Delhi High Court
State vs Arun Kumar & Ors on 30 June, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 30th June, 2025
+ CRL.A.557/2025
STATE OF NCT OF DELHI
.....Petitioner
Through: Mr. Yudhvir Singh Chauhan,
Additional Public Prosecutor for State with
SI Neeraj Kumar
Versus
1. Arun Kumar
S/o Sh. Babu Ram
R/o 258/271, Gali No. 4, Nala Road,
Kapil Vihar, Mukund Pur, Delhi
2. Imran @ Amit
S/o Shri Yusuf Khan
R/o H. No. M-718, JJ Colony,
Shakurpur, Delhi
3. Hemant @ Hanumant
S/o Sh. Bhagwan Dass
R/o M-504, JJ Colony,
Shakurpur, Delhi
....Respondents
Through: Mr. Sulaiman Mohd. Khan,
Adv. (amicus curiae) with
Mr. Gopeshwar Singh Chandel, Mr. Taiba
Khan and Mr. Abdul Bari Khan, Advts. for
R-2 and R-3.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
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NEENA BANSAL KRISHNA, J.
CRL.A. 557/2025
1. Appeal under Section 378(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the “Cr.P.C.”) has been filed by the State against
the judgment dated 13.02.2017 vide which the Respondents have been
acquitted in FIR No. 0355/2013 under Sections 392/397/34 of the Indian
Penal Code, 1860 (hereinafter referred to as the “IPC“) at P.S. Subhash
Place.
2. Briefly stated, the case of the Prosecution is that on 17.08.2013, the
Complainant/Dalbir Singh while going for his duty to the PM Security Cell,
at about 5.32 AM, reached near HP Petrol Pump after crossing the Wazirpur
flyover. One motorcycle came from behind, which was being driven by
Imran @ Amit with Afsaroon Choudhary sitting as a pillion rider, and was
plying parallel to him. The pillion rider asked him „bhai sahab kaha ja rahe
ho‟ to which, he replied he was going for his duty.
3. In the meanwhile, this motorcycle came in front of his motorcycle and
stopped him. The pillion rider Afsaroon Choudhary took out the keys of his
motorcycle. In the meanwhile, the second motorcycle on which
Accused/Respondents Hemant @ Hanumant and Arun Kumar were sitting,
(as later identified by the Complainant). The pillion rider of the first
motorcycle i.e. Afsaroon Choudhary (who is a Proclaimed Offender) took
out a country made pistol, aimed it towards the Complainant, and told him
not to move or else he would fire.
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4. The Accused on the second motorcycle also threatened him that „jo
tere paas hain nikal, nahi to goli mar dunga‟. The Accused Imran @ Amit
(as was later identified), caught hold of the right hand of the Complainant
and robbed him of his gold ring and gold kada. Thereafter, Afsaroon
Choudhary, on gunpoint, told him to take out the wallet and took Rs.600
which was in his wallet.
5. The Complainant thereafter, went to the Police Station on his
motorcycle and got the FIR No. 0355/2013 registered under Sections
392/397/34 at P.S. Subhash Place.
6. On 19/20.11.2013, Arun Kumar, Imran @ Amit, Hemant @
Hanumant and Afsaroon Choudhary, the 04 Accused in the present FIR,
were apprehended in different FIR No. 0353/2013 at P.S. Keshav Puram by
SI Umesh Rana. They made their disclosure statement Ex. PW7/A to Ex.
PW7/D, respectively, wherein they made a disclosure about their
involvement in the present incident.
7. The information was conveyed to the IO of the present case vide DD
No. 5B dated 23.11.2013. SI Radhey Shyam, the IO, formally arrested the
04 Accused in this case on 10.12.2013.
8. Thereafter, he got Test Identification Parade (hereinafter referred to
as the “TIP”) conducted on 13.01.2014, but all 04 Accused refused to get
their TIP done.
9. The IO on completion of the investigations filed the Chargesheet in
the Court and all the 04 Accused persons were summoned.
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10. Charge under Section 397 IPC was framed against Afsaroon
Choudhary, while Charges under Sections 392/34 were framed against all
the 04 Accused on 15.02.2014 to which they all pleaded not guilty.
11. Afsaroon Choudhary was declared a Proclaimed Offender during the
pendency of the trial vide Order dated 10.01.2017. The trial was continued
against the remaining three Accused/Respondents.
