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Delhi District Court
State vs Gulzar on 17 April, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-01)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
SC No. 28072/2016 CNR No. DLCT01-000203-2010
FIR No. 213/2010
U/Sec. 392/397/411/34 IPC &
Section 25/54/59 of Arms Act
P.S: Subzi Mandi
STATE VERSUS GULZAR & ANR.
(i) SC No. of the case : 28072/2016
(ii) Date of commission of offence : 26.08.2010
(iii) Name, parentage and address : 1. Gulzar
of accused S/o Sh. Banu
R/o Village Chopra
Maheshpur, P.S. Ami
Nagar, Sarai Distt.
Baghpat, U.P.
2. Haroon
S/o Sh. Hamid
R/o Village Malik
P.S. Jevar Distt. Greater
Noida, U.P.
T/A: Nasbandi Colony
Loni, Ghaziabad, U.P.
(iv) Offence complained of : Under Section:
392/397/468/411/34 IPC
(v) Plea of the accused : Pleaded not guilty and
claimed trial
(vi) Final order : Acquittal
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Date of Institution : 21.12.2010
Date of Judgment reserved on : 28.03.2025
Date of Judgment : 17.04.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Sh. Rana
Sandeep who has business of Dashmesh Tour and Travel and has a shop
of MCD Shop no. 8, Gokhale Market, Tis Hazari. On 26.08.2010 around
4:30 AM he was sitting at his transport office after emptying his vehicle.
Another vehicle bearing no. HR-55K-6239 suddenly stopped before their
transport office and 3-4 young boys climbed down from front and back
side of the said tempo vehicle. One of the boy had put a knife on the neck
of the complainant and snatched his mobile phone make Virgin Set
bearing mobile no. 9268760926. The said boy had taken out battery and
SIM from the mobile phone and thrown it down and put the mobile
phone in his pocket. From the upper pocket of the shirt of complainant
Rs.5,000/- were forcibly taken out. Another boy under the threat of knife
had put Malaram and Santosh to sit down in a corner and the complainant
was also made to sit with Malaram and Santosh. Another boy came and
stood in front of the above three victims pointing knife towards them and
the other accomplice of the said accused started picking the goods/carton
lying in the transport of the complainant and putting them in their tempo
vehicle bought with them. After 10-15 minutes police staff Ct. Kishan
and HC Bhule Khan came on their motorcyle while taking beat of the
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area and after seeing the said police person all the accused started
running after picking their tempo vehicle. The complainant had raised
alarm on which police came near him. Complainant Rana Sandeep had
told the police person that the said accused in tempo had robbed his
goods on which the police person started chasing the accused running
away in their tempo vehicle. Police had caught the tempo vehicle no. HR-
55K-6239 alongwith two of the accused and brought them at the
transport office in front of complainant around 6:30 AM in the morning.
The complainant had identified 28 carton lying in the tempo of the
accused which were robbed from him. The carton were in white plastic
sack bag. All the cartons were containing clothes bearing different marks.
The two person caught had name accused Gulzar and accused Haroon.
Accused Haroon is the person who had made Malaram and Santosh to sit
in a corner under the threat of knife and had also made the complainant to
sit with Malaram and Santosh under the threat of knife. The accused
Haroon under the threat of knife had wrongfully confined the victims in a
corner and the accused Gulzar was lifting the cartons and put them in his
tempo vehicle while committing the robbery.
2. The complaint is Ex.PW4/A on which Rukka Ex.PW10/A was
sent to police station by ASI Rishipal for registration of FIR on which
FIR Ex.PW1/A was registered and Ex.PW1/B is endorsement on Rukka
made by PW-1/HC Manoj Kumar. PW-1 had registered the FIR which is
computer generated. He was duty officer at police station Subzi Mandi.
Rukka was produce by Ct. Kishan sent by ASI Rishipal who was IO in
the case. The information was received at PS vide general diary reference
no. 9A at 8:35 AM and information was received in writing on
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26.08.2010. The tempo as alleged by the complainant is Eicher vehicle
used by the accused person while committing the robbery. A knife was
also recovered on pointing out of accused Haroon inside Eicher vehicle
on the conductor side. The licence of accused Gulzar allegedly prepared
from RTA Ambala, Haryana vide DL no. S-45361 was found forged. The
DL no. H-8522 in the name of accused Haroon was also found not issued
from RTA Karnal, Haryana. The Eicher tempo was released on superdari
of Rs.4 lakh to attorney holder Baldev Chabra after taking photograph
with negative. The chargesheet was filed against accused person under
Section 392/397/411/468/471/34 IPC and Section 25/54/59 of Arms Act.
Supplementary chargesheet was also filed against Abbu and accused
Annu after completion of proceedings against them under Section 82/83
Cr. P.C.
3. Cognizance of offence was taken and two the arrested accused
were summoned. Charge was given to accused Gulzar under Section 468
IPC for using DL No. S-45361 in the name of Shiva. It was found forged
and used as genuine by the accused. Accused Gulzar and accused Haroon
were also charged under Section 392 IPC r/w Section 34 IPC and they are
further charged under Section 411/34 IPC. Accused Haroon was also
charged under Section 397 IPC for using deadly weapon/knife while
committing robbery. Accused Haroon was also charged under Section
468 IPC for fraudulently using forged DL no. H-8522 claiming to be
genuine. Both the accused have pleaded not guilty and claimed trial.
4. Prosecution has examined PW-1 to PW-19 all prosecution
witness against both the accused. Statement of Accused under Section
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313 Cr. P.C. of accused Gulzar was recorded on 17.02.2023 in which he
has preferred to lead evidence in defence. Statement of Accused under
Section 313 Cr. P.C. of accused Haroon was recorded on 17.10.2023 in
which he has preferred to lead evidence in defence. Accused have led two
witness in defence as DW-1 and DW-2 and vide separate statement of
accused Haroon dated 07.12.2023 the DE was closed. Vide separate
statement of ld. Counsel for the accused Gulzar dated 15.04.2024 the DE
was closed.
5. Final arguments are heard from both the parties and record
perused.
6. Section 395 IPC provides punishment for dacoity. It was held
in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes
228 (Bom) that when robbery is either committed or an attempt to
commit it is made by five or more person than all such persons, who are
present or aiding in its commission or in an attempt to commit it, would
commit the offence of dacoity. The said definition is laid down u/Sec.
391 IPC. It is laid down in case titled Ganesan v. State represented by
Station House Officer in Crl. Appeal no. 903/2021 from Hon’ble
Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per
Section 397 IPC if at the time of committing robbery or dacoity, the
offender uses any deadly weapon, or causes grievous hurt to any person
or attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished shall not be
less than seven years. It was further held at para no. 12.4 that the only
difference between robbery and dacoity would be number of persons
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involved in co-jointly committing or attempt to commit a robbery. It was
further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of
IPC is ‘offender’. It was further held that for the aforesaid act the accused
cannot be convicted on the basis of constructive liability and only the
‘offender’ who ‘uses any deadly weapon……’ can be punished. However
u/Sec. 391 IPC ‘dacoity’ and Section 396 IPC which is dacoity and
murder then the accused can be convicted on the basis of constructive
liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid
down at para no. 12.6 of the above judgment titled Ganesan v. State
(supra) and the relevant para is reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with
respect to ‘robbery’ and ‘dacoity’ are required to be referred to. The relevant
provisions would be Section 390 IPC to Section 398 IPC which read as
under:
“390. Robbery.–In all robbery there is either theft or extortion.
When theft is robbery.–Theft is “robbery” if, in order to the
committing of the theft, or in committing the theft, or in carrying away
or attempting to carry away property obtained by the theft, the
offender, for that end voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint. When extortion is
robbery.–Extortion is “robbery” if the offender, at the time of
committing the extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that person or
to some other person, and, by so putting in fear,induces the person so
put in fear then and there to deliver up the thing extorted. Explanation.
–The offender is said to be present if he is sufficiently near to put the
other person in fear of instant death, of instant hurt, or of instant
wrongful restraint.
391. Dacoity.–When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and persons
present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for
“transportation for life” (w.e.f. 1-1-1956). 99 and aiding such
commission or attempt, amount to five or more, every person soSC No. 28072/2016
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committing, attempting or aiding, is said to commit “dacoity”.
392. Punishment for robbery.–Whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to
ten years, and shall also be liable to fine; and, if the robbery be
committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.–Whoever attempts to commit
robbery shall be punished with rigorous imprisonment for a term
which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.–If any person,
in committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be punished
with 1 [imprisonment for life], or with rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.–Whoever commits dacoity shall be
punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
396. Dacoity with murder.–If any one of five or more persons, who
are conjointly committing dacoity, commits murder in so committing
dacoity, every one of those persons shall be punished with death, or 1
[imprisonment for life], or rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
–If, at the time of committing robbery or dacoity, the offender uses
any deadly weapon, or causes grievous hurt to any person, or attempts
to cause death or grievous hurt to any person, the imprisonment with
which such offender shall be punished shall not be less than seven
years.
398. Attempt to commit robbery or dacoity when armed with deadly
weapon.–If, at the time of attempting to commit robbery or dacoity,
the offender is armed with any deadly weapon, the imprisonment with
which such offender shall be punished shall not be less than seven
years.”
12.3 As per Section 390 IPC, for ‘robbery’ there is either theft or extortion.
When in the committing of the theft, or in committing the theft, or in
carrying away or attempting to carry away property obtained by the theft,
the offender, voluntarily causes or attempts to cause to any person death or
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hurt or wrongful restraint or fear of instant death or of instant hurt, or of
instant wrongful restraint the theft can be said to be ‘robbery’. In similar
situation the ‘extortion’ can be said to have committed ‘robbery’. As per
explanation to Section 390 IPC the offender is said to be present if he is
sufficiently near to put the other person in fear of instant death, of instant
hurt, or of instant wrongful restraint.
