Delhi High Court
Shekhar Pathak & Ors vs The State on 11 August, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:04th August, 2025
Date of Decision:11th August, 2025
+ CRL.A. 278/2003
SHEKHAR PATHAK & ORS. .....Appellants
Through: Ms. Tanya Agarwal, Advocate for
Appellant no. 1.
Mr. Tom Joseph and Ms. Arya
Krishnan, Advocates for Appellants
no. 2, 3 & 4.
versus
THE STATE .....Respondent
Through: Mr. Satinder Singh Bawa, APP with
Inspector Sunil Kumar, SI Yashwant
Kumar and SI Kamal, PS Tughlak
Road.
CORAM:
JUSTICE RAJNEESH KUMAR GUPTA
JUDGMENT
1. The present Appeal is filed by the Appellants under Section 374 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
“CrPC“) against the judgment dated 27th February, 2003 (hereinafter
referred to as the “impugned judgment”) and against the Order-on-
Sentence dated 9th April, 2003 (hereinafter referred to as the “impugned
Order on Sentence”) passed by the court of Additional Sessions Judge,
Patiala House Courts, New Delhi (hereinafter referred to as the “Trial
Signature Not Verified CRL. A. 278/2003 Page 1 of 13
Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
Court”) in Session Case bearing No. SC No. 665/1996 arising out of FIR
bearing No. 215/1991 registered at Police Station Tughlak Road, Delhi. The
Appellants vide the impugned judgment were held guilty for committing the
offences punishable under Sections 395/34 of the Indian Penal Code, 1860
(hereinafter referred to as the “IPC“). The Appellants vide the impugned
Order on Sentence were sentenced to undergo Rigorous Imprisonment for a
period of 3 years and to pay a fine of Rs.500/- each, under Section 395 IPC
and in default of payment of fine, each of the convict were sentenced to
undergo Simple Imprisonment for one month.
2. Briefly stated, the Prosecution’s case as reflected in the impugned
judgment is as follows:
“That on 24.8.91 Ramesh Mandal came in the police station
and stated that he is a TSR Driver and is driving TSR no.
DR4899 and that yesterday, he had taken a passenger from
Karol Bagh for going to Air Force Station and at about
9.15/9.30 when he reached there, the passenger gave him
the money and left, and when he started for his house, he
saw one boy aged about 17-18 years, his height was about
5’2”, wheatish complexion, and having small hair stopped
him and told him that he had to go to New Delhi railway
station via Air Force Station and he sat on his scooter as
per his direction, he went to Air Force Station quarters, and
he asked him to stop the scooter in a lonely place and went
towards the quarters to fetch some goods, and at that time,
five boys came from the backside and told him that he had
come to sell the smake, and when he told him that he had
come with the passenger, but by that time, the person who
boarded his scooter again, came back, and one of them got
hold of his hand from the back side, and two boys took out
knives and threatened him that in case he will raise alarm,
they will give him knife blows, and thereafter they took him
towards the bushes. One boy took out the entire money
which was in his pocket, and the second boy took searchSignature Not Verified CRL. A. 278/2003 Page 2 of 13
Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
and took out one black purse, some slips and driving
license, and they also took the H.M.T. watch and
threatened him that in case, he will raise alarm or inform
the police, they will kill him with a knife. Thereafter, they
ran away from the spot. He told these facts to 2-3 boys
sitting there and narrated the entire incident that 5-6 boys
have snatched his money and also taken away his watch and
they should help him then, one of them told him that there is
a Chowkidar on the gate, and he should go there, but he
became nervous, and without telling anybody, he came back
to his house and told the entire incident to his brother Shri
Mandal, and then he came with his brother to Police
Station. He further stated that the persons who took out the
knife were of the age of 20-21 years, their height was 5’8″,
middle body, long nose, short hairs, like a Fauzi and was
wearing red T-shirt and black pant, and the second body
was of 19 to 20 years of age, middle body, small moustache,
and was wearing white shirt and black pant and was
holding black bag in his waist, and he had snatched his
purse and watch. Another boy aged about 18-19 years long
hair, middle body, wearing green colour shirt and can
identify everybody on the basis of the statement case under
section 395 IPC was registered and the investigation of the
case was handed over to SI Jagjit Singh. Site plan was
prepared, accused were traced and on the identification of
Ramesh Mandal, Shekhar Pathak was arrested and a knife
which was used by him was also recovered for which a
separate case was registered under section 25/54/59 of the
Arms Act and on enquiry, Shekhar Pathak, disclosed the
names of Rajnish, Kishore, Rakesh and Naresh and he also
disclosed their addresses. Their houses were traced and
they were identified by the complainant and recovery of
knife was affected from Naresh Kumar, for which a separate
case under Section 25/54/59 of the Arms Act was registered.
