Delhi District Court
Sandeep @ Mussa vs State on 27 May, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-008791-2023
CRIMINAL APPEAL No.: 147/2023
SANDEEP @ MUSA,
S/o. Shri. Vijay @ Raghubir Prasad,
R/o. H. No. 2571, Gali No. 66,
Masjid Wali Gali, Sant Nagar,
Burari, Delhi ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of filing : 05.07.2023
Date of institution : 07.07.2023
Date when judgment was reserved : 30.04.2025
Date when judgment is pronounced : 27.05.2025
JUDGMENT
1. The present appeal has been preferred in terms of the
provisions under Section 374 of the Code of Criminal Procedure,
1973 (hereinafter, referred to as ‘Cr.P.C.’) against the judgment
dated 27.02.2023 (hereinafter referred to as ‘impugned
judgment’), passed by learned Metropolitan Magistrate-02/Ld.
MM-02, Central, Tis Hazari Courts, Delhi (hereinafter referred to
as the ‘Ld. Trial Court/Ld. MM’) in case bearing, ‘State v. Dilip &
Ors., Crl. Case No. 298622/2016′, arising out of FIR No.
326/2010, PS. Timarpur, under Sections 457/380/411/34 of the
Indian Penal Code, 1860 (hereinafter referred to as ‘IPC‘),
convicting the appellant for the offence punishable under Sections
411 IPC read and the consequent order of sentence dated
30.05.2023 (hereinafter referred to as ‘impugned order’), passed
by the Ld. Trial Court, awarding rigorous imprisonment for a term
of 2 (two) years along with fine of Rs. 5,000/- (Rupees Five
Thousand only) for the said offence/offence under Section 411
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
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IPC. Markedly, the appellant was directed to undergo, simple
imprisonment for a further period of 15 (fifteen) days, in default of
payment of fine, besides the appellant was further directed to
deposit a sum of Rs. 4,000/- (Rupees Four Thousand only) as
prosecution expenses. Needless to mention that the appellant was
directed to be entitled to the benefit of the provisions under Section
428 Cr.P.C. (hereinafter impugned judgment and impugned order
are collectively referred to as the ‘impugned judgment and order’).
2. Succinctly, the facts leading up to the filing of the
present appeal are that on 12.12.2010 on receipt of PCR Call vide
DD No. 16A, the concerned police official(s) is/are asserted to
have reached at the spot, i.e., H. No. 13, Type-III, Multistorey,
Timarpur, Delhi (hereinafter referred to as the ‘spot/premise’). On
reaching there, it was determined that the window at the rear end of
the house was open and the grill, which was fixed on the window
had been removed and kept inside. Upon this, the concerned police
official reached/entered inside the said house and opened the font
gate thereof. Thereafter, on entering the house, it was determined
that articles inside the house were lying strewn here and there,
besides the locks of the almirah were found opened. As per the
police official(s), it was further ascertained that owner of the said
house/complainant/Subhash Sethi was not present there and it was
subsequently, at around 07:00 p.m. on 12.12.2010 that the said
owner returned to his home. Consequently, statement of the
complainant was got recorded wherein he inter alia asserted that he
was resident of the said premise, while employed as Section
Officer at Union Public Service Commission at the relevant point
in time. The complainant further proclaimed that on 11.12.2010,
he along with his daughter and son-in-law, to Amritsar and in the
morning of 12.12.2010, he/the complainant received a call from
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
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his neighbor, informing him that the rear window of his house was
open, and an incident of theft had occurred at his house.
Correspondingly, as per the complainant, when he returned to his
house, at around 07:00 pm., he/the complainant noted that (1)
laptop, (2) City Bank Credit Card/Debit Card, (3) IDBI Debit
Card, (4) Syndicate Debit Card, (4) RC/registration certificate no.
DL-7CH-2407, (5) Diamond bracelet, earrings, bali (6) Golden
chain with pendant (10 gms.), (7) Rs. 30,000/- (Rupees Thirty
Thousand only), and (8) Clothes, were found missing/stolen. Ergo,
under said facts and circumstances and on the basis of the instant
complaint, the present FIR came to be registered, and the
investigation ensued. Relevantly, during the course of
investigation, the appellant along with co-accused persons namely,
Dilip, Rohit @ Chunchun, and Jeeva Nand (hereinafter referred to
as the ‘co-accused persons’) were apprehended/arrested and
various recoveries were effected from the said accused persons/co-
accused persons and appellant. Correspondingly, during the
investigation proceedings, TIP proceedings of the recovered
articles was got conducted on 06.01.2011, wherein the
complainant is asserted to have correctly identified all the
recovered articles.
2.1. Notably, upon conclusion of the investigation, the
concerned police official filed the chargesheet before the Ld. Trial
Court whereupon, cognizance of offence specified under the
chargesheet was taken by the Ld. Trial Court on 22.02.2011.
Subsequently, on compliance of provisions under Section 207
Cr.P.C. was undertaken, followed by arguments on charge having
been addressed by/on behalf of Ld. Counsel for the appellant and
co-accused persons as well as by Ld. APP for the State.
Consequently, Ld. Trial Court vide its order dated 04.08.2011,
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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directed framing of charges against the appellant as well as the co-
accused persons for the offences under Section 411 IPC. Apposite
at this stage to reproduce the relevant extracts of order dated
04.08.2011 of the Ld. Trial Court, as under;
“..Arguments on point of charge heard.
Charge and documents perused. It is alleged that
the accused were found in possession of stolen
property which was earlier stolen from the area of
police station Timarpur from complainant, which they
received or retained knowing or having reason to
believe the same to be stolen property. Prima facie
case against accused u/s. 411 IPC made out.
Charge u/s. 411 IPC is framed against all the
accused to which they have pleaded not guilty and
claimed trial…”
(Emphasis supplied)
2.2. Consequently, the following charge was framed
against the appellant on 04.08.2011;
“…I, ***, MM. Delhi do hereby charge you
Sandeep @ Musa S/o. Vijay, as under:-
That on 25.12.2010 at 252, Nirankari Colony, Dhir
Pur, Delhi you dishonestly received or retained the
stolen property the laptop leather bag and one golden
colour chain belonging to complainant Subhash Sethi
which was earlier stolen on 12.12.2010 from the area
of Police Station Timar Pur, which you received or
retained knowing or having reason to believe the same
to be stolen property and you thereby committed an
offence punishable u/s. 411 IPC and within the
cognizance of this Court.
And I hereby direct both of you to be tried for the
aforesaid offence by this court…”
(Emphasis supplied)
2.3. Markedly, the appellant and co-accused persons, all
pleaded not guilty to the charges levelled against them and claimed
trial. Relevantly, during the course of trial, prosecution examined 8
(eight) witnesses, i.e., PW-1/Subhash Sethi/complainant;
PW-2/Ct. Mukesh, PIS No. 28012269; PW-3/Ct. Mukesh, PIS No.
28070892; PW-4/HC Ajay Kumar; PW-5/SI (Retd.) Jagdish
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ABHISHEK GOYAL
GOYAL Date:
2025.05.27
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Chander; PW-6/Smt. Reeta Sethi; PW-7/Insp. Vikram; and
PW-8/SI Sunil Kumar. Relevantly, during the course of
proceedings, co-accused, Jeeva Nand left for heavenly abode and
the proceedings qua the said accused were abated vide order dated
24.08.2016 of the Ld. Trial Court, upon a death verification report,
having been filed by/on behalf of the concerned SHO.
Correspondingly, during the ensuing trial, the appellant and co-
accused persons, Rohit @ Chunchun and Dilip admitted the
genuineness and correctness of DD No. 16A regarding theft at
H.No. 13, Type-III, Multistorey, Timarpur, Delhi as Ex. PA-1; and
TIP of case property, dated 06.01.20211, conducted by the Ld. MM
as Ex. PA-2, in terms of the provisions under Section 294 Cr.P.C.
on 04.03.2020. At the same time, the said accused persons
(including the appellant) also admitted the fingerprint expert
report no. 1060/10, dated 12.12.2010, prepared by Ct. Chetan
(Crime team) as Ex. X-1, in terms of the provisions under Section
294 Cr.P.C. on 06.05.2022. Needless to mention that the
corresponding witnesses/prosecution witnesses, proposed to be
adduced by prosecution in proof of said documents were dropped
from array of prosecution witnesses, in light of such admission.
Subsequently, on conclusion of prosecution evidence, appellant’s
leading defence evidence/defence witnesses, i.e., DW-1/Sandeep
(himself) and DW-2/Smt. Laxmi; recording of statement of the
appellant (and co-accused persons) under Section 281/313 Cr.P.C.
on 26.09.2022; as well as on conclusion of arguments on behalf of
the parties, as aforementioned, the Ld. Trial Court vide impugned
judgment and order, while holding the appellant, guilty of the
offence punishable under Section 411 IPC, sentenced him in the
manner, as noted hereinabove.