Section 391 IPC defines ‘dacoity’. When five or more persons
conjointly commit or attempt to commit a robbery, the accused then
can be said to have committed the ‘dacoity’.
As per Section 392 IPC whoever commits robbery shall be punished
with rigorous imprisonment for a term which may extend to ten years
and shall also be liable to fine. However, if the robbery is committed
on the highway between sunset and sunrise, the imprisonment may be
extended to fourteen years. As per Section 393 IPC even an attempt to
commit robbery is punishable with rigorous imprisonment for a term
which may extend to seven years with fine. As per Section 394 IPC if
any person, in committing or in attempting to commit robbery,
voluntarily causes hurt, such person, and any other person jointly
concerned in committing or attempting to commit such robbery, shall
be punished with imprisonment for life or with rigorous imprisonment
for a term which may extend to ten years and shall also be liable to
fine.
Section 395 IPC provides for punishment for ‘dacoity’. Whoever
commits dacoity shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years and
shall also be liable to fine. In case of dacoity with murder if any one
of five or more persons, who are conjointly committing dacoity,
commits murder in so committing dacoity, every one of those persons
shall be punished with death, or imprisonment for life, or rigorous
imprisonment for a term which may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous hurt
to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished
shall not be less than seven years. Similarly, if, at the time of
committing robbery or dacoity the offender is armed with any deadly
weapon, the imprisonment with which such offender shall be punished
shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of
‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an exaggerated
version of robbery. If five or more persons conjointly commit or attempt to
commit robbery it can be said to be committing the ‘dacoity’. Therefore, the
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only difference between the ‘robbery’ and the ‘dacoity’ would be the
number of persons involved in conjointly committing or attempt to commit
a ‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be the same
except that in the case of ‘dacoity’ the punishment can be with
imprisonment for life. However, in the case of ‘dacoity with murder’ the
punishment can be with death also. However, in a case where the offender
uses any deadly weapon or causes grievous hurt to any person, or attempts
to cause death or grievous hurt to any person the imprisonment with which
such offender shall be punished shall not be less than seven years. Learned
Counsel appearing on behalf of the appellants have rightly submitted that to
bring the case within Section 397 IPC, the offender who uses any deadly
weapon, or causes grievous hurt to any person shall be liable for minimum
punishment under Section 397 IPC. Section 392 and Section 390 IPC are
couched in different words. In Sections 390, 394, 397 and 398 IPC the word
used is ‘offender’. Therefore, for the purpose of Sections 390, 391, 392,
393, 394, 395, 396, 397, 398 IPC only the offender/person who committed
robbery and/or voluntarily causes hurt or attempt to commit such robbery
and who uses any deadly weapon or causes grievous hurt to any person, or
commits to cause death or grievous death any person at the time of
committing robbery or dacoity can be punished for the offences under
Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the
accused cannot be convicted on the basis of constructive liability and only
the ‘offender’ who ‘uses any deadly weapon….’ can be punished. However,
so far as Section 391 IPC ‘dacoity’ and Section 396 IPC – ‘dacoity with
murder’ is concerned an accused can be convicted on the basis of
constructive liability, however the only requirement would be the
involvement of five or more persons conjointly committing or attempting to
commit a robbery – dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is
required to be referred to. In the aforesaid decision this Court has observed
and considered Sections 397 and 398 IPC and on interpretation of the
aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code provides: “Whoever commits
robbery shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to fine; and, if
the robbery be committed on the highway between sunset and sunrise,
the imprisonment may be extended to fourteen years.” The sentence of
imprisonment to be awarded under Section 392 cannot be less than
seven years if at the time of committing robbery the offender uses any
deadly weapon or causes grievous hurt to any person or attempts to
cause death or grievous hurt to any person: vide Section 397. A
difficulty arose in several High Courts as to the meaning of the word
“uses” in Section 397. The term “offender” in that section, as rightly
held by several High Courts, is confined to the offender who uses any
deadly weapon. The use of a deadly weapon by one offender at theSC No. 28072/2016
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time of committing robbery cannot attract Section 397 for the
imposition of the minimum punishment on another offender who had
not used any deadly weapon. In that view of the matter use of the gun
by one of the culprits whether he was accused Ram Kumar or
somebody else, (surely one was there who had fired three shots) could
not be and has not been the basis of sentencing the appellant with the
aid of Section 397. So far as he is concerned he is said to be armed
with a knife which is also a deadly weapon. To be more precise from
the evidence of PW 16 “Phool Kumar had a knife in his hand”. He
was therefore carrying a deadly weapon open to the view of the
victims sufficient to frighten or terrorize them. Any other overt act,
such as, brandishing of the knife or causing of grievous hurt with it
was not necessary to bring the offender within the ambit of Section
397 of the Penal Code.
6. Section 398 uses the expression “armed with any deadly weapon”
and the minimum punishment provided therein is also seven years if at
the time of attempting to commit robbery the offender is armed with
any deadly weapon. This has created an anomaly. It is unreasonable to
think that if the offender who merely attempted to commit robbery but
did not succeed in committing it attracts the minimum punishment of
seven years under Section 398 if he is merely armed with any deadly
weapon, while an offender so armed will not incur the liability of the
minimum punishment under Section 397 if he succeeded in
committing the robbery. But then, what was the purport behind the
use of the different words by the Legislature in the two sections viz.
“uses” in Section 397 and “is armed” in Section 398. In our judgment
the anomaly is resolved if the two terms are given the identical
meaning. There seems to be a reasonable explanation for the use of the
two different expressions in the sections. When the offence of robbery
is committed by an offender being armed with a deadly weapon which
was within the vision of the victim so as to be capable of creating a
terror in his mind, the offender must be deemed to have used that
deadly weapon in the commission of the robbery. On the other hand, if
an offender was armed with a deadly weapon at the time of attempting
to commit a robbery, then the weapon was not put to any fruitful use
because it would have been of use only when the offender succeeded
in committing the robbery.
7. If the deadly weapon is actually used by the offender in the
commission of the robbery such as in causing grievous hurt, death or
the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933
Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt
act such as brandishing the weapon against another person in order to
overawe him or displaying the deadly weapon to frighten his victim
have been held to attract the provisions of Section 397 of the PenalSC No. 28072/2016
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Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in
the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if
the knife was used for the purpose of producing such an impression
upon the mind of a person that he would be compelled to part with his
property, that would amount to ‘using’ the weapon within the meaning
of Section 397. In that case also the evidence against the appellant was
that he carried a knife in his hand when he went to the shop of the
victim. In our opinion this is the correct view of the law and the
restricted meaning given to the word “uses” in the case of Chand
Singh [ILR (1970) 2 Punj and Har 108] is not correct.”
12.6. The aforesaid view has been subsequently reiterated by this Court in
the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed
and held as under:
“19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. “Offender” refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded
the minimum punishment. It only envisages the individual liability and
not any constructive liability. Section 397 IPC is attracted only against
the particular accused who uses the deadly weapon or does any of the
acts mentioned in the provision. But the other accused are not
vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1
SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term
“offender” under Section 397 IPC is confined to the offender who uses
any deadly weapon. Use of deadly weapon by one offender at the time
of committing robbery cannot attract Section 397 IPC for the
imposition of minimum punishment on another offender who had not
used any deadly weapon. There is distinction between “uses” as used
in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something
more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use
of weapon by offender for creating terror in mind of victim is
sufficient. It need not be further shown to have been actually used for
cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State
(Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 :
AIR 2004 SC 1253].”
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7. The prosecution has to prove that the accused has committed
robbery. Robbery is only an aggravated form of the offence of theft or
extortion in the use of violation of death, hurt or restraint in the same
process. Even the attempt to commit such violence is punishable as
robbery. The robbery is defined u/Sec. 390 IPC and essential ingredients
of which were laid down in citation titled Venu @ Venugopal & Ors. v.
State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property
obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential
ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
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(iii) In carrying away or in the attempt to carry away property
obtained by theft.
9. It is to be noted that the Section 392 provides punishment for
robbery. It is punishment for the offence defined in Section 390.
Punishment is higher if it is committed on a highway and between
sunset and sunrise.
Section 390 which defines “robbery” reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is “robbery” if, in order to the committing
of the theft, or in committing the theft, or in carrying away or
attempting to carry away property obtained by theft, the offender, for
the end, voluntarily causes or attempts to cause to any person death or
hurt wrongful restraint, or fear of instant death or of instant hurt, or of
instant wrongful restraint.
When extortion is robbery.-Extortion is “robbery” if the offender at the
time of committing the extortion, is in the presence of the person put in
fear, and commits the extortion by putting that person in fear of instant
death, of instant hurt, or of instant wrongful restraint to that person or
to some other person, and, by so putting in fear, induces the person so
put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near
put the other person in fear of instant death, of instant hurt, or of
instant wrongful restraint.”
10. The provision defines robbery which is theft or extortion when
caused with violence of death, hurt or wrongful restraint. When there is
no theft committed, then as a natural corollary there cannot be robbery.
Robbery is only an aggravated form of offence of theft or extortion.
Aggravation is in the use of violence of death, hurt or restraint.
Violence must be in course of theft and not subsequently. It is not
necessary that violence actually should be committed but even attempt
to commit it is enough.
