Delhi District Court
Rohit vs State on 22 August, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-013037-2024
CRIMINAL APPEAL No.: 348/2024
1. SHRI. ROHIT,
S/o. Late Shri. Pradeep,
R/o. H. No. C-192,
Multani Dhandha, Paharganj,
New Delhi.
2. SHRI. RAVI,
S/o. Late Shri. Ved Prakash,
R/o. H. No. C-126,
Chinot Basti, Paharganj,
New Delhi. ... APPELLANTS
VERSUS
STATE (NCT OF DELHI) ... RESPONDENT
Date of filing : 21.08.2024
Date of institution : 22.08.2024
Date when judgment was reserved : 12.07.2025
Date when judgment is pronounced : 22.08.2025
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C./Code’)/Section 415 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as ‘BNSS’) against the
judgment dated 03.04.2024 (hereinafter referred to as ‘impugned
judgment’), passed by learned Additional Chief Metropolitan
Magistrate-01/Ld. ACMM-01, Central, Tis Hazari Court, Delhi
(hereinafter referred to as the ‘Ld. Trial Court/Ld. ACMM’) in
case bearing; ‘State v. Rohit, Etc., Cr. Case No. 296600/2016 ‘,
arising out of FIR No. 189/2011, PS. Paharganj, under Sections
379/392/411/34 of the Indian Penal Code, 1860 ( hereinafter
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.08.22
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referred to as ‘IPC‘), convicting the appellants, namely, Rohit and
Ravi (hereinafter the appellants are collectively referred to as the
‘appellants/accused persons’) of the offences under Sections
392/411/34 IPC and the consequent order of sentence dated
05.08.2024 (hereinafter referred to as ‘impugned order’), passed
by the Ld. Trial Court, sentencing the appellants, each, with
rigorous imprisonment for a period of 02 (two) years along with
fine of Rs. 10,000/- (Rupees Ten Thousand only) and in default of
payment of which, to undergo simple imprisonment for a period of
03 (three) months, for the offence under Section 392 IPC; and
imprisonment for a period of 06 (six) months, each, for the offence
under Section 411 IPC, the period of said imprisonment being
further directed to run concurrently. Further, both the appellants
were directed to be entitled to the benefit of the provisions under
Section 428 Cr.P.C. Correspondingly, both the appellants were
directed to pay, in equal shares, a sum of Rs. 12,633/- (Rupees
Twelve Thousand Six Hundred and Thirty Three only) against the
expenditure, incurred by the prosecution (hereinafter the
impugned judgment and impugned order are collectively referred
to as the ‘impugned judgment and order’).
2. Succinctly, the case of the prosecution is that on
19.12.2011, on receipt of PCR Call vide DD No. 42 PP, regarding
an incident of snatching of mobile phone and money, the
concerned police officials reached at the spot, i.e., Gali Dorwali,
near Mod, House No. 799, Paharganj, New Delhi (hereinafter
referred to as the ‘spot’). Upon reaching at the spot, the concerned
police officials, met the complainant, namely, Vinod Kumar
(hereinafter referred to as ‘complainant’) and one, Manish, who
presented one Rohit/appellant no. 1, herein. Thereupon, personal
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ABHISHEK GOYAL
GOYAL Date:
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search of appellant no. 1 was conducted and upon the same, a sum
of Rs. 1,000/- (Rupees One Thousand only), i.e., one note of Rs.
500/- (Rupees Five Hundred only) and five notes of Rs. 100/-
(Rupees One Hundred only) each, were seized from the possession
of appellant no. 1. Correspondingly, statement of the complainant
was recorded, wherein, he/the complainant inter alia asserted that
on the said day, i.e., on 19.12.2011, he had gone to
his/complainant’s sister’s house at H. No. 861, Gali Chandi Wali,
Delhi and at around 11:15 p.m., he/the complainant was on his way
to his home. Further, as per the complainant, as he halted on the
road to relieve himself, three persons approached him and one of
the said three persons, took out his/complainant’s mobiles, i.e.,
Nokia 2310, bearing no. 9873404292 and TATA-Samsung,
bearing no. 9210989606, from the right pocket of his wearing
pants. Correspondingly, the complainant asserted that
another/second person/boy took out his/complainant’s brown
colour purse, containing a sum of Rs. 3,000/- (Rupees Three
Thousand only), i.e., six notes of Rs. 500/- (Rupees Five Hundred
only) each and his Driver’s license from the rear pocket of his
wearing pants. Further, as per the complainant, the third
person/boy took out, a sum of Rs. 1,000/- (Rupees One Thousand
only), i.e., one note of Rs. 500/- (Rupees Five Hundred only) and
five notes of Rs. 100/- (Rupees One Hundred only) each, from the
pocket of the complainant’s jacket. The complainant further
proclaimed that as he raised an alarm, the said persons tried to flee
from the spot, however, he/the complainant along with Manish
caught hold of one person at the spot, whose identity was later on
revealed as Rohit/appellant no. 1 herein and who was asserted to
have taken out a sum of Rs. 1,000/- (Rupees One Thousand only)C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 3 of 57
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ABHISHEK GOYAL
GOYAL Date:
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from the jacket of the complainant. Ergo, under such facts and
circumstances, and on the basis of the complainant’s complaint,
the instant FIR came to be registered, and the investigation ensued.
Markedly, during the ensuing investigation, site plan was prepared
and statements of various witnesses were recorded.
Correspondingly, on a formal search of appellant no. 1 having
been conducted, a sum of Rs. 1,000/- (Rupees One Thousand only)
is asserted to have been recovered from his possession/possession
of appellant no. 1, which were seized. Relevantly, co-accused,
namely, Satish is asserted to have surrender before the Ld. Trial
Court on 18.01.2012, while, appellant no. 2/Ravi surrendered
before the Ld. Court on 24.01.2012. However, upon TIP
proceedings qua both the said accused persons being proposed, co-
accused Satish and appellant no. 2, refused to participate in the
said proceedings/TIP proceedings on 18.01.2012 and 24.01.2012,
respectively.
2.1. Noticeably, upon conclusion of the investigation,
chargesheet was filed by the concerned police official/IO before
the Ld. MM, upon which, cognizance of the offence(s) was taken
by the Ld. Trial Court on 24.05.2013 and summons were issued
against appellants and co-accused, Satish. Subsequently, on
compliance of the provisions under Section 207 Cr.P.C. qua the
said accused persons and arguments on charge, having been
addressed by/on behalf of the appellants/co-accused Satish and the
State, charges under Section 392/411/34 IPC, were directed to be
framed by the Ld. Trial Court, pursuant to order dated 25.03.2015
of the Ld. Trial Court. Apposite at this stage, to reproduce the
relevant extract(s) from order dated 25.03.2015 of the Ld. Trial
Court, as under;
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ABHISHEK GOYAL
GOYAL Date:
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“…Submissions heard. Chargesheet perused.
Chargesheet, prima facie discloses the commission of
offence punishable under Section 392/411/34 IPC.
The accusation of charge under Section 392/411/34
IPC has been read over and explained to accused to
which he pleads not guilty and claims trial. Put up for
PE on…”
(Emphasis supplied)
2.2. Pertinent to reproduce the charges framed against
the appellants and co-accused, Satish on 25.03.2015, as under;
“…I, ***, ACMM-01 (Central) do hereby charge
you (1) Rohit S/o Pradeep, (2) Satish S/o Panna Lal
and (3) Ravi S/o Ved Parkash as under:-
That on 19.12.2011 at around 11.15 pm at Gali
Dorwali, near Mod, House No. 799, Paharganj, New
Delhi within the jurisdiction of PS Paharganj all of
you in furtherance of your common intention,
committed robbery of two mobile phones make Nokia
2310 and TATA Samsung, Rs. 1000/- and purse
containing Rs. 3000/- and driving license from the
possession of complainant Vinod Kumar Thukral and
thereby all of you committed an offence punishable
under Section 392/34 IPC and within my cognizance.
Alternatively, at the above said date time and
place, you accused Rohit were found in possession of
Rs. 1000/- (one currency note of Rs. 500/-and five
currency notes of Rs. 100/-) belonging to complainant
which you had, received/ retained knowing fully well
that it was a stolen property and thereby you have
committed an offence of theft punishable under
Section 411 IPC and within my cognizance.
I hereby direct all of you to be tried by this court
for the aforesaid offence…”
(Emphasis supplied)
2.3. Relevantly, the appellants and the co-accused,
Satish, pleaded not guilty to the aforesaid charges/offences and
claimed trial. Markedly, during the course of trial, prosecution
examined 06 (six) witnesses/PWs, i.e., PW-1/Manish; PW-2/ASI
Mahesh Kumar; PW-3/Vinod Kumar Thakral; PW-4/SI Dalveer
Singh; PW-5/HC Pramod Kumar; and PW-6/SI Raj Kumar.
Pertinently, during the course of proceedings before the Ld. Trial
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GOYAL
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Court, co-accused, namely, Satish, left for heavenly abode and the
proceedings qua the said accused/co-accused were abated,
pursuant to verification of the said fact/death verification report
and the consequent order dated 03.11.2017 of the Ld. Trial Court.
Subsequently, on conclusion of prosecution evidence, recording of
statement of the appellants under Section 313/281 Cr.P.C. on
13.02.2018, an application under Section 311 Cr.P.C. was moved
on behalf of the appellants before the Ld. Trial Court.
Significantly, by virtue of order dated 18.07.2018, Ld. Trial Court,
allowed the appellants’ said application inter alia with the
following observations;
“…An application u/s. 311 Cr.P.C. moved on
behalf of the accused persons for recalling PW-1,
PW-3, PW-4 & PW-5 for the reasons that they have
not been cross-examined by the accused persons for
the want of counsel.
Heard. Considered.
The same is strongly opposed by Ld. APP for the
State stating that the accused persons had ample
opportunity to cross-examine the witnesses and the
present application is only moved for the purpose of
delaying the proceedings.
However, in the interest of justice, the application
stands allowed subject to cost of Rs. 2,000/- and
subject to the availability of the witnesses. It is also
directed that only one opportunity shall be granted to
defence for cross examination of witnesses. On
payment of such cost, let PW-1, PW-3, PW-4 & PW-5
be summoned for…’
(Emphasis supplied)2.4. Subsequently, PW-1 and PW-3 were cross-examined
by/on behalf of the appellants. However, the appellants’
opportunity to cross examine PW-4 and PW-5 were closed
pursuant to orders dated 04.10.2018 and 14.04.2019, respectively,
as the appellants failed to avail the said opportunity, despite
indulgence. Thereafter, statements of the appellants under SectionC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 6 of 57
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ABHISHEK GOYAL
Date:
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313/281 Cr.P.C. were again recorded on 26.08.2019, wherein the
appellants, expressed willingness to lead evidence/defence
evidence. However, subsequently, on 18.11.2022, Ld. Counsel for
the appellants submitted before the Ld. Trial Court that the
appellants did not desire to lead any evidence in their support/DE,
leading to the closure of the right of appellants to lead defence/DE.
Consequently, on conclusion of said arguments, the Ld. Trial
Court vide impugned judgment and order, while inter alia holding
the appellants guilty of the offences punishable under Sections
392/411/34 IPC, sentenced them in the manner, as noted
hereinabove.
