW-14 further deposed that on enquiry the said boys told him
that someone had robbed them. PW-14 further asserted that he
made a call on 100 number from his mobile phone number
9811219092 and thereafter, he/PW-14 went to his office. Later on,
as per PW-14, police recorded his statement.
8.16. PW-15/SI Parveen Badsara deposed that on
13.03.2014, he/PW-15 was posted as SI at PS Daryaganj and the
investigation of this case was assigned to him. Further, as per
PW-15, Ct. Anil handed over the original rukka and the copy of the
FIR to him/PW-15 and he along with Ct. Anil went to the spot i.e.
SC No. 27581/2016 State v. Karan & Anr. Page 25 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:51 +0530
bypass near Rajghat Depot. It was further deposed by PW-15 that
HC Virender, SI Jitender and Ct. Vineet met him/PW-15 there and
HC Virender handed over the custody of accused Karan and CCL
‘P’ as well as also produced the complainant Sonu and his cousin
brother. Further, as per PW-15, HC Virender apprised him of the
facts of the present case, besides the Maruti car bearing No.
DL-2CG-7621 of accused persons and another car no.
HR-60A-8888 make Honda City were found stationed there in
accidental condition. HC Virender is further asserted to have
produced one mobile phone of Micromax make of complainant,
which was recovered from accused Karan and the same was seized
by PW-15 vide seizure memo already Ex. PW2/B, bearing
PW-15’s signatures at point C. Further, as per PW-15, the
complainant Sonu produced the key of Maruti car and he/PW-15
seized the keys of Maruti car vide seizure memo Ex. PW13/B,
bearing PW-15’s signatures at point X. Thereafter, as per PW-15,
he took the search of Maruti 800 car and right front side glass
window was found to be broken. PW-15 further asserted that he
also checked the box under dash board and found one yellow
colour envelope. As per PW-15, after seeing the envelope,
complainant told him/PW-15 that the accused persons had put the
money in such type of envelope. Thereafter, as per PW-15, he
seized the envelope vide seizure memo Ex. PW2/C, bearing
PW-15’s signatures at point C. PW-15 further asserted that he
interrogated the accused persons and arrested accused Karan vide
arrest memo Ex. PW2/E, bearing PW-15’s signatures at point B
and I took his personal search vide memo Ex. PW-15/A, bearing
PW-15’s signatures at point A. It was further avowed that the
accused made his disclosure statement, which is Ex. PW13/C,
bearing PW-15’s signatures at point B. PW-15 further proved the
SC No. 27581/2016 State v. Karan & Anr. Page 26 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:55 +0530
arrest memo of CCL ‘P’ as Ex. PW-15/B, bearing PW-15’s
signatures at point A and his disclosure statement was proved as
Ex. PW-15/C bearing PW-15’s signatures at point B. PW-15
further deposed that he also prepared the site plan as Ex. PW-15/D,
bearing PW-15’s signatures at point A. PW-15 further proclaimed
that he recorded the supplementary statement of the complainant
and also recorded the statement of complainant’s cousin, besides
the statement of SI Jitender, Ct. Vineet and Ct. Anil. PW-15
further declared that he seized the Maruti car vide seizure memo
Ex. PW2/D, bearing PW-15’s signatures at point C. Further, as per
PW-15, he also recorded the statement of driver of Honda City car
namely Vishnu and thereafter, they returned to the police station
and the case property was deposited with MHC(M). Subsequently,
as per PW-15, he along with accused Pawan, CCL ‘P’, HC
Virender and Ct. Anil left to the police station in search of the third
associate of the accused persons and the accused persons are
asserted to have taken them to the house and work place of their
associates. PW-15 correctly identified accused Kamal in Court,
asserted to be arrested vide arrest memo Ex. PW-13/D, bearing
PW-15’s signatures at point C and his personal search was taken
vide memo Ex. PW13/E, bearing PW-15’s signatures at point X.
PW-15 further deposed that the accused Kamal made his
disclosure statement Ex. PW13/F, bearing PW-15’s signatures at
point B. Further, as per PW-15, he also recorded the statement of
HC Virender. PW-15 also proclaimed that on the following day, all
the accused persons were produced before concerned Magistrate
and the police custody remand in respect of accused Kamal was
taken. Further, as per PW-15, during police custody remand,
efforts were made to trace the knife and money, however, nothing
could be recovered. Thereafter, on the following day, PW-15
SC No. 27581/2016 State v. Karan & Anr. Page 27 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:38:58 +0530
asserted that he got the mechanical inspection of Maruti car
conducted. Further, as per PW-15, accused Kamal was produced
before Ld. MM and he was remanded to judicial custody and
thereafter, PW-15 moved an application for TIP, however, accused
Kamal refused to take part in TIP proceedings. PW-15 further
deposed that he also collected the proof of ownership of Maruti car
from transport authority and as per details received from RTO, it
was determined that the said car was registered in the name of Raj
Kumar, however, the name of registered owner was Raj Kumari as
well as that her son namely Pramod had sold the said car to accused
Kamal. PW-15 further asserted that he recorded the statement of
Pramod as well as he/PW-15 telephonically contacted Mr. S.B.
Dass, who had made 100 number call. Further, as per PW-15, he
also collected the CDR of the mobile phone of the complainant and
got recorded, statements of the witnesses. Thereafter, as per
PW-15, on completion of investigation, he/PW-15 prepared the
chargesheet and filed the same in the Court.
8.17. PW-16/HC Anil Kumar deposed that on 13.03.2014,
he/PW-16 was posted as HC at PS Daryaganj and was working as
MHC(M). On that day, as per PW-16, SI Praveen had deposited
with him, two sealed parcels; one key ring with keys and one
Maruti Car No. DL-2CG-7621. Further, as per PW-16, he
deposited the same in the malkhana vide entry No. 1779 in register
No. 19. PW-16 further produced the original entry, copy of which
is Ex.PW16/A.
8.18. Notably, all the aforenoted prosecution witnesses
were thoroughly examined by/on behalf of the accused persons by
their Ld. Counsel.
EXAMINATION OF ACCUSED PERSONS:
SC No. 27581/2016 State v. Karan & Anr. Page 28 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:03 +0530
9. Apposite to note here that upon conclusion of
prosecution evidence, statement of accused persons in terms of the
provisions under Section 313 Cr.P.C. was recorded, wherein the
accused persons denied their involvement in the present case and
proclaimed that they have been falsely implicated in the present
proceedings/case. Notably, accused, Karan denied the recovery of
robbed mobile phone from his possession, besides it was asserted
by the said accused that he was falsely implicated in the present
case upon the occurrence of an accident on the said date and upon
the person involved in the said accident quarrelling with them in
relation thereto. Further, accused, Karan, while denying his
involvement in the present case, asserted that he could not specify
the reason of his false implication by the concerned police officials
in the instant case. Notably, the relevant extracts from accused,
Karan’s statement, recorded under Section 313 Cr.P.C., are
reproduced as under;
“…Q. 12: It is in evidence against you that
PW-2/Sonu upon being cross examined by Ld. Addl.
PP for the State asserted that point A of Ex. PW2/B
bore his signature. It is further in evidence that as per
PW-2, his mobile phone was recovered from accused
Karan, when he apprehended. PW-2 further asserted
that his said mobile phone was sealed by the police
officials and that at that time, Ex. PW2/B was made by
the police and he/PW-2 signed the same at point A.
What do you have to say?
Answer: It is incorrect.
*** *** ***
Q. 79: Why was this case registered against you?
Answer: In the month of March, 2014, I was going
to meet my cousin brother, namely, Kapil, who was
residing at Samaipur Badli. Since, I did not know the
route so I made a call to my friend, namely, Pappu and
requested him to arrange a car for me because my
friend Pappu is a driver by profession. Pappu came
along with a car at Geeta Colony and we left for
Samaipur Badli. We were going through Rajgarh
Flyover and suddenly, our car had met with an
accident. At that time, two persons were crossing the
SC No. 27581/2016 State v. Karan & Anr. Page 29 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:07 +0530
road and kyuki hamara accident hua tha to unke gaadi
lagte hue bachi and due to this reason those persons
started quarreling and abusing us. We tried to keep our
car at side of the road. In the meanwhile, some police
officials came there and took us to the PS. We were
under impression that police officials had taken us to
PS in regard of our accident. I do not know anything
about the present FIR.
Q. 80: Why have the PWs deposed against you?
Answer: I do not know.
Q. 81: Do you want to lead any evidence in your
defence?
Answer: Yes.
Q. 82: Do you want to say anything else?
Answer: I am innocent and I have been falsely
implicated in the present case…”
…”
(Emphasis supplied)
9.1. In so far as accused, Kamal is concerned, as
aforenoted, the said accused also denied his involvement in the
present case as well as affirmed about his false implication.
Relevant extract of accused, accused, Kamal’s @ Sonu’s
statement under Section 313 Cr.P.C. is reproduced as under;
“…Q. 53: It is in evidence against you that
PW-11/Ms. Ambika Singh, Metropolitan Magistrate,
Central, THC has further deposed that on 02.04.2014,
the accused Kamal was produced from JC in muffled
face and identified by the IO. It is further in evidence
that as per PW-11, accused was asked if he wished to
participate in the TIP proceedings, but the accused
Kamal refused to participate in the TIP proceedings
stating that he had already been shown to the witness.
PW-11 further deposed that accused Kamal was
warned that his refusal to participate in the TIP
proceedings would draw adverse inference against
him during the trial, but the accused persisted in his
refusal. TIP proceeding is Ex. PW11/B, Statement of
accused Kamal is Ex. PW11/C which bears the
signature of accused Kamal at point A. It is further in
evidence that as per PW-11, she/PW-11 appended her
signature at point X and X-1. What do you have to
say?