11. The authors of the Code observed as follows:
“In one single class of cases, theft and extortion are in practice
confounded together so inextricably, that no judge, however,
sagacious, could discriminate between them. This class of cases,
therefore, has, in all systems of jurisprudence … been treated as a
perfectly distinct class … we have, therefore, made robbery a separate
crime.
There can be no case of robbery which does not fall within the
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definition either of theft or of extortion; but in a practice it will
perpetually be a matter of doubt whether a particular act of robbery
was a theft or an extortion. A large proportion of robberies will be half
theft, half extortion. A seizes Z, threatens to murder him, unless he
delivers all his property, and begins to pull off Z’s ornaments. Z in
terror begs that A will take all he has, and spare his life, assists in
taking off his ornaments, and delivers them to A. Here, such ornaments
as A took without Z’s consent are taken by theft. Those which Z
delivered up from fear of death are acquired by extortion. It is by no
means improbable that Z’s right arm bracelet may have been obtained
by theft, and left-arm bracelet by extortion; that the rupees in Z’s girdle
may have been obtained by theft, and those in his turban by extortion.
Probably in nine-tenths of the robberies which are committed,
something like this actually takes place, and it is probable that a few
minutes later neither the robber nor the person robbed would be able to
recollect in what proportions theft and extortion were mixed in the
crime; nor is it at all necessary for the ends of justice that this should
be ascertained. For though, in general, the consent of a sufferer is a
circumstance which very materially modifies the character of the
offence, and which ought, therefore, to be made known to the Courts,
yet the consent which a person gives to the taking of this property by a
ruffian who holds a pistol to his breast is a circumstance altogether
immaterial”.
12. The words “for that end” in Section 390 clearly mean that the hurt
caused must be with the object of facilitating the committing of the
theft or must be caused while the offender is committing theft or is
carrying away or is attempting to carry away property obtained by the
theft.
13. As the provision itself provides when the highway robbery is
committed, deterrent punishment is called for.
Xxxxxxx
8. The first ingredient which has to be proved by the prosecution is
that the accused has committed theft. PW-4 Sh. Rana Sandeep had
pointed out towards accused present in the Court as the same person who
robbed 28 cartons of clothes on 26.08.2010 from his transport office
M/s. Dashmesh Tour and Travels. The theft was committed at 4:30 AM.
PW-5 Bhagat Singh and PW-15 Santosh Kumar were present with PW-4
at the transport office. After unloading their vehicle they were sitting
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State Vs. Gulzar & Anr. Page 14 of 47
together when one tempo had reached there. 5-6 persons had got down
from the tempo and one of them namely accused no. 2 Haroon put knife
on PW-4 and others started lifting 28 cartons of clothes and putting them
into the tempo vehicle no. 6239. PW-4 had seen police official on
patrolling duty on motorcycle. On seeing the police the accused Haroon
had removed his knife from the neck of PW-4 and then PW-4 had raised
alarm. The accused person started running with their associates in their
vehicle and at that time police had reached to PW-4 asking that why was
he crying. Police officials started chasing the accused person and after
about 2 hours police reached back to the complainant at M/s. Dashmesh
Tour and Travels with the robbed cloth cartons. The complaint given by
PW-4 is Ex.PW4/A and disclosure statement of accused was recorded
vide Ex.PW4/B and Ex.PW4/C of Haroon and Gulzar respectively
witnessed by PW-4. The recovery memo of goods is Ex.PW4/D. The
iron rod recovered from the accused is Ex.PW4/G, recovery memo of
knife is Ex.PW4/H, sketch of knife is Ex.PW4/J and the vehicle/tempo
was seized vide memo Ex.PW4/K. Accused Haroon was arrested vide
memo Ex.PW4/L and accused Gulzar was arrested vide memo
Ex.PW4/M. Photocopy of bills and Bilties of the goods were seized by
the police from the complainant vide memo Ex.PW4/R which are Mark
D (colly) (28 papers). The goods were released to the PW-4 vide
superdarinama vide Ex.PW4/S and the photographs of which are
Ex.PW4/T. The vehicle HR-55K-6239 is correctly identified by PW-4
marked as Ex.P1. The big size cutter is identified by PW-4 as Ex.P2. The
iron rod is Ex.P3. The small cutter blade is Ex.P4. The knife is Ex.P5.
9. PW-5 has deposed that 4-5 persons reached there in a
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truck/vehicle and accused Haroon had put knife on PW-4 and also on
PW-5. Other accused were lifting the bundles and putting them in
vehicle/tempo. Accused Gulzar is correctly identified. Two police
official had reached on motorcycle on seeing whom the accused persons
started running in their vehicle with the robbed goods. Police chased the
accused person and brought the goods recovered. The bundle of goods as
shown in photograph Ex.PW4/T are correctly identified by PW-5 in the
photograph. PW-5 has correctly identified the tempo as Ex.P1 and the
knife shown to PW-5 by the accused no. 2 Haroon is Ex.P5.
10. PW-15 Sh. Santosh Kumar is driver by profession employed by
M/s. Dashmesh transport where he was working from the year 2009-
2010. Around 4:00 AM to 4:30 AM they were unloading the truck. Three
person were present at Dashmesh transport. Suddenly one Eicher vehicle
came there and 3-4 person got down who pointed out knife towards PW-
15 on the neck as well as on the neck of Sh. Manjit the owner of
Dashmesh transport and also on the neck of third person. About 150-200
bundles clothes/goods were loaded by accused person in their truck
while committing robbery. In the meanwhile patrolling police had
reached there on motorbike and accused person ran away from the spot.
They had received information that on the same day this property was
recovered by the police. Accused Haroon was correctly identified by
PW-15 and he cannot identify the other accused person. He cannot
identify the knife pointed out towards him by the accused and his
companion due to passage of time. PW-15 was cross-examined by ld.
APP for the State where he had improved his version that Rana
Sandeep/PW-4 was owner of Delhi office and Sh. Manjit was owner of
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Jaipur office. He does not remember if it was Sh Bhagat Singh/PW-5 or
Sh. Manjit who was present at the spot. PW-15 was confronted with his
statement under Section 161 Cr. PC Ex.PW15/A where at point A to A1
the presence of Rana Sandeep was recorded. The photographs of the
truck are Ex.PW10/A1 to Ex.PW10/A8. In the statement under Section
313 Cr. PC it is stated by accused person that they were employed by one
Sh. Guddu Khan @ Salim/PW-18 on salary of Rs.5000/- per month.
Guddu had given duty to accused no. 1 and 2 to bring goods from Mori
Gate transport office to his house situated at Nasbandi Colony, Loni, U.P.
The accused were arrested only at the office of Dashmesh transport on
the pretext of inquiry regarding genuineness of the documents of the
truck. Till evening they were kept at police post until they were produced
in the Court. Accused Gulzar in his statement under Section 313 Cr. P.C
has stated that his employer Guddu sent him to collect goods from
Dashmesh transport, Mori Gate which were to be brought at the house of
Guddu at Nasbandi Colony, Loni, U.P. He had informed the owner of
Dashmesh transport and goods were loaded in the truck of accused
person by labourers on order of owner of Dashmesh transport. He was
sitting on the seat of the truck and just when he has started the truck then
police came there and stopped their truck. He followed the order of the
police. Police had assured them that they will release them in 1-2 hours.
11. PW-18 has admitted that he had employed both the accused
Gulzar and Haroon for transport of scrap from his shop at Loni to
Johripur, Delhi and he did not have any complaint after employment of
accused Gulzar. The work of accused Gulzar was satisfactory. Both the
accused were his driver. The vehicle was purchased in the name of one
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State Vs. Gulzar & Anr. Page 17 of 47
Sh. Maruf Khan/PW-19 at the instance of PW-18 as PW-18 was not
getting loan from the bank. The amount of purchase of truck was paid by
PW-18. PW-19 is paternal uncle/Chacha of PW-18. PW-19 has admitted
that he had purchased the Eicher canter bearing no. HR-55-K6239 in the
year 2010 which was financed by Cholamandalam Finance Limited. He
had given the said vehicle to PW-18 Guddu immediately after its
purchase and vehicle had remained in the possession of Guddu through
GPA Mark PW19/1. The photographs of vehicle are Ex.PW10/A1 to
Ex.PW10/A3. PW-19 has deposed in cross-examination that PW-18
belongs to his native village and they have old relations. He had
purchased the vehicle on request of PW-18 and down payment was also
made by PW-18 including the installments of the vehicle. Delivery of the
vehicle is also taken by PW-18. On non-clearance of installments of loan
the vehicle was re-possessed by the finance company.
12. PW-18 has admitted that this vehicle was handed over by him to
both the accused for transportation of scrap from his shop situated at
Loni-2, Johripur, Delhi. This vehicle was used by him for making
business of transportation and he had paid salary to both the accused
Gulzar and Haroon. Accused Gulzar was appointed as driver and PW-18
had no complaint from his service. Both the accused were working as his
driver who started such work before 2 to 2½ month of incident. The
salary was Rs.8,000/- per month. He has admitted as correct that Scorpio
car belongs to his brother. Hence PW-18 has admitted that the said
truck/vehicle Ex.P1 was given by him to both the accused. Strangely
there is no investigation from prosecution that both the accused were not
given assignment to visit the Dashmesh transport. Both the accused have
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State Vs. Gulzar & Anr. Page 18 of 47
submitted in their statement under Section 313 Cr. P.C that PW-18
Guddu Khan had got them falsely implicated. Accused Gulzar has stated
that they were sent by Guddu Khan after calling at 12 midnight on
25/26.08.2010 telling that some goods are to be brought from transport
office at Mori Gate. In this respect in fact prosecution must have
produced some evidence from the mouth of PW-18 that whether the
accused person were sent to Dashmesh transport or not. Accused
Gulzar/DW-2 has so deposed as witness for himself when the
prosecution evidence itself has proved that the accused person were in
due authorization of truck then it was incumbent upon the prosecution to
prove that accused person were not having due authorization to visit at
Dashmesh transport. In absence of such evidence it cannot be said that
accused persons were not authorised to visit Dashmesh transport by PW-
18. If the accused persons were so authorised then it cannot be said that
the accused person came at Dashmesh transport for the purpose of
commission of robbery. Hence this creates doubt in the case of
prosecution.