3. Ld. Counsel for the appellants outrightly contended
that the impugned judgment and order were passed by the Ld. Trial
Court on mere conjunctures, surmises and in contravention of the
settled principles of law, deserving their setting aside at the outset.
As per the Ld. Counsel, the Ld. Trial Court, miserably failed to
consider the real facts of the case as well as various improvements,
contradictions and discrepancies in the testimonies of various
prosecution witnesses, while reaching a finding of guilt of the
appellants and convicting as well as awarding them sentence, in
the manner, as specified under the impugned judgment and order.
It was further vehemently asserted by the Ld. Counsel that the
impugned judgment and order are not maintainable/sustainable in
the eyes of law as the same were passed by the Ld. Trial Court in
utter contradiction of the settled law/judicial dictates and facts of
the present case. In this regard, Ld. Counsel strenuously asserted
that under the impugned judgment, the Ld. Trial Court erroneously
reached a conclusion of guilt of appellant no. 2, namely, Ravi for
the offence under Section 411 IPC, despite the fact that the saidC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 7 of 57
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ABHISHEK GOYAL
GOYAL Date:
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appellant as neither charged with the said offence, nor any
evidence brought forth on record, establishing even prima facie
case for the said offence. Further, as per the Ld. Counsel, the Ld.
Trial Court did not even consider the facts of the present case as
well as erred in appreciating that the testimonies/depositions of
PW-1 and PW-3 are not free from doubt, as in the manner they
narrate the alleged incident, which also creates doubt about their
presence at the spot and/or of the commission of the alleged
incident.
3.1. Ld. Counsel for the appellant further submitted that
the Ld. Trial Court even failed to consider that are several
inconsistencies, improvements, discrepancies and/or variations in
the case put forth by the prosecution on the account of seizure of
the alleged recovered amount as the complainant/PW-3 himself
asserted that he had handed over the said amount to the police
officials, belying any recovery from the appellants. As per the Ld.
Trial Court, while reaching a finding of appellant’s guilt, failed to
consider that the investigation in the instant case was not fairly and
properly conducted, disproving the version put forth by the State
against the appellant. Ld. Counsel further vehemently asserted that
the Ld. Trial Court failed to appreciate that in the instant case,
there are numerous gaping holes in the case put forth by the
prosecution and that the prosecution’s story does not inspire any
confidence, not appealing to the senses of a prudent man. Further,
as per the Ld. Counsel, the Ld. Trial Court decided the matter in a
mechanical manner and in an utter haste, without appreciating the
evidence produced at the trial. It was further strenuously reiterated
by the Ld. Counsel that a perusal of the testimonies of the various
witnesses, who were examined before the Ld. Trial Court wouldC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 8 of 57
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clearly demonstrate that there are glaring, and material
contradictions and the Ld. Trial Court has committed grave error
by not considering the same, leading to gross miscarriage of
justice. Ld. Counsel further submitted that as per the prosecution’s
own case that appellant no. 1 also received injuries in the alleged
incident, however, his injuries were not explained in the
chargesheet or before the Ld. Trial Court, during the evidence.
3.2. Ld. Counsel for the appellants further submitted that
the impugned judgment and order were passed in utter
violation/contradiction of the settled principles of law and judicial
precedents, unmindful of the significant improvement in the
versions put forth by the prosecution witnesses. Correspondingly,
it was asserted that even the investigation in the instant case was
not fairly conducted and the police officials made no endeavour to
join any independent public persons/witnesses in the entire
investigation process. As per the Ld. Counsel, even the ‘so called’
recovery was planted on the appellants, with a sole intention to
wrongfully and maliciously implicate them in the present case. In
fact, Ld. Counsel vociferously reiterated that the prosecution has
even failed to establish the identities of the appellants as the
alleged perpetrators of offence in the instant case. Accordingly, in
light of the foregoing, Ld. Counsel for the appellants submitted
that not only did the Ld. Trial Court fail to consider the truth of
circumstances and passed its judgment/decision in haste, rather,
did not properly appreciate/examine the facts of the present case,
wrongly holding the appellants guilty of the aforementioned
offences. Even otherwise, it was submitted by the Ld. Counsel that
the order of sentence was also passed by the Ld. Trial Court,
whimsically, while failing to appreciate that the appellants were ofC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 9 of 57
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ABHISHEK GOYAL
GOYAL Date:
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young age at the relevant point in time, as well as responsible for
the look after and take care of their respective family members. Ld.
Counsel further vehemently argued that the punishment/penalty
must not be retributive in nature, rather, humanizing, considering
that sentencing the appellants with severe sentence would subject
their family members to grave depravity. Further, as per the Ld.
Counsel, substantial time has lapsed since the incident in question
and in case relaxation/leniency is not afforded to the appellants,
serious/severe repercussions may ensue to their physical and
mental well-being. Consequently, the Ld. Counsel for the
appellants inter alia prayed that the present appeal be allowed, and
the impugned judgment and order be set aside. In the alternate, Ld.
Counsel submitted that the appellants be permitted/granted the
benefit/relaxation in terms of the provisions under the Probation of
Offenders Act, 1958 (hereinafter referred to as the ‘Probation of
Offenders Act‘) and/or Section 360 Cr.P.C. In fact, as per the Ld.
Counsel, the Ld. Trial Court erred in appreciating that the
appellants were clearly covered within the ambit of provisions
under Section 360 Cr.P.C. and entitled to the benefit of probation.
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order was passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimonies of
various witnesses placed on record, unambiguously prove the
commission of the offences by the appellants. It was further
contended by Ld. Addl. PP for the State that the depositions of the
prosecution witnesses have not only been consistent, rather,
unblemished as well as lucidly point towards the only inference of
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ABHISHEK GOYAL
GOYAL Date:
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guilt of the appellants. As per the Ld. Addl. PP for the State, the
facts and circumstances put forth as well as the evidence placed on
record, unerringly point out towards the guilt of the appellants and
that no fault can be attributed to the finding of the Ld. Trial Court,
which is based on proper appreciation of facts as well as law.
Concomitantly, it was submitted by the Ld. Addl. PP for the State
that no ground of any indulgence or relaxation even in the sentence
granted to the appellants is made out, besides considering the
gravity of offence involved, the appellants are not entitled to the
benefit of the provisions under the Probation of Offenders Act.
Accordingly, Ld. Addl. PP for the State submitted that the present
appeal deserves to be dismissed at the outset, as grossly malicious
and devoid of merits.
5. The arguments of Ld. Counsel for the appellants as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record, thoroughly perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal
against conviction. In this regard, this Court it is pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC
621, wherein the Hon’ble Court, while delving into the ‘scope and
ambit’ of appellate court’s jurisdiction inter alia noted as under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can be
relied upon, then whether the prosecution can be said
to have been proved beyond reasonable doubt on the
said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference
from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
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prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged is
of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being wary of the aforesaid principles,
however, before proceeding with the determination of the rival
contentions of the parties, it would be pertinent to reproduce the
relevant provisions under law/IPC, for the purpose of present
adjudication, as under;
“23. “Wrongful gain”- “Wrongful gain” is gain by
unlawful means of property to which the person
gaining is not legally entitled.
“Wrongful loss”- “Wrongful loss” is the loss by
unlawful means of property to which the person losing
it is legally entitled.
Gaining wrongfully, losing wrongfully-A person
is said to gain wrongfully when such person retains
wrongfully, as well as when such person acquires
wrongfully. A person is said to lose wrongfully when
such person is wrongfully kept out of any property, as
well as when such person is wrongfully deprived of
property.
24. “Dishonestly”-Whoever does anything with
the intention of causing wrongful gain to one person
or wrongful loss to another person, is said to do that
thing “dishonestly”.
*** *** ***
34. Acts done by several persons in furtherance of
common intention-When a criminal act is done by
several persons, in furtherance of the common
intention of all, each of such persons is liable for that
act in the same manner as if it were done by him alone.
*** *** ***
39. “Voluntarily”-A person is said to cause an
effect “voluntarily” when he causes it by means
whereby he intended to cause it, or by means which, at
the time of employing those means, he knew or had
reason to believe to be likely to cause it.
*** *** ***
378. Theft-Whoever, intending to take dishonestly
any movable property out of the possession of any
person without that person’s consent, moves that
property in order to such taking, is said to commit
theft…
*** *** ***
383. Extortion-Whoever intentionally puts any
person in fear of any injury to that person, or to any
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other, and thereby dishonestly induces the person so
put in fear to deliver to any person any property or
valuable security or anything signed or sealed which
may be converted into a valuable security, commits
“extortion”.
*** *** ***
390. Robbery-In all robbery there is either theft or
extortion.
When theft is robbery-Theft is “robbery” if, in
order to the committing of the theft, or in committing
the theft, or in carrying away or attempting to carry
away property obtained by the theft, the offender, for
that end, voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of
instant death or of instant hurt, or of instant wrongful
restraint.
When extortion is robbery-Extortion is “robbery”
if the offender, at the time of committing the
extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in
fear of instant death, of instant hurt, or of instant
wrongful restraint to that person, or to some other
person, and, by so putting in fear, induces the person
so put in fear then and there to deliver up the thing
extorted.
Explanation-The offender is said to be present if
he is sufficiently near to put the other person in fear of
instant death, of instant hurt, or of instant wrongful
restraint.
*** *** ***
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.
*** *** ***
411. Dishonestly receiving stolen property-
Whoever dishonestly receives or retains any stolen
property, knowing or having reason to believe the
same to be stolen property, shall be punished with
imprisonment of either description for a term which
may extend to three years, or with fine, or with both.”
(Emphasis supplied)
10. Appositely, from a conscientious perusal of the
above, it is outrightly observed that the provisions under Section
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34 IPC recognize the principle of vicarious liability 2 in criminal
jurisprudence, attracting culpability against a person for an
act/offence, not committed by him but by another person with
whom he shared the common intention. It is trite law3 that Section
34 IPC does not provide for a substantive offence, rather,
envisages culpability on the part of an accused only upon the proof
of two conditions, i.e., “the mental element or the intention to
commit the criminal act conjointly with another or others; and the
other is the actual participation in one form or the other in the
commission of the crime.” Quite evidently4, mere common
intention on the part of any such accused, per se may not attract the
provisions under Section 34 IPC, sans an action in furtherance
thereof. Strikingly, the Hon’ble Supreme Court in Ram Naresh v.
State of U.P., (2024) 1 SCC 443, while explicating the contours of
the provisions under Section 34 IPC inter alia remarked as under;
“7. A reading of Section 34 IPC reveals that when
a criminal act is done by several persons with a
common intention each of the person is liable for that
act as it has been done by him alone. Therefore, where
participation of the accused in a crime is proved and
the common intention is also established, Section
34IPC would come into play. To attract Section
34IPC, it is not necessary that there must be a prior
conspiracy or premeditated mind. The common
intention can be formed even in the course of the
incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the
decision of this Court in Krishnamurthy v. State of
Karnataka [Krishnamurthy v. State of Karnataka,
(2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is
reproduced herein below: (SCC p. 537)
“26. Section 34 IPC makes a co-perpetrator,
who had participated in the offence, equally liable
on the principle of joint liability. For Section 34 to
apply there should be common intention between2
Suresh v. State of U.P., (2001) 3 SCC 673.