Answer: It is incorrect.
*** *** *** SC No. 27581/2016 State v. Karan & Anr. Page 30 of 77 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.05 16:39:15 +0530
Q. 65: It is in evidence against you that PW-13/HC
Virender further deposed that in pursuance of
disclosure statement of accused Karan, they went to
the area of Trilok Puri in search of his associate
Kamal. PW-13 further deposed that accused Kamal,
present in the Court (correctly identified), was
apprehended from Indira Market, Trilokpuri at the
instance of accused Karan. He was interrogated and
was arrested vide arrest memo Ex. PW13/D, bearing
his/PW-13’s signature at point A. His/said accused’s
personal search was taken vide memo Ex. PW13/E,
bearing his/PW-13’s signature at point A. PW-13
further deposed that accused Kamal made disclosure
statement Ex. PW13/F, bearing his/PW-13’s signature
at point A. What do you have to say?
Answer: It is incorrect.
*** *** ***
Q. 79: Why was this case registered against you?
Answer: I do not know anything about the incident
in question as I was not present at the spot at the time
of incident. I have been falsely implicated in the
present case.
Q. 80: Why have the PWs deposed against you?
Answer: I do not know.
Q. 81: Do you want to lead any evidence in your
defence?
Answer: Yes.
Q. 82: Do you want to say anything else?
Answer: I am innocent and I have been falsely
implicated in the present case…”
(Emphasis supplied)
10. As aforenoted, both the accused persons, in their
respective statements recorded under Section 313 Cr.P.C.
proposed to lead evidence in their support. However, during the
course of proceedings held on 06.09.2024, it was proclaimed
by/on behalf of accused, Kamal that he would not lead any defence
evidence and that the matter may be listed for arguments, leading
to the closure of defence evidence qua the said accused.
Correspondingly, during the course of present proceeding, it was
brought to the attention of this Court that accused, Kamal @ Sonu,
since left for heavenly abode on 15.07.2024. Consequently, upon
SC No. 27581/2016 State v. Karan & Anr. Page 31 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.03.05
16:39:19
+0530
verification report in this regard, having been filed/received from
concerned IO, proceedings qua accused, namely, Kamal @ Sonu
were abated vide order dated 26.09.2024.
CONTENTIONS OF STATE:
11. Learned Addl. PP for the State outrightly submitted
that from the material placed on record and, in particular, from the
testimonies of PW-2 and PW-4, the role, complicity as well as
active involvement of the accused persons in the commission of
the offences alleged against them stands proved. As per the Ld.
Addl. PP for the State, the complainant/PW-2, in his testimony,
has specifically deposed about the commission of incident by the
accused persons, while acting in concert with CCL ‘P’ that on
13.03.2014, when the complainant and his brother were proceeded
to Anand Vihar, they were induced to board the aforenoted Maruti
car, whereupon from the possession of the complainant, his mobile
phone as well as money were robbed. Further, as per Ld. Addl. PP
for the State, the complainant and his brother before this Court. It
was further submitted that as per the complainant and his brother,
PW-4, accused persons, namely, Karan and CCL ‘P’ were
apprehended at the spot and subsequently, accused Kamal was
apprehended at the instance of the said accused. Correspondingly,
Ld. Addl. PP for the State submitted that accused, Kamal,
deliberately opted not to participate in the TIP proceedings despite
being warned, necessitating raising of adverse inference against
the said accused. Ld. Addl. PP for the State further submitted that
the apprehension of the accused persons is duly corroborated
under the testimonies of various police officials/formal witnesses,
who were a part of the raiding team. Ld. Addl. PP for the State,
while further referring to the testimony of PW-2/Sonu, fervently
professed that the driving the vehicle in question/Maruti car by
SC No. 27581/2016 State v. Karan & Anr. Page 32 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:22 +0530
CCL ‘P’ of accused Kamal sitting next to him, besides of Kamal’s
fleeing from the said car with the complainant’s and his brother’s
money, at the time of incident stands duly proved from the
testimony of the said witness/PW-2. It was further contended by
the Ld. Addl. PP for the State that despite an extensive and though
cross examination of the said witnesses/prosecution witnesses, the
defence has not been able to rebut the sterling testimonies of the
prosecution witnesses, clearly, indicating towards the only
inference of guilt of the accused persons. Further, as per the Ld.
Addl. PP for the State, the accused persons, despite being afforded
an opportunity to lead evidence, deliberately opted not to belie the
case of prosecution. Accordingly, Ld. Addl. PP for the State
reiterated that from the material, evidence and documents, placed
on record the charges levelled against the accused persons stand
duly proved, making them liable for the offences/charges levelled
against them.
CONTENTIONS OF DEFENCE:
12.1. Per contra, Learned Counsel for the accused, Karan,
outrightly submitted that from the material placed on record, the
ingredients of offence under Section 392/397/411 IPC are not
made out in the instant case. In this regard, Ld. Counsel
vehemently asserted that there are material improvements,
contradictions and variations in the statements of various
prosecution witnesses, belying their allegations against the
accused persons. Ld. Counsel further submitted that there is no
MLC of the complainant and no recovery of the so called robbed
amount or knife allegedly used by accused Kamal at the time of
incident was effected by the prosecution in the instant case. In fact,
as per the Ld. Counsel, during the course of investigation in the
present case, the concerned police officials noted that there were
SC No. 27581/2016 State v. Karan & Anr. Page 33 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:26 +0530
no injuries upon the complainant, leading to the filing of
chargesheet under Sections 392/397/411/34 IPC. Further, even the
alleged apprehension of the accused, namely, Karan and CCL ‘P’
at the spot, as per the Ld. Counsel, is not without a pale of doubt in
the instant case. In this regard, Ld. Counsel further vehemently
contended that the testimonies of the complainant and his brother
are replete with contradictions and unreliable, entitling the accused
to benefit of doubt. Ld. Counsel further submitted that the
depositions of PW-2 and PW-4 are uninspiring and do not appeal
to the senses of reasonable man, in particular, the factum of said
witnesses, continuing to stay in the Maruti car even after the
alleged incident, besides there is discrepancy on the factum of
complainant’s breaking the glass of the said car. Accordingly, Ld.
Counsel reiterated that in view of the contradictions in various
prosecution witnesses in respect of the alleged incident; arrest and
apprehension of the accused persons; and the so called recovery,
possibility of accused being falsely implicated in the present case
cannot be ruled out. Lastly, it was submitted by the Ld. Counsel
that the investigation in the present case has not been properly
conducted as neither any endeavour made to join independent
witnesses in recovery process, nor any attempts made to retrieve
CCTV footage of the vicinity of the alleged place of occurrence.
12.2. Learned Counsel for the accused further vehemently
asserted that there are several contradictions in so far as the initial
record/DD No. 11A records the particulars of alleged robbed
amount as Rs. 4,500/- (Rupees Four Thousand Five Hundred
only), while as per the prosecution story, the alleged robbed
amount was Rs. 5,350/- (Rupees Five Thousand Three Hundred
and Fifty only). It was further submitted that while, PW-2 in
examination-in-chief asserted that accused, Karan enquired from
SC No. 27581/2016 State v. Karan & Anr. Page 34 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:29 +0530
them as to where they were proceeded, however, as per the
prosecution story, such enquiry was made by accused Kamal.
Further, as per PW-2, it was accused Karan, who asked the
complainant/victim to keep their amount in an envelope, in
contradistinction to the story of the prosecution, asserting that such
request was made by accused, Kamal. Ld. Counsel further
vehemently contended that there is contradiction in the Maruti car
being pushed by accused, Karan, as deposed by PW-2, while the
prosecution story declared that the accused Karan and CCL ‘P’
were attempting to flee from the spot in the said car. It was further
iterated that there is variance in the factum of apprehension of the
accused person from spot by public persons or by the police
officials, as variedly contended by the victim/complainant, at
different stages of trial. Correspondingly, it was asserted that
while, PW-2 declared that he was beaten up and had obtain
medical assistance, however, no such MLC or medical report has
been placed on record by the prosecution. It was further submitted
that PW-3 and PW-4 have not supported the case of the
prosecution, besides the police officials have not recovered the
alleged looted amount as well as the weapon, allegedly used in the
offence, belying the story put forth against the accused persons.
Accordingly, in view of the foregoing submissions, Ld. Counsel
submitted that the accused be permitted to benefit of doubt and be
acquitted of the charges levelled against him.
APPEARANCE:
13. The arguments of Ld. Addl. PP for the State and that
of Ld. Counsel for the accused, namely, Karan have been heard as
well as the record(s), including the testimonies of various
witnesses, document(s)/material/evidence placed on record (oralSC No. 27581/2016 State v. Karan & Anr. Page 35 of 77
Digitally signed
by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.03.05
16:39:33
+0530
and documentary evidence) as well as the written arguments filed
on behalf of the accused namely, Karan, thoroughly perused.
LEGAL PROVISIONS:
14. Before proceeding with the determination of the rival
contentions of the parties, this Court deems it prudent to reproduce
the relevant provisions under law/IPC 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
other, and thereby dishonestly induces the person so
put in fear to deliver to any person any property or
SC No. 27581/2016 State v. Karan & Anr. Page 36 of 77
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:36 +0530
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.
*** *** ***
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.
*** *** ***
397. Robbery, or dacoity, with attempt to cause
death or grievous hurt-If, at the time of commuting
robbery or dacoity, the offender uses any deadly
weapon, or causes grievous hurt to any person, or
attempts to cause death or grievous hurt to any person,
the imprisonment with which such offender shall be
punished shall not be less than seven years.