Thereafter, Rajneesh Grewal was also arrested at the
identification of the complainant, and from his possession,
one driving license, and one slip was recovered. Thereafter,
Kishore was arrested and from his possession one lootedSignature Not Verified CRL. A. 278/2003 Page 3 of 13
Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
wrist watch was recovered. On 26th August, 1991, accused
Rakesh was arrested and from his possession, Rs.300/- were
recovered and efforts were made to trace accused Pappu,
but he could not be traced. After completion of
investigation, the challan was filed in the court.”
3. The Charge under Section 395 r/w 34 IPC and 397 IPC has been
framed against all the accused to which they pleaded not guilty and claimed
trial. The Prosecution, in order to prove its case, examined 08 witnesses. The
statement of the Appellants were recorded under Section 313 Cr.PC,
wherein the Appellants had denied incriminating evidences, pleaded
innocence and claimed false implication. The trial resulted in conviction, as
aforesaid. Being aggrieved and dissatisfied, the present appeal has been
preferred by the Appellants. During the pendency of the appeal, the
Appellant, namely, Rakesh Kumar has expired and vide order dated 04th
May, 2016, the appeal was abated with respect to Appellant-Rakesh Kumar.
4. Learned counsel for the Appellants has argued that the Trial Court
has passed the impugned judgment on the basis of surmises and conjectures,
and which is against the facts of the case. There are material contradictions
in the testimonies of the prosecution witnesses which make the case of the
prosecution doubtful. From the evidence on record, prosecution has failed to
prove its case beyond reasonable doubts against the Appellants. It is prayed
that appeal be allowed and the Appellants be acquitted.
5. On the other hand, learned APP for the State has argued that the Trial
Court passed the impugned judgment on the basis of the evidences on
record. The evidences produced on behalf of the prosecution are reliable,
trustworthy and prove the case against the Appellants beyond the reasonable
doubt. The arguments of the Appellants are without any merits. The appeal
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
is liable to be dismissed.
6. PW-Ramesh Mandal, who is victim/complainant is the material
witness of the case and was examined as PW-1. He has deposed that he is a
TSR driver. On 24th August, 1991 i.e., the night between 23rd/24th, August,
1991, he started from Karol Bagh at about 08:30 P.M. and reached near
Samrat Hotel dropped the passenger and thereafter, started towards his
house. All the accused persons met him near the airport quarters and hired
the scooter at about 09:30 P.M. Initially, one Appellant, namely, Kishore
came to him and took him to the locality near the airport quarters. The
remaining four Appellants came there, stopped his vehicle and got him out
of the TSR. Thereafter, they snatched all his money. He had approximately
Rs.800-900/- at that time and a wrist watch. Out of them, one of the accused
persons took out the knife and threatened to kill him. However, he could not
identify the accused person who had taken out the knife to threaten him. On
the next day, he lodged an FIR with the police, which is Ex.PW-1/A.
Thereafter, Appellant-Shekhar Pathak was arrested by the police in his
presence. Subsequently, Appellant-Rajnish Grewal and the remaining co-
accused persons were also arrested. A knife was recovered from the
possession of Appellant-Shekhar Pathak. His purse containing driver license
and bunch of papers was recovered from the Appellant-Rajnish Grewal. His
watch was recovered from Appellant-Kishore. Rs.300/- belonging to him
were also recovered from the accused persons. He accompanied the police
to the area where Army personnel reside near Samrat Hotel, where he saw
Appellant-Shekhar Pathak near the Hanuman Mandir located within the said
complex. Appellant-Shekhar Pathak was apprehended at about 03:00 P.M.