3. Learned Counsel for the appellant vehemently
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ABHISHEK GOYAL
Date:
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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 impugned
judgment is incorrect both on facts as well as in law, making the
same liable to be set aside. It was further submitted that the Ld.
Trial Court erred in not appreciating the facts and circumstances of
the present case, nor the submissions of the appellant, while
passing the impugned judgment and order. In this regard, Ld.
Counsel outrightly submitted that the Ld. Trial Court failed to
appreciate that in the instant case, there are numerous gaping holes
in the case put forth, besides the story put forth by the prosecution
does not inspire confidence or appeals to the senses of a prudent
man. Ld. Counsel further submitted that there are various material
contradictions in the depositions of PW-1 and PW-6, belying the
version put forth by the said witnesses. In this regard, Ld. Counsel
further asserted that none of the prosecution witnesses have
supported the case of the prosecution, rather, the judgment was
passed by the Ld. Trial Court in an extremely hasty manner,
without applying judicial mind. Further, as per the Ld. Counsel
PW-2 to PW-5, PW-7 and PW-8 are police witnesses, who have
neither conducted a fair investigation nor supported the case of the
prosecution. Ld. Counsel further submitted that the Ld. Trial Court
failed to appreciate that though the incident allegedly took place on
12.12.2010, the appellant was arrested only after fifteen days
thereafter and in order to fill-in the lacune in the instant case, the
police officials have wrongly planted the alleged recovered article
on the appellant. In this regard, it was submitted that public
witnesses were joined in the recovery proceedings of alleged case
property nor the said proceedings video/photographed, which is
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
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fatal to the case of the prosecution. In fact, as per the Ld. Counsel,
the prosecution did not even produce the alleged neighbor of PW-1
who is asserted to have informed PW-1 of the alleged incident of
theft.
3.1. Ld. Counsel for the appellant further submitted that
the finding of the Ld. Trial Court is not based on any cogent
material and the Ld. Trial Court, as per the Ld. Counsel, passed the
impugned judgment and order, mechanically and in haste. Further,
as per the Ld. Counsel the Ld. Trial Court erred in appreciation of
evidence led in the case, ignoring the fundamental shortcoming in
the investigation conducted by the IO as well as the assertion of
various prosecution witnesses. Even otherwise, as per the Ld.
Counsel, Ld. Trial Court failed to consider that the appellant as
falsely implicated in the present case. As per the Ld. Counsel, the
IO of the case, moved no application for test-identification
parade/TIP of the case property and the same was released to/in
favour of the complainant, without placing any bill on record
pertaining to the said case property and without any verification
thereof, creating a doubt in the prosecution story and warranting
the appellant, benefit of doubt in the instant case. Correspondingly,
as per the Ld. Counsel even the search, seizure and arrest
proceedings were not properly conducted by the IO in the instant
case. In this regard, Ld. Counsel fervently argued that tough the
place of arrest of the appellant was admittedly, a thickly populated
area on a busy road, however, not a single independent witness was
produced by the prosecution to prove the recovery of article(s)
from the possession of the appellant. On the contrary, Ld. Counsel
submitted that the alleged recovery was planted upon the appellant
by the police officials to falsely rope him in the present case. It was
further submitted that though the prosecution examined/produced
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ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
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six police officials as witnesses/prosecution witnesses, however,
the said witnesses failed to disclose their arrival and departure
entries, as per the Punjab Police Rules, creating a colossal lacuna
in the prosecution case.
3.2. Ld. Counsel for the appellant further submitted that
the Ld. Trial Court reached its conclusion of guilt of the appellant,
while failing to appreciate that there is no cogent, credible and
reliable evidence on record for reaching an unambiguous
conclusion towards the guilt of the appellant. Accordingly, Ld.
Counsel 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 appellant, guilty of the aforementioned offence(s). 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 appellant was of young age at
the relevant point in time, as well as responsible for the look after
and take care of their family members. Ld. Counsel further
vehemently argued that the punishment/penalty must not be
retributive in nature, rather, humanizing, considering that
sentencing the accused/appellant with severe sentence would
subject the accused’s/appellant’s 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 appellant, serious/severe
repercussions may ensue to his physical and mental well-being.
Consequently, the Ld. Counsel for the appellant 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
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ABHISHEK GOYAL
GOYAL Date:
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the appellant 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‘).
4. Per contra Ld. Addl. PP for the State submitted that
the impugned judgment and order were 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
the complainant and various other prosecution witnesses have not
only been consistent, rather, of sterling quality, lucidly pointing
out towards the only inference of guilt of the appellant. Further, as
per the Ld. Addl. PP for the State the appellant even failed to prove
his defence. 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 appellant is made out, besides
considering the gravity of offence involved, the appellant is 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 appellant as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record(s) and other material
placed on record of the present case, including the report of the
concerned probation officer, thoroughly perused.
6. Before proceeding with the determination of the
merits of the present case, this Court deems it apposite to deal with
the application/prayer for condonation of delay in filing the
present appeal. In this regard, it is outrightly noted that against the
impugned judgment and impugned order dated 27.02.2023 and
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:21:04
30.05.2023, respectively, the present appeal was preferred only on
05.07.2023, admittedly after a delay. Notably, in the application
for condonation of delay of the appellant, the reason for said delay
is specified as the appellant’s Ld. Counsel’s inability to trace the
documents/file of the present case owing to some
renovation/construction work going on in the office due to summer
vacation. In particular, it is specified under the said application that
the appellant contacted his counsel and requested him to file the
appeal as soon as possible. Consequently, the instant appeal is
asserted to have been drafted and finalized, however, due to the
non-operation of the court, the appeal could not be filed in time ,
i.e., on 29.06.2023 and was filed with a delay for the reason that of
file/documents were not traced due to renovation/construction
work going on in the office of Ld. Counsel of the appellant.
Further, during the course of arguments, Ld. Counsel for the
appellant, while supplementing the said contentions, vehemently
contended that the appellant has been wrongly convicted and
sentenced by the Ld. Trial Court and in case, the delay in preferring
the present appeal is not condoned, grave and irreparable loss
would accrue upon the appellant, whist, no loss/damage would be
caused to the State, in case the prayer, as sought for is granted.
Needless to mention here, Ld. Addl. PP for the State sternly
objected to the said prayer for condonation on the ground,
entreating that no relaxation/indulgence may be granted in favour
of the appellant herein.
7. Apropos the present discussion and before delving
into the arguments addressed before this Court, on the aspect of
delay, it would be relevant to make a reference to Article 115(b)(ii)
of the Schedule of the Limitation Act, 1963 (‘ Limitation Act‘ for
short), which prescribes a period of thirty (30) days from the date
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ABHISHEK GOYAL
GOYAL Date:
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of sentence or order, sought to be challenged, as a period of
limitation for filing criminal appeal. However, Section 5 of the
Limitation Act, inter alia provides for condonation of
delay/extension of prescribed period in certain cases on
demonstration of ‘sufficient cause’, which terms/words have been
repeatedly, held by the superior courts to be elastic in nature,
necessitating liberal construction, in the interest of justice in a
given case. In this regard, reference is made to the decision of the
Hon’ble Supreme Court in Esha Bhattacharjee v. Raghunathpur
Nafar Academy, (2013) 12 SCC 649, wherein the Hon’ble Court,
while painstakingly collating the guiding principles governing the
exercise of court’s power to condone delay as well as the meaning
of the said words, enunciated as under;
“21. From the aforesaid authorities the principles
that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic,
justice-oriented, non-pedantic approach while dealing
with an application for condonation of delay, for the
courts are not supposed to legalise injustice but are
obliged to remove injustice.
21.2. (ii) The terms “sufficient cause” should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not be
given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to
deliberate causation of delay but, gross negligence on
the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact.
21.6. (vi) It is to be kept in mind that adherence to
strict proof should not affect public justice and cause
public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no
real failure of justice.
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ABHISHEK by ABHISHEK
GOYAL
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21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between
inordinate delay and a delay of short duration or few
days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted.
That apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a
party relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required to
weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total
go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted
or the grounds urged in the application are fanciful,
the courts should be vigilant not to expose the other
side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
limitation.
21.12. (xii) The entire gamut of facts are to be
carefully scrutinised and the approach should be
based on the paradigm of judicial discretion which is
founded on objective reasoning and not on individual
perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
22. To the aforesaid principles we may add some
more guidelines taking note of the present day
scenario. They are:
22.1. (a) An application for condonation of delay
should be drafted with careful concern and not in a
haphazard manner harbouring the notion that the
courts are required to condone delay on the bedrock of
the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
22.2. (b) An application for condonation of delay
should not be dealt with in a routine manner on the
base of individual philosophy which is basically
subjective.