13. The prosecution witness has stated differently about number of
accused person appeared to commit the crime at different stages of
prosecution evidence. In the complaint Ex.PW4/A it is stated by the
complainant that 3-4 accused person had appeared to commit the offence
whereas the same complainant/PW-4 in his deposition dated 20.04.2011
at page 1 has deposed that there were 5-6 persons who had appeared to
commit the robbery. PW-5 in his cross-examination dated 13.09.2011 at
page 1 has deposed as correct that 4-5 accused person got down to
commit the robbery and it is also admitted that in his statement under
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State Vs. Gulzar & Anr. Page 19 of 47
Section 161 Cr. PC Ex.PW5/DX where he has stated that there were 3-4
accused person who had appeared to commit the robbery. PW-15 Sh.
Santosh Kumar has deposed at first page of his examination-in-chief
dated 06.07.2017 that 3-4 accused person had appeared to commit
robbery. It is admitted at page no. 4 of his cross-examination by PW-15
that not more than 04 accused person had appeared. In the chargesheet at
the second last page it is mentioned that there were 3-4 young accused
person. PW-11 Ct. Kishan Kumar in his examination-in-chief dated
25.07.2013 has deposed that 3-4 accused person came down from the
truck near Bijli Ghar, Khajuri Chowk, Delhi out of which 02 were
caught. PW-5 Sh. Bhagat Singh in cross-examination dated 13.09.2011
at page 1 has deposed as correct that he has deposed before the Court
that 4-5 accused person got down from the truck whereas in his
statement under Section 161 Cr. PC he has stated that there were 3-4
accused person. PW-4 Rana Sandeep in his cross-examination dated
13.09.2011 at page 1 has deposed that five accused person were involved
in the incident. PW-15 in his cross-examination dated 06.07.2017 at page
4 has deposed that during commission of the whole offence 30-45
minutes were taken. In such view of the matter when 30-45 minutes are
taken by the accused person who remained at the spot pointing out knife
towards the victim and making them sit on threat with eyes open at a
single place then it cannot be said that the number of accused could not
be clearly counted by the prosecution witness/public witness. Variation
in their statement as to number of accused creates doubt in the case of
the prosecution if such number of accused had appeared at all to commit
the offence of robbery. Benefit of which goes to the accused person.
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State Vs. Gulzar & Anr. Page 20 of 47
14. PW-3 HC Jitender Kumar in the night of 25/26.08.2010 was
present with HC Vinod and one driver Prakash. At that time at about
4:55 AM HC Bhule Khan reached on a Government motorcycle pointing
towards a vehicle going towards Khureji from Shastri Park. PW-3
alongwith other officials started chasing the vehicle. Two of the accused
were present in cabin who were apprehended by the police official and
remaining accused present at back side of the vehicle succeeded to run
away after jumping from the said vehicle. Similarly PW-9/HC Vinod
Kumar has deposed the same facts. PW-11 Ct. Kishan Kumar has
deposed that they have intercepted the truck of accused at Bijli Ghar near
Khajuri Chowk when 3-4 accused person jumped down from the truck
and started running towards Shastri Park. It is deposition contrary to PW-
3 that all the accused were not present in cabin but only two accused
were present in the cabin from where they were apprehended and the
other accused could not be apprehended as they were at back side of the
truck. It is not the case of the prosecution that the said truck had stopped
anywhere between when it was chased by police officials from the spot
or that any of the accused had ran away in between. In these
circumstances of the case due to variation in number of accused, the
arrest of accused from cabin and contradiction thereto whether all the
accused were present in the cabin or some were present on the back side
of the truck creates doubt in the case of the prosecution that if such
number of accused person were present at all or they were so arrested
from the cabin. PW-3 is official from PCR who had caught the accused
person but his name is not there either in site plan or in the arrest memo
of accused person. PW-5 Bhagat Singh has admitted as correct in cross-
examination dated 13.09.2011 that accused Haroon was shown to him at
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State Vs. Gulzar & Anr. Page 21 of 47
the police station and at page 2 it is deposed that he had identified
accused Gulzar at the police station. His signatures are not there either in
arrest memo or personal search memo of accused person. PW-3 does not
remember the name of police official reached at the spot alongwith ASI
Rishi Pal. However it is deposed that PW-3 ASI Rishi Pal and one more
police official was there at the spot. It is again deposed that HC Bhule
Khan was alongwith one more police official namely Kishan and there
were 07 police official present at the spot.
15. Vide order dated 26.04.2011 the vehicle was released to
Superdar. However the Superdar could not produce it during trial and
fine was imposed on Superdar/PW-18 for not producing the vehicle. PW-
18 was earlier made an accused by police who was got discharged by ld.
Trial Court which is mentioned in order dated 03.08.2011 as no
incriminating material was found against PW-18. Hence initially the
police was suspecting PW-18 as an accused that is why he was
discharged later on. It is defence of the remaining accused Gulzar and
Haroon that they were on duty as driver on the date of incident and came
on duty on instructions of PW-18 only.
16. As per deposition of PW-4 police had produced the accused
before him. PW-4 is witness to seizure memo Ex.PW4/D and to arrest
memo Ex.PW4/L and Ex.PW4/M though the accused person were not
arrested in his presence but the accused person were arrested with the
assistance of PW-3 at Pushta in front of Bijli Ghar. The arrest memo has
shown the place of arrest at Gokhale Market at Dashmesh Transport
which is not correct as per the case of prosecution. When the accused
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State Vs. Gulzar & Anr. Page 22 of 47
person were apprehended at Bijli Ghar then the place of arrest could be
Bijli Ghar only and PW-4 could not be witness to the same when he was
not present there. One more fact to be noted is that police had not
prepared any sketch memo of the remaining accused person despite the
fact that the accused person were seen by the victim at the spot for about
30-40 minutes and this creates doubt about involvement of any other
accused in this case. There is no complaint of PW-18/Guddu that
accused Gulzar or Haroon were not present at Dashmesh transport with
his instructions.
17. The case of the prosecution is that accused person have robbed
28 cartons of goods which are clothes. Contrary to the case of the
prosecution PW-15 has deposed in his examination-in-chief that there are
150-200 bundles and in cross-examination it is deposed that he cannot
tell that the accused person had picked 28 cartons from their office. It
took 30-35 minutes to lift the said bundles. He cannot tell the length of
bundles. He cannot tell the estimation in feet about size of bundles. He
cannot tell approximate weight of each of the bundle. It is admitted as
correct that two persons were engaged during unloading each bundle as
each bundle was heavy for one person. It is admitted as correct that the
bundles were heavy therefore it took two person to lift it and it was not
possible for one person to lift it or put it down. It is also admitted as
correct that all the bundles were loaded by the fourth assailant who had
not pointed out knife towards them. The bundles were packed in white
polythene which was opaque and all bundles were similarly packed.
According to PW-15 when they were unloading their truck at that time
accused person came and had committed robbery. To the contrary PW-14
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State Vs. Gulzar & Anr. Page 23 of 47
deposed that there were 28 cartons of clothes and they have already
unloaded their vehicle and sitting in their transport office. This
deposition is contrary to PW-15 that when the victim were unloading
their cloth bundle then accused person came and robbed them. PW-4 also
deposed contrary to PW-15 that only one accused person had put knife
on PW-4 and not other accused. The other accused started lifting the
cartons of cloth and started putting in their vehicle. PW-4 has deposed
that accused no. 2 Haroon had put knife on his neck whereas as per
deposition of PW-15 there were 03 accused person who have knife in
their hand and only one person was lifting the goods. As per the
complaint Ex.PW4/A knife was used by accused Haroon and the cloth
cartons were lifted by accused Gulzar. PW-10 at page 5 of his cross-
examination dated 07.10.2015 has deposed that weight of each bundle
was approximately about 50 kg in its estimation which was about 2 to
2½ feet in width and length and thickness was about 1½ to 2 feet. As per
the case of the prosecution, mentioned in the chargesheet, in 10-15
minutes the robbery was committed by accused person which means in
every 30 second period a carton was lifted by one of the accused and
loaded in their truck. This fact becomes unbelievable since one of the
carton was weighing about 50 kg and as per the deposition of
prosecution witness PW-15 the same cannot be lifted by a single person.
PW-5 has deposed that only one of the accused has put knife on the
victim Sandeep Rana/PW-4 and the remaining accused were lifting the
bundles including the accused Gulzar. The above deposition is contrary
to deposition of PW-15 that only one accused has lifted the goods. The
photograph of 28 carton of clothes are Ex.PW4/T. Another fact to be
noted is that as per deposition of PW-4, 28 cartons were lifted by the
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accused person and prosecution has not proved that what were the total
number of cartons available at the spot. If the total number of cartons
were 28 only and when they were already lifted then why the accused
person would be waiting at the spot.