The remaining accused persons were apprehended in the evening. The
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
police had sealed the articles such as currency notes recovered from the
accused persons, in his presence. Sealed after use was handed over to him.
7. PW-Jagjeet Singh was the Investigating Officer (hereinafter referred
to as the “IO”) of the case and was examined as PW-8. He had deposed
that on 24th August, 1991, investigation of the case was handed over to him
and he prepared the site plan at instance of the complainant, which is
Ex. PW-8/A. On that day, at about 06:35 P.M., Appellant-Shekhar Pathak
was apprehended in front of Hanuman Mandir on the identification of the
complainant. One buttondar knife lying on the top of the fridge was
recovered from the residence of Appellant-Shekhar Pathak. Thereafter,
Appellant-Rajnish, who was standing behind the neem tree was arrested on
the pointing out of the complainant. Upon the personal search of the
Appellant-Rajnish Grewal, one purse was recovered from the pocket of his
trousers and the same was seized by seizure memo Ex.PW-1/P which
contained a driving licence belonging to the complainant and the same was
seized by seizure memo Ex.PW-1/O. Thereafter, Appellant-Naresh Kumar,
who was standing in front of his residence, was arrested on being pointed
out by the complainant and one buttondar knife from his possession was
recovered. Thereafter, they proceeded to the residence of Appellant-Kishore
at Old Willingdon Camp, from where he was apprehended. Upon his
personal search, the robbed watch was recovered from the pocket of his
trousers. On 26th August, 1991, Appellant-Rakesh Kumar was arrested on
the identification of the complainant and a robbed amount of Rs.300/- was
recovered from his possession. Although, there are residential quarters near
the residence of Appellant-Shekhar Pathak, he does not remember whether
any public person was called from there to join the investigation. Only the
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
mother of the Appellant-Shekhar Pathak was present at his residence. The
Appellant-Shekhar Pathak had himself brought the knife and the raiding
team had not gone inside his house. At the time of the arrest of the
Appellant-Rajnish Grewal, women were present, but no request was made
to them, to join the investigation. He does not remember whether any public
person was asked to join the investigation. Appellant-Rajnish Grewal was
arrested at about 07:40 P.M., and Appellant-Naresh Kumar was arrested at
about 08:50 P.M. Appellant-Kishore was arrested at about 06:45 P.M. and
was found wearing the robbed watch on his wrist. Appellant-Rakesh Kumar
was arrested at about 03:30 P.M. on 26th August, 1991, in front of Taj
Palace, where he was employed.
8. PW-3 Head Constable Om Parkash, PW-4 Constable Yogender
Kumar, PW-6 Constable Megh Nath and PW-7 SI Raj Kumar had joined
the investigation along with PW-8.
9. PW-3 has deposed that Appellant-Shekhar Pathak was arrested from
Quarter No. C-6, New Willingdon Camp, New Delhi. However, PW-3
turned hostile later. In his Examination-in-Chief, he did not support the case
of the prosecution. He further deposed that the articles recovered were not
sealed by the concerned IO.
10. PW-4 had deposed that the Appellant-Shekhar Pathak was arrested
from Quarter no. C6 and produced a knife from a bag at his residence.
Appellant-Rajnish Grewal was arrested from his residence, and a driving
licence, Rs.910/- and a purse were recovered from his possession. The
driving license and the money were identified by the complainant. On being
pointed out by the complainant, Appellant-Naresh Kumar was arrested and
one buttondar knife along with wrist watch were recovered from his
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
possession. In his presence, the IO had recorded the tehrir at the place of
incident at about 09:00 P.M., except that, no documents were prepared by
the IO in his presence. Appellant-Kishore was arrested at about 09:15 P.M.
from his residence.
11. PW-6 had deposed that Appellant-Shekhar Pathak was arrested from
Quarter. No. C-6, New Willingdon Camp, New Delhi at about 03:00 P.M.