22.3. (c) Though no precise formula can be laid
down regard being had to the concept of judicial
discretion, yet a conscious effort for achieving
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GOYAL
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consistency and collegiality of the adjudicatory
system should be made as that is the ultimate
institutional motto.
22.4. (d) The increasing tendency to perceive
delay as a non-serious matter and, hence,
lackadaisical propensity can be exhibited in a
nonchalant manner requires to be curbed, of course,
within legal parameters.”
(Emphasis supplied)
8. Unmistakably, the rules of limitation, which are
premised on the principles enshrined in a Latin maxim, ‘interest
reipublicae up sit finis litium1’, are designed not to destroy the
legal rights of parties, rather, to ensure that the parties do not resort
to dilatory tactics. Ergo, considering the objective of the law and
further being wary of the fact that there is no presumption under
law that the delay in approaching courts was deliberate, courts 2
have repetitively professed for adoption of a pragmatic, justice-
oriented approach, in variance to, technical interpretation, while
determining ‘sufficient cause’ in a case. Needless to mention that it
is equally a settled law3, “decisive factor for condonation of delay
is not length of delay but sufficiency and satisfactory
explanation.” Apposite in regard the foregoing to make a reference
to the decision of the Hon’ble Supreme Court in State of U.P. v.
Satish Chand Shivhare & Brothers, 2022 SCC OnLine SC 2151 ,
wherein the Hon’ble Court, while professing for the adoption of a
balanced as well as liberal approach in the determination of a
prayer for limitation/condonation of delay, asserted as under;
“22. When consideration of an appeal on merits is
pitted against the rejection of a meritorious claim on
the technical ground of the bar of limitation, the
Courts lean towards consideration on merits by
adopting a liberal approach towards ‘sufficient cause’
to condone the delay. The Court considering an1 It is for the general welfare that a period be put to litigation.
2 J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC OnLine Del
1082.
3 Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC OnLine Guj 2610.
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
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application under Section 5 of the Limitation Act may
also look into the prima facie merits of an appeal.
However, in this case, the Petitioners failed to make
out a strong prima facie case for appeal. Furthermore,
a liberal approach, may adopted when some plausible
cause for delay is shown. Liberal approach does not
mean that an appeal should be allowed even if the
cause for delay shown is glimsy. The Court should not
waive limitation for all practical purposes by
condoning inordinate delay caused by a tardy
lackadaisical negligent manner of functioning.”
(Emphasis supplied)
9. Consequently, in light of the aforenoted judicial
dictates/principles governing limitation; arguments addressed by
the Ld. Counsel for the appellant and Ld. Addl. PP for the State; as
well as appreciating the facts and circumstances and brought forth,
this Court outrightly notes that Section 4 of the Limitation Act,
which inter alia provides, “Where the prescribed period for any
suit, appeal or application expires on a day when the court is
closed, the suit, appeal or application may be instituted, preferred
or made on the day when the court re-opens.” Clearly, in the instant
case, the last date of expiry of the limitation period being the non-
operational day of the Court, the appeal had to be filed on
01.07.2023, however, the same was filed only on 05.07.2023,
admittedly with a delay. As aforenoted, reason for said delay is
attributed to the loss of documents/file due to the renovation work
ongoing in the Ld. Counsel’s office and, in the considered opinion
of this Court, same is neither deliberate nor intentional. Clearly, in
terms of the aforenoted judicial dictates, submissions made,
contents of the application for condonation of delay as well as the
provisions under Section 5 of the Limitation Act, the delay in
preferring the instant appeal, in the present case, in the considered
opinion of this Court, deserves to be allowed. Needless to reiterate,
the reasons for delay in the present case are stated to have been
attributed to the fact of loss/misplacement of documents/files of
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ABHISHEK GOYAL
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the present case due to renovation work in the Ld. Counsel’s office.
Clearly, in light of the foregoing, the reasons for preferring the
present appeal by/on behalf of the appellant cannot be treated to be
malicious or dilatory in any manner. Correspondingly, this Court
unswervingly observes that the prayer for condonation of delay in
filing the present appeal deserves to be allowed and the period of
delay warrants to be condoned. Consequently, for the foregoing
reasons, this Court allows the appellant’s prayer for condonation of
delay and the period of delay in filing/preferring the present appeal
is, hereby, condoned.
10. Proceeding further, this Court deems it apposite at
this stage, to enunciate the scope of jurisdiction of this Court in an
appeal against conviction. In this regard, this Court deems it
pertinent to outrightly make a reference to the decision of the
Hon’ble Supreme Court1 in Atley v. State of U.P., 1955 SCC
OnLine SC 51, wherein the Hon’ble Court, while delving into the
‘scope an ambit’ of appellate court’s jurisdiction, against an appeal
against acquittal or an appeal against conviction, inter alia noted as
under;
“8. … It is also well settled that the Court of appeal
has as wide powers of appreciation of evidence in an
appeal against an order of acquittal as in the case of an
appeal against an order of conviction, subject to the
riders that the presumption of innocence with which
the accused person starts in the trial court continues
even up to the appellate stage and that the appellate
court should attach due weight to the opinion of the
trial court which recorded the order of acquittal. If the
appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary
conclusion, the judgment cannot be said to have been
vitiated. (See in this connection the very cases cited at
the Bar, namely, Surajpal Singh v. State [1951 SCC
1207: AIR 1952 SC 52]; Wilayat Khan v. The State of
Uttar Pradesh [1951 SCC 898: AIR 1953 SC 122]. In
our opinion, there is no substance in the contention1 Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621.
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raised on behalf of the appellant that the High Court
was not justified in reviewing the entire evidence and
coming to its own conclusions….”
(Emphasis supplied)
11. 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)
12. 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 against conviction
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 its appellate jurisdiction, is
not only 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 law 1 that non-re-
appreciation of the evidence on record in an appeal may affect the
case of either the prosecution or even an accused. Needless to
reemphasize that an 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 appeal and that such a
presumption is neither strengthened by acquittal nor weakened by
a conviction in the trial court.
1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 16 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:21:33 +0530 13. Therefore, being cognizant of the aforesaid
principles, however, before proceeding with the determination of
the rival contentions of the parties, this Court deems it pertinent
here to reproduce the relevant provisions under law/IPC, for the
purpose of present adjudication, as under;
“410. Stolen property-Property, the possession
whereof has been transferred by theft, or by extortion,
or by robbery, and property which has been criminally
misappropriated or in respect of which criminal
breach of trust has been committed, is designated as
“stolen property”, whether the transfer has been made,
or the misappropriation or breach of trust has been
committed, within or without India. But, if such
property subsequently comes into the possession of a
person legally entitled to the possession thereof, it
then ceases to be stolen property.
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)
14. Notably, from a perusal of the above, it is noted that
capability for the offence under Section 411 IPC can arise only
upon the prosecution’s ability to unambiguously prove 1, “(1) that
the stolen property was in the possession of the accused, (2) that
some person other than the accused had possession of the property
before the accused got possession of it, and (3) that the accused
had knowledge that the property was stolen property…” Reference
in this regard is made to the decision of the Hon’ble High Court of
Andhra Pradesh in Maruboina Srinu @ Maddu Srinu v. State of
Andhra Pradesh, Criminal Revision Case No. 436/2010, dated
21.02.2024, wherein the Hon’ble COurt, while delving into the
contours, scope and ambit of the provisions under Section 411,
noted as under;
1 Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39:
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“13. From the above, it should be seen whether the
prosecution proved that the accused retain the stolen
property covered under M.O.1. It is mandatory for the
prosecution to establish the essential ingredient of
knowledge of the accused that the goods are stolen
property. To bring home the guilt under Section 411 of
IPC, the following four segments has to be proven by
the prosecution namely (i). dishonestly; (ii). receives
or retains any stolen property; (iii). knowing; or (iv).
having reason to believe the same to be stolen
property. These four aspects shall be established by
the prosecution against the accused for the said
offence.
14. ‘Dishonestly’ is defined under Section 23
I.P.C. as “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’.” The key ingredient for a crime is, of
course, mens rea. This was nicely explained by
Hon’ble Supreme Court in Vimla v. Delhi
Administration, 1905 SCC Online Mad 87.