*** *** ***
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)
SC No. 27581/2016 State v. Karan & Anr. Page 37 of 77
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:39:41 +0530
15. Notably, from a perusal of the aforesaid, it is
outrightly observed that the provisions under Section 34 IPC
recognize the principle of vicarious liability3 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 law4 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 evidently5, 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)3
Suresh v. State of U.P., (2001) 3 SCC 673.
4
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
5
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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“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
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.
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Common intention is a psychological fact and it can
be formed a minute before the actual happening of the
incidence or as stated earlier even during the
occurrence of the incidence.”
(Emphasis supplied)
16. 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 intention6. 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 an6
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)
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intention has been shared by all the accused. Such a
common intention should be anterior in point of time
to the 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)
17. 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 the
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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)
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18. Conspicuously, in order to convict a person under
Section 392 IPC, ingredients of Section 390 IPC 7 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.
Correspondingly, the Hon’ble Supreme Court in Dilawar Singh v.
State of Delhi, MANU/SC/3678/2007, enunciating the ingredients
of offence under Section 397 IPC, noted as under;
“22. The essential ingredients of Section 397 IPC
are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i)
accused used deadly weapon (ii) to cause grievous
hurt to any person (iii) attempted to cause death or
grievous hurt to any person.
3. “Offender” refers to only culprit who
actually used deadly weapon. When only one has
used the deadly weapon, others cannot be awarded
the minimum punishment. It only envisages the
individual liability and not any constructive
liability. Section 397 IPC is attracted only against
the particular accused who uses the deadly weapon
or does any of the acts mentioned in the provision.
But other accused are not vicariously liable under
that Section for acts of co-accused…”
(Emphasis supplied)
19. Markedly, in the aforesaid dictate, the Hon’ble Apex
Court in unambiguous terms observed that Section 397 IPC can be
attracted only against a particular accused/individual, who uses the
deadly weapon or does any of the acts mentioned in the said
provision. As a corollary, no culpability can be attracted against
other accused/co-accused persons, vicariously, under the said
provision. Reference in this regard is further made to the decision
7
Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
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in Phool Kumar v. Delhi Administration, MANU/SC/0210/1975 ,
wherein the Hon’ble Apex Court iterated similar sentimentalities
in the following terms;
“5. The sentence of imprisonment to be awarded
under Section 392 cannot be less than 7 years if at the
time of committing robbery the offender uses any
deadly weapon or causes grievous hurt to any person
or attempts to cause death or grievous hurt to any
person : vide Section 397. A difficulty arose in several
High Courts as to the meaning of the word “uses” in
Section 397. The term ‘offender’ in that section, as
rightly held by several High Courts, is confined to the
offender who uses any deadly weapon. The use of a
deadly weapon by one offender at the time of
committing robbery cannot attract Section 397 for the
imposition of the minimum punishment no another
offender who had not used any deadly weapon. In that
view of the matter use of the gun by one of the culprits
whether he was accused Ram Kumar or some body
else, (surely one was there who had fired three shots)
could not be and has not been the basis of sentencing
the appellant with the aid of Section 397. So far as he
is concerned he is said to be armed with a knife which
is also a deadly weapon. To be more precise from the
evidence of P.W. 16 “Phool Kumar had a knife in his
hand”. He was therefore carrying a deadly weapon
open to the view of the victims sufficient to-frighten
or terrorize them. Any other overt act, such as,
brandishing of the knife or causing of grievous hurt
with it was not necessary to bring the offender within
the ambit of Section 397 of the Penal Code.”
(Emphasis supplied)
20. Germane for the purpose(s) of the present discourse
to make a reference to the decision in Ashfaq v. State (Govt. of
NCT of Delhi), (2004) 3 SCC 116, wherein the Hon’ble Supreme
Court explicitly noted that mere brandishing of weapon/deadly
weapon is enough to attract culpability under Section 397 IPC and
that it is not required that such an accused, actually used such a
weapon for cutting, stabbing, shooting, as the case may be.
Pertinently, the relevant extract from the said dictate is as under;
“8. Thus, what is essential to satisfy the word
“uses” for the purposes of Section 397 IPC is the
robbery being committed by an offender who was
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armed with a deadly weapon which was within the
vision of the victim so as to be capable of creating a
terror in the mind of the victim and not that it should
be further shown to have been actually used for
cutting, stabbing, shooting, as the case may be.”
(Emphasis supplied)
21. Congruently, the Hon’ble High Court of Delhi in
Murlidhar v. State, 2018 SCC Online Del. 9401 , while cogitating
the ingredients of offence under Section 397 IPC inter alia noted
that recovery of the weapon is not a necessary ingredient for a
conviction under Section 397 IPC. In this regard, the Hon’ble
Court, remarked as under;
“27. This court is of the opinion that the decision
of the Supreme Court in Ashfaq is clear and
categorical that recovery of the weapon is not a
necessary ingredient for a conviction under Section
397 IPC. The ‘Use’ of the same to threaten is
sufficient. The Accused in the present case clearly
USED the knife. The same was within the vision of
both the victims as per their testimony. They were
terrorised and threatened due to the use of the same.
They were made to part with valuables, some of which
were even recovered from the house of the accused.
This Court is inclined to follow the binding precedents
of the Supreme Court in Phool Kumar and Ashfaq, as
also followed by Ld. Single Judges of this Court in
Seetal and Imran to hold that recovery of the weapon
is not needed for a conviction under Section 397 IPC.”
(Emphasis supplied)
22. Here, this Court deems it further apposite to refer to
the decision in Asif v. State (NCT of Delhi), 2022 SCC OnLine
Del 270, wherein the Hon’ble High Court observed in respect of
the foregoing, as under;
“9. It is trite law that even if the weapon of offence
is shown after snatching had taken place for running
away along with snatched article, offence under
Section 397 IPC is attracted. Section 390 Cr.P.C.
provides that in a robbery, there is either theft or
extortion. It is further provided that theft is ‘robbery’
if, in order to committing of the theft or in committing
the theft, or in carrying away or attempting to carry
away property obtained by theft, the offender, for thatSC No. 27581/2016 State v. Karan & Anr. Page 45 of 77
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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. Thus, if the offender uses the deadly weapon
at the time of committing robbery or dacoity which
would include even the fear of instant death or instant
hurt or wrongful restrain or an attempt to cause death
or hurt or wrongful restraint even while carrying away
or attempting to carry away the property obtained by
theft, the act of the offender will fall within the four
corners of Section 397 IPC. Thus the contention of
learned counsel for the appellant that Section 397 IPC
is not made out as the blade was allegedly shown after
the mobile phone was robbed, deserves to be rejected.
The decisions relied upon by the learned counsel for
the appellant did not consider the necessary
ingredients of an offence of robbery which in turn is a
necessary ingredient of an offence punishable under
Section 397 IPC.”
(Emphasis supplied)
23. Quite lucidly, it is observed from above that the
Hon’ble Court explicitly remarked that even if a dangerous
weapon is deployed/brandished/shown by an accused to a victim,
after the incident of snatching had taken place, for running away
along with snatched article, offence under Section 397 IPC would
be attracted. However, in order for such weapon to fall within the
ambit/meaning of dangerous weapon, as specified under Section
392 IPC, prosecution is required to produce convincing evidence
that such knife, deployed/used by an accused was, in fact, ‘deadly
weapon’. Apposite to further note at this stage that the law is
settled8, “depending upon various factors like size, sharpness,
would throw light on the question whether the weapon was a
dangerous or deadly weapon or not.” However, the superior
courts9 have repeatedly avowed that all kinds of knives cannot be
graded as ‘deadly weapon’ within the meaning of Section 397 IPC.
In fact, it is the length, shape and the manner of use which makes a
8
Mathai v. State of Kerala, (2005) 3 SCC 260.
9
Sonu v. The State (Govt of NCT of Delhi), MANU/DE/5649/2012.
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knife ‘deadly weapon’. Reference in this regard is made to the
decision of the Hon’ble High Court in Guddu v. State,
MANU/DE/1118/2019, wherein the Hon’ble Court in respect of
the foregoing, noted as under;
“11. In Rajender Yadav Vs. The State (NCT of
Delhi) MANU/DE/2667/2013: 2013 VII AD (Delhi)
359, this Court has held that where the prosecution
case itself is that only vegetable knife was found in the
possession of the accused, the knife cannot be
considered a ‘deadly weapon’ to award the sentence of
seven years which is a minimum sentence to be given
with the aid of Section 397 IPC”. In Jagdish and etc.
Vs. The State MANU/DE/0546/1985: 1985 Crl. L.J.
1621, this Court has held thus:
“Para 9. “A deadly weapon is a thing designed
to cause death, for instance, a gun, a bomb, a rifle,
a sword or even a knife. A thing not so designed
may also be used as a weapon to cause bodily
injury and even death. It will be a question of fact
in each case whether the particular weapon which
may even be a knife can be said to be a deadly
weapon. In the instant case, there is evidence to the
effect that the knives which the accused were
having were small in size. They were ordinary
vegetable cutting knives. This renders the
possibility of those knives being deadly weapons
highly doubtful and as such the appellants shall be
entitled to benefit thereof. Consequently it would
be unfair to impose the minimum sentence
contemplated in Section 397 on the appellants
merely because they used those knives in the
commission of the crime…”
12. In Rakesh Kumar Vs. State of NCT of Delhi
2005 (1) JCC 334, a Single Judge of this Court has
held that there are knives of hundreds of type
available in different length and width. All the knives
cannot be graded as “deadly weapon” within the
meaning of Section 397 IPC. It is the length, shape
and the manner of use which makes a knife “deadly
weapon”. In Charan Singh Vs. State 1998 Crl. L.J.