18. PW-15 at page 5 of his cross-examination dated 06.07.2017 has
deposed that 03 police officials came at the spot and thereafter the
accused person had fled from the spot. PW-15 has deposed that except
him, Mr. Manjit the owner of Dashmesh transport and Sh. Umesh no
other person was present at the time of incident with them and therefore
it is deposed contrary to deposition of PW-4 and PW-5 that they were
also present at the spot at the time of incident/offence. Sh. Manjit and
Sh. Umesh are not prosecution witness in this case. PW-15 at page 1 of
his examination-in-chief has deposed that owner of Dashmesh transport
is Sh. Manjit whereas PW-4 has claimed that he is owner of Dashmesh
transport. PW-5 has deposed in his examination-in-chief dated
13.09.2011 that he was present at the shop of PW-4/Rana Sandeep.
According to PW-15, Rana Sandeep was not present at the shop. It is
deposed by PW-15 in cross-examination dated 05.09.2017 that probably
police has obtained his signatures on some documents. It is deposed by
PW-15 as correct there are other transport office adjacent to the transport
office in question which were not open. It shows that transport office
were not open throughout the day and if so many prosecution witness
were present at transport office at about 4 AM in the morning then they
must not be present there without reason. The prosecution has not
specifically proved that from where the cartons of clothes were
transported and to where they had to be delivered and by which date or
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State Vs. Gulzar & Anr. Page 25 of 47
that whether they had to be delivered or brought only for the purpose of
supply to PW-18. For what purpose such clothes in the carton would be
put into use is also not proved on record. PW-15 has deposed that he was
present at the shop from 4 AM till 6 AM after which he departed to
Jaipur. As per deposition of PW-4 the alleged offence was committed at
about 4:30 AM and police came at the spot after about 2 hours. As per
deposition of PW-15 his statement was recorded by the IO at the shop
itself which means it must have been recorded by 6 AM whereas FIR
Ex.PW1/A in the matter was registered at 8:35 AM and without
registration of FIR the statement of PW-15 could not be recorded and
therefore this creates doubt in the case of the prosecution regarding
correct preparation of documents. PW-15 has deposed at page 1 of his
examination-in-chief dated 06.07.2017 that owner of Dashmesh transport
is Sh. Manjit and knife was put on the neck of PW-15 and Sh. Manjit
whereas it is not the case of the prosecution that Sh. Manjit was present
at the spot nor he was made prosecution witness. Hence the above
circumstance creates doubt in the case of the prosecution about presence
of PW-4 or PW-15 at the spot and lifting of such cartons of clothes by
the accused person.
19. One more fact to be noted is that if the incident was sudden then
why TIP of accused person was not conducted by the police. As per the
complaint Ex.PW4/A it took 10-15 minutes during commission of
offence and the accused persons were not known to the victims.
Therefore it was desirable that TIP of the accused persons must have
been conducted for their correct identification and the role played by
them. Police had taken the accused person directly at the office of
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State Vs. Gulzar & Anr. Page 26 of 47
Dashmesh transport and shown accused person to the victims.
PLACE OF ARREST OF ACCUSED PERSON AND PLACE OF
SEIZURE OF ARTICLES
20. PW-3, PW-4, PW-5 and PW-15 has stated that it was a Eicher
truck whereas PW-9 Ct. Vinod Kumar has stated that it was a Tata 407.
The information was received by PW-9 to chase a vehicle. They were
chasing Tata 407 vehicle and PW-9 had all his attention towards Tata
407. Hence there is contradiction in respect of vehicle which was chased
and the vehicle which was seized. PW-9 has deposed that they had
stopped Tata 407 at Pushta in front of Bijli Ghar. PW-11 Ct. Kishan
Kumar has deposed in his examination-in-chief dated 25.07.2013 at page
1 that they had intercepted the truck near Bijli Ghar near Khajuri Chowk,
5th Pushta, Shastri Park, Delhi. Contrary to the same PW-9 had received
information at 5:25 AM from Ct. Kishan Kumar on telephone regarding
apprehension of accused person with robbed goods. The accused were
apprehended at power house/Bijli Ghar with the truck. The information
was received vide DD No. 5 at the police post. PW-10 alongwith HC
Dilbagh had reached Pushta road near Bhajanpura. Hence PW-11 has
deposed that the truck was stopped at Shashtri Park and PW-9 has
deposed that truck was stopped at Bhajanpura. PW-10 SI Rishi Pal at
page no. 3 of his cross-examination dated 07.10.2015 has deposed that
the distance between Shastri Park and Bhajanpura is about 4 km,. It is
further deposed that PW-10 has met the accused person at Pushta road
near electricity office near Bhajanpura. It is also admitted as correct that
no article or weapon of offence was seized from accused Gulzar at
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Bhajanpura and no search of truck was made at Bhajanpura either by
PW-10 or in his presence. It is also admitted as correct that the truck was
taken into possession at Bhajanpura itself. Hence the prosecution witness
have contradicted about the place of apprehending of truck and accused
person which creates doubt that whether the said truck was stopped and
seized at Shastri Park or at Bhajanpura which is approximately 4 km
apart from each other. This creates doubt in the case of the prosecution
regarding not only apprehension of the truck and the accused and also
that if any weapon of offence was recovered from the accused person.
The benefit of doubt must go to the accused person. It is argued on
behalf of accused person that PW-10 is the first IO in the case who was
the first person to reach at the spot for the investigation. It is also argued
that no intimation was given at the police station as there is no wireless
message that where the accused were arrested. The DD no. 5 dated
26.08.2010 Ex.PW10/B mentions that at about 5:25 AM information was
received from Ct. Kishan regarding the robbery and the accused were
apprehended at Pushta road, Bijli Ghar near Khajuri Chowk and further
investigation was assigned to ASI Rishi Pal. PW-2 is HC Dilbagh Singh
who had reached with ASI Rishi Pal at Pushta-5, Bijli Ghar near Khajuri
Chowk where they met Ct. Kishan and HC Bhule Khan of the PCR. To
the contrary PW-2 in cross-examination dated 07.10.2015 has deposed
that Ct. Kishan and HC Bhule Khan were already present at Bhajanpura
and they brought both the accused person from Bhajanpura back to
Dashmesh transport at Gokhale market. No information of robbery was
given to PW-2 by any one including ASI Rishi Pal. ASI Rishi Pal had
asked PW-2 to join the investigation to apprehend the accused when PW-
2 was going to Khajuri Pushta. At page 3 of the same cross-examination
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of PW-2 dated 07.10.2015 it is deposed that cursory search of the
accused was made at Bhajanpura. The truck was taken into possession in
Bhajanpura and the truck was in their possession immediately after
seizure. No statement was recorded by the IO at Bhajanpura in presence
of PW-2. IO did not prepare site plan at Bhajanpura in presence of PW-2.
To the contrary PW-3 HC Jitender Kumar has deposed that at about 4:55
AM HC Bhule Khan reached at Shastri Park at red light, Delhi on a
Government motorcycle and pointed towards the vehicle going towards
Khajuri from Shastri Park. They had stopped the vehicle at Pushta in
front of Bijli Ghar. Further, to the contrary vide Ex.PW10/B DD No. 5
the information was received at PS at about 5:25 AM about the
commission of robbery and the apprehension of the accused person.
Whereas PW-3 at page 2 of his cross-examination dated 10.03.2011 has
deposed that ASI Rishi Pal had reached at the spot at 5:20 AM though
the information was reached at the PS at about 5:25 AM. PW-3 had left
the spot at about 5:25 AM which means that PW-3 did not met ASI Rishi
Pal at the spot. This shows that PW-3 did not met ASI Rishi Pal and ASI
Rishi Pal had reached at the spot when PW-3 had already left from the
spot. Hence this creates doubt in the case of the prosecution about the
manner in which the truck, the accused and the goods were
seized/apprehended or if they were so seized/apprehended at all.
21. PW-10 ASI Rishi Pal had information vide Ex.PW10/B DD No.
5 that the accused were apprehended at Pushta road, Bijli Ghar near
Khajuri Chowk whereas it is deposed by PW-10 in his examination-in-
chief dated 31.01.2013 that he alongwith Ct. Dilbagh reached at Pushta
road near Bhajanpura where they met HC Bhule Khan and Ct. Kishan
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State Vs. Gulzar & Anr. Page 29 of 47
and the PCR van. The information was to reach at Khajuri Chowk and
PW-10 was going to Bhajanpura at a wrong place/incorrect location
despite of which he was able to meet correctly the remaining police
officials who were not expected to be present there. This creates doubt in
the case of the prosecution. Benefit of which goes to the accused person.
PW-11 Ct. Kishan Kumar at page 1 of his examination-in-chief dated
25.7.2013 has deposed that they had intercepted the truck near Bijli Ghar
near Khajuri Chowk, 5th Pushta, Shastri Park, Delhi and therefore PW-11
is not stating about seizure of truck at Bhajanpura. PW-11 further in his
cross-examination dated 31.10.2018 has deposed that vehicle was
intercepted at Bijli Ghar, Shastri Park which was going towards Khajuri
Khas from Shastri Park Chowk.
22. PW-2 has deposed in cross-examination dated 07.10.2015 at first
page as correct that the spot of occurrence is a thoroughfare. It is further
deposed that people were coming and going in their vehicle on the same
road where the truck in question was apprehended. Hence despite
availability of public witness no public witness was joined in the present
case and keeping in view the infirmities in the case of prosecution it
creates doubt in the case of the prosecution. In view of above
contradictions on material aspect in the evidence of prosecution witness
it was incumbent that public witness must have been joined by the
prosecution.