15. In this connection, it is appropriate to mention
a reference in the judgment of the Hon’ble Supreme
Court, to decide the matter in issue, reported in Shiv
Kumar v. State of Madhya Pradesh, wherein it was
held that “for successful prosecution under Section
411 it is not enough to prove that the accused was
either negligent or that he had a cause to think that
property was stolen, or that he failed to make enough
inquiries to comprehend nature of goods procured by
him and further initial possession of goods in question
may not be illegal but retaining those with knowledge
that it was stolen property, makes it culpable.”
16. So, the Apex Court clinchingly held that to
prove the offence under Section 411 of IPC, it is
mandatory for the prosecution to establish that
retaining of goods with the knowledge that it is a
stolen property.”
(Emphasis supplied)
15. Correspondingly, for culpability under Section 411
IPC to attract, 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 is sufficient to attract the provisions of
Section 411 IPC. Reference in this regard, is made to the decision
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ABHISHEK
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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)
16. Congruently, reference is further made to the decision
in Gopi Jaiswal v. State of U.P., Criminal Appeal u/S. 374 Cr.P.C.
No. 1899 of 2009, dated 08.11.2011, wherein the Hon’ble
Allahabad High Court unambiguously noted that a person cannot
be held responsible, simultaneously1, for committing the offence
of theft as well as for dishonestly receiving or keeping the stolen
property, knowingly it to be stolen at the same time. In this regard,
it is pertinent to reproduce the relevant extracts from the said
decision as under;
“In view of the fact that the appellant Gopi Jaiswal
was the real thief, his conviction could only be made
under section 379 IPC. His conviction under section
411 IPC, in such situation, was not proper. A real thief
cannot be a receiver of a stolen property. If a person is
the real thief and the stolen property is also recovered
from his possession, he should be convicted and
sentenced for the offence of theft and as such he
cannot be convicted and sentenced under section 411
IPC. Therefore, the order of conviction and sentence
passed against the appellant under section 411 IPC
cannot be upheld….”
(Emphasis supplied)
17. Reference in respect of the foregoing is further made
to the decision in Sunil Mashi v. State NCT of Delhi,
1 Sarwar Ali & Ors. v. State, Criminal Revision No. – 390 of 2006, dated 29.05.2015 (Allahabad HC).
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MANU/DE/3768/2014, wherein the Hon’ble High Court of Delhi
in akin context, remarked as under;
“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)
18. Ergo, being wary of the principles hereinunder noted,
this Court would now appreciate the evidence and material placed
on record. At the outset, it is pertinent to refer to the
deposition/testimony of the complainant/PW-1/Subhash Sethi,
who inter alia deposed that on 11.12.2010, he/PW-1 along with his
family, including his daughter and son-in-law went to visit at
Golden Temple at Amritsar, Punjab. Further, as per PW-1, on
12.12.2010, his neighbor called him/PW-1 on his mobile phone
and informed him that the rear-side window of his house was
broken and in an open condition as well as that theft had taken
place in his house. On that day, as per PW-1, he returned to his
house in Timarpur and searched it/his house as well as found; one
laptop, one City Bank credit/debit card, one IDBI debit card,
Syndicate debit card, RC of his son-in-law’s car bearing no.
DL-7CH-2407, diamond bracelet, one pair of ear rings, one gold
chain with pendant, Rs 30,000/- (Rupees Thirty Thousand only) in
cash and some clothes were missing. PW-1 further deposed that he
tendered his statement to the police officials at PS. Timarpur and
asserted that the police recorded his/PW-1’s statement and read
over as well as explained the same to him/PW-1, which was proved
as Ex. PW-1/A, bearing PW-1’s signatures at point A. PW-1 further
proclaimed that later on, he also found one golden color ring,
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ABHISHEK
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missing, which he also informed to the police. Further, as per
PW-1, the IO prepared the site plan (Ex. PW-1/B) at his/PW-1’s
instance and later on, as per PW-1, TIP of his recovered stolen
property, i.e., golden bangle, golden earrings, one golden chain,
one golden ring, one laptop along with bag was conducted by the
Ld. MM and he/PW-1 identified the same. Correspondingly, as per
PW-1, the said articles were released to him/PW-1 vide
superdarinama (Ex. PW-1/C). PW-1 further asserted that he had
also given a copy of bill of said laptop (Dell) and certificate
regarding the bracelet, both, Mark-A. PW-1 further produced the
black laptop bag, bearing the mark of ‘ Alisan’; laptop of ‘Dell’;
one brown jacket; one golden chain; one pair of diamond earrings;
and one finger ring of male before the Ld. Trial Court, however,
expressed his inability to produce the diamond bracelet on the
pretext that his wife was admitted in Hospital. Nonetheless, PW-1
identified the case property from their photographs (Ex. P-1).
Relevantly, upon being cross examined, PW-1 inter alia asserted as
under;
“XXXXXX by Sh. ***, Ld. Counsel for accused
Rohit and Sandeep.
It is correct that the stolen article was not
recovered from my presence from any of the accused.
I had given the bill regarding laptop and Bracelet.
*** *** ***
XXXXXX by Ld. ***, Ld. Legal aid counsel for
accused Dilip.
It is correct that I do not know who had committed
the theft of my articles.”
(Emphasis supplied)
19. Apposite for the purpose(s) of present discourse to
refer the testimony of PW-6/Smt. Reeta Sethi, W/o. Sh. Subhash
Sethi who deposed in her testimony that on 11.12.2010 or may be
in the year, 2011, she along with her husband/PW-1, daughter, son
and son-in-law went to Amritsar as it was their wedding
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ABHISHEK GOYAL
GOYAL Date:
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anniversary and had gone to Amritsar, Golden Temple to pay
homage. Further, as per PW-6, on 12.12.2010, she received an
information from her neighbor regarding theft at her/PW-6’s house
situated at H. No. 13, Type III, Timarpur, Delhi and thereafter, they
returned to their house immediately. PW-6 further proclaimed that
her husband reported the said matter to police and further
proclaimed that some articles were stolen from their house, i.e.,
one gold chain, one gold ring, bracelet and one pair of earrings of
diamond, jacket, some credit cards, debit cards and laptop and
some cash around Rs. 30,000/- (Rupees Thirty Thousand only)-Rs.
40,000/- (Rupees Forty Thousand only), etc. PW-6 further
proclaimed that on 25.12.2010, she received a call from PS
regarding apprehension of accused persons who had committed
theft at their house and thereafter, she got released some articles,
i.e., one jacket and some cash around Rs. 30,000/- (Rupees Thirty
Thousand only)-Rs. 40,000/- (Rupees Forty Thousand only), etc.,
from court, however, she could not recollect the date of such
release. PW-6 further identified the case property from their
photographs (Ex. P-1) before the Ld. Trial Court. Markedly, upon
being cross examined by/on behalf of appellant and co-accused,
Sandeep, PW-6 asserted as under;
“XXXXXX by Sh. ***, Ld. Counsel for accused
Rohit and Sandeep.
I am not sure about the year of incident but it may
be 2010 or 2011. It is correct that I am not the
eyewitness of the incident.
*** *** ***
XXXXXX by Sh. ***, Ld. LAC for accused Dilip.
I do not remember the name of the person and his
mobile number who had shared the information with
me regarding theft in my house. It was about 10-11 am
when I received this information”
(Emphasis supplied)
20. Germane for the purposes of the present discourse to
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ABHISHEK GOYAL
Date:
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make a reference to the testimony of PW-3/Ct. Mukesh, PIS No.
28070892, who deposed that on 12.12.2010, he was posted at PS.
Timarpur and on the said day, he accompanied IO Sunil to spot,
i.e., MS Flats, Timarpur. PW-3 further deposed that there, they
found the rear/back window of the house was broken and the front
lock of the flat was intact. Correspondingly, as per PW-3, they
went inside and found the articles to be scattered. Further, as per
PW-3, the owner of the flat was not found and thereafter, the said
owner reached at the police station and gave his statement on
which, the present FIR was registered. PW-3 further deposed that
on 24.12.2010, he was present along with SI Sanjay Gupta, Ct.
Dharmender and SI Sunil at Lucknow Road and in the evening
accused Dalip was found, who was interrogated. As per PW-3, said
accused, gave his disclosure statement ( Ex. PW-3/A) about the
theft in the present case at MS Flats and also disclosed about the
role of his accomplices, namely, Rohit @ Chunchun, Sandeep @
Musa/the appellant and Jeeva Nand. Under his disclosure
statement, as per PW-3, accused Dilip disclosed about his
possession of stolen property, i.e., laptop at his jhuggi at Patrachar.
Thereafter, as per PW-3, accused Dilip led to his jhuggi and got
recovered the said laptop, which was kept in a box.
Correspondingly, as per PW-3, the said laptop was seized vide
seizure memo (Ex. PW-3/B), bearing PW-3’s signatures at point A.