3
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
4
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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the co-perpetrators, which means that there should
be community of purpose and common design or
prearranged plan. However, this does not mean
that co-perpetrators should have engaged in any
discussion, agreement or valuation. For Section 34
to apply, it is not necessary that the plan should be
prearranged or hatched for a considerable time
before the criminal act is performed. Common
intention can be formed just a minute before the
actual act happens. Common intention is
necessarily a psychological fact as it requires prior
meeting of minds. In such cases, direct evidence
normally will not be available and in most cases,
whether or not there exists a common intention has
to be determined by drawing inference from the
facts proved. This requires an inquiry into the
antecedents, conduct of the co-participants or
perpetrators at the time and after the occurrence.
The manner in which the accused arrived,
mounted the attack, nature and type of injuries
inflicted, the weapon used, conduct or acts of the
co-assailants/perpetrators, object and purpose
behind the occurrence or the attack, etc. are all
relevant facts from which inference has to be
drawn to arrive at a conclusion whether or not the
ingredients of Section 34IPC are satisfied. We
must remember that Section 34IPC comes into
operation against the co-perpetrators because they
have not committed the principal or main act,
which is undertaken/performed or is attributed to
the main culprit or perpetrator. Where an accused
is the main or final perpetrator, resort to Section
34IPC is not necessary as the said perpetrator is
himself individually liable for having caused the
injury/offence. A person is liable for his own acts.
Section 34 or the principle of common intention is
invoked to implicate and fasten joint liability on
other co-participants.”
12. A plain reading of the above paragraph of
Krishnamurthy case [Krishnamurthy v. State of
Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri)
192] reveals that for applying Section 34IPC there
should be a common intention of all the co-accused
persons which means community of purpose and
common design. Common intention does not mean
that the co-accused persons should have engaged in
any discussion or agreement so as to prepare a plan or
hatch a conspiracy for committing the offence.
Common intention is a psychological fact and it can
be formed a minute before the actual happening of the
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incidence or as stated earlier even during the
occurrence of the incidence.”
(Emphasis supplied)
11. Markedly, from the above, it is noted that in the
instances where the provisions under Section 34 IPC are proposed
to be invoked by the prosecution against accused persons, it is not
mandatory to demonstrate that there such persons engaged in any
prior discussion or agreement so as to prepare a plan or hatch a
conspiracy for committing the offence. On the contrary, common
intention may be formed at a spur of moment, even during the
commission/occurrence of incident, which is to be discernible
from the facts of circumstances of each case. Correspondingly, it is
also a settled law that for proving formation of common intention
by accused persons, direct evidence may seldomly be available,
yet, in order to attract the provisions under Section 34 IPC,
prosecution is under a bounden duty to prove that the participants
had shared a common intention5. Reference, in regard the
foregoing is further made to the decision in Virendra Singh v.
State of M.P., (2010) 8 SCC 407, wherein the Hon’ble Supreme
Court, elucidated as under;
“38. The vicarious or constructive liability under
Section 34 IPC can arise only when two conditions
stand fulfilled i.e. the mental element or the intention
to commit the criminal act conjointly with another or
others; and the other is the actual participation in one
form or the other in the commission of the crime.
39. The common intention postulates the existence
of a prearranged plan implying a prior meeting of the
minds. It is the intention to commit the crime and the
accused can be convicted only if such an intention has
been shared by all the accused. Such a common
intention should be anterior in point of time to the5
Hon’ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard,
remarked; “72. It is settled law that the common intention or the intention of the individual concerned in furtherance
of the common intention could be proved either from direct evidence or by inference from the acts or attending
circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and,
therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and
the proved circumstances.” (Emphasis supplied)
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commission of the crime, but may also develop on the
spot when such a crime is committed . In most of the
cases it is difficult to procure direct evidence of such
intention. In most of the cases, it can be inferred from
the acts or conduct of the accused and other relevant
circumstances. Therefore, in inferring the common
intention under Section 34 IPC, the evidence and
documents on record acquire a great significance and
they have to be very carefully scrutinised by the court.
This is particularly important in cases where evidence
regarding development of the common intention to
commit the offence graver than the one originally
designed, during execution of the original plan,
should be clear and cogent.
40. The dominant feature of Section 34 is the
element of intention and participation in action. This
participation need not in all cases be by physical
presence. Common intention implies acting in
concert.
*** *** ***
42. Section 34 IPC does not create any distinct
offence, but it lays down the principle of constructive
liability. Section 34 IPC stipulates that the act must
have been done in furtherance of the common
intention. In order to incur joint liability for an offence
there must be a prearranged and premeditated concert
between the accused persons for doing the act actually
done, though there might not be long interval between
the act and the premeditation and though the plan may
be formed suddenly. In order that Section 34 IPC may
apply, it is not necessary that the prosecution must
prove that the act was done by a particular or a
specified person. In fact, the section is intended to
cover a case where a number of persons act together
and on the facts of the case it is not possible for the
prosecution to prove as to which of the persons who
acted together actually committed the crime. Little or
no distinction exists between a charge for an offence
under a particular section and a charge under that
section read with Section 34.”
(Emphasis supplied)
12. In so far as accountability under Section 390/392
IPC is concerned, this Court deems it pertinent at this stage to
make a reference to the decision of the Hon’ble Supreme Court in
Mohd. Wajid v. State of U.P., 2023 SCC OnLine SC 951, wherein
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the Hon’ble Court, while considering the ingredients and scope of
the provisions under Section 390 IPC noted as under;
“15. Theft amounts to ‘robbery’ if, in order to the
committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property
obtained by the theft, the offender for that end,
voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful
restraint. Before theft can amount to ‘robbery’, the
offender must have voluntarily caused or attempted to
cause to any person death or hurt or wrongful
restraint, or fear of instant death or of instant hurt, or
of instant wrongful restraint. The second necessary
ingredient is that this must be in order to the
committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property
obtained by the theft. The third necessary ingredient is
that the offender must voluntarily cause or attempt to
cause to any person hurt etc., for that end, that is, in
order to the committing of the theft or for the purpose
of committing theft or for carrying away or attempting
to carry away property obtained by the theft. It is not
sufficient that in the transaction of committing theft,
hurt, etc., had been caused. If hurt, etc., is caused at
the time of the commission of the theft but for an
object other than the one referred to in Section 390,
IPC, theft would not amount to robbery. It is also not
sufficient that hurt had been caused in the course of
the same transaction as commission of the theft.
16. The three ingredients mentioned in Section
390, IPC, must always be satisfied before theft can
amount to robbery, and this has been explained in
Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in
the following words:
“The words “for that end” in sec. 390 clearly
mean that the hurt caused by the offender must be
with the express object of facilitating the
committing of the theft, or must be caused while
the offender is committing the theft or is carrying
away or is attempting to carry away the property
obtained by theft. It does not mean that the assault
or the hurt must be caused in the same transaction
or in the same circumstances.”…”
(Emphasis supplied)
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13. Conspicuously, in order to convict a person under
Section 392 IPC, ingredients of Section 390 IPC 6 must be
established, inert alia to the effect that the offender should
voluntarily cause or attempts to cause to any person death or hurt
or wrongful restrain, or put such persons in fear of instant death or
of instant hurt, or of instant wrongful restrain, inter alia in order to
commit or while committing theft or extortion, as the case may be.
In so far as the culpability under Section 411 IPC is concerned, law
is settled that to attract culpability under the said provision, it is not
necessary that an accused receives any stolen property with a
culpable intention, knowledge or reason to believe, rather, even in
the instance of retention of such stolen property with such mens
rea or upon the failure of the accused to make enough inquires to
comprehend the nature of good(s) procured by him, is sufficient.
Reference in this regard, is made to the decision of the Hon’ble
Supreme Court in Shiv Kumar v. State of M.P., (2022) 9 SCC 676,
in respect to the aforesaid, wherein the Hon’ble Court inter alia
observed as under;
“16. To establish that a person is dealing with
stolen property, the “believe” factor of the person is of
stellar import. For successful prosecution, it is not
enough to prove that the accused was either negligent
or that he had a cause to think that the property was
stolen, or that he failed to make enough inquiries to
comprehend the nature of the goods procured by him.
The initial possession of the goods in question may
not be illegal but retaining those with the knowledge
that it was stolen property, makes it culpable.”
(Emphasis supplied)
14. Correspondingly, reference is further made to the
decision in State of U.P. v. Nawab, MANU/UP/1516/2014,
wherein the Hon’ble High Court of Allahabad noted that
6
Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
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conviction under Section 392 and Section 411 IPC cannot be
maintained simultaneously7 against same accused. In this regard, it
is pertinent to reproduce the relevant extracts from the said
decision as under;
“17. When an accused is guilty of robbery he is to
be convicted under section 392, I.P.C. When accused
is found guilty under section 392 for committing
robbery and under section 411 for retaining stolen
property, his conviction under section 411 I.P.C. is
improper. For considering the language of section
411, dishonest retention is contradistinguished in that
section from dishonest reception. The act of dishonest
removal within section 379 constitutes dishonest
reception within section 411 and so the thief does not
commit the offence of retaining stolen property
merely by continuing to keep possession of the
property he stole. The theft and taking and retention of
stolen goods form one and the same offence and
cannot be punished separately.”
(Emphasis supplied)
15. Reference in respect of the foregoing is further made
to the decision in Gopi Jaiswal v. State of U.P.,
MANU/UP/3723/2011, wherein the Hon’ble High Court of
Allahabad in akin terms, remarked as under,
“8. In view of the fact that the appellant Gopi
Jaiswal was the real thief, his conviction could only be
made under Section 379 IPC. His conviction under
Section 411 IPC, in such situation, was not proper. A
real thief cannot be a receiver of a stolen property. If a
person is the real thief and the stolen property is also
7
Reference is further made to the decision in Sunil Mashi v. State NCT of Delhi, MANU/DE/3768/2014, wherein
the Hon’ble High Court of Delhi, noted; “41. Even as regards offence under Section 379 IPC, the appellant was
rightly convicted inasmuch as he was found in possession of the stolen articles immediately after the commission of
theft and, therefore, the presumption under Section 114A of Indian Evidence Act, 1872 arises against him.***42.
Hon’ble Supreme Court in Ganesh Lal v. State of Rajasthan, MANU/SC/0694/2001: (2002) 1 SCC 731 elaborately
discussed regarding the presumption laid down under Section 114 Evidence Act:***”12. Section 114 of the
Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and public private business, in their
relation to facts of the particular case, illustration (a) provides that a man who is in possession of stolen goods soon
after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them
to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In
the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with
direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and
wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent
and unexplained possession of property belonging to deceased may enable a presumption being raised against the
accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that
transaction.”***43. As such, the appellant was rightly convicted under Section 379 IPC, however, the learned Trial
Court has convicted the appellant for offence under Section 411 IPC as well. Keeping in view the fact that he has
been convicted under Section 379 IPC, there was no justification for convicting him for offence under section 411
IPC. As such, his conviction under Section 411 is set aside.” (Emphasis supplied)
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recovered from his possession, he should be convicted
and sentenced for the offence of theft and as such he
cannot be convicted and sentenced under Section 411
IPC. Therefore, the order of conviction and sentence
passed against the appellant under Section 411 IPC
cannot be upheld.”