12. The Prosecution in support of its case examined 12 witnesses. The
most material witness is PW-1/Dalbir Singh, the Complainant. The other
witnesses were all support witnesses, while PW-11/SI Umesh Rana was the
IO in FIR No. 0353/2013 wherein the Respondents were arrested on
19/20.11.2013 and their disclosure statements Ex. PW-7/A to Ex. PW-7/D,
were recorded.
13. PW12/SI Radhey Shyam, IO, who deposed about the investigations
conducted in this case.
14. The statement of 03 Respondents/Accused as well as Afsaroon
Choudhary was recorded under S.313 Cr.P.C. in which they denied all the
incriminating evidence and pleaded their innocence.
15. The learned ASJ in the impugned judgment dated 13.02.2017
considered the prosecution evidence and observed that the manner in which
the Respondents were apprehended and got identified by the Complainant,
the delay in registration of FIR and non-recovery of any robbed items from
the possession of the Respondents and the manner of identification of the
Respondents by the Complainant, created a doubt on the prosecution story.
Benefit of doubt was given to the Respondents, who were acquitted vide
judgment dated 13.02.2017.
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16. Aggrieved by the said acquittal, present Appeal has been preferred by
the State.
17. The grounds of challenge are that the learned Trial Court erred in
disbelieving the testimony of the Complainant, who not only supported the
case of the Prosecution but also identified the Respondents. Furthermore,
delay of registration of FIR by 02 hours, which has been duly explained by
the Complainant, cannot be considered fatal to the Prosecution‟s case.
18. The Complainant had explained that he had sought help of some
public persons to start his motorcycle to explain how he reached the Police
Station as the keys of the motorcycle had been taken away by the
Respondents.
19. It is a settled principle of criminal jurisprudence that minor
inconsistencies in testimony of the Prosecution witnesses, cannot be the
basis for disbelieving the Prosecution‟s case. No witness can be expected
have video graphic memory and minor inconsistencies with no
consequential effect, cannot be given undue importance.
20. It is asserted that mere non-joining of public witnesses from the Petrol
Pump, is neither compulsory for the Complainant nor is it material,
especially, when the Complainant was traumatised and was under the fear
after the incident happened to him.
21. The Complainant has stated that he immediately went to the Police
Station, which was at a distance of about 01 KM and thus, there was no
necessity for him to inform the PCR. It has also not been appreciated that
there was no previous enmity between the Complainant and the
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Respondents, which would have prompted false implication of the
Respondents.
22. It has not been considered that the Respondents had refused to join the
TIP proceedings without any justification. Such refusal is a significant piece
of evidence for drawing an adverse inference against the Respondents. The
failure to participate in TIP would not make the subsequent identification of
the Respondents in the Court as inadmissible, as has been held in the case of
Md. Kalam @ Abdul Kalam vs. State of Rajasthan, AIR 2008 SC 1813 and
Kanta Prasad vs. Delhi Administration, 1958 CrlLJ 6981.
23. The Complainant had ample opportunity to look at the Respondents
while he gave them a chase after he was robbed. The Complainant had duly
identified the Respondents and the learned Judge fell into error in
disbelieving the identification of all the Respondents by the Complainant
during the trial.
24. In the end, it is submitted that the Respondents have been wrongly
given the benefit of doubt to acquit them and the impugned judgment be,
therefore, set aside.
25. The Respondents in their Reply have contended that the prosecution
had failed to prove the complete chain of events and to prove its case
beyond reasonable doubt. Reference was made to Thulia Kali vs. State of
T.N., (1972) 3 SCC 393 wherein it was observed that delay in registration of
FIR quite often results in embellishment which is a creature of afterthought.
On account of delay, the report not only gets bereft of the advantage of
spontaneity, but danger creeps in of the introduction of coloured version,
exaggerated account or a concocted story, as a result of deliberation and
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consultation. It is, therefore, essential that delay in registration of FIR should
be satisfactorily explained.
26. In the present case, no recovery of alleged robbed articles was
effected from the possession of the Respondents. The disclosure statement
of the Respondents allegedly recorded in another FIR is not admissible in
evidence to connect them with the commission of the offence and the benefit
of doubt has been rightly granted to them.