The accused Dalip is further proclaimed to have been arrested vide
arrest memo (Ex. PW-3/C), bearing PW-3’s signatures at point A
and personal/search memo vide (Ex. PW-3/D), bearing PW-3’s
signatures at point A. PW-3 further avowed that on the same date,
at night, accused Sandeep @ Musa/the appellant was arrested from
the truck parking, Timarpur and his disclosure statement was
recorded (Ex. PW-3/E). It was further asserted by PW-3 that
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thereafter, the appellant led them to his house , i.e., at Dhirpur
Colony where he got recovered the stolen laptop bag and one
golden chain, which articles were both sealed by putting into the
pullanda and sealing with the seal of ‘SV’. The said articles are
further asserted to have been seized vide seizure memo (Ex.
PW-3/F) and the accused Sandeep @ Musa/the appellant was also
arrested vide arrest memo (Ex. PW-3/G) and his personal search
was also got conducted vide memo (Ex. PW-3/H), both bearing
PW-3’s signatures at point A. It was further proclaimed under
PW-3’s testimony that on the same day, at night, co-accused, Jeeva
Nand was also apprehended from the area of Tikona Park, New
Market, Timarpur and his disclosure statement was recorded by
memo (Ex. PW-3/I) and from his possession, one jacket of brown
colour, from his house situated at MS Flats was recovered, which
was seized by putting into pullanda vide seizure memo (Ex.
PW-3/J), bearing PW-3’s signatures at point A. Further, as per
PW-3, accused Jeeva Nand was also arrested by the IO vide memo
(Ex. PW-3/K) and his personal search was also got conducted vide
memo (Ex. PW-3/L), both, bearing PW-3’s signatures at point A.
Thereafter, as per PW-3, they returned to the police station and the
case property was deposited in the malkhana. PW-3 further
asserted that his statement was recorded by the IO. Further, PW-3
correctly identified accused, Dilip, Jeeva Nand and Rohit @
Chunchun before the Ld. Trial Court, while appearance of the
appellant was exempted on him not disputing his identity on his
application. PW-3 also identified the case property from its
photographs (Ex. P-1).
21. Ominously, under his cross-examination, PW-3
deposed as under;
“XXXXXX by Sh. ***, Ld. counsel for accused
Dalip, Rohit @ Chunchun and Sandeep @ Musa.
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I remained at the spot i.e. the spot of theft for
about thirty minutes. The photographs of the flats
were taken by the crime team. The IO interrogated
two/three persons who were the nearby residents of
the MS Flats. We had to the house of the accused
Dalip at about 8.00 pm and we remained there for 15
minutes. The list of articles recovered was prepared.
The signatures of the parents of accused Dalip were
not obtained. IO had requested to the mother of
accused Dalip and other person to join the
investigation but they did not join. I do not recollect
whether they signed any documents. All the
documents were prepared at the Police Station. The
house of the brother of the accused Dalip is in front of
his house. None was found at the house of brother of
accused Dalip. The nearby residents were inquired
who stated that his brother has gone outside. I do not
recollect the name of that person.
The accused Sandeep @ Musa was arrested at
about 10.00 pm. We all four namely SI Sunil, SI SK
Gupta and Ct. Dharmener collectively apprehended
the accused Sandeep @ Musa. Ct. Dharmender
carried out his personal search. He did not offer his
search before effecting search upon the accused.
Nothing was recovered in his personal search. We
reached at his house at about 11.00 pm. We were on
government Tata 407. At his house his mother and
father were present. I do not recollect as to whether the
signatures of the parents of the accused Sandeep @
Musa were obtained on the documents prepared. None
of the nearby residents were asked to join the
investigation. The proceedings writing work was done
while sitting in the gali. No site plan of recovery was
prepared. The street light was working. His house is
the 5th house from the start of the gali. His house is
situated at ground floor which is a tenanted house. I do
not recall as to whether the owner of the house was
called by the IO. The recovered articles from the
house of accused Sandeep @ Musa were sealed at the
PS. The IO after affixing the seal retained. It is wrong
to suggest that the accused Dalip and Sandeep have
been falsely implicated and no recovery has been
effected from their possession and hence no public
persons were joined at the time of recovery…”
(Emphasis supplied)
22. Apposite to further refer to the deposition of PW-5/SI
Jagdish Chander, who deposed that on 12.12.2010, he was posted
as ASI at PS. Timarpur and on that day, he/PW-5 was working at
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ABHISHEK GOYAL
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Duty Officer from 04:00 p.m. to 12:00 midnight. It was further
asserted by PW-5 that on that day, at around 09:25 p.m. he received
rukka from Ct. Mukesh, sent by SI Sunil and that on the basis of
the same, he/PW-5 registered the instant FIR. PW-5 further proved
the said FIR from the original FIR, copy of which is Ex. PW-5/A,
bearing PW-5’s signatures at point A. Correspondingly, PW-5
proved his endorsement on the rukka (Ex. PW-5/B) from points B
to B1. Further, as per PW-5, the copy of FIR and original rukka
were given to Ct. Mukesh to further hand over to same to SI Sunil
for investigation. Correspondingly, PW-7/Insp. Vikram deposed
that on 21.01.2011, he was posted as SI at PS. Timarpur and that on
the said day, the instant FIR was marked for further investigation
to him/PW-7. PW-7 further proclaimed that he prepared the
chargesheet against four accused persons, subsequently, and filed
the same before the concerned court. After filing the chargesheet,
as per PW-7, he arrested one accused Anil Khajji in a present FIR.
However, due to lack of evidence against Anil Khajji, a report was
filed under Section 169 Cr.P.C. was filed against him.
23. Here, this Court deems it further pertinent to refer the
testimony of PW-8/SI Sunil Kumar, who inter alia deposed before
the Ld. Trial Court that on 12.12.2010, he/PW-8 was posted at PS.
Timarpur and on that day, he was accompanied by Ct. Mukesh to
the spot, i.e., MS Flats, Timarpur. Correspondingly, as per PW-8, at
the said spot, they found the back window was broken and the
front lock of the flat was intact. Consequently, they went inside
and found the articles to be scattered. As per PW-8, the owner of
the flat was not found and had later on reached at the police station
and given his statement on which, the present FIR was registered.
PW-8 further deposed that on 24.12.2010, he received a secret
information regarding the accused and thereafter he/PW-8 along
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
with Ct. Mukesh, Ct. Dharmender and SI Sanjay Gupta were
present at the Lucknow Road and in the evening, co-accused Dalip
was found. PW-8 further deposed that the said accused was
interrogated, and he gave a disclosure statement about the theft in
the present case at MS Flats. It was further avowed by PW-8 that
accused Dilip also disclosed about the role of his accomplices
namely, Rohit @ Chunchun, Sandeep @ Musa/the appellant and
Jeeva Nand. PW-8 further proved co-accused, Dilip’s disclosure
statement (Ex. PW-3/A), bearing PW-8’s signature at point A.
Under his disclosure statement, as per PW-8, co-accused Dilip
disclosed about the possession of stolen property i.e. laptop at his
jhuggi at Patrachar as well as the said accused is asserted to have
got recovered the said laptop from his jhuggi, which was kept in
the box and seized vide seizure memo (Ex. PW-3/B), bearing
PW-8’s signatures at point B. The accused Dalip, is stated to have
been, thereafter arrested vide arrest memo Ex. PW-3/C, bearing
PW-8’s signatures at point B and search memo vide Ex. PW-3/D,
bearing PW-8’s signatures at point B. As per PW-8, on the same
day, in the night, accused Sandeep @ Musa was arrested from the
truck parking, Timarpur and he is stated to have made his
disclosure statement (Ex. PW-3/E), bearing PW-8’s signature at
point A. Thereafter, as per PW-8, accused Sandeep @ Musa led
them to his house i.e. at Dhirpur Colony, where he got recovered
the stolen laptop bag and one golden chain. PW-8 further
proclaimed that both the said articles were sealed by putting into
the pullanda by putting seal ‘SV’ vide seizure memo Ex. PW-3/F,
bearing PW-8’s signatures at point A. The accused Sandeep @
Musa was further deposed by PW-8 to have been arrested vide
arrest memo Ex. PW-3/G and personal search was also got
conducted vide memo Ex. PW-3/H, both, bearing PW-8’s
CA No. 147/2023 Sandeep @ Musa v. State Page No. 27 of 41
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:19
+0530
signatures at point B. It was further avowed by PW-8 that
thereafter, on the same day, in the night, co-accused, Jeeva Nand
was apprehended from the area of Tikona Park, New Market,
Timarpur and his disclosure statement was recorded by memo (Ex.