Appellant-Rajnish Grewal was apprehended at about 07:45 P.M. from New
Willingdon Camp and thereafter, Appellant-Naresh Kumar was arrested at
about 09:00 P.M. from Old Willingdon Camp. Thereafter, Appellant-
Kishore was arrested. He does not remember the exact time but deposed that
it was night time. There was public at the place of apprehension of the
accused. However, he does not remember whether any person from public
was requested to join as a witness.
12. PW-7 had deposed that at about 03:00 P.M., Appellant-Shekhar
Pathak was arrested from his house at Old Willingdon Camp and a knife
was recovered from his possession. Thereafter, Appellant-Rajnish Grewal
was arrested from his residence and one purse and driving license was
recovered from him. Thereafter, Appellant-Naresh Kumar was arrested
from his residence and a knife was recovered from his possession.
Thereafter, they went to the residence of the Appellant-Kishore and
recovered a watch belonging to the complainant. On 26th August, 1991,
Appellant-Rakesh was arrested from Taj Palace Hotel and Rs.300/- was
recovered from his possession. IO had prepared the site plan of Qtr. No. C-
6, New Willingdon Camp, New Delhi. The Appellant-Shekhar Pathak had
handed over a knife from a box inside the room, which was visible from
outside.
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
13. On perusal of the testimonies of the aforementioned witnesses, who
are the material witnesses to the case being present at the time of the arrest
of the Appellants and the alleged recoveries affected from them, it is evident
that there are material contradictions in their testimonies with regard to the
place of arrest, timing of the arrest and the alleged recoveries.
13.1 PW-1 and PW-8 have deposed that Appellant-Shekhar Pathak was
arrested near Hanuman Mandir at about 03:00 P.M., whereas the other
prosecution witnesses have stated that he was arrested from his residence at
New Willingdon Camp at about 07:00 P.M..
13.2. PW-1 and PW-8 have deposed that the robbed watch was recovered
from the possession of the Appellant-Kishore. PW-8 has also deposed that
the watch was recovered from the pocket of the trousers of the Appellant-
Kishore. However, PW-4 had deposed that the said watch was recovered
from the possession of the Appellant-Naresh Kumar. Seizure Memo, which
is Ex.PW1/P, shows that the said watch was got recovered by the Appellant-
Kishore from a bag kept in his room of his residence.
13.3. PW-7 and PW-8 have deposed that the robbed amount of Rs.300/-
was recovered from the Appellant-Rakesh. However, PW-1 has deposed
that the recovery was made from the possession of the accused persons and
he has not specifically deposed that the said recovery was affected from the
possession of the Appellant-Rakesh.
13.4. PW-1 has testified that the police had sealed the articles, such as
currency notes that were recovered from the accused persons in his
presence. The seal after use was handed over to him. On the other hand,
PW-3 had deposed that the articles recovered were not sealed by the
concerned IO.
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
A perusal of the seizure memos of the recovered articles shows that
the seized articles were not sealed by the IO. There is no explanation by the
prosecution as to why the alleged recovered articles were not sealed at the
spot to prevent any manipulations as to the alleged recoveries. Therefore, it
creates a doubt in the case of the prosecution as to the authenticity of the
alleged recoveries from the Appellants.
13.5. PW-1 lodged the FIR, which is Ex. PW-1/A. In the said FIR, PW-1
has stated that six boys were involved in the commission of the alleged
offence. However, during his deposition before the Court, PW-1 stated that
five boys were involved.
14. Perusal of the testimonies of the prosecution witnesses also shows
that public witnesses were not joined in the investigation, despite their
availability at the spot of the alleged recoveries.
On non-joining of public witnesses, a coordinate bench of this Court
in Pawan Kumar Vs. Delhi Administration (1987) CC 585 DHC has
observed as under:
“Here is a case where no effort was made to join any public
witness even though number of them were present. No
plausible explanation from the side of the prosecution is
forthcoming for not joining the independent witnesses in a
case of a serious nature like the present one. It may be that
there is apathy on the part of the general public to associate
themselves with the Police raids or the recoveries but that
apart, at least the I.O. should have made an earnest effort to
join the independent witnesses. No attempt in this direction
appears to have been made and this, by itself, is a
circumstance throwing doubt on the arrest or the recovery
of the knife from the person of the accused.”