NOC 28 (Delhi), it was held that in order to bring
home a charge under Section 397, the prosecution
must produce convincing evidence that the knife used
by the accused was ‘deadly weapon’.”
(Emphasis supplied)
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24. Pertinently, for culpability under Section 411 IPC to
arise, 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)
25. Correspondingly, reference is further made to the
decision in State of U.P. v. Nawab, MANU/UP/1516/2014,
wherein the Hon’ble Court noted that conviction under Section
392 and Section 411 IPC cannot be maintained simultaneously 10
10
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.”
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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)
26. 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
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)
APPRECIATION OF EVIDENCE:
27. Therefore, being wary of the aforenoted legal
principles, judicial dictates and the rival contentions of the Ld.
Addl. PP for the State as well as that of Ld. Counsel for the
accused, this Court would now proceed with the determination on(Emphasis supplied)
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merits of the instant case. In particular, and outrightly to the effect
as to, ‘whether from the material placed on record, culpability
under Section 392/34 IPC can be attracted against the accused
namely, Karan?’ Conspicuously, in order to deal with the said
aspect, this Court deems it apt to incipiently reiterate that the
complainant, PW-2/Sonu explicated the manner of commission of
offence as well as duly identified both the accused persons in his
deposition before this Court. As aforenoted, PW-2 unambiguously
declared that on 13.03.2014, when he/PW-2 along with his brother
PW-4 were present at Loha Mandi, near Inderpuri, accused Kamal
approached them and inquired as to where they were headed.
Subsequently, as per PW-2, one car reached the spot in which,
accused Karan was present, who enquired from them as to where
they were headed. Upon this, accused Kamal replied that all three
of them were going to Anand Vihar and in response, accused
Karan told them that he was also going to Anand Vihar and that he
could drop them. Further, as per PW-2, accused Kamal told
accused Karan they would pay fare of Rs. 15/- (Rupees Fifteen
only) and after that, they all boarded the car for Anand Vihar. On
the way, PW-2 proclaimed that accused Kamal told them that he
was an Army-man as well as, accused Karan told them that he was
a government employee and that he used to deposit the money in
post office. Correspondingly, it was asserted that accused Karan
further told them that in case police officials asked them where
they were going, they had to reply that they were going to post
office. Simultaneously, accused Kamal is proclaimed to have
asked them to keep their money in a yellow colour envelope.
Consequently, on asking of accused, Kamal, the
complainant/PW-2 and his cousin brother, namely, Sonu kept their
money in an envelope and after that, as per PW-2, accused Kamal
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ABHISHEK GOYAL
GOYAL Date:
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clandestinely exchanged the envelope of money kept by them and
another envelope kept in the drum carried by him/PW-2.
Thereupon, the complainant asked the accused Kamal to let
him/PW-2 count the money and when he/PW-2 put his hand in
drum to take out the money from the envelope, accused Kamal is
avowed to have caught PW-2’s hand and he/accused Kamal started
beating PW-2 for half an hour. At that time, PW-2 asserted that the
associate of accused persons was diving the car and at that point in
time, PW-2 tried to make a call by his phone to the police,
however, accused, Karan snatched his/PW-2’s mobile phone. It
was further deposed by PW-2 that the driver of the car stopped the
said car in a lonely place and accused Kamal tried to take them out
from the car, however, the complainant and his brother did not
oblige/did not get down from the car. Concomitantly, PW-2
asserted that accused Kamal took out the knife and proclaimed that
in case they did not come out from the car, then, he would cause
injury to them. After that accused Kamal is declared to have fled
with the envelope, where PW-2’s money was kept, on the asking
the accused. After that, PW-2 is stated to have made a request to
the driver of the said car to drop them to some distance and the said
driver started the car and covered some distance. Thereafter, as per
PW-2, the driver of the car stopped the same on PW-2’s asking and
accused Karan threw their luggage, whereupon PW-2 and his
brother got down from the car. After that driver of the said car is
asserted to have started the car and when the car was moving,
PW-2 proclaimed that he chased the said car and broke the glass of
driver side and removed the key, leading to the car getting stopped.
Subsequently, PW-2 asserted that he started running and accused
Karan as well as the driver of the said car, chased him. Thereafter,
the said car is asserted to have met with an accident/collided with
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GOYAL
GOYAL Date: 2025.03.05
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another car, whereupon both the accused persons fled form the
spot, however, were apprehended lateron by public persons.
Further, as aforenoted, PW-2 also proclaimed that police officials
reached at the spot and took the statement of PW-2. Markedly,
upon being cross examined by Ld. Addl. PP for the State, PW-2
proclaimed as under;
“XXXXXX by Ld. Addl. PP for State.
It is correct that at point A on Ex.PW2/B is my
signatures. It is correct that my mobile phone was
recovered from the accused Karan when he
apprehended. It is correct that the said mobile phone
was sealed by the police officials. It is correct that at
that time Ex.PW2/B was made by the police and I
signed at point A. It is correct that one yellow colour
envelope was also recovered from the car. It is correct
that yellow colour envelope was kept in a plastic
container and it was sealed by the police and the same
was taken into possession vide Ex.PW2/C which
bears my signature at point A.
It is correct that police also seized the car but I do
not remember the registration of number of said car. It
is correct that on point A on Ex.PW2/D is my
signature. It is correct that Ex PW2/D was made by the
police at the time of seizure of the said car. It correct
that the person who was driving the car, his name was
revealed as Pappu and he abated the accused persons
namely Karan and Kamal to beat and throw us from
the car.
It is correct that I pointed the place to the police It
is correct that accused Karan was arrested vide arrest
memo Ex PW2/E which bears my signature al point
A. It is correct that driver of the car namely Pappu was
also arrested by the police. It is correct that I could not
recollect all the fact of the case due in lapse of the
time…”
(Emphasis supplied)
28. Significantly, in his cross examination at the behest
of State, PW-2 inter alia affirmed that his mobile phone was
recovered from the possession of accused Karan, when he was
apprehended and that the said mobile phone was seized vide
seizure memo Ex. PW2/B, bearing PW-2’s signatures at point A.
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Correspondingly, PW-2 expressed his inability to recollect the
entire factual scenario in the instant case, due to lapse of time.
Noticeably, in the cross examination of PW-2 by/at the behest of
the accused persons, nothing material is forthcoming so as to belie
the case put forth by the complainant/PW-2. On the contrary, even
during his cross examination conducted on 12.11.2014, PW-2
specifically affirmed that when he reached at bus stop, Loha
Mandi at around 09:05/09.10 a.m., he met with accused Kamal and
that in the meanwhile, accused Karan also reached there with the
car with its driver, whereupon they all boarded the car at the bus
stop Loha mandi. At the same time, PW-2 asserted that at the time
of incident, he was carrying a drum of 50 lts. wherein he/PW-2 had
kept a sum of Rs. 5,350/- (Rupees Five Thousand Three Hundred
and Fifty only), out of which Rs. 4,000/- (Rupees Four Thousand
only) belonged to his/PW-2’s cousin/PW-4/Sonu, eatable items,
one mobile phone make Micromax of black colour and one bag
where he/PW-2 had kept his clothes. PW-2 further proclaimed in
his cross examination that he had kept 10 (ten) currency notes of
Rs. 500/- (Rupees Five Hundred only) denomination; 3 (three)
currency notes of Rs. 100/- (Rupees One Hundred only)
denomination; and one currency note of Rs. 50/- (Rupees Fifty
only) in the drum. Concurrently, on 01.12.2014, in his said cross
examination, PW-2 explicated the particulars of the knife in
question, inter alia by iterating as under;
“…I cannot tell the length of the knife. Probably,
the length of knife was 8 to 12 inch. I cannot tell the
further description of the knife. Perhaps the knife
which was shown to me was vegetable knife. I did not
see whether the handle of the knife shown to me was
made of either any metal or wooden. It is correct that
during the incident my mobile phone was on and with
me. (vol. when I was trying to make call by my mobile
phone, the person sitting next to the driver snatched
my mobile phone). I do not remember on the which
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ABHISHEK GOYAL
GOYAL Date:
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side Honda city car hit the white color Maruti car. It is
correct that at the time of the said accident I was not
sitting in the said white color Maruti var. 8/9 public
persons apprehended the accused who fled away in
the brushes and police official did not apprehend the
person who fled away towards brushes. Police official
reached at the spot within 5-6 minutes again said
within 10 minutes. I was standing at the spot with the
police when the 8/9 persons went away to apprehend
the accused who fled away towards brushes. (Vol.
Police was busy to make inquiry regarding the
accident between Honda and White Color Maruti
Car).
*** *** ***
There was only one envelop in the car. It is correct
that the envelop shown to me by the police was empty.
My mobile phone and its battery was make of
Micromax. After the incident I had seen my mobile
phone in the possession of the accused Karan but I can
not tell at this moment whether it was kept in the
pocket of pant or shirt. At the time of the recovery my
mobile phone was found with battery and its cover. I
do not remember the description of the seal put on the
pullanda of my mobile phone. I can not say whether
the seal on the pullanda of my mobile phone was put
in my presence or not. The SIM card used by me was
in the name of my father.