PW-3/I). PW-8 further declared that from the possession of the
said accused, one jacket of brown colour, was recovered, from the
house of the said co-accused at MS Flats and seized vide memo
(Ex. PW-3/J). PW-8 further proved the arrest memo (Ex. PW-3/K)
and personal search memo (Ex. PW-3/L) of the said co-accused,
both, bearing PW-8’s signatures at point A. Thereafter, as per
PW-8, they returned to the police station and the case property
were deposited in the malkhana and further, as per PW-8, he
recorded the statement of witnesses. PW-8 further correctly
identified the appellant as well as co-accused before the Ld. Trial
Court, besides also identified the case property from their
photographs, Ex. P1.
24. Significantly, in his cross-examination, IO/SI Sunil
Kumar/PW-8 deposed as under;
“XXXXXX by Sh. ***, Ld. counsel for accused
Sandeep @ Musa.
Accused Sandeep was apprehended on the
intervening night of 24/25.12.2010 at about 2 am.
Accused Sandeep was apprehended from Truck
Parking. Timarpur. No public person was available at
that time. I prepared arrest memo, personal search,
disclosure statement of accused Sandeep. Personal
search of accused Sandeep was conducted by Ct.
Mukesh on my instructions. Streetlight was available
in the Truck Parking where the aforesaid documents
were prepared. The said street light was not shown in
the site plan already Ex.PW1/B.
I left the PS at about 10 pm on that day. I made
departure entry for the same.
At this stage, the witness is shown the judicial file
and after going through the same, the witness states
that no document qua his departure entry is on record.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 28 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:22:24 +0530
I reached at the house of accused Sandeep at about
4 am on my personal pulsar bike bearing registration
no. DL5_5667 (complete number not recollect). 1
cannot tell the registration numbers of the other
motorcyle with the police officials. There were three
bikes. We were total 05 members. On my motorcyle
Ct. Mukesh was a pillion rider. I am not able to recall
today the other police officials who were riding the
bike and who were pillion riders.
I cannot say whether the accused Sandeep’s house
was rented or not. I am not able to recall today as to
how many stories were built up at accused Sandeep’s
house, however, accused Sandeep resides at the
ground floor. I am not able to recall today as to who
opened the door of accused Sandeep’s house at that
time. I am not able to recall today on which direction
the main door of the accused’s house is opened. The
accused’s house was admeasuring approximately 50-
60 Sq. Yards. There were two rooms on the GF. The
case property i.e. golden chain and laptop bag were
recovered under the bed lying in the first room. No
photography was done. No public witness was cited
when articles were seized. Complainant disclosed the
color of the laptop bag however the same was not
mentioned in a complaint. I remained at the of accused
Sandeep for about 1 hour. I prepared seizure memo
regarding the case property seized from the
possession of the accused Sandeep. At the house of
accused Sandeep one male person was present whose
name I cannot recall. I have not recorded the statement
and have not taken his signatures on any document.
No public person was cited as a witness and for the
same no notice was served to them for non joining of
investigation. I left the spot at about 5 am. I did not
made any handing out memo. It is wrong to suggest
that all the proceedings were conducted while sitting
in the PS. It is further wrong to suggest that no case
property was recovered from the possession of the
accused Sandeep and the same was planted by me. It is
wrong to suggest that I am deposing falsely.
*** *** ***
XXXXXX by Sh. ***, Ld. LAC for accused
Dileep and Rohit @ Chunchun.
On 12.12.2010 my duty hour were from 8 AM to 8
PM. I did not made any DD entry regarding the arrival
at PS. I received a PCR call regarding a theft at Ms
Flats Timarpur. I did not recorded the statement of the
PCR caller. I called the crime team at the spot and the
photographs of the spot was taken by the crime team. I
reached the spot at about 11:45 AM. The DD no. 16A
was marked to me at about 11:30 AM. It is correct thatCA No. 147/2023 Sandeep @ Musa v. State Page No. 29 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:22:28
+0530
I formally inspected the place of alleged incident
before the arrival of the crime team. I did not took the
photographs of the spot before the arrival of the crime
team. I did not requested the neighbours to join the
investigation. I did not ask the person to join the
investigation who informed the owner of the house
regarding the theft took place at his house. I met the
owner of the house at about 6 PM on 12.12.2010. The
complainant handed over some bills regarding the
articles stolen from his house. The complainant
provided the bill pertaining to the laptop as well as
gold articles however the same was not verified. It is
wrong to suggest that the said bill was forged and
fabricated. I did not took statement of public person
who were present at the spot. It is correct that I did not
verify on whose ID the laptop was …. It is wrong to
suggest that the verification was not done as the laptop
was not recovered from the possession of the accused.
DD entry regarding the secret information received
inadvertently could not be placed with chargesheet
however the same was part of the police file. Today I
am not able to recall the said DD no. The secret
informer met at about 7 PM outside PS Timarpur. I
met him alone. I informed the SHO orally regarding
the secret information given by informer. I made the
DD entry but today I am not able to recall the DD
entry no.
*** *** ***
Secret informer was not a neighbour of accused
persons. I did not write down the information given by
the secret informer. I do not remember the exact time
when I met with secret informer. I did not record the
statement of a neighbour who gave the information to
the complainant regarding the theft took place at his
house. No notice was served upon the said neighbour.
The secret informer disclosed the name of accused
persons and places where they could be apprehended,
however, the secret informer did not give any
description regarding how their appearance. I did not
obtain the signature of any public person at the time of
arrest and recovery effected from the accused persons
as the public persons were not available there at that
time.
On 12.12.2010, the complainant met me at about 6
pm and remained with me till 9 pm.
On 24.12.2010, I do not remember the DD Entry
number regarding my departure as well as my arrival
qua secret informer. On the intervening night of 24-
25/12.2010, 1 do not remember the DD entry number
regarding my arrival and departure qua the arrest of
accused Dilip and Rohit and recovery from them. NoCA No. 147/2023 Sandeep @ Musa v. State Page No. 30 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:32 +0530
public person was asked to join the investigation as it
was late night and no public person was available (1-2
am). I left the PS for the arrest of accused Dilip and
Rohit on 24.12.2010 at about 10 pm and returned to
PS on 25.12.2010 at about 5 am. It is wrong to suggest
that accused persons have been falsely implicated in
the present case. It is wrong to suggest that nothing
has been recovered from the possession of accused
persons. It is wrong to suggest that nothing has been
recovered at the instance of accused persons. It is
wrong to suggest that case property has been planted
by the IO at the behest of complainant. It is wrong to
suggest that I have no conducted fair investigation. It
is wrong to suggest that I am deposing falsely…”
(Emphasis supplied)
25. Consequently, in light of the foregoing this Court
would proceed with the determination of the rival contentions of
the parties (arguments by/on behalf of the appellant and that of
State/Ld. Addl. PP for the State) before this Court. In this regard, it
is outrightly noted that the case of the prosecution against the
appellant is primarily based on the recovery of the laptop bag and
gold chain from the possession of the appellant and the appellant’s
disclosure statement recorded by the police official (Ex. PW-3/E)
pertaining to the appellant’s share of property/articles, stolen from
the spot. Correspondingly, the prosecution has further relied on the
TIP proceedings of the recovered articles (Ex. PA-2) to assert that
the case has been proved beyond reasonable doubt against the
appellant in the instant case. Needless to mention that upon
appreciation of the material brought on record, in light of the
arguments addressed by/on behalf of the appellant and the State,
Ld. Trial Court reached at the conclusion of guilt of the appellant
in the instant case. However, when the material placed on record is
meticulously perused, in view of the aforenoted judicial dictates,
submissions addressed, material placed on record as well as in
light of the legal provisions, this Court finds itself difficult to
concede with the findings reached by the Ld. Trial Court under the
CA No. 147/2023 Sandeep @ Musa v. State Page No. 31 of 41
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:38
+0530
impugned judgment/order. In this regard, it is noted at the outset,
that nowhere under his complaint, Ex. PW-1/A or the deposition
before the Ld. Trial Court, the complainant/PW-1 makes any
reference of theft of any laptop bag or gives a description thereof in
any manner. In fact, both, under the said complaint as well as the
consequent FIR, there is solely a mention of; (1) laptop, (2) City
Bank Credit Card/Debit Card, (3) IDBI Debit Card, (4) Syndicate
Debit Card, (4) RC/registration certificate no. DL-7CH-2407, (5)
Diamond bracelet, earrings, bali (6) Golden chain with pendant
(10 gms.), (7) Rs. 30,000/- (Rupees Thirty Thousand only), and (8)
Clothes, as the stolen articles. Correspondingly, even under his
deposition before the Ld. Trial Court, PW-1 reiterates the theft of
the said articles along with one golden colour ring, which
PW-1/complainant asserts that he came to know of missing, later
on, which he/PW-1 allegedly informed to the concerned police
official(s). However, despite the same, PW-1 does not mention of
theft any laptop bag or the alleged stolen laptop being in such bag
at the relevant point in time or even provides the particulars of such
bag in question. Pertinent to further note that though, PW-8/IO/SI
Sunil Kumar, in his cross-examination inter alia proclaim that the
complainant/PW-1 disclosed the color of the laptop bag, however,
even PW-8 admits that the said fact was not mentioned under the
complaint. Needless to mention that the same is notwithstanding
that nowhere under his deposition, PW-1/complainant asserts of
having informed the police officials of the particulars of said
laptop bag or the colour thereof or that the same bore a tag of
‘Alisan’, as asserted to be present on the alleged recovered laptop
bag, from the possession of the appellant herein. Clearly, the said
ambiguities are sufficient to demonstrate the contradictory version
put forth by various prosecution witnesses in their respective
CA No. 147/2023 Sandeep @ Musa v. State Page No. 32 of 41
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:43
+0530
versions before the Ld. Trial Court, besides casting a substantial
dent in the story put forth by the prosecution against the appellant.