27. Furthermore, it has been rightly noted by the learned ASJ that despite
the Complainant having his mobile phone in his possession, he neither
called the PCR nor did the IO try to establish the location of the incident
through the CDR record. Furthermore, no CCTV camera footage from the
site, was recovered. There was major contradiction in the testimony of the
Complainant and the Supplementary Statement dated 13.01.2014 Ex. PW-
1/DX regarding the identification of the Accused persons, which has been
rightly appreciated by the learned ASJ.
28. It is contended that there is a presumption of innocence against the
Respondents, which is the fundamental principle of criminal jurisprudence.
Furthermore, the judgment of acquittal by the learned ASJ reinforces,
reforms and strengthens the innocence of the Respondents. It is submitted
that the learned Trial Court has rightly appreciated all the aspects of the
alleged offence and has acquitted the Respondents.
29. There is no merit in the present Appeal, which is liable to be
dismissed.
30. Submissions heard and record perused.
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31. At the outset, it may be noted that while considering the Appeal
against the judgment of acquittal by the learned Trial Court, the said
judgment must not be lightly disturbed unless there are material grounds for
doing so. In the case of Jafarudheen and Others vs. State of Kerala, (2022)
SCC OnLine SC 495, the Supreme Court observed that the acquittal by the
learned Trial Court gives a view, which can be termed as possible and adds
to the presumption of innocence in favour of the Accused. The Appellate
Court must be slow in reversing the order of the learned Trial Court
rendering acquittal; rather the initial presumption of innocence gets doubled
by such judgment of acquittal, which has made after close scrutiny of the
entire evidence.
32. Similar principles have been stated in Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 wherein while reiterating that the Appellate
Court has full power to review, re-appreciate and re-consider upon which
the Order of acquittal is founded and various expressions such as
“substantial and compelling reasons”, “good and sufficient grounds”, “very
strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are
not intended to curtail extensive powers of the Appellate Court in an Appeal
against acquittal. Such phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of the Appellate Court to interfere
with the acquittal, rather than to curtail the powers of the Appellate Court to
reconsider the evidence and to come to its own conclusion. However, the
Appellate Court must bear in mind that the double presumption of innocence
operates in favour of an Accused, who has been acquitted. If two reasonable
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conclusions are possible on the basis of evidence on record, the Appellate
Court should not disturb the findings of acquittal.
33. Guided by the aforesaid principles that the judgment of acquittal must
been appreciated with case and caution in the light of presumption of
innocence having confirmed in favour of Respondents, the facts of the
present case may be considered.
34. The star witness of the prosecution is PW-1 Dalbir Singh, the
Complainant, who is Sub-Inspector („SI‟) in Delhi Police posted in the PM
Security Cell. He had left his house on 17.08.2013 at about 5.00 AM on his
motorcycle to report for duty. At about 5.32 AM, when he reached near HP
Petrol Pump after crossing the Wazirpur flyover, he was way laid by a
motorcycle, which was plying parallel to him for some time. The motorcycle
was being driven by Imran @ Amit on which Afsaroon Choudhary was the
pillion rider. The Accused stopped his motorcycle by bringing their
motorcycle ahead of him and took out the keys from his motorcycle.
Thereafter, Afsaroon Choudhary took out the gun and pointed it towards
him. In the meanwhile, another motorcycle on which Hemant @ Hanumant
and Arun Kumar were riding, also came alongside and stopped there. They
all exhorted that he should handover whatever he was possessing or else he
would be shot. Respondent No. 2-Imran @ Amit removed the gold ring and
the gold kada that he was wearing and asked him to take out the purse,
which had Rs.600/- in cash. The money was also taken away by the 04
Accused and they left the scene of crime.
35. The first aspect, which has been considered by the learned ASJ is that
the incident happened at about 5.32 AM near a Petrol Pump despite which
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the Complainant did not seek the assistance from the persons at the petrol
pump.
36. Though the incident happened near the petrol pump, but it cannot be
overlooked that the time of incident was at 5.32 AM. There can be no
presumption that at such early morning hour, the persons were present at the
petrol pump. Likewise, there is no mandate that a victim must necessarily
approach the public person present in the vicinity to seek help. It cannot be
overlooked that he himself is a serving SI in the Delhi Police. He may not
have sought the assistance of public persons but that in itself, can be no
ground to discredit his testimony.
37. The learned Trial Court further noted that despite being in possession
of his mobile phone, he did not make any call to PCR. It again boils down to
his being a SI in Delhi Police and for this reason may not have considered it
necessary to call the PCR. Merely not calling the PCR, is again not a
circumstance to discredit his testimony.