It is wrong to suggest that no knife was used by the
accused in the said incident happened with me or that
I was going in the car of the Vishano Mehanto along
with my cousin brother on the day of the incident or
that I did not visit the Inderpuri Bus stand on the day
of the incident or that I along with my cousin brother
did not board in white color Maruti car with the
accused person or that I am deposing falsely…”
(Emphasis supplied)
29. Strikingly, it is seen from a conscientious perusal of
the cross examination of PW-2 that even upon being rigorously
questioned, PW-2 consistently affirmed that during the incident,
his/PW-2’s mobile phone was on him and that while, he/PW-2 was
trying to make a call using the said mobile phone, the person
sitting next to the driver, snatched the said phone. Needless to
mention, PW-2 earlier explicated that accused Karan had reached
at the spot with the driver of the car and that even subsequent to the
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GOYAL Date: 2025.03.05
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incident PW-2’s mobile phone was found in the possession of
accused, Karan. Here, this Court further deems it apposite to refer
to the testimony of PW-4, who also identified the accused persons,
namely, Karan and Kamal before this Court during his deposition,
besides PW-4 declared that Kamal met them at bus stand Loha
Mandi and that accused Karan was present in the white colour car
along with a driver thereof. PW-4 further asserted that accused
Kamal threatened to stab his/PW-4’s cousin, i.e.,
PW-2/complainant with a knife. Simultaneously, even as per
PW-4, accused Kamal got down from the car and fled from the
spot, while when the said vehicle met with an accident, Karan and
the driver of the said vehicle fled therefrom. Correspondingly,
PW-4 proclaimed that both the said accused persons were
apprehended later on and PW-4 also proclaimed that the total
robbed amount was Rs. 5,350/- (Rupees Five Thousand Three
Hundred and Fifty only), out of which Rs. 4,000/- (Rupees Four
Thousand only) belonged to him/PW-4 and the remaining amount
of Rs. 1,350/- (Rupees One Thousand Three Hundred and Fifty
only) was that of PW-2. Significantly, upon being cross examined
by Ld. Addl. PP for the State, PW-4 further asserted that when
his/PW-4’s cousin was trying to call police using his mobile
phone, same was snatched by the accused. Concurrently, upon
being cross examined by/at the behest of the accused persons,
PW-4 inter alia denied the suggestion that the driver and accused
Karan were not apprehended from the spot.
30. Conspicuously, as aforenoted, Ld. Counsel for the
accused, Karan, vehemently asserted that there are material
contradictions and improvements in the testimony of PW-2 from
his earlier complaint/statement given to the police officials and
that as per the Ld. Counsel, said discrepancies are sufficient to cast
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a dent in the version put forth by the said witness. However, the
said contentions of the Ld. Counsel, in the considered opinion of
this Court, fail on both counts. In this regard, this Court outrightly
notes that the ‘so called’ contradictions in the testimony of PW-2
as to who asked PW-2 and PW-4 to sit in the car or who asked
PW-2/PW-4 to handover the money to be kept in the envelope, i.e.,
whether it was accused Karan or Kamal or that pertaining to the
accused being outside or inside the car at the time of its alleged
accident are not material, as aforenoted, so as to belie the
otherwise consistent stand of the said witness pertaining to the
manner of commission of incident in question. Needless to
mention that PW-2 unequivocally remarked during the course of
his deposition that due to significant lapse of time since the
incident, he was not in a position to recollect the entire sequence of
events in, exactitude. Nonetheless, in order to unerringly
appreciate the contention, raised by the Ld. Counsel for the
accused, this Court deems it further pertinent to iterate and explore
the judicial precedents governing the law of contradictions in the
testimony of the witness, at this stage. 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
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the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court
before whom the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial
court and unless there are reasons weighty and
formidable it would not be proper to reject the
evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest
and truthful witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having examined
the evidence of this witness, a friend and well-wisher
of the family carefully giving due weight to the
comments made by the learned counsel for the
respondent and the reasons assigned to by the High
Court for rejecting his evidence simultaneously
keeping in view the appreciation of the evidence of
this witness by the trial court, we have no hesitation in
holding that the High Court was in error in rejecting
the testimony of witness Nair whose evidence appears
to us trustworthy and credible.”
(Emphasis supplied)
31. Analogously, 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)
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32. 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 law11, the discrepancies which do not shake the basic
version of the prosecution and those which emanate due to normal
errors of perception or observation should not be given importance
and must necessarily be discarded. The rationale behind the same
is quite obvious, as elucidated by the Hon’ble Supreme Court in
State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as
under;
“30. In all criminal cases, normal discrepancies
are bound to occur in the depositions of witnesses due
to normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
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.” [Ed.: As
observed in Bihari Nath Goswami v. Shiv Kumar
Singh, (2004) 9 SCC 186, p. 192, para 9.]
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 omissions11
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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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)
33. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete with
material improvements, contradictions and variation. In contrast,
law provides for due concession to marginal variations and normal
discrepancies in the statement/testimony of a witness, which are
bound to occur due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence.
34. Consequently, being cognizant of the foregoing
revered principles, when the testimonies of prosecution witnesses
in the instant case, in particular that of PW-2 and PW-4, are
conscientiously analyzed, this Court finds itself difficult to be
convinced with contention of Ld. Counsel for the accused that the
so called contradictions in the testimonies of the prosecution
witnesses, are sufficient enough to discredit the entire prosecution
case. Needless to reiterate PW-2 has consistently deposed about
the occurrence of incident in question by the accused persons,
while acting in concert/common intention with each other along
with CCL ‘P’, as well as of the factum of accused Karan
snatching/robbing him of his mobile phone, whilst he/PW-2 and
his cousin/PW-4 were put under fear of instant death, instant
hurt/injury or of wrongful restraint; factum of sum of Rs. 5,350/-
(Rupees Five Thousand Three Hundred and Fifty only), out of
which Rs. 4,000/- (Rupees Four Thousand only) belonged to
his/PW-2’s cousin, being snatched by accused Kamal by putting
the complainant and his cousin under fear of instant death, instant
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hurt/injury or of wrongful restraint, and fleeing post that with the
envelope containing the said amount; commission of accident in
question; and of accused Karan being apprehended on the spot
from the bushes as well as being found in possession of the robbed
mobile phone. Even otherwise, another striking feature in the
instant case is that nowhere under his deposition/cross
examination by/at the behest of the accused, PW-2 was ever
confronted with his earlier statement/complaint to demonstrate the
alleged improvements/variations in the version put forth by the
said witness earlier. Clearly, law is trite that in the absence of
compliance of the provisions under Section 161/162 Cr.P.C. read
with Section 145 of the Evidence Act, the so called contradictions
in the earlier statement of the complainant cannot be considered by
this Court at this stage. Apposite at this stage, to reproduce the
relevant provision under law/Sections 161/162 Cr.P.C., for the
purpose of present discourse, as under;
“161. Examination of witnesses by police-(1) Any
police officer making an investigation under this
Chapter, or any police officer not below such rank as
the State Government may, by general or special
order, prescribe in this behalf, acting on the requisition
of such officer, may examine orally any person
supposed to be acquainted with the facts and
circumstances of the case.
*** *** ***
(3) The police officer may reduce into writing any
statement made to him in the course of an examination
under this section; and if he does so, he shall make a
separate and true record of the statement of each such
person whose statement he records:…
162. Statements to police not to be signed:Use of
statements in evidence-(1) No statement made by any
person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to
writing, be signed by the person making it; nor shall
any such statement or any record thereof, whether in a
police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when
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such statement was made:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement
has been reduced into writing as aforesaid, any part of
his statement, if duly proved, may be used by the
accused, and with the permission of the Court, by the
prosecution, to contradict such witness in the manner
provided by Section 145 of the Indian Evidence Act,
1872 (1 of 1872); and when any part of such statement
is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only
of explaining any matter referred to in his cross-
examination…”
(Emphasis supplied)
35. Quite lucidly12, it is observed from a conjoint reading
of the aforesaid provisions that a statement recorded by the police
during the investigation is not admissible as evidence and the
proper recourse under such circumstances, is to confront the
witnesses with the contradictions when they are examined and,
subsequently, to ask the Investigating Officer regarding those
contradictions. Reference in this regard, is made to the decision of
the Hon’ble Supreme Court in V.K. Mishra v. State of
Uttarakhand, (2015) 9 SCC 588, wherein the Hon’ble Court, after
duly considering various provisions under law, in particular that
under Section 161/162 Cr.P.C. and Section 145 of the Evidence
Act, observed as under;
“16. Section 162 CrPC bars use of statement of
witnesses recorded by the police except for the limited
purpose of contradiction of such witnesses as
indicated there. The statement made by a witness
before the police under Section 161(1) CrPC can be
used only for the purpose of contradicting such
witness on what he has stated at the trial as laid down
in the proviso to Section 162(1) CrPC. The statements
under Section 161 CrPC recorded during the
investigation are not substantive pieces of evidence
but can be used primarily for the limited purpose: (i)
of contradicting such witness by an accused under
Section 145 of the Evidence Act; (ii) the contradiction
of such witness also by the prosecution but with the12
Pedda Narayana v. State of A.P., (1975) 4 SCC 153.
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leave of the Court; and (iii) the re-examination of the
witness if necessary.
17. The court cannot suo motu make use of
statements to police not proved and ask questions with
reference to them which are inconsistent with the
testimony of the witness in the court. The words in
Section 162 CrPC “if duly proved” clearly show that
the record of the statement of witnesses cannot be
admitted in evidence straightaway nor can be looked
into but they must be duly proved for the purpose of
contradiction by eliciting admission from the witness
during cross-examination and also during the cross-
examination of the investigating officer. The
statement before the investigating officer can be used
for contradiction but only after strict compliance with
Section 145 of the Evidence Act that is by drawing
attention to the parts intended for contradiction.