Correspondingly, though, PW-1 proclaimed of theft of one golden
chain with pendant (10 gms.), however, the particulars of even
such chain are also wanting in the instant case, either in the
complainant’s complaint or subsequent deposition before the Ld.
Trial Court.
26. Here, it is further pertinent to note that though,
PW-1/complainant under his deposition before the Ld. Trial Court
(examination in chief as well as his cross examination) proclaimed
that he/PW-1 had handed over the copy of bill of laptop (Dell) and
certificate regarding the bracelet (both, Mark-A) to the police
official(s), however, there is no mention of handing over of any bill
or photographs of the laptop bag or golden chain in question by the
complainant to the police officials. Indubitably, though,
PW-8/IO/SI Sunil Kumar proclaimed under his cross-examination
that the complainant had provided the bill pertaining to the laptop
as well as gold articles, however, PW-8 affirmed that the same
were not verified. Apposite to further note in this regard that PW-8,
merely casually/unconcernedly asserted regarding the
complainant’s handing of bills pertaining to ‘gold articles’,
however, the said bills were neither been placed before the Ld.
Trial Court nor the factum of such handing over of bills of ‘ gold
articles’, except to the extent complainant’s assertion of handing
over of a certificate regarding the bracelet, finds corroboration
from the testimony of the complainant/PW-1. Needless to reiterate
that admittedly the so called handed over bills remained unverified
in the instant case. Ergo, under such circumstances, in the absence
of proof of complainant’s ownership of the laptop bag and gold
chain, stated to be recovered from the possession of the appellant,
CA No. 147/2023 Sandeep @ Musa v. State Page No. 33 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:22:47
+0530
it does not appeal to the senses of this Court that finding of
appellant’s guilt, beyond reasonable doubt, can/could have been
reached in the instant case. Needless to mention that the articles
allegedly recovered are both easily available/accessible in marked
and in the absence of any specific identity mark thereon, it is
difficult, rather, incongruous to attribute their ownership solely to
the complainant in the instant case. In this regard, reference is
made to the decision of Hon’ble High Court of Punjab and
Haryana in Manjinder Singh v. State of Punjab, Criminal Appeal
No. 418-SB of 1995, dated 05.05.2009, wherein the Hon’ble Court
while confronted with an akin situation of ambiguity regarding the
identity of ‘stolen property’, accentuated the importance of proof
of ownership of the person alleging theft of his article, in the
following terms;
“9. The Counsel for the appellant, submitted that
no offence, punishable under Section 411 of the
Indian Penal Code, was constituted, but the trial
Court, was wrong, in recording conviction, and
awarding sentence for the same. He further submitted
that no evidence was produced by the prosecution, to
prove that scooter No. PIA 7915, which was allegedly
recovered from the appellant, belonged to Deepak
Kumar, and, as such, was the stolen property. The
submission of the Counsel for the appellant, in this
regard, appears to be correct. Savinder Singh,
Assistant Sub Inspector, PW3, is the Investigating
Officer. It was he, who apprehended accused
Manjinder Singh, who was found in possession of
scooter No. PIA 7915. The prosecution was required
to prove that scooter No. PIA 7915, which was
allegedly recovered from Manjinder Singh, and his
companion, was the ownership of Deepak Kumar,
from whom, the same was allegedly snatched. Deepak
Kumar, stated that he was the owner of scooter No.
PCM 6623, and not PIA 7915. It appears that scooter
No. PIA 7915, and scooter No. PCM 6623, were two
different scooters. Surinder Singh, Clerk, Office of the
DTO, Amritsar, when appeared as, PW5, stated that he
brought the summoned record of scooter No. PCM
6623, bearing chassis No. 230217, and engine No.
229100. He did not state that chassis number of
scooter No. PIA 7915, was the same, as that of scooter
CA No. 147/2023 Sandeep @ Musa v. State Page No. 34 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:50 +0530
No. PCM 6623, which belonged to Deepak Kumar.
No cogent evidence was produced by the prosecution
that fake number plate bearing No. PIA 7915, was
affixed to scooter No. PCM 6623. The registration
certificate or copy thereof in relation to scooter No.
PCM 6623, was not got exhibited so as to ascertain
that the chassis and engine number of the scooter
recovered from Manjinder Singh, tallied with the
chassis number and engine number of scooter No.
PCM 6623. Assistant Sub Inspector Savinder Singh,
PW3, stated that he did not verify regarding the
registration of scooter No. PIA 7915 allegedly
recovered from Manjinder Singh. The bald statement
of Savinder Singh that the scooter recovered from
Manjinder Singh, was the one, which belonged to
Deepak Kumar, and bore the actual No. PCM 6623, in
the absence of any documentary evidence, which
could be easily available, was hardly of any
consequence, to bring home the guilt to the accused.
Since scooter No. PIA 7915, did not belong to Deepak
Kumar, as to who was the owner thereof, was for the
prosecution to prove. Had the prosecution proved that
scooter No. PIA 7915, belonged to Deepak Kumar,
and the same was found in possession of the accused,
in the absence of furnishing any proof, with regard to
the ownership thereof, it could be said that he
dishonestly received and retained the stolen property.
Even, Deepak Kumar, did not lodge any report, with
regard to the theft of scooter No. PIA 7915. The
prosecution, thus, miserably failed to bring home the
guilt to the accused. In these circumstances, no
offence, punishable under Section 411 of the Indian
Penal Code, was made out. The trial Court, thus, acted
on conjectures and surmises, in holding that the
offence, punishable under Section 411 of the Indian
Penal Code, was committed by the appellant. The
finding of the trial Court, are liable to be set aside. The
submission of the Counsel for the appellant, being
correct, is accepted…”
(Emphasis supplied)
27. Another glaring feature of the instant case is noted
from a careful analysis of the depositions of PW-3 and PW-8
before the Ld. Trial Court. In this regard, it is noted that there are
significant and material contradictions in the testimonies of said
witnesses on several important aspects of search, seizure, arrest
and recovery of/at the behest of the appellant in the instant case,
despite the fact that the said witnesses, both, admitted being a part
CA No. 147/2023 Sandeep @ Musa v. State Page No. 35 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:22:54 +0530
of team that conducted the said arrest, search and seizure
proceedings. In this regard, it is outrightly noted that while, PW-3
in his cross examination asserted that the appellant was arrested at
10:00 p.m., however, as per the arrest memo of the appellant (Ex.
PW-3/G), such arrest has been shown at 02:00 a.m. on 25.12.2010.
In fact, such assertion of PW-3 is contradicted from the cross
examination of PW-8/IO/SI Sunil Kumar, wherein her inter alia
asserted that on 24.12.2010, he had left the police station at around
10:00 p.m. Here, it is further pertinent to note that though, PW-8
proclaimed that he had made departure entry in this regard,
however, upon perusal of the case file, during his cross
examination, PW-8 confirmed that no such record was placed by
him before the Ld. Trial Court. Needless to mention that the said
assertion is further contradicted from the cross examination of
PW-3, who asserted that co-accused Dilip was arrested on the said
day, i.e., on 24.12.2010 as early as 08:00 p.m., i.e., way prior to the
departure time, proclaimed by PW-8 under his cross examination.