(Emphasis supplied)
16. Consequently, being mindful of the principles
hereinunder observed, this Court would now proceed with the
appreciation of the evidence and material placed on record. In
particular, at the outset, this court deems it pertinent to make a
reference to the testimony of the complainant/PW-3/Vinod Kumar
Thakral, who inter alia deposed before the Ld. Trial Court that the
incident was of 20.11.2011, when he/the complainant was
proceeding from the house of his/complainant’s sister, namely,
Kiran Mehta’s house, bearing; H. No. 861 Gali Chandi Wali,
Paharganj. As per the complainant/PW-3, he left the said house at
around 11:15 p.m. and, had reached near lane of his sister’s house
to ease himself, three accused persons attacked him/PW-3 from
behind. Correspondingly, PW-3 proclaimed that one of the said
boys, took two mobile phones from the right pocket of his/PW-3’s
wearing pants. As per PW-3, one of the said mobile phones bore
number, i.e., 9873404292 and was Nokia 2310 make, whilst, the
other mobile phone was of TATA Samsung make, bearing no.
9210989606. PW-3 further avowed that another boy took out
his/PW-3’s brown colour purse containing three thousand rupees
(Rs. 3,000/-), which were of denomination of six notes of Rs.500/-
(Rupees Five Hundred only) each and his/PW-3’s driving license.
Further, as per PW-3, the third boy/accused, took out one thousand
rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/-
(Rupees Five Hundred only) currency note and five, Rs. 100/-
(Rupees One Hundred only) currency notes. In the meanwhile, as
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per PW-3, his/PW-3’s nephew, namely, Manish reached at the
spot, who was coming from his office and after seeing
him/Manish, PW-3 is asserted to have raised an alarm.
Consequently, as per PW-3 all the said three persons started to flee
from the spot, on seeing PW-3’s nephew, Manish, however,
he/PW-3 apprehended one of the accused persons, with the help of
Manish. PW-3 further proclaimed that the apprehended accused,
sustained injury, as he fell on the ground in the process of
escaping, whereas two accused persons fled from the spot. It was
further deposed by PW-3 that his nephew, Manish called at 100
number and police reached at the spot, whereupon, the
apprehended accused was handed over to the police. As per PW-3
the said person, who was apprehended on the spot, had taken out
Rs. 1,000/- (Rupees One Thousand only) from the pocket of
his/PW-3’s jacket. PW-3 further proved his complaint to the police
as Ex. PW3/A, bearing his signatures at point A. Correspondingly,
PW-3 proclaimed that the IO seized Rs. 1,000/- (Rupees One
Thousand only) in denomination of one Five Hundred currency
note and five currency notes of Rupees One Hundred vide seizure
memo, Ex. PW3/A, bearing PW-3’s signatures at point B. Further,
PW-3 also proved the arrest memo of Rohit ( Ex. PW3/B) and his
personal search memo (Ex. PW3/C), both, bearing PW-3’s
signatures at point B. PW-3 further asserted that the IO prepared
the instance memo of the spot vide Ex. PW3/D and prepared place
of occurrence memo on his/PW-3’s instance (Ex. PW3/E), both,
bearing PW-3’s signatures. PW-3 also asserted that the IO
prepared the place where the accused thew his robbed/stolen
mobile phone (Ex. PW3/F) and took the disclosure statement of
appellant no. 1 (Ex. PW3/G), in his/PW-3’s presence. Needless toC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 23 of 57
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mention, the complainant/PW-3 correctly identified all the
accused persons, i.e., appellants and co-accused, Satish before the
Ld. Trial Court, as the perpetrators of offence, besides also
identified the recovered currency notes, i.e., Rs. 1,000/- (Rupees
One Thousand only), in the denomination of one currency note of
Rs. 500/- (Rupees Five Hundred only) and five currency notes of
Rs. 100/- (Rupees One Hundred only) as Ex. P1 (Colly.), upon
production by MHC(M) and the ones, which were recovered from
the possession of appellant no. 1.
17. Relevantly, upon being cross-examined by/on behalf
of the appellant, the complainant/PW-3, asserted as under;
“XXXXXX By Sh. ***, Ld. counsel for both
accused Ravi and Rohit.
It is wrong to suggest that Manish PW 1 was
resident of Rajori Garden at the time of incidence,
however presently he is residing in Rajori Garden
only. My nephew is/was running a cyber cafe near
Vishal Hotel, Pharganj. House of my sister was at the
distance of 50 meters from my residence. I was
perfectly fine in the period of December 2011 there
was no medical ailment. I did not hand over bill of my
mobile phones to the police officials. I did not hand
over any documentary proof of SIM of two phone
numbers. Manish had thrown his bike hardly 2-3
meters asway from me. All the three accused persons
ran towards Manish only. It is wrong to suggest that
Rohit was apprehended only because he already lying
on the road. It is wrong to suggest that accused Rohit
was apprehended on the basis of assumptions and
presumptions. It is wrong to suggest that nothing was
recovered from the possession of accused Rohit. It is
correct that it was me who handed over recovered
money of Rs. 1000/- to the police officials. It is wrong
to suggest that I handed over recovered amount in the
PS itself. It is correct that other two accused persons
were not apprehended in my presence. On 18.12.11,
accused Satish was brought to the spot and I identified
him at the spot itself. It is wrong to suggest that police
officials had shown the faces of all accused persons to
me in the PS or in the court before the evidence. It is
wrong to suggest that I have falsely identified the
accused persons in the court at the instance of police
officials. It is wrong suggest that I have falsely
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implicated accused persons at the instance of police. It
is wrong to suggest that there was no reason or
occasion for the Manish to be present at the spot. It is
wrong to suggest that Manish is a planted witness
introduced at belated stage. It is wrong to suggest that
I am deposing falsely…”
(Emphasis supplied)
18. Here, it is further pertinent to refer to the testimony
of PW-1/Manish, who inter alia deposed before the Ld. Trial Court
that he was working as a computer engineer and in the business of
CCTV, at the relevant point in time. As per PW-1, on the
intervening night of 19/20.12.2011, he was returning to his
residence, after finishing day’s work and at around 11:15 p.m., had
reached at Doar Wali Gali. As per PW-1, he heard loud voice of his
mamaji (maternal uncle), claiming, “bachaoo bachaoo” and
he/PW-1 saw that three persons started running. Further, as per
PW-1, he chased the said persons and one of them, fell down.
PW-1 further proclaimed that he caught the said person with the
help of his mamaji, whose name was later on revealed as
Rohit/appellant no. 1, who was correctly identified by PW-1
before the Ld. Trial Court. Further, as per PW-1, two associates of
the accused managed to escape from the spot. However, PW-1
correctly identified appellant no. 2/Ravi and co-accused, Satish
before the Ld. Trial Court, as the said persons, who had fled from
the spot on the said day. PW-1 also avowed that he made a call at
100 number from his/PW-1’s mobile phone and the police reached
at the spot. As per PW-1, upon search of appellant no. 1/accused
Rohit, Rs. 1000/- (Rupees One Thousand only) in the
denominations of one currency of Rs.500/- (Rupees Five Hundred
only) and five currency notes of Rs. 100/- (Rupees One Hundred
only), which were robbed in the incident, were recovered. As per
PW-1, the said recovered money was taken into police possession
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vide seizure memo (Ex. PW1/A), bearing PW-1’s signatures at
point A. Correspondingly, PW-1 asserted that appellant no.
1/accused Rohit was arrested vide arrest memo and personal
search memo Ex. PW1/B and Ex. PW 1/C, respectively, bearing
PW-1’s signatures at point A. Needless to mention, PW-1
correctly identified the seized money. Pertinent to note that PW-1,
upon being cross examined by/on behalf of the accused persons,
asserted as under;
“XXXXXX by counsel Shri. *** for accused
Ravi.
I am doing the business of CCTV camera and sale
and purchase of computers at 2211, Chuna Mandi,
Paharganj. There is only one employee. I open my
office at 1.30 but there is no closing timing of my
office. I used to go to my office by bike from my
residence to office. The accused persons were caught
hold my mamaji in my presence. Rohit had caught
hold of my mamaji from his neck. I threw my
motorcycle on the road to save my mamaji. The
distance between where I threw my bike and the place
of incident is about 15/20 ft. The said motorcycle was
of make Yamaha bearing registration DL6SM 7376. I
had not stated to the police in my statement that I had
reached at the spot by motorcycle (Vol. as the same
was not asked from me.). There was a street light at
the spot and where I threw my motorcycle there was
also a light. Police reached at the spot after 10 minutes
of my call. 10-15 persons were gathered at the spot. It
is correct that the house of my mamaji is adjacent to
my house. My mamiji and her son also came at the
spot after the incident when they received the
information. I remained at the spot for about 25
minutes. Police recorded my statement at police
chowki on the next day of incident, however, I do not
know the exact time. Police recorded statement of my
mamaji at the spot as well as at the police chowki. It is
wrong to suggest that there was a dark at the spot or
that I was not present at the spot. It is further wrong to
suggest that I did not see incident or that I am a
planted witness. On hearing the noise Bachaoo
Bachaoo, nobody came at the spot except me. No
other person except my mamaji and the accused
persons were present in the gali at the time of incident.
It is correct that I had not seen any person removing
the alleged articles from the possession of my mamaji.
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It is correct that I had seen two other associates of
accused Rohit while they were running. I had seen
them from their front side. There was no need to
rescue my mamaji at that time as the accused persons
were running and my mamaji was also chasing them.
The accused persons started running towards Babli
Chowk. It is correct that I was coming from the side of
Main Bazar, Paharganj. I had seen the accused Ravi at
the spot at Gali Dorr wali at the time of incident.
Thereafter I had also seen him at the police station. It
is wrong to suggest that the accused Ravi was not
present at the spot. It is wrong to suggest that I have
identified the accused at the instance of IO. My house
is situated at 150 sq. Yds from the spot.
XXXXXX by *** counsel for accused Satish and
Rohit as adopted above…”
(Emphasis supplied)
19. Significantly, PW-1, upon being recalled for his
cross examination, pursuant to order dated 18.07.2018,
proclaimed, under his cross-examination, conducted on
17.09.2018, as under;
“XXXXXX by Sh. ***, Ld. counsel for both
accused Ravi and Rohit.
My statement was recorded once or twice by the
police officials but I do not remember exact number of
statements recorded. My statement was recorded once
in the intervening night of 19-20.12.2011 and second
at the time of arrest of the accused Rohit. No other
accused in the present case was arrested in my
presence except accused Rohit. I had not parked my
bike rather 1 threw my bike without properly parking
it because of which bike fell down. My mamaji was at
a distance of less than 10 mts of the place where I had
thrown my bike. All the three accused when I saw the
accused persons for the first time, all the three accused
persons were running in the same gali from where I
was coming and they were running towards me only. I
had thrown my bike at 2-3 meter prior to T-paint.