*** *** ***
19. Under Section 145 of the Evidence Act when it
is intended to contradict the witness by his previous
statement reduced into writing, the attention of such
witness must be called to those parts of it which are to
be used for the purpose of contradicting him, before
the writing can be used. While recording the
deposition of a witness, it becomes the duty of the trial
court to ensure that the part of the police statement
with which it is intended to contradict the witness is
brought to the notice of the witness in his cross-
examination. The attention of witness is drawn to that
part and this must reflect in his cross-examination by
reproducing it. If the witness admits the part intended
to contradict him, it stands proved and there is no need
to further proof of contradiction and it will be read
while appreciating the evidence. If he denies having
made that part of the statement, his attention must be
drawn to that statement and must be mentioned in the
deposition. By this process the contradiction is merely
brought on record, but it is yet to be proved.
Thereafter when investigating officer is examined in
the court, his attention should be drawn to the passage
marked for the purpose of contradiction, it will then be
proved in the deposition of the investigating officer
who again by referring to the police statement will
depose about the witness having made that statement.
The process again involves referring to the police
statement and culling out that part with which the
maker of the statement was intended to be
contradicted. If the witness was not confronted with
that part of the statement with which the defence
wanted to contradict him, then the court cannot suo
motu make use of statements to police not proved in
compliance with Section 145 of the Evidence Act that
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is, by drawing attention to the parts intended for
contradiction.”
(Emphasis supplied)
36. Ergo, it is palpable from above that in case a witness
is not confronted with that part of the statement with which, the
defence wanted to contradict him, then, even the Court cannot suo
motu make use of statements to police, not proved in compliance
with Section 145 of the Evidence Act. As a corollary, it is the duty
of the defence to prove all the major contradictions in the form of
material omissions, variance, etc., in accordance with the
procedure, as envisaged under Section 145 Evidence Act and place
them on record, without which such variance cannot be considered
by the Court/would not come to the aid and rescue of an accused.
Therefore, reverting to the facts of the present case, as aforenoted,
the so called contradictions in the testimony/deposition of PW-2
cannot be considered by this Court in the absence of confrontation
of the said witness with his earlier statement. Even otherwise, as
aforenoted, the so called improvements in the deposition of PW-2,
in the considered opinion of this Court, are not material so as to
belie the prosecution’s case. As aforenoted, both, PW-2 and PW-4
duly identified accused persons, Karan and Kamal as the
perpetrators of offence before this Court. Further, both, PW-2 and
PW-4 affirmed that they met with accused Kamal at the Loha
Mandi bus stop and that subsequently, they proceeded in the car,
where accused Karan was sitting next to the driver seat. Further,
PW-2 also explicated that he was put in fear, whilst being
threatened with a knife by accused Kamal, while accused Karan
snatched PW-2’s mobile phone from his possession. Further, both,
PW-2 and PW-4 affirmed that accused Kamal fled from the spot,
while the driver of the car as well as accused Karan were
apprehended from the spot. Undoubtedly, this Court is conscious
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GOYAL
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of the fact that there do appear to be certain embellishment in the
testimony of PW-2 so far as they pertain to the said accused
running behind the car/vehicle in question or of pulling out of keys
thereof. However, same also would not, in the considered opinion
of this Court, be sufficient to belie the case put forth against the
accused. Needless to mention that the law is settled13 that witnesses
tend to exaggerate the prosecution story and that the superior
courts have persistent avowed that under such circumstances, if the
exaggeration does not change the prosecution story or convert it
into an altogether new story, allowance can be made for it.
Reference in this regard is further made to the decision in Shakila
Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors.,
MANU/SC/0677/2003, wherein the Hon’ble Apex Court, while
iterating similar sentiments, noted as under;
“27. The doctrine is a dangerous one specially in
India for if a whole body of the testimony were to be
rejected, because witness was evidently speaking an
untruth in some aspect, it is to be feared that
administration of criminal justice would come to a
dead-stop. Witnesses just cannot help in giving
embroidery to a story, however, true in the main.
Therefore, it has to be appraised in each case as to
what extend the evidence is worthy of acceptance, and
merely because in some respects the Court considers
the same to be insufficient for placing reliance on the
testimony of a witnesses, it does not necessarily
follow as a matter of law that it must be disregarded in
all respects as well. The evidence has to be shifted
with care. The aforesaid dictum is not a sound rule for
the reason that one hardly comes across a witness
whose evidence does not contain a grain of untruth or
at any rate exaggeration, embroideries or
embellishment. (See Sohrab s/o Beli Nayata and Anr.
v. The state of Madhya Pradesh,
MANU/SC/0254/1972: 1972CriLJ1302 and Ugar
Ahir and Ors. v. The State of Bihar,
MANU/SC/0333/1964: AIR1965SC277. An attempt
has to be made to, as noted above, in terms of
felicitous metaphor, separate grain from the chaff,13
Sheesh Ram & Ors. v. State of Rajasthan, MANU/SC/0063/2014.
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truth from falsehood. Where it is not feasible to
separate truth from falsehood, because grain and chaff
are inextricably mixed up, and in the process of
separation an absolutely new case has to be
reconstructed by divorcing essential details presented
by the prosecution completely from the context and
the background against which they are made, the only
available course to be made is to discard the evidence
in toto. (See Zwinglee Ariel v. State of Madhya
Pradesh, MANU/SC/0093/1952: AIR1954SC15 and
Balaka Singh and Ors. v. The State of Punjab,
MANU/SC/0087/1975: 1975CriLJ1734 . As observed
by this Court in State of Rajasthan v. Smt. Kalki and
Anr., MANU/SC/0254/1981: 1981CriLJ1012, normal
discrepancies in evidence are those which are due to
normal errors of observation, normal errors of
memory due to lapse of time, due to mental
disposition such as shock and horror at the time of
occurrence and those are always there however honest
and truthful a witness may be. Material discrepancies
are those which are not normal, and not expected of a
normal person. Courts have to label the category to
which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of
a party’s case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi
and Ors. v. State of Bihar etc., MANU/SC/0327/2002:
2002CriLJ2645, Gangadhar Behera and Ors. v. State
of Orissa, MANU/SC/0875/2002: 2003CriLJ41 and
Rizan and Anr. v. State of Chhattisgarh,
MANU/SC/0036/2003: 2003CriLJ1226…”
(Emphasis supplied)
37. Here, it is further pertinent to refer the testimony of
PW-3/Sh. Vishnu Mahto. Markedly, though, PW-3 does not
corroborate the case of the prosecution in its entirety, however, he
confirmed in his testimony that on the date of the incident, i.e., on
13.03.2014, his car bearing no. HR-60A-8888 met with an
accident with white Maruti car. Correspondingly, PW-3 affirmed
that after the said accident, persons siting in the white colour
Maruti came also got out from the said car and some of them fled
away towards Yamuna side, who were subsequently apprehended.
Correspondingly, PW-7/Arvinder Singh proved the mechanical
inspection report of the Maruti 800 car bearing no. DL-2CG-7621
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ABHISHEK GOYAL
GOYAL Date:
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(Ex. PW7/A) inter alia recording the nature of damage thereon as;
“Front bumper broken and dislocated; right side head light broken;
right side body finder damage; right side rear view mirror broken;
right side front door window glass broken; vehicle was found fit
for road test.” Pertinently, PW1/Pramod deposed before this Court
that the vehicle bearing DL-2CG-7621 was purchased by him and
subsequently, registered in the name of his mother, namely, Raj
Kumari, which was thereafter, given to accused, Kamal in the year
2013, though, without executing any formal document(s).
Needless to mention, nothing material has come forth in the cross
examination of the said witnesses so as to demolish the version,
declared by them in their respective examination in chief.
38. Germane for the purpose of present discourse to refer
to the deposition of PW-7/SI Anil who affirmed before this Court
that on 13.3.2014, upon receipt of DD No.11A, he/PW-7 along
with HC Virender reached the spot near ITO U turn Rajghat, where
the complainant/PW-2/Sonu S/o. Ramji Chaudhary met and
informed them that two persons had robbed mobile and cash, as
well as left the spot. PW-7 further asserted that at the spot, two
vehicles i.e. one Maruti 800, bearing registration no.
DL-2CG-7621 and Honda City car, bearing registration no.
HR-60A-8888 were also found in accidental condition. PW-7
further deposed that they made efforts to search the accused person
near the bushes and that near the bushes, two persons were found
who disclosed their names as; Karan and CCL ‘P’. It was further
avowed that on a formal search, one mobile phone of Micromax
make was recovered from the possession of Karan, which was
identified by the complainant, Sonu as the one, robbed from him.
Appositely, PW-7/SI Anil, even under his cross examination by/at
the behest of the accused re-affirmed that the mobile phone was
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GOYAL Date:
2025.03.05
16:41:38
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recovered from the possession of accused Karan. Significantly,
PW-13/HC Virender deposed on the same lines as PW-7/SI Anil
by inter alia reiterating that when he/PW-13 and PW-7/SI Anil
went to the spot i.e., near U-Turn of Rajghat Bus Depot, Bypass
where he/PW-13 found complainant, Sonu along with his
associate whose name was also Sonu and two cars, in an accidental
condition. As per PW-13, one Maruti Car bearing registration no.
DL-2C***7621 of white colour was stationed in the middle of the
road and one Honda City car bearing registration HR-60A-8888
was stationed near the divider and one wheel of the car had
climbed over the divider. Further, as per PW-13, the complainant
Sonu told him/PW-13 that the persons who had robbed him had
run towards bushes near Rajghat Dept and in the meantime,
patrolling ERV comprising of SI Jitender and Ct. Vineet reached at
the spot and joined them. Further, as per PW-13, he along with Ct.