The relevant citation titled Mustakeen @ Bhura vs. State (Govt.
of NCT Delhi) on 2nd November, 2020 in CRL. A. 419/2018 &
CRL. M. (BAIL) 6459/2020 at para no. 56, 62, 63, 65, and 69
are reproduced hereasunder:
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FIR No. 213/2010
State Vs. Gulzar & Anr. Page 30 of 47
56. It is a settled principle of law that the prosecution has to stand
on its own legs and cannot draw strength from the lacuna in the
defence case. The appellant may have taken a wrong defence, but it
was for the prosecution to prove its case. In “Sharad Birdhichand
Sarda Vs. State of Maharashtra”, Criminal Appeal No. 745 of 1983
decided on 17.07.1984 by the Supreme Court of India it has been
held that the absence of explanation and /or post explanation, or a
false plea taken by an accused was not sufficient to convict the
accused. It was observed in this case that “it is well settled that the
prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence”. This is trite law
and no decision has taken a contrary view. What some cases have
held is only that:
“where various links in a chain are in themselves
complete, then a false plea for a false decence may be
called for aid only to lend assurance to the Court. In
other words, before using the additional link it must be
proved that all the links in the chain are complete and do
not suffer from any infirmity. It is not the law that where
there is any infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a false defence
or a plea which is not accepted by the Court.” In the
instant case, we have already held that PW 11 is not an
eye witness of this case. Considering PW 11 to be the
eye witness of this case, and throwing all settled
principles of law relating to TIP to winds, constable
Kuldeep was joined in the raiding party alongwith secret
informer and other police officials for apprehending the
accused persons of the incident which took place on
6.3.2011, but PW 11 has categorically stated to PW 44
SI Bhim Sain that appellant Arshad was not involved in
the crime which took place on 6.3.2011, but despite that
his disclosure statement was recorded and recovery of
Rs. 40,000/- was effected from him. No doubt, the
appellant has not been able to give proper explanation as
to how he was in possession of Rs. 40,000/-, but burden
was upon the prosecution to prove that the appellant was
involved in the crime which took place on 6.3.2011,
which the prosecution has miserably failed to do, as
discussed hereinabove. Therefore, the Ld. Trial Court
was not correct in drawing presumption against the
appellant Arshad U/s 114 of the Indian Evidence Act and
to convict him. The only evidence which remains on
record against appellant Arshad is his disclosure
statement which is not admissible in evidence. Apart
from this, there is not even an iota of evidence againstSC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 31 of 47
appellant Arshad to connect him with the crime which
took place on 6.3.2011.
62. We are aware that there is no rule of law or evidence, which
lays down that unless and until the testimony of the police
official is corroborated by some independent evidence, the same
cannot be believed. But it is a Rule of Prudence, that a more
careful scrutiny of the evidence of the police officials is required,
since they can be said to be interested in the result of the case
projected by them.
63. In the instant case, we have already observed hereinabove in
the judgment that PW 11 Ct. Kuldeep who has been projected as
an eye witness by the IO of this case, is not an eye witness and
has been planted in order to “solve” the case. Therefore, we have
find it hard to believe the testimonies of the police officials in the
absence of corroboration from any public witness, looking into
the facts and circumstances of this case and also the manner in
which the IO and the SHO have conducted themselves. For the
sake of repetition, the IO had made no efforts to join the public
witnesses. Had he made any such efforts, then the things would
have been different, but in the instant case, the manner in which
the investigation has been done and the non joining of any public
witnesses reduces the arrest and search of the appellant
untrustworthy, and the same does not inspire confidence.
65. We fail to understand as to why a person who had allegedly
killed a man and is the BC of the area would be carrying with
him all the articles mentioned hereinabove with him, that too
after 11 days of the incident. In our opinion, 11 days were
sufficient for the appellant Mustakeem to get rid of these articles
but, strangely enough, as per the prosecution, he was roaming
around with all this stuff of the deceased attached to his chest. It
is also a matter of common sense that whenever an offence is
committed in the jurisdiction of a police station, as a matter of
routine, the concerned SHO places suspicion on the local goons
and specially BC of the area. So, when such is the situation, we
fail to digest the theory of the prosecution that on the day of his
arrest-which is after 11 days of the date of the incident, appellant
Mustakeem would be carrying with him the articles of the
deceased. There would have been record of the accused
maintained in the Police Station and the same could be used to
identify him and establish his involvement. Where was the
necessity of involving a secret informer?
69. In order to connect the appellant Mustakeem with the
offence, again the Ld. Trial Court has raised presumption U/s 114SC No. 28072/2016
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State Vs. Gulzar & Anr. Page 32 of 47
(a) of the Indian Evidence Act. The presumption U/s 114 (a) of
the Indian Evidence Act may be available if the goods in
question found in possession of the person in question after the
theft, are proved to be stolen property. Unless the goods are
proved to be stolen property, the presumption U/s 114 (a) of the
Act is not available. In the instant case, the prosecution has not
been able to prove that it was the appellant who had committed
the offence on the date of the incident as alleged by the
prosecution. It was also not justified on the part of the Ld. Trial
Court to draw presumption U/s 114 (a) of the Evidence Act as the
possession, if any, cannot be said to be recent possession.
Therefore, if the prosecution has not been able to prove that the
sum of Rs. 70,000/- which according to the prosecution was
allegedly recovered from the appellant Mustakeem, was the
looted amount, the appellant cannot be convicted with the crime
by raising presumption U/s 114 (a) of the Indian Evidence Act.
23. PW-4 Sh. Rana Sandeep Kalra has deposed that accused person
were not interrogated in his presence. He is witness to the disclosure
statement of the accused person. Ex.PW4/B of accused Haroon and
Ex.PW4/C of accused Gulzar. PW-8 Ct. Mahipal Singh has deposed that
the disclosure statement of accused person was recorded at police post
Tis Hazari Court, Delhi. It is further deposed that complainant/PW-4
came to police post after recording of disclosure statement. To the
contrary PW-11 in his cross-examination dated 20.08.2018 at page 3 has
deposed that the disclosure statement of the accused person was prepared
by the IO at the spot. The accused were interrogated at the spot in the
presence of complainant/PW-4. Though PW-4 the complainant has
denied it. Hence no reliance of any kind can be placed on the disclosure
statement and it is held that the prosecution has failed to prove the
apprehension of accused person with the truck with 28 cartons of clothes
and thereby the prosecution has failed to prove the first ingredient of the
offence of robbery.
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 33 of 47
24. The second ingredient the prosecution has to prove that while
committing such theft, death or hurt or wrongful restraint or fear of such
was caused by the accused person. It is argued on behalf of ld. Counsel
for accused that the seizure memo of knife Ex.PW4/H and Ex.PW4/J is
the sketch of the knife recovered from the truck. It is argued that no
fingerprint were taken by the police on the said knife. It is deposed by
PW-4 at first page of his examination-in-chief dated 20.04.2011 that the
accused person had lifted knife from his neck after seeing the police.
Whereas in FIR Ex.PW1/A there is no mention of knife having been
placed on the neck of PW-4. It is deposed that on seeing the police the
accused person had started running away. PW-4 has stated that there
were 02 police officials on seeing whom the accused person had started
running away and it is the case of the prosecution since beginning and to
the contrary PW-15 at page 5 of his cross-examination dated 06.07.2017
has deposed that 3-4 police person had reached at the spot after which
accused person had started running away. To the contrary PW-15 has
deposed that knife was put on his neck as well as on the neck of Sh.
Manjit and neck of that third person who was Mr. Umesh. It is neither
the case of the prosecution nor it is mentioned in the complaint that
knife was put on the neck of three person nor it is the case of the
prosecution that Sh Manjit and Sh. Umesh were present at the spot. Sh.
Manjit and Sh. Umesh are also not the prosecution witness in the case. In
cross-examination by ld. APP for the State it is deposed by PW-15 that
he does not remember that it was Sh. Bhagat Singh in place of Sh.
Manjit. PW-4 in the complaint Ex.PW4/A has stated that knife was also
shown to one Sh. Malaram and one Sh. Santosh and PW-4 was also
made to sit with them in the corner. There is no mention of any person
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State Vs. Gulzar & Anr. Page 34 of 47
namely Mr. Umesh. Hence the prosecution witness has deposed
contradictorily about the person/victim present at the spot and improved
its version from time to time. In case of robbery when accused person
were present at the spot for about 10-15 minutes there should not be any
dispute either about the identity of the accused their number or about the
identity of the victims. The prosecution witness has deposed
contradictorily and improved their version and therefore it creates doubt
in the case of the prosecution whether any knife was shown at all to the
victims by the accused person. There is no recovery of Rs.5000/- from
the accused person nor there is recovery of mobile phone. The ownership
of mobile phone and its call detail record are also not proved by the
prosecution on record.