From the T-point I had taken U turn and I ran on foot
behind the accused person. Accused Rohit was
apprehended as he fell down in the street. Mamaji and
I was running simultaneously behind the accused
persons. It is wrong to suggest that since I was running
behind the accused persons there was no occasion to
see the face of any of the accused persons. It is wrong
to suggest that I had not seen anybody nor I caughtC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 27 of 57
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ABHISHEK GOYAL
GOYAL Date:
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anybody on 11.12.2011 rather I have identified Rohit
as the person involved in the incident merely on the
asking of police officials. It is wrong to suggest that I
am not the resident of Paharganj area rather I was
called at belated Lane al Police Station, where I have
signed the statements and documents on the asking of
IO in a mechanical manner. It is wrong to suggest that
the accused persons were shown to me in the PS as
well as prior to my deposition before the court. It is
wrong to suggest that I falsely identified accused
persons on the asking of police officials in the court. It
is wrong to suggest that nothing was recovered from
the possession of accused Rohit. It is wrong to suggest
that it was me and my mamaji who handed over the
amount of Rs. 1000/- to the police to be falsely planted
as the case property so as to frame the accused persons
in the present case. It is wrong to suggest that I am
deposing falsely…”
(Emphasis supplied)
20. Correspondingly, reference is here made to the
testimony of PW-2/ASI Mahesh Kumar, who deposed before the
Ld. Trial Court that on 20.12.2011, while he was working as Duty
Officer at PS. Paharganj, since 01:00 a.m. to 09:00 a.m., at around
01:20 a.m., Ct. Pramod reached at the police station and handed
over rukka to him/PW-2, sent by ASI Dalbir Singh for registration
of FIR. On the basis of the same, as per PW-2, he registered the
present FIR under Sections 379/411/34 IPC through computer
operator. PW-2 further proved the copy of instant FIR as Ex.
PW-2/A, bearing PW-2’s signatures at point A. Further, PW-2
proclaimed that he made an endorsement on the rukka, Ex.
PW-2/B, bearing his signatures at point A. After registration of the
FIR, as per PW-2, he handed over the copy of FIR and original
rukka to Ct. Parmod to be handed over to ASI Dalbir Singh for
further investigation. As per PW-2, he also issued certificate under
section 65B of the Indian Evidence Act, 1872 (hereinafter referred
to as the ‘Evidence Act‘), regarding the recording the said FIR, as
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 28 of 57
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ABHISHEK GOYAL
GOYAL Date:
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Ex. PW2/C, bearing PW-2’s signature at point A. Appositely,
PW-2 was not cross examined, despite opportunity.
21. Here, it is further pertinent to refer, the deposition of
PW-4/SI Dalveer Singh, who proclaimed in his testimony that on
the intervening night of 19/20.12.2011, he was posted at PP. ST
Sangat Rashan, Pahar Ganj and on that night, day, he/PW-4 was on
night duty from 08:00 p.m. to 08:00 a.m. Further, as per PW-4, he
received an information of the present case at around 11:32 p.m.
vide DD No. 42PP (Mark-A), regarding snatching of mobile and
cash from the complainant by the accused persons at 861 Gali
Chandiwali Pahar Ganj. Thereafter, on the information received,
he along with Ct. Parmod went to the spot where they met with
complainant and his nephew, namely, Manish. PW-4 further
asserted that one accused was apprehended by the complainant and
his nephew, who was handed over to them by the complainant and
Manish. As per PW-4, on a cursory search of accused Rohit, they
recovered one thousand rupees (Rs. 1,000/-), in the denomination
of one, Rs. 500/- (Rupees Five Hundred only) currency note and
five, Rs. 100/- (Rupees One Hundred only) currency notes.
Correspondingly, PW-4 avowed that he prepared the seizure
memo of the recovered currency notes (Ex. PW1/A), bearing
PW-4’s signatures at point C and thereafter, recorded the statement
of the complainant (Ex. PW3/A), also bearing my signatures at
point B. PW-4 further asserted that he prepared the rukka (Ex.
PW2/B) and handed the same over to Ct. Pramod for the
registration of the FIR. As per PW-4, Ct. Pramod, consequently,
got the FIR registered and returned to the spot with a copy of FIR
and original tehrir, which was handed over him. Further, as per
PW-4, he prepared the site plan (Ex. PW4/A) at the instance of the
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complainant, investigated the matter and arrested accused
Rohit/appellant no. 1 as well as carried out his personal reach.
Correspondingly, PW-4 avowed that he prepared the instance
memo of the spot (Ex. PW3/D) and also took the disclosure
statement of accused Rohit (Ex. PW3/G) as well as the disclosure
statement of accused Satish (Ex. PW4/B), when he surrendered in
court on 18.01.2012. PW-4 also deposed that he arrested accused
Satish and prepared the arrest memo (Ex. PW4/C) and conducted
his personal search vide personal search memo, Ex. PW4/D.
Needless to mention that PW-4 deposed that he endeavoured to
arrest accused, Ravi/appellant no. 2, however, was unable to find
him. Pertinent to note that despite being afforded repeated
opportunities, PW-4 was not cross examined by/on behalf of the
appellants/co-accused, Satish.
22. Germane for the purpose(s) of the present discourse
to refer to the deposition of PW-5/HC Pramod Kumar, who
deposed on the same lines as PW-4. As per PW-5, in the
intervening night of 19/20.12.2011, he was working as Constable
at PS Pahar Ganj, New Delhi and was posted at PP Sangat Rashan.
On that night, as per PW-5, at around 11:30 p.m., a DD entry
regarding snatching was received in the Police Post vide DD No.
42 and he/PW-5 along with ASI Dalbir Singh went to the spot in
the comer of Gali Chandi Wali, Door Wali, H. No. 799, Pahar
Ganj. PW-5 further asserted that there, they met the complainant
Vinod and his nephew Manish, who had apprehended one person
namely Rohit. As per PW-5, complainant and Manish handed over
Rohit to them and on his/Rohit’s cursory search, a sum of Rs.
1,000/- (Rupees One Thousand only), in the denomination of one,
Rs. 500/- (Rupees Five Hundred only) currency note and five, Rs.
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100/- (Rupees One Hundred only) currency notes, were recovered,
which were asserted by the complainant to belong to him. IO/ASI
Dalbir Singh, as per PW-5, seized the above said notes by keeping
the same in one pulanda sealing with the seal of ‘DS’ vide seizure
memo Ex. PW1/A. Further, as per PW-5, thereafter, the IO
recorded the statement of the complainant and prepared the rukka
as well as handed over the same to him/PW-5 for the registration of
FIR. Consequently, PW-5 deposed that he went to the police
station and got the FIR registered and return to the spot with the
copy of FIR and original rukka. PW-5 further proclaimed that he
handed over the copy of FIR and original rukka to the IO. As per
PW-5, thereafter, accused Rohit was arrested and his personal
search was conducted vide memo Ex. PW3/B and Ex. PW3/C. The
pointing out memo of the spot was also prepared, as per PW-5 and
thereafter, disclosure statement of the accused Rohit was recorded
(Ex. PW3/G). PW-5 also proclaimed that they returned to the
police station and the accused was kept in custody. Further, as per
PW-5, the case property was deposited in malkhana. PW-5
correctly identified accused, namely, Rohit before the Ld. Trial
Court. Needless to mention, PW-5 was not cross examined by/on
behalf of the appellants, despite repeated opportunities.
23. Strikingly, PW-6/SI Raj Kumar deposed before the
Ld. Trial Court that on 24.12.2012, he was posted as SI at PS.
Pahar Ganj and on the said day, he formally arrested accused
Ravi/appellant no. 2 in the Tis Hazari Courts, when the accused
surrender before the court vide arrest memo Ex PW6/A, bearing
PW-6’s signatures at point A. PW-6 further deposed that personal
search of accused Ravi was conducted vide memo Ex. PW6/B and
an application for TIP proceedings of appellant no. 2/accused Ravi
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 31 of 57
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was made. However, as per PW-6, accused Ravi refused to
participate in the TIP proceedings. Thereafter, as per PW-6, he
took police custody of the accused for one day and no recovery
was effected from accused Ravi. However, as per PW-6, two
pointing out memos Ex. PW3/E and Ex. PW3/F were prepared at
the instance of accused Ravi. PW-6 further asserted that he inter
alia recorded the statements of witness under Section 161 Cr.P.C.
and subsequently, prepared the chargesheet, which was filed in
court by SI Khazan Singh. Needless to mention, PW-6 correctly
identified accused Ravi before the Ld. Trial Court, however, was
not cross examined by/on behalf of the accused
persons/appellants.
24. Conspicuously, in light of the foregoing, this Court
would now proceed with the evaluation of the material placed on
record, in light of the arguments addressed by/on behalf of the
appellant and the State. However, before proceeding further, this
Court deems it pertinent to deal with the contention of Ld. Counsel
for the appellants inter alia to the effect that the prosecution made
no endeavour to join any public independent witnesses, despite the
occurrence allegedly having taken place in public gaze, in
presence of members of public. However, in the considered
opinion of this Court, mere non-joining of public persons is not
always fatal to the prosecution case. In fact, this Court is conscious
that even on a general proposition, superior courts have
persistently avowed8 that there is no legal hurdle in convicting a
person on the testimony of a single/sole eyewitness if his version is
clear and reliable, for the principle of law/rule of evidence is that
the evidence has to be weighed and not counted. Relevantly, in this
8
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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regard, the Hon’ble Supreme Court in Sunil Kumar v. State (Govt.
of NCT of Delhi), (2003) 11 SCC 367, noted as under;
“9. Vadivelu Thevar case [AIR 1957 SC 614: 1957
Cri LJ 1000] was referred to with approval in the case
of Jagdish Prasad v. State of M.P. [1995 SCC (Cri)
160: AIR 1994 SC 1251] This Court held that as a
general rule the court can and may act on the
testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. That
is the logic of Section 134 of the Indian Evidence Act,
1872 (in short “the Evidence Act“). But, if there are
doubts about the testimony the courts will insist on
corroboration. It is for the court to act upon the
testimony of witnesses. It is not the number, the
quantity, but the quality that is material. The time-
honoured principle is that evidence has to be weighed
and not counted. On this principle stands the edifice of
Section 134 of the Evidence Act. The test is whether
the evidence has a ring of truth, is cogent, credible and
trustworthy, or otherwise.”
(Emphasis supplied)
25. Congruently, this Court unambiguous observes that
mere fact that the prosecution, opted not to produce other public
persons, asserted to be allegedly present or would have been
present at the spot of occurrence at the time of incident, as
prosecution witnesses before the Ld. Trial Court, as otherwise
contended by Ld. Counsel for the appellants, cannot, in the
considered opinion of this Court, be read against the prosecution in
light of the decision of the Hon’ble Supreme Court in Rajesh
Yadav v. State of U.P., (2022) 12 SCC 200 , wherein the Hon’ble
Court in a similar situation, held as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and couldC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 33 of 57
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well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
26. Pertinently, Ld. Counsel for the appellants has
further strenuously contended that the Ld. Trial Court did not
consider the contradictions, variations and/or improvements, in the
testimonies of various prosecution witnesses while pronouncing
the order of conviction against the appellants in the instant case.