Anil, SI Jitender and Ct. Vineet searched in the bushes and two
persons were found in the bushes. On interrogation, as per PW-13,
their names were revealed as Karan and CCL ‘P’. Further, as per
PW-13, on formal search of accused Karan, one Micromax mobile
phone of black and red colour was recovered from him, which was
identified by the complainant as his mobile phone. Pertinent to
note here that nothing material has been brought forth under the
cross examination of PW-7 and PW-13 to belie the version put by
them in their examination in chief. Strikingly, PW-9/Ct Vineet and
PW-10/SI Jitender, who are asserted to have reached at the spot in
EVR and assisted in apprehension of accused, Karan and CCL ‘P’
corroborated the stand of PW-7 and PW-13 and nothing significant
has been brought forth in their respective cross examination to
belie their version of occurrence/events that transpired. Similarly,
PW-15/SI Parveen Badsara inter alia deposed of the presence of
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GOYAL
GOYAL Date: 2025.03.05
16:41:42 +0530
Maruti car bearing No. DL-2CG-7621 of accused persons and
another car no. HR-60A-8888 of Honda City make being found
stationed at the spot in an accidental condition. Concomitantly, as
per PW-15, upon him reaching the spot, HC Virender handed over
the custody of accused Karan and CCL ‘P’ as well as produced the
complainant Sonu and his cousin before him/PW-15, besides
apprising him/PW-15 of the facts of the present case. Further, as
per PW-15, HC Virender produced one mobile phone of
Micromax company of the complainant, which was recovered
from accused Karan, which was seized by PW-15 vide memo Ex.
PW2/B, bearing PW-15’s signatures at point C. Relevantly,
nothing significant has emerged even under the cross examination
of PW-15 by/at the behest of accused.
39. Undoubtedly, as aforenoted, Ld. Counsel for the
accused/accused has(ve) been unable to rebut the case put forth by
the aforesaid police officials. On the contrary, Ld. Counsel for the
accused has merely contended that the testimony of said officials
cannot be relied as they are police officials. However, the said
contention, too, does not find any favour with this Court in light of
the persistent avowals of various courts, declaring the police
officials as competent witness in criminal trials/cases and 14 that
evidence of police witnesses cannot be discarded merely on the
ground that they belong to police force and interested in the
investigation. Relevant in this regard, to further make a reference
to the decision of the Hon’ble Supreme Court in Govindaraju v.
State, (2012) 4 SCC 722, wherein the Hon’ble Court, in an akin
context observed as under;
“30. It cannot be stated as a rule that a police
officer can or cannot be a sole eyewitness in a criminal
case. It will always depend upon the facts of a given14
Baldev Singh v. State of Haryana, MANU/SC/1268/2015.
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case. If the testimony of such a witness is reliable,
trustworthy, cogent and duly corroborated by other
witnesses or admissible evidence, then the statement
of such witness cannot be discarded only on the
ground that he is a police officer and may have some
interest in success of the case. It is only when his
interest in the success of the case is motivated by
overzealousness to an extent of his involving innocent
people; in that event, no credibility can be attached to
the statement of such witness.”
(Emphasis supplied)
40. Accordingly, when the testimonies of the aforesaid
witnesses, i.e., PW-3/Sh. Vishnu Mahto; PW-7/Arvinder Singh;
PW1/Pramod; PW-7/SI Anil; PW-13/HC Virender; PW-9/Ct
Vineet and PW-10/SI Jitender are read in conjunction with each
other, the factum of occurrence of accident on the date of accident
between the Maruti car bearing DL-2CG-7621 and Honda City car
bearing HR-60A-8888 at the spot; the said vehicles being found in
an accidental state upon the police officials reaching there;
apprehension of accused Karan and CCL ‘P’ from the nearby
forest; and of recovery of the mobile phone from the possession of
accused, Karan of Micromax make red and black in colour at that
point in time, which was identified on the spot itself by the
complainant/PW-2 as his mobile phone, stand duly proved. In fact,
the accused, despite extensively cross examining the said
witnesses has been unable to confute the version/narration of the
said witnesses. Apposite reiterate at this stage that accused Karan,
under his statement recorded in terms of the provisions under
Section 313 Cr.P.C. endeavoured to lead a defence that on the date
of alleged incident, he was on his way to meet his cousin, Kapil,
who was residing at Samaipur Badli at the relevant point in time
and had asked his friend CCL ‘P’, who was a driver by profession,
to arrange for a car. Thereupon, as per accused Karan, CCL ‘P’
reached there with a car and while they were proceeding through
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ABHISHEK GOYAL
GOYAL Date:
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16:41:50 +0530
Rajgarh Flyover, their car met with an accident. Correspondingly,
as per accused Karan, two persons were crossing the road and
since they had escaped injury in the process ( kyuki hamara
accident hua tha to unke gaadi lagte hue bachi ), said persons
started quarrelling and abusing them. Thereupon, police officials
reached at the spot, took them to police station and falsely
implicated them in the present case. However, it is observed that
despite such a defence no basis thereof is led by the accused,
anywhere under the cross examination of any of the prosecution
witnesses. In fact, suggestion to the effect of occurrence of
accident, of two persons escaping injury in the process or of
quarrel, etc., were neither put to PW-2 or PW-4 or even to PW-3 in
their respective cross examination. Needless to mention, nothing is
forthcoming on record on the part of the accused persons/accused,
Karan to indicate in the slightest, reasons for false implication of
the accused persons by the complainant/victim as well as police
officials in the instant case. Concomitantly, accused, Karan further
deliberately opted, not to lead any defence witness in support of his
case, leading to the closure of his said right on 06.09.2024. Clearly,
under such a situation, in the considered opinion of this Court, not
much credence can be accorded to the accused’s defence,
basis/foundation of which was neither laid down in the accused’s
cross examination of the prosecution witnesses nor any affirmative
evidence in this regard forthcoming on the record.
Correspondingly, this Court unambiguously observes that the
accused, Karan was found in possession of complainant’s mobile
phone at the spot, immediately upon his apprehension and that he
has failed to rebut the presumption envisaged under SectionSC No. 27581/2016 State v. Karan & Anr. Page 70 of 77
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ABHISHEK GOYAL
GOYAL Date:
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114(a)15 of the Evidence Act by tendering any plausible
explanation/reasons thereof. In this regard, reference is made to
the decision of the Hon’ble High Court of Madhya Pradesh in
Suresh Chandra Gupta v. State of Madhya Pradesh, Crl.M.C. No.
5117/2021, dated 26.10.2021, wherein the Hon’ble Court,
confronted with a similar conundrum, responded as under;
“…It is basic principle of the trial that accused has
to establish his defence by cross examination of the
prosecution witness and it cannot be termed that the
accused defence shall start only at the stage of defence
evidence. By confronting the prosecution witness
with evidence and rebutting them by cross
examination is the defence of the accused at the stage
of prosecution evidence also. For free and fair trial,
the trial court is bound to allow the accused to furnish
all relevant documents for his defence at any stage.
The impugned order is per-se illegal and arbitrary.
Hence, he prayed that this petition should be allowed
and impugned order should be quashed and the
application filed by the petitioner under Section 91 of
Cr.P.C. for taking documents on record be also
allowed.”
(Emphasis supplied)
41. At this stage, this Court deems it further pertinent to
reiterate that both, PW-2 and PW-4 detailed the amount carried by
them on the date of occurrence as well as of the accused Kamal
robbing the said amount from their possession, while acting in
concert/common intention with his other associates, Kamal and
CCL ‘P’. In fact, as aforementioned, PW-2 even explicated the
particulars of the notes carried by him at that point in the instant
case. Ergo, under such consistent stand of the complainant/PW-2
and his cousin/PW-4 mere not recovery of the amount involved in
the occurrence, would not be sufficient to belie the case of the
prosecution. In this regard, it is pertinent to make a reference to the
15
114. Court may presume existence of certain facts-“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 and private business, in their relation to the facts of the particular case.***The Court may presume
–***(a) That a man who is in possession of stolen goods soon after the theft is either the theft or has received
the goods knowing them to be stolen, unless he can account for his possession;…” (Emphasis supplied)
SC No. 27581/2016 State v. Karan & Anr. Page 71 of 77
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
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decision of the Hon’ble High Court of Delhi in Mohd. Usman v.
State (NCT) of Delhi, MANU/DE/0531/2011, wherein the
Hon’ble Court, while confounded with a situation of akin kind,
remarked as under;
“18. I am not impressed with the above
contention. There is no law which provides that in a
case of theft or robbery, recovery of the weapon of
offence or stolen goods is sine qua non for proving the
guilt of the accused person. If, for any reason
whatsoever, the accused, after committing the offence
has been able to dispose of, destroy or conceal the
stolen property or the weapon of offence, it cannot be
taken as a reason to disbelieve the testimony of the
victim if it is otherwise found reliable. No doubt, as
per the version of Head Constable Ramesh
Chand(PW2), he found injured Satish Kumar
surrounded by a group of people but, this by itself,
does not mean that the aforesaid public persons had
actually witnessed the occurrence. A possibility
cannot be ruled out that those public persons reached
at the spot after the occurrence.”
(Emphasis supplied)
42. Clearly, in light of the aforenoted dictate, the mere
factum of non-recovery of robbed amount, in the considered
opinion of this Court, be not of much significance in the present
case, considering that PW-2 and PW-4 have been consistent in
respect of robbery of the amount carried by them on the date of
incident by the accused persons, along with CCL ‘P’. Needless to
reiterate, nothing significant has been brought under the cross
examination of said witnesses to belie their consistent stand.