Relevantly, there is also contradiction in respect of the
search/personal search proceedings of the appellant, wherein
PW-8 asserted under his cross-examination that the personal
search of the appellant was conducted by Ct. Mukesh/PW-3 on
his/PW-8’s instruction. However, in complete variance, PW-3
avowed under his cross examination that such personal search was
conducted by Ct. Dharmender. Apposite to further note that there is
also incongruity in the number of members, constituting the team
that conducted the arrest, search and seizure proceedings inter alia
qua the appellant, wherein PW-8 proclaimed that there were five
members in the said team, though, he could not recollect the names
of all such members. However, in contrast, PW-3 deposed that
he/PW-3 along with SI Sanjay Gupta, Ct. Dharmender and
CA No. 147/2023 Sandeep @ Musa v. State Page No. 36 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:22:59
+0530
PW-8/SI Sunil constituted the said team. Here, it is further
pertinent to note that there are other significant and glaring aspects
of the recovery/search/seizure proceedings, wherein, PW-8
avowed under his cross-examination that the case property, i.e.,
golden chain and laptop bag were recovered from underneath the
bed, lying in the first room in appellant’s house, however, the
seizure memo of such search (Ex. PW-3/F) records that the said
recovery was effected from inside the bed. Needless to mention
that PW-3 under his cross-examination further specifically
asserted that no site plan of the recovered articles was prepared and
even more so, astonishingly, it was proclaimed by PW-3 under his
cross-examination that the articles recovered from the house of the
appellant/accused Sandeep @ Musa were sealed at the police
station. Lastly, PW-3 also confirmed that the IO retained the seal
after affixing the same on pullanda, besides even PW-8 conceded
that he did not prepare handing over memo, under his cross-
examination. Clearly, in the instant case, the seal during the entire
interval reasonably appears to be within the reach of the police
officials and the members of the aforesaid team, not ruling out 1 a
possibility of tampering with the case property, in the instant case.
28. Ergo, in light of the foregoing discrepancies and
omissions on the part of the prosecution, in order to successful
bring home guilt of the appellant in the instant case, in the
considered opinion of this Court, it was incumbent on the
prosecution to prove the recovery of the alleged laptop bag and
golden ring/gold ring, search and seizure from the appellant by
means of the testimony of independent witnesses in the present
case. However, in the instant case, not only has the prosecution
failed to adduce any independent witness, rather, even genuine
1 Safiullah v. State (Delhi Admn.), 1992 SCC OnLine Del 516.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 37 of 41
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:23:03
+0530
endeavor on the part of the investigating authorities/police
officials to join independent witnesses in the said proceedings,
including the alleged recovery from the appellant, appear to be
grossly wanting. In fact, PW-3 under his cross examination, went
ahead to depose that though the appellant’s parents were present at
his house at the time of the recovery proceedings, however, PW-3
expressed his inability to recollect whether the signatures of the
appellant’s parents were obtained on the documents prepared.
Correspondingly, PW-3 further affirmed that none of the nearby
residents were asked to join the investigation, showing lack of
diligence/due care on the part of members of search party.
Relevant in this regard to make a reference to the decision of the
Hon’ble High Court in Anoop Singh v. State, 1992 SCC OnLine
Del 218, wherein the Hon’ble Court in an akin situation inter alia
observed as under;
“Apart from this material discrepancy, there is also
discrepancy regarding the alleged efforts made by the
police for joining the independent public witnesses.
R.K. Chadha had been brought by the police from the
police station while coming to the spot and it is stated
by all the witnesses except the I.O. that only some of
the passers by were requested to join the raiding party
and they declined expressing their own difficulties
and had gone away, whereas the I.O. came up with the
story that even the shop-keepers, whose shops were
open at the time of occurence, had been requested to
join but they had declined The other witnesses have
categorically stated that no shop-keeer was asked to
join the raided party.
It is repeatedly laid down by this Court that in such
cases it should be shown by the police that sincere
efforts have been made to join independent witnesses.
In the present case, it is evident that no such sincere
efforts have been made, particularly when we find that
shops were open and one or two shop-keepers could
have been persuaded to join the raiding party to
witness the recovery being made from the appellant.
In case any of the shop-keepers had declined to join
the raiding party, the police could have later on taken
legal action against such shop-keepers because they
could not have escaped the rigours of law while
CA No. 147/2023 Sandeep @ Musa v. State Page No. 38 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:23:07
+0530
declining to perform their legal duty to assist the
police in investigation as a citizen, which is an offence
under the I.P.C…”
(Emphasis supplied)
29. Here, it is further apposite to note that though the
seizure of the laptop bag and gold ring (Ex. PW3/F) in the instant
case is asserted to be pursuant to the disclosure statement of the
appellant (Ex. PW-3/E), however, from a scrupulous analysis of
the said disclosure statement it is noted that nowhere under his said
disclosure statement, the appellant makes a reference of any
golden chain/gold chain in his possession. On the contrary, the
appellant asserts therein that the stolen gold articles were sold, and
he had received his monetary equivalent share thereof. Ergo, under
such circumstances, the disclosure statement of the appellant,
alleged seizure pursuant thereof or the subsequent TIP
proceedings, in the considered opinion of this Court, could
not/cannot form the basis of conviction of the appellant. Even
otherwise, it is pertinent to note that this Court is cognizant of the
settled law that recovery evidence under Section 27 of the Indian
Evidence Act, 1872/Evidence Act, is a weak piece of evidence and
the same cannot form the sole basis for conviction of an accused.
Reference in this regard is made to the decision of the Hon’ble
Supreme Court in Manoj Kumar Soni v. State of M.P., 2023 SCC
OnLine SC 984: Criminal Appeal No.1030/2023, dated
11.08.2023, wherein the Hon’ble Court, noted in this context, as
under;
“21. A doubt looms: can disclosure statements per
se, unaccompanied by any supporting evidence, be
deemed adequate to secure a conviction? We find it
implausible. Although disclosure statements hold
significance as a contributing factor in unriddling a
case, in our opinion, they are not so strong a piece of
evidence sufficient on its own and without anything
more to bring home the charges beyond reasonable
doubt.”
CA No. 147/2023 Sandeep @ Musa v. State Page No. 39 of 41
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.05.27
16:23:11
+0530
(Emphasis supplied)
30. Correspondingly, considering the various lacunae
noted in the instant case, in the considered opinion of this Court, it
would not be safe to raise a presumption under Section 114(a) of
the Evidence Act against the appellant in the instant case,
especially when the law is trite that a presumption of fact under
Section 114(a) of the Evidence Act can be drawn 1 only,
“considering other evidence on record and without corroboration
from other cogent evidence, it must not be drawn in isolation”.
31. Comprehensibly, in light of the foregoing facts and
circumstances, material and evidence placed on record as well as
the arguments addressed before this Court, in the considered
opinion of this Court, the prosecution has not been able to
unwaveringly and ‘beyond reasonable doubt’, bring home the
charge(s) levelled/alleged against the appellant herein. Further,
considering the gross lacunae and omissions in the case of the
prosecution, as noted hereinunder, this Court cannot irrefutably
reach to the conclusion of guilt of the appellant. Even otherwise, it
is noted herein that it is a settled law2 that in case where two views
are possible, the one in favour of the accused and the other
adversely against it, the view favoring the accused must be
accepted.
32. Conclusively, in view of the above discussion, the
present appeal deserves to be allowed and is hereby allowed. As
such, in light of the foregoing, this Court reiterates that from the
facts and circumstances placed on record, the appellant cannot be
determined to be guilty ‘beyond reasonable doubt’ of any offence
as charged against him. Consequently, the judgment dated
1 Manoj Kumar Soni v. State of M.P., 2023 SCC OnLine SC 984.
2 Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980)
1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501.
CA No. 147/2023 Sandeep @ Musa v. State Page No. 40 of 41 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.05.27 16:23:15 +0530
27.02.2023 and consequent order of sentence dated 30.05.2023,
passed by Ld. MM-02, Central, Tis Hazari Courts, Delhi in case
bearing, ‘State v. Dilip & Ors., Crl. Case No. 298622/2016 ‘,
arising out of FIR No. 326/2010, PS. Timarpur, under Sections
457/380/411/34 IPC, convicting and sentencing, respectively, the
appellant for the offence punishable under Section 411 IPC is
hereby set aside to the extent of appellant’s conviction/sentence.
The appellant is hereby admitted to bail on furnishing of a personal
bond in the sum of Rs. 15,000/- (Rupees Fifteen Thousand only)
along with one surety of the like amount, as required under Section
437A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha
Sanhita, 2023/BNSS. As requested, the bail bond be furnished
within a period of one week from today.
33. Trial Court Record be sent back along with a copy of
this judgment for record and refence purpose(s).
34. Appeal file be consigned to record room after due
compliance. Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.05.27
16:23:23
+0530Announced in the open Court (Abhishek Goyal)
on 27.05.2025. ASJ-03, Central District,
Tis Hazari Courts, DelhiCA No. 147/2023 Sandeep @ Musa v. State Page No. 41 of 41