38. The third aspect which was considered by the learned ASJ, is the
delay of about 02 hours in registration of FIR. The incident happened at
about 5.32 AM, while the FIR has been registered at about 7.30 AM as per
the rukka Ex. PW-2/A. The question arises whether the delay of 02 hours
can be considered fatal to the case of the prosecution.
39. As has been held in the case of Thulia Kali (supra), the question to
closely scrutinise the delay in registration of FIR is to ensure that there is
prompt reporting of the incident to prevent any embellishment or
improvement being introduced in a Complaint if registered after some delay.
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The possibility of consultation, distortion and concoction or introduction of
coloured or exaggerated version, can also not be ruled out.
40. The place of incident was at a distance of barely 01 KM from the
Police Station. Pertinently, as per the Complainant, the keys of the
motorcycle had been taken away by the Accused. His explanation that he
was able to ignite his motorcycle by taking the key of passerby, is difficult
to comprehend. Further, on the one hand, it was being asserted on behalf of
the prosecution that in the wee hours of the morning, the public persons
were not present, but on the other hand, it is claimed that the key of the
motorcycle of passerby, was used by the Complainant to ignite his
motorcycle, which is self-contradictory.
41. However, his mode of reaching the Police Station on his motorcycle is
of little consequence, but it does create a doubt about the happening of the
incident. He himself being a SI, has not given any explanation as to what
transpired in the 02 hours before the registration of FIR. He being a SI,
should have reached the Police Station with promptitude, whether on
motorcycle or otherwise to get the Complaint registered.
42. This aspect assumes importance as the Respondents/Accused persons
after taking away his money, had left on their motorcycles. Any person
would be in a rush to report the matter to the Police for the apprehension of
the Accused persons and recovery of the robbed items. It is a known fact
that with the delay, the chances of apprehension and recovery become bleak.
Despite being aware of the investigative procedures and the promptitude
required to report the matter for the earliest apprehension of the Accused
persons, there was a delay of about 02 hours for which the Complainant has
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given no cogent explanation. This circumstance creates a doubt of any such
incident actually having taken place, when considered in the light of the fact
that no PCR call was made to report the crime.
43. The delay of 02 hours in reporting the matter to the Police about a
robbery may in itself not be of consequence, but in the present case,it has
raised a doubt about the happening of the incident itself, for which the
Respondents are entitled to a benefit of doubt.
44. The next important aspect is the arrest of the Respondents.
According to PW-11 SI Umesh Rana, the 04 Accused were apprehended in
FIR No. 0353/2013 at P.S. Keshav Puram on 19/20.11.2013 i.e. after -02
days of the incident. They made their disclosure statements Ex. PW-7/A to
Ex. PW-7/D, respectively wherein they admitted the commission of the
incident which is the subject matter of the present trial.
45. Admittedly, no recovery of any kind either of the robbed articles or of
the alleged weapon of offence was made from any of the Respondents. They
did not lead to any recovery. Their disclosure statement, therefore, is
inadmissible in terms of S. 25 and S. 26 Indian Evidence Act. The
disclosure statements, therefore, cannot be considered as incriminating
evidence against the Respondents.
46. The only other evidence to link the Respondents to the commission of
offence was their identification by the Complainant. Pertinently, they were
apprehended on 19/20.11.2013 i.e. after 02 days of incident. The
information about their arrest was conveyed to PW-12 SI Radhey Shyam,
the IO vide DD No. 5B Ex. PW-10/A dated 23.11.2013. After getting
information about their apprehension, the IO took his own time to formally
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arrest them in the present case after about 20 days i.e. on 10.12.2023. There
is no effort whatsoever made for the recovery of the robbed items.
47. The most significant link evidence could have been the identification
of the Respondents. On 11.12.2013, Application was filed by PW-12 SI
Radhey Shyam for getting the TIP conducted of the Respondents-Arun
Kumar. The TIP was fixed to be conducted at Rohini Jail on 12.12.2013.
The Respondent-Arun Kumar, however, refused to get his TIP conducted.
48. Thereafter on 01.01.2014, Application was filed by the IO for getting
the TIP of the other 03 Accused; namely, Imran @ Amit, Hemant @
Hanumant and Afsaroon Choudhary conducted. They were produced
before the learned MM on 13.01.2014, but they refused to get their TIPs
done.