However, in order to precisely appreciate the said contention, this
Court deems it apposite to iterate and explore the judicial
precedents governing the law of contradictions in the testimony of
the witness. In particular, in this regard, this Court deems it apt to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC
505, wherein the Hon’ble Court inter alia observed as under;
“10. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth.
Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching
the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court
before whom the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial
court and unless there are reasons weighty andC.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 34 of 57
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formidable it would not be proper to reject the
evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest
and truthful witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having examined
the evidence of this witness, a friend and well-wisher
of the family carefully giving due weight to the
comments made by the learned counsel for the
respondent and the reasons assigned to by the High
Court for rejecting his evidence simultaneously
keeping in view the appreciation of the evidence of
this witness by the trial court, we have no hesitation in
holding that the High Court was in error in rejecting
the testimony of witness Nair whose evidence appears
to us trustworthy and credible.”
(Emphasis supplied)
27. Similarly, in this regard, the Hon’ble Apex Court in
Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
“24. When an eyewitness is examined at length it
is quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.”
(Emphasis supplied)
28. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into the
root of the matter and shake the basic version of the witnesses,
cannot be permitted to be annexed with any undue weight. In fact,
it is trite law9, the discrepancies which do not shake the basic
9
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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version of the prosecution and those which emanate due to normal
errors of perception or observation should not be given importance
and must necessarily be discarded. The rationale behind the same
is quite obvious, as elucidated by the Hon’ble Supreme Court in
State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as
under;
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form its
opinion about the credibility of the witness and record
a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility.”…
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of the
statement made by the witness earlier . The omissions
which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial
or core of the prosecution’s case, render the testimony
of the witness liable to be discredited…”
(Emphasis supplied)
29. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete with
material improvements, contradictions and variation. In contrast,
law provides for due concession to marginal variations and normal
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discrepancies in the statement/testimony of a witness, which are
bound to occur due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence. Consequently, when
the testimonies of prosecution witnesses in the instant case are
analysed, mindful of aforenoted revered principles, this Court
finds itself difficult to be convinced with the contention of the Ld.
Counsel for the appellant that there are any material contradictions
to belie the testimonies of the said witnesses. On the contrary, it is
seen from a conscientious scrutiny of the evidence of the
complainant/PW-3 and his nephew/PW-1 that they have
consistently deposed of the incident in question, as well as of the
involvement of the appellants therein. In particular, it is seen from
the testimony of the complainant/PW-3 that when he was
proceeding from his sister’s house to his house and at around 11:15
p.m., had reached near lane of his sister’s house to ease himself,
three accused persons attacked him/PW-3 from behind.
Correspondingly, PW-3 proclaimed that one of the said boys, took
two mobile phones from the right pocket of his/PW-3’s wearing
pants. As per PW-3, one of the said mobile phones bore number ,
i.e., 9873404292 and was Nokia 2310 make, whilst, the other
mobile phone was of TATA Samsung make, bearing no.
9210989606. PW-3 further avowed that another boy took out
his/PW-3’s brown colour purse containing three thousand rupees
(Rs. 3,000/-), which were of denomination of six notes of Rs.500/-
(Rupees Five Hundred only) each and his/PW-3’s driving license.
Further, as per PW-3, the third boy/accused, took out one thousand
rupees (Rs. 1,000/-), in the denomination of one, Rs. 500/- (Rupees
Five Hundred only) currency note and five, Rs. 100/- (Rupees One
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Hundred only) currency notes. In the meanwhile, as per PW-3,
his/PW-3’s nephew, namely, Manish reached at the spot, who was
coming from his office and after seeing him/Manish, PW-3 is
asserted to have raised an alarm. Consequently, as per PW-3 all the
said three persons started to flee from the spot, on seeing PW-3’s
nephew, Manish, however, he/PW-3 apprehended one of the
accused persons, with the help of Manish, who was determined to
be appellant no. 1/Rohit and from his possession, complainant’s
robbed amount of Rs. 1,000/- (Rupees One Thousand only) was
recovered. Needless to reiterate, PW-3 not only identified the
seized/said recovered amount of Rs. 1,000/- (Rupees One
Thousand only) before the Ld. Trial Court, rather, also correctly
identified the appellants and co-accused Satish as the perpetrators
of offence.
30. Undoubtedly, though, PW-1, affirmed that he had
not witnessed the entire occurrence, however, he/PW-1 deposed
that in the intervening night of 19/20.12.2011, while he was
returning to his residence and at around 11:15 p.m., had reached at
Doar Wali Gali, he heard loud voice of his mamaji (maternal
uncle)/PW-3, claiming, “bachaoo bachaoo”. Correspondingly,
PW-3 testified that thereupon, three persons started running, who
were chased by him and PW-3 and one of the said three persons
was caught by him/PW-1 with the help of his mamaji, whose name
was later on revealed as Rohit/appellant no. 1. Needless to mention
that even PW-1 correctly identified the appellants and co-accused
Satish as the perpetrators of offence and specifically proclaimed
that appellant no. 2 and co-accused Satish were successful in
escaping from the spot. As aforenoted, PW-1 further avowed that
he made a call at 100 number from his/PW-1’s mobile phone and
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the police reached at the spot. Significantly, during the course of
his deposition, PW-1 specifically avowed that upon search of
appellant no. 1/accused Rohit, Rs. 1000/- (Rupees One Thousand
only) in the denominations of one currency of Rs.500/- (Rupees
Five Hundred only) and five currency notes of Rs. 100/- (Rupees
One Hundred only), which were robbed in the incident, were
recovered. Here, it is significant to note that both, PW-1 and PW-3
have been consistent in their depositions before the Ld. Trial Court
and despite vigorous cross examination, nothing has emerged
under the deposition of either of the said prosecution witnesses, so
as to belie the version put forth by them. Correspondingly, the
appellants further failed to attribute any motive/intention on any of
the prosecution witnesses to falsely implicate the appellant in the
instant case. On the contrary, the declaration(s) made by the said
witnesses in their respective cross examination, further
strengthens the case put forth by the prosecution against the
appellants.
31. Relevantly, in respect of the foregoing, it is noted
that PW-3 under his cross examination specifically proclaimed
that all the three accused persons, i.e., the appellants and co-
accused Satish, ran towards Manish. Correspondingly,
PW-1/Manish upon being cross examined, corroborated the
version of PW-3 that all the said three accused persons were
running in the same gali/street from where he/PW-1 was coming
and that they were all running towards him/PW-1 only. In fact,
PW-1 further proclaimed under his cross examination that he had,
“thrown my bike at 2-3 meter prior to T-paint. From the T-point I
had taken U turn and I ran on foot behind the accused person.
Accused Rohit was apprehended as he fell down in the street.”
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Correspondingly, PW-1 denied the suggestion to the effect that he
had seen anybody on the date of occurrence and even denied that
he had not caught anyone at the spot. Further, PW-1 also denied
that the accused persons were shown to him in the police station as
well as prior to his deposition before the court. Concomitantly,
during his cross examination, PW-1 further specifically asserted
that there was a street light at the spot and deposed that when he
threw his motorcycle, there was also a light. Ergo, under such
circumstances, the contention of Ld. Counsel for the appellants
that the complainant/PW-3 and PW-1/Manish wrongly/mistakenly
identified the appellants as the perpetrators of offence or that
owing to darkness, PW-1 and/or PW-3 could not have identified
the appellants, does not find credence with this Court, from the
material placed on record. Needless to reiterate that not only,
PW-1 and PW-3 consistently identified the appellants as the
perpetrators of offence, rather, nothing is forthcoming on record
to, even to the extent of disproving the presence of the appellants at
the place of occurrence at the relevant point in time. Needless to
mention, appellant no. 1 was apprehended on the spot and
immediately handed over to PW-4/SI Dalveer Singh and
PW-5/HC Pramod Kumar, upon their arrival on the spot.
32. Correspondingly, it is seen from the material placed
on record that though, appellant no. 2, is asserted to have initially
evaded from the spot, however, he surrendered before the Ld. Trial
Court only on 24.01.2012. Further, as aforenoted, despite such
surrender, appellant no. 2 specifically refused to participate in the
TIP proceedings inter alia under an assertion that there was, “…
also a possibility of my having been shown to the witness when I
appeared in the Court in unmuffled face on my application for
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surrender…”. Here, it is pertinent to observe that despite such
assertion, appellant no. 2 deliberately opted not to put any
question/suggestion to any of the prosecution witnesses, including
PW-1, PW-3 and/or PW-6, to affirm his version that he was shown
to the witness or identified as one of the perpetrators of the
offence, prior to such proceedings/proposed TIP proceedings, so
as to justify his said refusals. Ergo, under such circumstances, in
the considered opinion of this Court, such unexplained/unjustified
refusal of appellant no. 2 to participate in the TIP proceedings,
despite warning of adverse inference being drawn against him in
trial, followed by his subsequent, in-dock identification, both, by
PW-1 and PW-3 as the one of the perpetrators of offence, is
sufficient to attract criminality against appellant no. 2, in the
instant case. In this regard, this Court deems it pertinent to make a
reference to the decision of the Hon’ble High Court of Delhi in
Nazim Khan @ Guddu v. State, Crl. Appeal No. 532/2012, dated
08.05.2014, wherein the Hon’ble Court, in an akin situation,
remarked, as under;
“17. It, therefore, is clear that the test identification
parade report although is not a substantive evidence
but can be used only for the purpose of corroboration.
There can be two results of test identification parade.
Firstly, the refusal to participate in the test
identification parade by the appellant is without any
justification. Such a refusal is a piece of evidence and
the courts can take an adverse inference against the
accused that if he would have participated in the test
identification parade, he would have been identified
by the witness and the refusal can be used to
corroborate the dock identification by witness.
Secondly, the accused has a justifiable reason to
refuse to participate in the test identification parade.
Where accused has justifiable reason, no adverse
inference can be taken against him.”
(Emphasis supplied)
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33. In so far as the fulfilment/establishment of
ingredients of offence under Section 392/34 IPC against the
appellants is concerned in the instant case, this Court is in
concurrence with the finding of the Ld. Trial Court, under the
impugned order. In fact, this Court concedes with the observations
of the Ld. Trial Court that both PW-1 and PW-3 deposed regarding
the appellants and co-accused Satish, attacking the complainant
from behind, wrongfully restraining him and in the said process,
each of the said three accused persons, dishonestly taking movable
property out of the possession of the complainant, without his
consent and moving the said property, in order to such taking. As
aforenoted, PW-3 specifically deposed in his testimony that the
said three accused persons attacked him and restrained him from
behind, whereupon, one of the said boys/persons, took two mobile
phones from the right pocket of his/PW-3’s wearing pants; another
boy took out his/PW-3’s brown colour purse containing three
thousand rupees (Rs. 3,000/-), which were of denomination of six
notes of Rs.500/- (Rupees Five Hundred only) each and
his/PW-3’s driving license; and the third boy/accused, took out
one thousand rupees (Rs. 1,000/-), in the denomination of one, Rs.
500/- (Rupees Five Hundred only) currency note and five, Rs.
100/- (Rupees One Hundred only) currency notes.