In the present case, the prosecution has failed to explain from the
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
evidences on record, why the public witnesses were not joined in the
investigation, despite their availability at the spot. This creates a doubt in
the case of the prosecution as to the manner of arrest of the Appellants and
the alleged recoveries from them.
15. According to the case of the prosecution that on 23rd August, 1991 at
around 09:15 P.M., the complainant (PW-1) informed one Sh. Amar Singh
about the alleged incident of robbery.
Sh.Amar Singh has been examined as PW-2. However, during his
examination, PW-2 did not support the prosecution’s version and deposed
that no such person had approached him with any complaint of robbery on
the said date and time.
16. The prosecution has to prove its case beyond reasonable doubt
against the Appellants. Keeping in view the evidence in the present case as
discussed above, it is relevant here to mention the following judgments of
the Hon’ble Supreme Court.
In Wahid & Anr. vs. State Govt. of NCT Of Delhi in Criminal
Appeal No.201 of 2020, the Hon’ble Supreme Court has held as under:
“14. In cases where the FIR is lodged against unknown
persons, and the persons made accused are not known to the
witnesses, material collected during investigation plays an
important role to determine whether there is a credible case
against the accused. In such type of cases, the courts have to
meticulously examine the evidence regarding (a) how the
investigating agency derived clue about the involvement of
the accused in the crime; (b) the manner in which the
accused was arrested; and (c)the manner in which the
accused was identified. Apart from above, discovery/
recovery of any looted article on the disclosure made by, or
at the instance of, the accused, or from his possession,
assumes importance to lendcredence to the prosecutionSignature Not Verified CRL. A. 278/2003 Page 11 of 13
Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
case.”
Further, the Hon’ble Supreme Court in Ashish Batham v. State of M.P.
(2002) 7 SCC 317 held as under:
“Realities or Truth apart, the fundamental and basic
presumption in the administration of criminal law and justice
delivery system is the innocence of the alleged accused and
till the charges are proved beyond reasonable doubt on the
basis of clear, cogent, credible or unimpeachable evidence,
the question of indicting or punishing an accused does not
arise, merely carried away by heinous nature of the crime or
the gruesome manner in which it was found to have been
committed.
Mere suspicion, however, strong or probable it may be is no
effective substitute for the legal proof required to substantiate
the charge of commission of a crime and grave the charge is
greater should be the standard of proof required. Courts
dealing with criminal cases at least should constantly
remember that there is along mental distance between may be
true’ and must be true’ and this basic and golden rule only
helps to maintain the vital distinction between ‘conjectures’
and& ‘sure conclusions’ to be arrived at on the touch stone
of a dispassionate judicial scrutiny based upon a complete
and comprehensive appreciation of all features of the case as
well as quality and credibility of the evidence brought on
record.”
17. After a detailed analysis of the evidences of prosecution witnesses,
this Court is of the opinion that the evidences are clouded with grave
suspicion and are discrepant in material particulars. This creates significant
doubts in the reliability of case of the prosecution.
18. Keeping in view the above discussions and the principles of law as
laid down in the aforesaid judgments, the prosecution has miserably failed
to establish the guilt of offence constituting robbery falling under Sections
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53
395/34 IPC against the Appellants and so the conviction and the sentence
imposed on them by Trial Court cannot be sustained. Accordingly, the
impugned judgment and the impugned order on sentence are hereby set
aside. The Appellants are acquitted of the charged offences. The appeal is
accordingly, allowed.
19. Bail bond of the Appellants stands cancelled and their sureties
discharged.
20. A copy of the order be sent to the concerned Jail Superintendent and
the Trial Court for information.
RAJNEESH KUMAR GUPTA
JUDGE
AUGUST 11, 2025
v/ik
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Signed By:NAMITA
DHYANI
Signing Date:11.08.2025
17:36:53