49. It cannot be overlooked that they had been apprehended on
19/20.11.2013 and had been in judicial custody since then and the TIP
Application was sought to be done only on 13.01.2014, after almost three
months.
50. According to the testimony of PW-5 Bhupender Singh, Ld. MM and
the TIP proceedings Ex. PW-5/F to Ex. PW-5/H, the 03 Accused had been
produced before the learned MM in muffled face. They, however, refused to
get their TIPs conducted on the ground that their photographs have been
taken in the Police Station.
51. From the aforesaid discussions and the testimony of PW-5 Bhupender
Singh, it is evident that while Respondent-Arun Kumar was produced before
the learned MM on 12.11.2013 and the TIP proceedings were conducted in
Jail on 12.12.2013 wherein he refused to participate in the TIP proceedings,
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the other 03 Accused were produced before the learned MM on 01.01.2014
for TIP, which they refused.
52. The case of the Prosecution was that the Complainant had incidentally
visited the Court premises on 13.01.2014 on which date, the Accused were
produced in the Court and he identified all the 04 Accused. His
supplementary statement Ex. PW1/DX dated 13.01.2014 was recorded.
53. Incidentally as noted in detail, the Respondents had been produced on
different dates in the Courts. Secondly, it has been stated that the
Respondents had been produced in muffled face and there was no occasion
for the Complainant to have seen their faces. Had he actually seen them, he
should have explained how, when, where, he saw the Accused persons.
54. It is clearly an endeavour by the prosecution to somehow establish the
identity of the Accused persons whereby the statement of the Complainant
dated 13.01.2014 has been manoeuvred. The evidence as led by the
prosecution, does not corroborate that all 04 Accused had been produced
before the learned MM on 13.01.2014. The testimony of the Complainant
that he had identified them on the said date, therefore, comes under the
cloud.
55. It is also pertinent to note that the incident had happened in the wee
hours i.e. about 5.32 AM on 17.08.2013 while the alleged identification has
been done by the Complainant on 13.01.2014. It cannot be overlooked that
the incident happened in one or two minutes and for the Complainant to
have the graphic memory to be able to recognise them after a period of more
than four months, is clearly doubtful.
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56. Another significant aspect which has emerged from the testimony of
the Complainant is that on his instance, the sketches of 04 Accused were
prepared at the Police Station. However, PW-12 SI Radhey Shyam, IO,
nowhere talks about having got sketches of the Respondents prepared. Also,
if there were such sketches that were prepared, why the same has not been
made part of the Chargesheet or has been exhibited in the evidence, in not
understandable. The only explanation for non-production of the sketches is
that no such sketches were prepared. It is only to establish the identity of the
Respondents that the story of sketches being prepared in the Police Station,
has been projected.
57. Furthermore, if the Complainant had been able to give the description
which led to the preparation of sketches, there is no explanation as to why
the description of the 04 Accused was not mentioned in the FIR in the first
instance.
58. The learned ASJ has rightly disbelieved the identification of the
Respondents by the Complainant. The Apex Court in the case of Gireesan
Nair & Others vs. State of Kerala, (2023) 1 SCC 180, made a reference to
the case in S.K. Umar Ahmed Shaikh vs. State of Maharashtra, (1998) 5
SCC 103 wherein it was held that where there is possibility of the Accused
having been shown to the witnesses, their identification in the Court is
meaningless.
59. Though, it is a settled law and has also been stated in the case of Md.
Kalam @ Abdul Kalam (supra) and Kanta Prasad (supra) that merely
because the TIP proceedings were not conducted to establish the identity of
the Accused persons who are identified in the Court, would not make such
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evidence inadmissible, but as detailed above, the manner in which the
Respondents have been sought to be linked with the commission of the
evidence on the basis of their identification is highly doubtful, and has been
rightly rejected by the learned ASJ.
60. Therefore, the identification of the Respondents as sought to be
established by the prosecution from the testimony of PW-1, is highly
doubtful and has been rightly disbelieved by the learned ASJ.
61. To conclude, the learned ASJ has rightly held that the prosecution has
failed to prove the identity of the Respondents as the perpetrators of crime,
who have been rightly granted benefit of doubt.
62. There is no merit in the Appeal, which is hereby dismissed.
63. Pending Applications are disposed of, accordingly.
(NEENA BANSAL KRISHNA)
JUDGE
JUNE 30, 2025
N
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