However, notwithstanding the foregoing, this Court is conscious
of the fact that in the instant case, except for a slight indication of
the weapon/nature of weapon under the cross examination of
PW-2 and with PW-2 declaring therein that the knife was probably
a vegetable knife and around 8 to 12 inches long, no further
description of the nature/type of the weapon is forthcoming on
record. Quite lucidly, under such circumstances, in the considered
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ABHISHEK GOYAL
GOYAL Date:
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opinion of this Court, it would not be safe to reach a conclusion
that the weapon stated to be brandished by accused Kamal was in
fact, a dangerous weapon, in light of the decision in Guddu v.
State, (Supra.). Needless to reiterate that the said accused, namely,
Kamal @ Sonu has since left for heavenly abode on 15.07.2024
and the proceedings qua him have already abated pursuant to order
dated 26.09.2024.
43. Consequently, in conspectus of above and being
cognizant of the arguments addressed as well as the judicial
dictates specified herein, this Court unambiguously reaches a
conclusion that the prosecution has been able to prove, ‘beyond
reasonable doubt’ commission of offence under Section 392 read
with Section 34 IPC by accused Karan , i.e., the said
accused/accused Karan, while acting in concert and common
intention with his associates/co-accused persons committed the
offence of robbery of one mobile phone of Micromax and Rs
1,350/- (Rupees One Thousand Three Hundred and Fifty only)
from the possession of complainant/PW-2/Sh. Sonu, S/o. Sh.
Ramji Chaudhary and of Rs. 4,000/- (Rupees Four Thousand only)
from the possession of PW-4/Sonu S/o. Sh. Upender Chaudhary.
In this regard, it is reiterated as under;
a) PW-2 consistently deposed about the occurrence of
incident in question/offence under Section 392/34
IPC by the accused persons, while acting in
concert/common intention with each other along with
CCL ‘P’:
b) PW-2 and PW-4 duly identified accused persons,
Karan and Kamal as the perpetrators of offence
before this Court. Further, both, PW-2 and PW-4
affirmed that they met with accused Kamal at the
Loha Mandi bus stop and that subsequently, they
proceeded in the car, where accused Karan was sitting
next to the driver seat;
c) PW-2/complainant further consistently deposed of
the factum of accused Karan’s snatching/robbing him
of his mobile phone, whilst he/PW-2 and his
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ABHISHEK GOYAL
GOYAL Date:
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cousin/PW-4 were put under fear of instant death,
instant hurt/injury or of wrongful restraint; factum of
sum of Rs. 5,350/- (Rupees Five Thousand Three
Hundred and Fifty only), out of which Rs. 4,000/-
(Rupees Four Thousand only) belonged to his/PW-2’s
cousin, being snatched by accused Kamal by putting
the complainant and his cousin under fear of instant
death, instant hurt/injury or of wrongful restraint, and
fleeing post that with the envelope containing the said
amount; commission of accident in question; and of
accused Karan being apprehended on the spot from
the bushes as well as being found in possession of the
robbed mobile phone;
d) PW-4 also declared that Kamal threatened to stab
his/PW-4’s cousin, i.e., PW-2/complainant with a
knife. Simultaneously, even as per PW-4, accused
Kamal got down from the car and fled from the spot,
while when the said vehicle met with an accident,
Karan and the driver of the said vehicle fled
therefrom;
e) PW-2 that even upon being rigorously questioned,
consistently affirmed that during the incident,
his/PW-2’s mobile phone was on him and that while,
he/PW-2 was trying to make a call using the said
mobile phone, the person sitting next to the driver,
snatched the said phone;
f) PW-2 also explicated that accused Karan had reached
at the spot with the driver of the car and that even
subsequent to the incident PW-2’s mobile phone was
found in the possession of accused, Karan;
g) PW-3 confirmed in his testimony that on the date of
the incident, i.e., on 13.03.2014, his car bearing no.
HR-60A-8888 met with an accident with white
Maruti car. Correspondingly, PW-3 affirmed that
after the said accident, persons siting in the white
colour Maruti came also got out from the said car and
some of them fled away towards Yamuna side who
were subsequently apprehended;
h) Conjoint reading of testimonies of PW-3/Sh. Vishnu
Mahto; PW-7/Arvinder Singh; PW1/Pramod;
PW-7/SI Anil; PW-13/HC Virender; PW-9/Ct Vineet
and PW-10/SI Jitender demonstrate that the factum of
occurrence of accident on the date of accident
between the Maruti car bearing DL-2CG-7621 and
Honda City car bearing HR-60A-8888 at the spot; the
said vehicles being found in an accidental state upon
the police officials reaching there; apprehension of
accused Karan and CCL ‘P’ from the nearby forest;
and of recovery of the mobile phone from the
possession of accused, Karan of Micromax make red
and black in colour at that point in time, which was
identified on the spot itself by the complainant/PW-2
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as his mobile phone, stand duly proved. Needless to
mention that it is settled law that police officials are
competent witnesses, and the evidence of police
witnesses cannot be discarded merely on the ground
that they belong to police force and interested in the
investigation;
i) Further, the accused, despite extensively cross
examining the prosecution witnesses, accused has
been unable to confute the version/narration of the
said prosecution witnesses;
j) The alleged discrepancies, contradictions,
improvements in the version of the prosecution
witnesses are not material. Even otherwise, there is
no confrontation of prosecution witnesses
(PW-2/PW-4) with their earlier statements in terms of
the provisions under Section 145 of the Evidence Act
read with Sections 161/162 Cr.P.C.;
k) Basis of defence raised by accused Karan under his
statement recorded under Section 313 Cr.P.C. has
nowhere been laid under the cross examination of any
of the prosecution witnesses. In fact, suggestion to the
effect of occurrence of accident, of two persons
escaping injury in the process or of quarrel, etc., were
neither put to PW-2 or PW-4 or even to PW-3 in their
respective cross examination;
l) Accused, Karan was found in possession of
complainant’s mobile phone at the spot, immediately
upon his apprehension and that he has failed to rebut
the presumption envisaged under Section 114(a) of
the Evidence Act by tendering any plausible
explanation/reasons thereof;
m) Nothing is forthcoming on record on the part of the
accused persons/accused, Karan to indicate in the
slightest, reasons for false implication of the accused
persons by the complainant/victim as well as police
officials in the instant case; and
n) PW-2 and PW-4 detailed the amount carried by them
on the date of occurrence as well as of the accused
Kamal robbing the said amount from their
possession, while acting in concert/common
intention with his other associates, Kamal and CCL
‘P’. PW-2 even explicated the particulars of the notes
carried by him at that point in the instant case. Ergo,
under such consistent stand of the complainant/PW-2
and his cousin/PW-4 mere not recovery of the amount
involved in the occurrence, would not be sufficient to
belie the case of the prosecution; and
o) Lastly, law is settled that there is no legal hurdle in
convicting a person on the testimony of a single/sole
eyewitness if the version of said witness is clear and
reliable, for the principle of law/rule of evidence is
that the evidence has to be weighed and not counted
SC No. 27581/2016 State v. Karan & Anr. Page 75 of 77
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ABHISHEK GOYAL
GOYAL Date:
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(Ref; Sunil Kumar v. State (Govt. of NCT of Delhi),
(2003) 11 SCC 367; and Kusti Mallaiah v. State of
A.P., (2013) 12 SCC 680).
44. Lastly, 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, Karan for
the commission of offence under Section 392/34 IPC has been
reached by this Court, it would not be proper to convict the said
accused for the offence under Section 411 IPC in the instant case.
CONCLUSION:
45. Conclusively, in light of the foregoing, it is reiterated
that from the material placed on record and arguments addressed
on behalf of the State as well as the accused, in the considered
opinion of this Court, the prosecution has been able to prove its
case ‘beyond reasonable doubt’ against the accused, namely,
Karan for the offence under Section 392/34 IPC is so far as it
relates to the commission of offence of robbery of one mobile
phone of Micromax and Rs 1,350/- (Rupees One Thousand Three
Hundred and Fifty only) from the possession of
complainant/PW-2/Sh. Sonu, S/o. Sh. Ramji Chaudhary and of Rs.
4,000/- (Rupees Four Thousand only) from the possession of
PW-4/Sonu S/o. Sh. Upender Chaudhary by accused Karan, while
acting in concert and common intention with his associates/co-
accused persons. However, it is reiterated that the
allegations/conviction under Section 411 IPC cannot sustain in
view of the aforenoted judicial dictates, under such circumstances.
Needless to reiterate that Kamal @ Sonu has since left for
heavenly abode on 15.07.2024 and the proceedings qua him have
already abated pursuant to order dated 26.09.2024 of this Court.
SC No. 27581/2016 State v. Karan & Anr. Page 76 of 77
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.03.05
16:42:18
+0530
46. Accordingly, accused, namely, Karan is convicted of
the charge(s)/offence punishable under Sections 392/34 IPC and
acquitted of the charges under Section 411 IPC. Consequently, let
accused, namely, Karan be heard on sentence.
47. In the meanwhile, issue notice to SHO, PS Darya
Ganj to submit report of antecedents of the convict, Karan. Also,
issue notice to concerned Jail Superintendent to submit conduct
report and nominal roll of the said convict. Correspondingly, issue
notice to the probation officer to file a report in terms of the
provisions under Sections 3/4 of the Probation of Offenders Act,
returnable for the next date of hearing. Copy of the present
judgment be annexed along with the notice. Further, a copy of the
present judgment be given dasti to the convict, Karan.
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.05
16:42:23 +0530
Announced in the open Court (Abhishek Goyal)
on 05.03.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
SC No. 27581/2016 State v. Karan & Anr. Page 77 of 77
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