25. The sketch of knife is Ex.PW4/J. It is case of the prosecution that
the knife was recovered at the instance of accused when the truck was
seized by police person. At that time PW-4 was not present. Whereas in
the sketch of knife PW-4 is the witness. Nor it is proved that such
possession of knife was prohibited under any law. If this knife was used
to cause threat upon the victim then the evidence of prosecution witness
does not sustain it due to the fact that evidence is contradictory in nature
and cannot be believed. PW-4 has improved upon his statement while
deposing that one of the accused has put knife on his neck and others
were lifting cartons whereas in complaint Ex.PW4/A it is stated that one
of the accused had shown knife to three victim and it is not mentioned
that knife was put on the neck of PW-4. PW-5 has deposed that knife was
put on him and PW-4 by accused Haroon. It is noted that no special
identification mark on the said knife was pointed out either by PW-15 or
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 35 of 47
by PW-4 and in absence of such specification and in absence of any
sketch prior to such seizure of knife it is difficult to say that it is the
same knife allegedly shown by the accused person. PW-15 has deposed
that three of the accused had put knife on three victims and one of the
accused was lifting the goods. Whereas PW-4 has deposed that one of
the accused has shown knife and the remaining accused were lifting the
goods. Due to above contradictory evidence of prosecution witness it is
held that prosecution has failed to prove that accused has shown knife to
the victims. Had three knives have been shown to the victims then there
must be recovery of three knives moreso when immediately after the
offence the accused had started running in their truck which were sooner
followed by the police team on motorcycle with no gap in time. PW-11
has deposed that beneath the seat of cleaner of the truck a knife was
recovered. From the side of driver in the truck one iron road and one
small rope cutter was recovered. PW-10 has deposed at page 3 of cross-
examination dated 07.10.2015 as correct that no article or weapon was
seized from accused Gulzar at Bhajanpura where the accused was
apprehended and no search was made at Bhajanpura in his presence
though the truck was taken into possession at Bhajanpura. However iron
rod and rope cutter was not used by the accused as per the case of the
prosecution. The use of alleged recovered knife is itself doubtful. The
recovery of knife is also doubtful in view of doubt about the place of
arrest of the accused person. Hence it is held that prosecution has failed
to prove the second ingredient of the offence that the accused has caused
or attempted to cause or put in instant fear of death, hurt or wrongful
restraint.
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 36 of 47
26. Since the prosecution has failed to prove the first two ingredients
therefore the third ingredient that the accused person had committed the
act for the completion of first two ingredients also fails as it is a
dependent on satisfaction of first two ingredients. It is noted that Section
392/397 IPC on the one hand and Section 411 IPC on the other hand
cannot stand together in the same charge but they can only stand in the
alternative. It is for the reason that Section 379 and Section 411 IPC
cannot be charged against the same accused other than in the alternative
since both of them cannot stand together against the same person for
conviction of the same stolen articles. It is not the case of the prosecution
that they are charging the accused person in the alternative under above
provision of law. Hence it is held that prosecution has failed to prove that
both the accused with other accomplice have committed any offence
under Section 392/397/34 IPC or under Section 411/34 IPC.
27. The necessary ingredients of forgery Under Section 468 IPC
were laid down in the judgment titled Raghu Nath Singh & Others Vs.
State of U.P. & Another and the relevant para are reproduced
hereasunder:
In Application U/s. 482 No. -17011 of 2008 titled Raghu Nath
Singh & Others vs State of U.P. & Another from Hon’ble High
Court of Judicature at Allahabad dated 21.1.2016 it was laid down
that:
Applicants have been charge-sheeted under sections 420, 467, 468,
471 IPC. This Court has to examine whether ingredients of the
aforesaid sections are available or not.
Submission of learned counsel for the applicants is that allegations
levelled against the applicants reveals two sets of allegations. First,
subsequent vendors sold the property to subsequent vendees
despite knowledge of earlier sale and second, that applicant nos. 4
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 37 of 47
and 5 being attesting witnesses of the subsequent sale-deed
knowingly and deliberately acted as attesting witnesses. Whether
these allegations and available evidence would made out a case
under sections 420, 467, 468, 471 IPC is to be seen.
Sections 467, 468, 471 IPC.
Forgery is sine-qua-non of offences under sections 467, 468 and
471 IPC. Preparation of false document or false electronic record
or part thereof is condition precedent for offence of forgery.
Making of false document is defined under section 464 IPC. The
said section 464 demonstrates that a person is said to have made
false document if;
(a) he executed a document claiming to be someone else or
authorized by someone else; or
(b) he altered and tempered a document; or
(c) he obtained a document by practicing deception or from a
person not in control of his faculties.
The basic ingredients of forgery are
(1) the making of a false document or part of it and
(2) such making should be with such intention as is specified in the
section, viz,
(a) to cause damage or infringe to
(i) the public, or
(ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property, or
(d) to cause any person to enter into an express or implied contract;
or
(e) to commit fraud or that fraud may be committed.
Coming back to the facts of the present case, it is apparent that
subsequent vendors sold their property to applicants Raghu Nath
Singh, Salim Akhtar and Amir Ahmad. Subsequent vendor did not
impersonate or play deception on the complainant or altered or
tempered any document or played any deception on the
complainant. There is no allegation on record much less evidence
that execution of sale-deed by subsequent vendor in favour of
applicant nos. 1 to 3 involved forgery of documents. Law is very
simple even if a person executes a document transferring property,
disclosing such property as his own, it can not be termed as forgery
within the meaning of Section 463 IPC. Subsequent vendor and
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 38 of 47
purchasers did not impersonate anybody. Subsequent vendors were
selling property claiming ownership to applicant nos. 1 to 3. Even
if any property is sold by a person claiming ownership, which is
not his, without impersonating or falsely claiming that he has been
authorized by someone else, the execution of such document can
not be termed as false document in terms of Section 464 IPC. In
such situations, there is no question of forgery as contemplated
under section 463 IPC. If offence of forgery is not made out then,
offences under sections 467, 468 and 471 IPC can not be sustained
for the simple reason that forgery is an essential part of all the
offences under aforesaid sections without which provisions of
sections 467, 468, 471 IPC would not be attracted.
Sections 420 IPC
To constitute an offence under section 420 IPC, the allegations
must disclose ingredients of cheating as defined under Section 415
IPC. Section 415 talks of fraudulent or dishonest inducement to the
person so deceived to deliver any property to any person, or to
consent that any person shall retain any property, or intentionally
induces a person so deceived to do or omit to do anything which he
would not do or omit if he was not so deceived. Meaning thereby
that there must be not only be cheating but accused should also
have been dishonestly induced the person deceived to deliver any
property to any person or to make alter or or destroy wholly or in
part a valuable security or anything signed or sealed which is
capable of being converted into a valuable property. Valuable
security is defined under section-30 IPC. No other meaning can be
attached to this definition.
Hon’ble Apex Court in the case of Mohammed Ibrahim and others
Vs State of Bihar and another reported in (2009) 8 SCC 751 in
paragraph nos. 18 & 19 has held as under:
“18. The essential ingredients of the offence of “cheating” are as
follows:
(i) deception of a person either by making a false or misleading
representation or by dishonest concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that person to either
deliver any property or to consent to the retention thereof by any
person or to intentionally induce that person so deceived to do or
omit to do anything which he would not do or omit if he were not
so deceived; and
(iii) such act or omission causing or is likely to cause damage or
harm to that person in body, mind, reputation or property.
19. To constitute an offence under Section 420 IPC, there should
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FIR No. 213/2010
State Vs. Gulzar & Anr. Page 39 of 47
not only be cheating, but as a consequence of such cheating, the
accused should have dishonestly induced the person deceived,
(i) to deliver any property to any person,
(ii) to make, alter or destroy wholly or in part a valuable security
(or anything signed or sealed and which is capable of being
converted into a valuable security).”
28. The next charge against the accused Gulzar is that he was
apprehended by the police with one DL No. S45361 in the name of Shiva
which was found to be forged. PW-11 Ct. Krishan Kumar in his
examination-in-chief dated 25.07.2013 has deposed that during search of
accused Haroon he was found carrying two driving licence. One driving
licence is in the name of Haroon and other driving licence is in the name
of Haroon S/o Hanif. The second driving licence was forged. They were
seized vide memo Ex.PW4/E and Ex.PW4/F. PW-14 has deposed that in
the year 2010 computerized driving licence were issued by the authority.
PW-14 Sh. Rajender Singh, Clerk from licensing authority/RTA,
Ambala, Haryana has seen the driving licence Ex.P-6 which is in
handwriting and not computerized and licence no. S-45361/Ex.P-6 does
not confirm to the record of transport office. No such series is there on
record. The licence code of the authority is HR 37 and therefore Ex.P-6
is not issued by licensing authority/RTA, Ambala Haryana. It is deposed
by PW-16 Insp. Jagdish Yadav at page no. 2 of his cross-examination
dated 18.11.2019 that he had got verified 04 driving licences of both the
accused and one of the driving licence of each of the accused was found
fake. Accused Gulzar was charged under Section 468 IPC for having
forged driving licence no. S-45361 and accused Haroon was charged
under Section 468 IPC for having forged driving licence H-8522. PW-7
Sh. Deen Dayal, Peon from Loni Authority, Shahdara has produced
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State Vs. Gulzar & Anr. Page 40 of 47
record of driving licence of accused Haroon valid upto 13.01.2013
certified copy of which is Ex.PW7/A. PW-12 Sh. Surinder Singh, Clerk
from RTA Karnal, Haryana has deposed that DL no. H-8522 in the name
of Haroon was not issued nor renewed by their office. The letter in this
respect is Mark PW12/A. PW-13 is Sh. Raj Kumar, Clerk from licensing
authority, RTA Karnal, Haryana who had proved that licence no. H-8522
dated 05.09.2009 was never issued in the name of Haroon S/o Mohd.
Hanif by RTA. There is no series of alphabet “H”. Their office issues
licence only for HTV and not for LMV or HMV. The letter in this respect
is Ex.PW13/A. Hence prosecution has proved that one of the licence
recovered from each of the accused was not issued by the concerned
licensing authorities.
29. The burden of proof is on the prosecution that accused persons
have committed forgery under Section 468 IPC. It was laid down in case
Parshadi Lal Vs. State of Govt. of NCT of Delhi wherein it is held that
who commits forgery must be intending that such documents shall be
used for the purpose of cheating. Cheating is defined in Section 415 IPC.