Correspondingly, PW-1/Manish inter alia asserted in his cross
examination that when he reached at the spot, the accused persons,
including the appellants herein, had caught hold of his/PW-1’s
mamaji/PW-3, while appellant Rohit had caught hold of
his/PW-1’s mamaji/PW-3 from his neck. Further, as aforenoted,
PW-3 asserted that upon him raising and alarm and upon seeing
PW-1 emerge at the scene, all the three accused persons started to
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flee from the spot, whereupon, appellant no. 1 was apprehended on
the spot with the assistance of PW-1. Needless to mention that
even the said version stands corroborated under the deposition of
PW-1, who proclaimed that he heard loud voice of his mamaji
(maternal uncle), claiming, “bachaoo bachaoo” and he/PW-1 saw
that three persons started running. Further, as per PW-1, he chased
the said persons and one of them, fell down. PW-1 further
proclaimed that he caught the said person with the help of his
mamaji, whose name was later on revealed as Rohit/appellant no.
1. Ergo, under such circumstances, this Court concedes with the
finding of the Ld. Trial Court that the ingredients of offence under
Section 392 IPC read with Section 34 stand proved beyond
reasonable doubt against the appellants herein. Needless to
reiterate that the role attributed against the appellants and
concert/commonality of action and common intention on the part
of the appellants, in the considered opinion of this Court, also
stands proved beyond doubt against the appellants herein, in light
of the facts and circumstances brought forth and the aforenoted
judicial dictates. Needless to further reiterate that not only the
appellants and co-accused Satish are arrested by PW-3 to be acting
in concert with each other, while they committed the incident of
robbery on the complainant, rather, they all endeavoured to flee
together, immediately, upon the complainant’s raising an alarm
and upon seeing PW-1 emerge at the spot, decidedly attributing the
said charges/offences against the appellants herein.
34. Conclusively, in conspectus of the above and inter
alia keeping in view consistent testimonies of the
complainant/PW-3 and PW-1/Manish, as well as other material on
record, including the testimonies of other witnesses, seizure and
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recovery memos, etc., the only conclusion which can be
unambiguously arrived at in the facts and circumstances brought
forth is that the prosecution has been able to prove its case ‘beyond
reasonable doubt’ against the appellants for the offences under
Section(s) 392/34 IPC. On the contrary, the appellants has failed to
raise a probable defence/defence by ‘preponderance of
probabilities’ in their favour and/or to belie the case put forth by
the prosecution for the reasons, hereinunder, observed. However,
in as much as the allegations/charges under Section 411 IPC is
concerned, this Court unambiguously notes that in light of the
aforementioned dictates, in particular, in terms of the decisions in
State of U.P. v. Nawab (Supra.) and Gopi Jaiswal v. State of U.P.
(Supra.), once a finding of guilt of accused persons for the
commission of offence under Section 392/34 IPC has been reached
by this Court, it would not be proper to convict the appellant, Rohit
for the offence under Section 411 IPC in the instant case. Needless
to mention that this Court concedes, admittedly, no charge for the
offence under Section 411 IPC was framed against appellant no.
2/accused Ravi in the instant case and in fact, it is not even the case
of the prosecution that any robbed article was even recovered from
his possession. Ergo, under such circumstances, this Court
concedes with the submission of the Ld. Counsel for the appellants
that the finding of appellant no. 2’s guilt for the offence under
Section 411 IPC under the impugned order is per se,
unsubstantiated from the material brought forth.
35. In so far as the quantum of sentence to be awarded
to the appellants is concerned, this Court deems it pertinent to
outrightly observe that though the penal provisions under law, in
particular that under IPC, prescribe for penalties to be imposed for
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offences, however, do not lay down any set guidelines for the
same. Nonetheless, the persistent avowals of the superior courts 10
have laid down certain guidelines, which may be considered by the
courts, when confronted with conundrum regarding such
determination. Undoubtedly, the inclination of courts is usually
tilted towards the reformation and rehabilitation of the accused,
however, at the same time, court have incessantly cautioned that
sentencing should be adequate as undue sympathy, by imposing
inadequate sentence may result into causing more harm to the
justice system. In this regard, reference is made to the decision of
the Hon’ble Supreme Court in Hazara Singh v. Raj Kumar, (2013)
9 SCC 516, wherein the Hon’ble Court observed as under;
“17. …We also reiterate that undue sympathy to
impose inadequate sentence would do more harm to
the justice system to undermine the public confidence
in the efficacy of law. It is the duty of every court to
award proper sentence having regard to the nature of
the offence and the manner in which it was executed
or committed. The court must not only keep in view
the rights of the victim of the crime but also the
society at large while considering the imposition of
appropriate punishment.”
(Emphasis supplied)
36. Concurrently, the Hon’ble Supreme Court in Raju
Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while
iterating the objective behind sentencing enunciated as under;
“9. …Punishment is the just desert of an offender.
The society punishes not because it has the moral right
to give offenders what they deserve, but also because
punishment will yield social useful consequences: the
protection of society by incapacitating criminals, the
rehabilitation of past offenders, or the deterrence of
potential wrongdoers…The purposes of criminal
sentencing have traditionally been said to be
retribution, deterrence and rehabilitation. To these
there may now perhaps be added: incapacitation (i.e.10
‘X’ v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4
SCC 375.
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putting it out of the power of the offender to commit
further offences) and the maintenance of public
confidence…”
(Emphasis supplied)
37. Apposite to further observe that besides the
tenacious affirmations of the superior courts, inclined towards the
grant of just and appropriate sentence, there has also been a
cautionary word11 that mere long pendency of case is no ground to
award lesser sentence. However, this Court is equally cognizant
that the superior courts have incessantly asserted that while
determining the quantum of sentence, courts cannot be oblivious
to the mitigating circumstances, which are required to be accorded
due weightage, alongside aggravating factors. In fact, law is
settled12 that the discretion in the matter of sentence is to be
exercised by court(s), after balancing all the aggravating and
mitigating circumstances of the crime. Further, as per the superior
courts13, a balance sheet of aggravating and mitigating
circumstances has to be drawn up at such a stage and while doing
so, “the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.” In this regard, reference is made to the decision of the
Hon’ble Apex Court in Vasanta Sampat Dupare v. State of
Maharashtra, (2017) 6 SCC 631, wherein the Hon’ble Court while
delving into the aspect of award of sentence/sentencing,
enunciated as under;
“20. It is thus well settled, “the court would
consider the cumulative effect of both the aspects
(namely, aggravating factors as well as mitigating
circumstances) and it may not be very appropriate for11
State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
12
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
13
Machhi Singh v. State of Punjab, (1983) 3 SCC 470
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the Court to decide the most significant aspect of
sentencing policy with reference to one of the classes
completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the
two”. Further, “it is always preferred not to fetter the
judicial discretion by attempting to make excessive
enumeration, in one way or another; and that both
aspects, namely, aggravating and mitigating
circumstances have to be given their respective
weightage and that the Court has to strike the balance
between the two and see towards which side the
scale/balance of justice tilts”. With these principles in
mind, we now consider the present review petition.”‘
(Emphasis supplied)
38. Here, it is further apposite to make a reference to the
decision of the Hon’ble Supreme Court in Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257, wherein the Hon’ble Court,
while iterated the law as under;
“76. The law enunciated by this Court in its recent
judgments, as already noticed, adds and elaborates the
principles that were stated in Bachan Singh [(1980) 2
SCC 684: 1980 SCC (Cri) 580] and thereafter, in
Machhi Singh [(1983) 3 SCC 470: 1983 SCC (Cri)
681] . The aforesaid judgments, primarily dissect
these principles into two different compartments–
one being the “aggravating circumstances” while the
other being the “mitigating circumstances”. The court
would consider the cumulative effect of both these
aspects and normally, it may not be very appropriate
for the court to decide the most significant aspect of
sentencing policy with reference to one of the classes
under any of the following heads while completely
ignoring other classes under other heads. To balance
the two is the primary duty of the court. It will be
appropriate for the court to come to a final conclusion
upon balancing the exercise that would help to
administer the criminal justice system better and
provide an effective and meaningful reasoning by the
court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed
by the person having a substantial history of serious
assaults and criminal convictions.
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(2) The offence was committed while the offender
was engaged in the commission of another serious
offence.
(3) The offence was committed with the intention
to create a fear psychosis in the public at large and was
committed in a public place by a weapon or device
which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for
ransom or like offences to receive money or monetary
benefits.
(5) Hired killings.
(6) The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victim.
(7) The offence was committed by a person while
in lawful custody.
(8) The murder or the offence was committed to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty under
Section 43 CrPC.
(9) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and social
norms, like a child, helpless woman, a daughter or a
niece staying with a father/uncle and is inflicted with
the crime by such a trusted person.
(11) When murder is committed for a motive
which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it
pricks or shocks not only the judicial conscience but
even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under
which the offence was committed, for example,
extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these situations
in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative factor by itself.
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(3) The chances of the accused of not indulging in
commission of the crime again and the probability of
the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was
mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of
life, would render such a behaviour possible and could
have the effect of giving rise to mental imbalance in
that given situation like persistent harassment or, in
fact, leading to such a peak of human behaviour that,
in the facts and circumstances of the case, the accused
believed that he was morally justified in committing
the offence.
(6) Where the court upon proper appreciation of
evidence is of the view that the crime was not
committed in a preordained manner and that the death
resulted in the course of commission of another crime
and that there was a possibility of it being construed as
consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the
testimony of a sole eyewitness though the prosecution
has brought home the guilt of the accused.”
(Emphasis supplied)
39. At this stage, this Court deems it apposite to further
reproduce the relevant provisions under the Probation of
Offenders Act, as under;
“4. Power of court to release certain offenders on
probation of good conduct-(1) When any person is
found guilty of having committed an offence not
punishable with death or imprisonment for life and the
court by which the person is found guilty is of opinion
that, having regard to the circumstances of the case
including the nature of the offence and the character of
the offender, it is expedient to release him on
probation of good conduct, then, notwithstanding
anything contained in any other law for the time being
in force, the court may, instead of sentencing him at
once to any punishment, direct that he be released on
his entering into a bond, with or without sureties, to
appear and receive sentence when called upon during
such period, not exceeding three years, as the court
may direct, and in the meantime to keep the peace and
be of good behaviour:
Provided that the court shall not direct such release
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of an offender unless it is satisfied that the offender or
his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live
during the period for which he enters into the bond.
(2) Before making any order under sub-section (1)
is made, the court shall take into consideration the
report, if any, of the probation officer concerned in
relation to the case.
(3) When an order under sub-section (1), the court
may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a
probation officer named in the order during such
period, not being less than one year, as may be
specified therein, and may in such supervision order
or impose such conditions as it deems necessary for
the due supervision of the offender.
(4) The court making a supervision order under
sub-section (3) shall require the offender, before he is
released, to enter into a bond, with or without sureties,
to observe the conditions specified in such order and
such additional conditions with respect to residence,
abstention from intoxicants or any other matter as the
court may, having regard to the particular
circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of
other offences by the offender.
(5) The court making a supervision order under
sub-section (3) shall explain to the offender the terms
and conditions of the order and shall forthwith furnish
one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation
officer concerned.
*** *** ***
11. Courts competent to make order under the Act,
appeal and revision and powers of courts in appeal
and revision-(1) Notwithstanding anything contained
in the Code or any other law, an order under this Act,
may be made by any court empowered to try and
sentence the offender to imprisonment and also by the
High Court or any other court when the case comes
before it on appeal or in revision***”
(Emphasis supplied)
40. Notably, the Probation of Offenders Act was brought
into force, in view of the increasing emphasis on the reformation
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and rehabilitation of the offenders as useful and self-reliant
members of society without subjecting them to deleterious effects
of jail life, however, law is trite14 that no one can claim the benefit
of Sections 3/4 of the Probation of Offenders Act as a matter of
right and the court has to, “pass appropriate orders in the facts and
circumstances of each case having regard to the nature of the
offence, its general effect on the society and the character of the
offender, etc.” Correspondingly, superior courts have persistently
avowed15 that for the benefit under Probation of Offenders Act to
enure in favour of an accused, court must be cognizant of the
nature of offence, conditions stipulated under Section 4 of the said
enactment, as well as judicial precedents governing the field.
41. Whence, in light of the foregoing principles, this
Court would now proceed with the determination of rival
contentions of Ld. Counsel for the appellants as well as Ld. Addl.
PP for the State. Appositely, Ld. Counsel for the appellants
strenuously averred that the appellants belong to poor strata of
society as well as struggling for their daily sustenance. Further, as
per Ld. Counsel, the appellant have suffered the rigours of
litigation, as early as 2011 and have ever since, been diligently
appearing before court; besides, nothing has come on record to
demonstrate that the appellants misused the condition of
bail/suspension of sentence during the interregnum period. Ld.
Counsel for the appellants further reiterated that the appellant have
always cooperated during the trial as well as pendency of present
appeal, besides the appellant are obligated to take care of their
old/ailing family members/parents as well as other family
members. Accordingly, Ld. Counsel for the appellants have
14
Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, (2001) 5 SCC 317.
15
Mohd. Hashim v. State of U.P., (2017) 2 SCC 198.
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entreated for a lenient view in awarding sentence. However, Ld.
Addl. PP for the State, in contrast, has asserted that no relaxation in
sentencing ought to be granted in favour of the appellants,
considering the gravity of offence, besides the appellant be
conferred no indulgence of probation, as prayed for.
42. Ergo, in light of the foregoing submissions of the
Ld. Counsel for the appellant and that of Ld. Addl. PP for the State,
further, being wary of the facts and circumstances of the present
case, aggravating as well as mitigating factors brought forth,
antecedents/previous involvement, nominal roll of the appellants
and the possibility of reformation in view of the reports of the
probation officer, both, dated 22.02.2025, this Court is of the
considered opinion that in the matter at hand, the appellants
deserve the benefit of probation16/provisions under Probation of
Offenders Act. Apposite at this stage to reproduce the relevant
extracts from the report of probation officer qua the appellants, as
under;
“…Name of Offender: Rohit S/o. Pradeep
Current Address (Place of residence): H. No.16
Reference is made to the decision of the Hon’ble Apex Court in Chhanni v. State of Uttar Pradesh, Crl. Appeal No.
721 of 2006, dated 06.07.2006: AIR 2006 SC 3051: 2006 (5) SCC 396: 2006 Cri. LJ 4068 , wherein the Hon’ble
Court, noted the provisions under Section 360 Cr.P.C. vis-à-vis provisions under the Probation of offenders Act to
inter alia observe, “Where the provisions of the Probation Act are applicable the employment of Section 360 of the
Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable
consequences, which the legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the
legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial
provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special
reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the
Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in
the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own
in the respective areas where they are applicable.*** Section 360 of the Code relates only to persons not under 21
years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or
less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death
or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found
guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code
does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other
matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person
found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if
any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes
with such significant differences could not be intended to co-exist at the same time in the same area. Such co-
existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the
provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions
of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act,
where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly
inapplicable.*** Enforcement of Probation Act in some particular area excludes the applicability of the provisions of
Sections 360, 361 of the Code in that area.” (Emphasis supplied)
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C-192, Sidharth Basti Gali N. 11, Multani Dhanda
Phar Ganj Delhi.
*** *** ***
Offender’s own reaction to the offence and his
attitude towards possible punishment: He is worried
and strained about the possible punishment for this
act. The Accused stated that if the Hon’ble Court is
pleased to release him on Probation, he undertakes to
maintain good behavior and peace in future.
Any special information required by court: This
social investigation report is specifically prepared to
observe and explore the scope of reformations and
rehabilitation of the Accused, to analyze the social
background of the Accused family and to extend an
opportunity for self-rectification to the Accused in the
society
Summary:
(a) Factual background of offender and his
environment and offence: The accused is a 40 year old
unmarried man. He resides in a flat, area around 25
square yards. The accused works as a Sweeper and
earns 8000 Rs. per month.
(b) Diagnosis (Offender’s attitude, defects in
character of Family, Motivation and other Factory
regarded as Causal Factors for the Offence): The
Accused denied any mistake in the present case.
However, he also stated that now he wants to live a
normal life. Further he also shared that his family is
totally dependent on him for their livelihood.
(c) Prognosis (treatment considered most suitable
and estimate of chances of improvement): There is a
possibility of improvement in the behaviour of the
Accused.
(d) Recommendation (if asked for you by court):
The Accused has been facing the present case since
2011. He has suffered socially, mentally as well as
economically throughout this period of trial…”
*** *** ***
“…Name of Offender: Ravi S/o. Late Ved Prakash
Current Address (Place of residence): H. No.
C-126 Chinyot Basti, Nabi Karim Phar Ganj Delhi
*** *** ***
Personal History: The accused is 39 years old
married man. The accused is living with his Mother.
Brother, wife, Daughter and a Son in Delhi. He lives
in an apartment of 25 yards. The locality in densely
populated with pour hygiene conditions.
*** *** *** C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 53 of 57 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.08.22 16:55:49 +0530
Offender’s own reaction to the offence and his
attitude towards possible punishment: He is worried
and strained about the possible punishment for this
act. The Accused stated that if the Hon’ble Court is
pleased to release him on Probation, he undertakes to
maintain good behavior and peace in future.
*** *** ***
Summary:
(a) Factual background of offender and his
environment and offence: The Accused is a 39 year
old married man. He resides in a flat area around 25
square yards. The accused is the sole bread earner of
his family. The accused works as a car mechanic and
earns 10000 rs per month.
(b) Diagnosis (Offender’s attitude, defects in
character of Family, Motivation and other Factory
regarded as Causal Factors for the Offence): The
Accused denied any mistake in the present case.
However, he also stated that now he wants to live a
normal life. Further he also shared that his family is
totally dependent on him for their livelihood.
(c) Prognosis (treatment considered most suitable
and estimate of chances of improvement): There is a
possibility of improvement in the behaviour of the
Accused.
(d) Recommendation (if asked for you by court):
The Accused has been facing the present case since
2011. He has suffered socially, mentally as well as
economically throughout this period of trial…”
(Emphasis supplied)
43. Quite evidently, it is seen from above that the
probation officer, in the probation reports has tendered a favorable
opinion regarding the chance of reformation of the appellants,
besides favored the grant of benefit of probation to the appellants.
Correspondingly, from a report of previous involvement/
antecedents of the appellants, submitted by the concerned SHO, it
is noted that besides the present case, appellants are found
involved in no other cases. Needless to mention that there is
nothing on record to demonstrate that the appellants preserved to
harass or trouble the victim/complainant, subsequent to the day of
incident; appellants have expressed their inclination to lead normal
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 54 of 57
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.08.22
16:55:54 +0530
life as well as undertaken not to repeat similar offences in future
the appellant have remained on bail throughout, even during the
appeal and faced the ordeal of litigation as early as year, 2013,
when the chargesheet was filed and cognizance of offence taken by
the Ld. Trial Court; besides, there is nothing negative in the
probation reports against the appellants, rather, as aforenoted, the
probation officer has recommended that the cases of the appellants
may be considered for the benefit of probation, as well as the
offences proved against the appellants are not punishable with
death or imprisonment for life. Conclusively, this Court is of the
considered opinion that having regard to the foregoing
circumstances, it is expedient to release the appellants, namely,
Rohit and Ravi on probation of good conduct. Needless to further
mention that as per the aforesaid reports of the probation officer,
the appellants have fixed abode in the local limits of NCT of Delhi,
the appellants further have favorable and positive report qua their
behavior as well as there are no complaints of anti-social behavior
against them.
44. Conclusively, in light of the foregoing discussion,
while partially allowing the present appeal, the conviction of the
appellants, namely, Rohit and Ravi by Ld. ACMM-01, Central,
Tis Hazari Court, Delhi in case bearing; ‘ State v. Rohit, Etc., Cr.
Case No. 296600/2016’, arising out of FIR No. 189/2011, PS.
Paharganj, for the offences under Sections 392/411/34 IPC is
modified to the extent that the appellants, namely, Rohit and Ravi
are held guilty/stand convicted of the offences punishable under
Section 392/34 IPC. However, the conviction of the appellants
under Section 411/34 IPC is, hereby, set aside. Nonetheless, for the
foregoing reason, it is directed that the appellants, namely, Rohit
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.08.22
16:55:58
+0530
and Ravi, be now released on probation/entitled to benefit under
Section 4 of the Probation of Offenders Act, upon the appellants’
furnishing a personal bond in a sum of Rs. 15,000/- (Rupees
Fifteen Thousand only) with one surety of the like amount each ,
subject to the satisfaction of this Court, with an undertaking to
appear and receive punishment when called upon and in the
meantime, to keep the peace and be of good behavior maintain
peace during the period of 02 (two) years, as well as further subject
to the following conditions;
(a) The appellants shall not involve themselves in
any offence and registration of any further case shall
make them liable for cancellation of probation;
(b) The appellants shall receive the sentence as
may be given by the court, if the benefit of probation
is withdrawn;
(c) The appellants shall maintain peace and
harmony and refrain from criminal activity; and
(d) The appellants are further directed to deposit
Rs. 5,000/- (Rupees Five Thousand only) each, before
the Ld. Trial Court, to be released as compensation to
the victim, namely, Vinod Kumar, in terms of the
provisions under Section 5 of the Probation of
Offenders Act.
45. Needless to mention that since the appellants,
namely, Rohit and Ravi, have been dealt under Section 4 of
Probation of Offenders Act, they shall not suffer any
disqualification attached with conviction, in terms of Section 12 of
the said enactment17/Probation of the Offenders Act.
46. At request of the appellants and the Ld. Counsel for
the appellants, the bonds and sureties aforesaid be filed by the
appellants within a period of 15 (fifteen) days from the date of this
judgment, as per law and rules.
17
Radhey Shyma And Another v. State of U.P. & Anr., Crl. Rev. No. 436 of 2014, dated 20.09.2023 (Honble
Allahabad HC).
C.A. No. 348/2024 Rohit & Anr. v. State (NCT of Delhi) Page 56 of 57 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.08.22 16:56:03 +0530
47. Trial Court Record be sent back along with a copy of
this judgment/order.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.08.22
16:56:09
Announced in the open Court (Abhishek Goyal)
+0530
on 22.08.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
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