For cheating there must be intentional inducement of the person
deceived to do or omit to do anything which he would not do or omit to
do if he was not so deceived. A dishonest concealment of fact is
deception. Hence there must be some act or omission on the part of
accused and it is done fraudulently if the accused does that thing with
intend to defraud. In the present case the accused person had not
produced the driving licence to the police officers which was allegedly
forged one. In fact the said driving licence as per the case of the
prosecution was recovered during personal search of the accused. Hence
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FIR No. 213/2010
State Vs. Gulzar & Anr. Page 41 of 47
the driving licence were not produced by the accused person and there
was no act or omission on the part of accused person in respect of the
alleged forged licence. Hence intend to cause damage or injury or to
support any claim or title or to cause any person to part with property is
absent in seizure of said driving licence from both the accused person.
Hence ingredient of cheating as defined under Section 415 IPC is absent.
Secondly, forgery is defined under Section 463 IPC and making of false
document is defined under Section 464 IPC. Therefore prosecution has
to show that accused person has made false electronic record with
intention to cause damage or injury causing that such forged document
was true. In the present case neither any handwriting or specimen
signatures of accused person were taken and nor any FSL report was
produced. It was laid down in the citation referred above that if the
accused is acquitted for the offence punishable under Section 420 IPC
then he cannot be convicted for offence punishable under Section 419
and 468 IPC because neither the accused has deceived any person
fraudulently or dishonestly or induced the person so deceived to deliver
any property to any person. Hence it is held that the prosecution has
failed to prove that accused person has committed any forgery codified
under Section 463 IPC. It is also not established that accused person
have prepared any document and seal as the prosecution has neither
proved specimen signature of the accused person nor proved any
signature or any evidence thereto. The relevant para of the citation
referred above is reproduced hereasunder:
Parshadi Lal vs. State Govt. of NCT of Delhi (23.04.2012 –
DELHC) : MANU/DE/1775/2012=Neutral Citation:
2012:DHC:2699
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State Vs. Gulzar & Anr. Page 42 of 47
11. Learned Trial Judge has further recorded that the remaining
offence is under Section 468 Indian Penal Code, 1860. For the
convenience same is reproduced as under:-
Section 468. Forgery for purpose of cheating:–
Whoever commits forgery, intending that the (document or
Electronic Record forged) shall be used for the purpose of
cheating, shall be punished with imprisonment of either description
for a term which may extend to seven years, and shall also be
liable to fine.
Xxxxxxxxxxxxxxxx
24. Learned counsel has referred to the provisions contained in
Section 415 Indian Penal Code, 1860. For the convenience same is
reproduced as under:-
Section 415. Cheating:–
Whoever, by deceiving any person, fraudulently or dishonestly
induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or
property, is said to “cheat”.
Explanation
A dishonest concealment of facts is deception within the meaning
of this section.
25. Learned counsel submits that as per the aforementioned
provision, the petitioner must have deceived any person
fraudulently or dishonestly induces the person so deceived to
deliver any property to any person. In the present case, there is no
evidence on record that the petitioner has deceived anybody.
26. Learned counsel further submitted that the expressions
‘dishonestly’ and ‘fraudulently’ have been defined under Sections
24 & 25 Indian Penal Code, 1860 respectively; which read as
under:-
Section 24. Dishonestly:–
Whoever does anything with the intention of causing wrongful
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FIR No. 213/2010
State Vs. Gulzar & Anr. Page 43 of 47
gain to one person or wrongful loss to another person, is said to do
that thing ‘dishonestly’.
Section 25. Fraudulently:–
A person is said to do a thing fraudulently if he does that thing with
intent to defraud but not otherwise.
27. He submitted that in the present case, petitioner has had not
received any wrongful gain and has not caused any wrongful loss
to any person. Perusal of the aforementioned provisions shows that
a person has to do any fraudulent with intent to defraud but not
otherwise. In the instant case, the petitioner has not defrauded
anyone. Therefore, both the allegations i.e. dishonestly and
fraudulently have not been proved against petitioner.
28. While referring to cheating as defined under Section 415 Indian
Penal Code, 1860, he submitted that as mentioned in the
explanation that dishonest concealment of fact is a deception but it
has to be fraudulently or dishonestly in inducing any person.
However, the same has also not been established against the
petitioner.
29. Learned counsel further referred to the offence punishable
under Section 468 Indian Penal Code, 1860 and submits that it is
clearly mentioned that whoever commits forgery intending that
same shall be used for the purpose of cheating. Therefore, in the
present case, the petitioner has not committed any ‘forgery’, which
is codified under Section 463 Indian Penal Code, 1860. For the
convenience same reads as under:-
Section 463. Forgery:-
Whoever makes any false documents or false electronic record or
part of a document or electronic record, with intent to cause
damage or injury, to the public or to any person, or to support any
claim or title, or to cause any person to part with property, or to
enter into any express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery.
30. Perusal of the above provisions makes it clear that one has to
make a false or false electronic record with intention to cause
damage or injury to the public or any person. The case against
petitioner also does not fall under Section 468 Indian Penal Code,
1860 because has not caused any damage or injury to anyone.
31. Learned counsel further submits that Section 464 Indian Penal
Code, 1860 enumerates as under:-
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FIR No. 213/2010
State Vs. Gulzar & Anr. Page 44 of 47
Section 464. Making a false document :-
A person is said to make a false document or false electronic
record-
First-Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a
document;
(b) makes or transmits any electronic record or part of any
electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the
authenticity of the electronic signature, with the intention of
causing it to be believed that such document or part of document,
electronic record or electronic signature was made, signed, sealed,
executed, transmitted or affixed by or by the authority of a person
by whom or by whose authority he knows that it was not made,
signed, sealed, executed or affixed; or
Secondly-Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a document or an
electronic record in any material part thereof, after it has been
made, executed or affixed with electronic signature either by
himself or by any other person, whether such person be living or
dead at the time of such alteration; or
Thirdly-Who dishonestly or fraudulently causes any person to sign,
seal, execute or alter a document or an electronic record or to affix
his electronic signature on any electronic record knowing that such
person by reason of unsoundness of mind or intoxication cannot, or
that by reason of deception practised upon him, he does not know
the contents of the document or electronic record or the nature of
the alteration.
Xxxxxxxxx
34. Neither the handwriting nor specimen signatures of the
petitioner were taken; hence there is no occasion for any FSL
report thereon. Therefore, the petitioner cannot be held liable for
any of the offences provided under Indian Penal Code, 1860.
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40. Additionally, the ld. Trial Judge acquitted the petitioner for the
offences punishable under Section 420 of Indian Penal Code, 1860
and convicted the petitioner for the offences punishable under
Section 419 and 468 of Indian Penal Code, 1860.
41. In my considered opinion, I find force in the submission of ld.
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 45 of 47
Counsel for the petitioner that if the petitioner was acquitted from
the offences punishable under Section 420 Indian Penal Code,
1860, he cannot be convicted for the offences punishable under
Section 419 and 468 Indian Penal Code, 1860, because neither the
petitioner deceived any person fraudulently or dishonestly or
induced the person so deceived to deliver any property to any
person.
42. Neither the petitioner committed forgery intending for the
purpose of cheating. To bring the petitioner within the four-corners
of Section 415 as mentioned in its explanation that dishonest
concealment of fact is a deception but has to be fraudulently or
dishonestly in inducing any person. However, the same has not
been established against the petitioner.
43. Undisputedly, the petitioner has not committed any forgery,
which is codified under Section 463 Indian Penal Code, 1860. It is
also not established that the petitioner himself prepare the
document and seal, as the prosecution neither proved his specimen
handwriting nor his signature or any evidence thereto.
44. Therefore, on both the counts, the two courts below have gone
wrong while convicted the petitioner in the present case. Therefore,
the impugned judgment dated 04.04.2011 is set aside.
Consequently, the judgment dated 17.01.2011 passed by ld. MM is
also set aside. Consequently, petitioner is acquitted from all the
charges.
30. In such view of the matter it is held that prosecution has failed to
prove that both the accused have committed forgery under Section 468
IPC for the purpose of cheating.
31. At this stage this Court also wants to appreciate the sincere
efforts of Sh. Karan Pal Singh, Ld. Counsel for accused Gulzar and Sh.
Bhanu Pratap Singh, Ld. Counsel for accused Haroon who unearthed the
truth of the matter and highlighted material discrepancies between the
testimonies of prosecution witnesses.
32. In such view of the matter, it is held that prosecution has failed to
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 46 of 47
prove all the charges levelled against both the accused. Hence accused
no. 1 Gulzar and accused no. 2 Haroon stands acquitted for the offence
under Section 392/397/411/468/34 IPC. The earlier personal bond of
both the accused stands cancelled and surety bond stands discharged.
The documents, if any, be returned to the surety and endorsement on
security documents is allowed to be de-endorsed. In terms of Section
437A Cr. P.C, both the accused have furnished their bail bond as directed
which will be in force for period of six months from the date of this
judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Announced in the open Court JOGINDER Digitally
JOGINDER
signed by
on 17.04.2025 PRAKASH PRAKASH NAHAR
Date: 2025.04.17
NAHAR 15:59:50 +0530
(JOGINDER PRAKASH NAHAR)
ADDITIONAL SESSIONS JUDGE (FTC-01)
CENTRAL/TIS HAZARI COURT
DELHI
SC No. 28072/2016
FIR No. 213/2010
State Vs. Gulzar & Anr. Page 47 of 47
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