Delhi District Court
State vs Bichalu @ Saleem on 22 July, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 27307/2016)
FIR No. 88/2012
Police Station Darya Ganj
Charge-sheet filed under Sections 392/397/411/34 IPC
Charges framed against accused Sec. 392 read with Sec. 34
Mohd. Bichalu @ Saleem. IPC
Charges framed against accused Sec. 392/397/34 IPC, Sec.
Mohd. Sahid. 392/34 IPC & Sec. 411
IPC.
Charges framed against accused Sec. 411 IPC.
Mohd. Ujeb.
State Versus 1. Mohd. Bichalu @ Saleem (since PO).
S/o Sh. Atabul,
R/o H. No. 172, Vill. Jirangachha,
PS Thakuganj, Distt. Kishanganj,
Bihar.
Also at:-
Noor Mohammad ka Makaan,
Gali No. 5, Kabir Nagar,
Babarpur, PS Jyoti Nagar, Delhi.
2. Mohd. Sahid,
S/o Sh. Saffiquddin,
R/o H. No. 2993, Kali Masjid,
Mohalla Kabristan, Turkman Gate,
Delhi.
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 1 of 38
3. Mohd. Ujeb,
S/o Sh. Mohd. Gyas,
R/o H. No. 1728, Gali Imli Wali,
Suiwalan, PS Chandni Mahal,
Delhi.
...Accused Persons.
Date of Institution of case 10.09.2012
Date of Arguments 22.07.2025
Judgment reserved on 22.07.2025
Judgment pronounced on 22.07.2025
Decision Acquitted
JUDGMENT
1. Accused Mohd. Sahid is facing trial for the offences
punishable under Sec. 392/397/34 IPC and Sec. 392 IPC read
with Sec. 34 IPC. Additionally accused Mohd. Sahid is also
facing trial for the offence punishable under Sec. 411 IPC.
Accused Ujeb is facing trial for the offence punishable under
Sec. 411 IPC. The story of the prosecution is that on 23.04.2012
at about 06:15 pm near Darya Ganj Red Light signal, opposite
Manoj Electronics, accused Mohd. Sahid along with co-accused
Mohd. Akil (since expired) and Mohd. Bichalu @ Saleem (since
PO) in furtherance of their common intention committed robbery
of two mobile phones of black colour make Samsung Galaxy &
Samsung upon complainant Sh. Mayur Jain by using deadly
weapon i.e. knife/dragger. Further on 04.05.2012 at patry, M.S.
Marg near Park Parda Bagh, Daryaganj accused Sahid was found
in possession of stolen/robbed black mobile phone make
Samsung belonging to complainant Sh. Mayur Jain. Further on
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 2 of 38
04.05.2012 or 10-12 days before i.e. around
23.04.2012/24.04.2012 at mobile repairing shop no. 1399, Kala
Mahal, Jama Masjid, accused Mohd. Ujeb dishonestly retained
stolen/robbed property i.e. Samsung Mobile phone of
complainant Sh. Mayur Jain knowing or having reason to believe
that such property was stolen property.
2. During trial, accused Bichalu @ Saleem was declared
Proclaimed Offender by Ld. Predecessor vide order dated
28.07.2016 and accused Akil expired and proceedings against
him were abated vide order dated 11.09.2018 and thus at present
two accused persons namely Mohd. Sahid and Mohd. Ujeb are
facing the trial and judgment is not being pronounced qua
accused Bichalu @ Saleem.
3. The brief facts which are borne out from the record of the
case are that on 23.04.2012, PW-11/complainant Sh. Mayur Jain
came to PS Darya Ganj and gave his written complaint, Ex.
PW-11/A regarding robbery of his two mobile phones make
Samsung by two persons by putting knives on his waist while he
was sitting in TSR bearing registration no. DL-R1K-1069 at
Darya Ganj Red Light. Thereafter, on the basis of his complaint,
present FIR No. 88/2012, under Sec. 392/34 IPC Ex. PW-1/1 was
registered at PS Daryaganj and investigation was assigned to
PW-2 SI Mahipal Singh. Thereafter, IO/SI Mahipal Singh along
with complainant Sh. Mayur Jain went to the spot of incident i.e.
N. S. Marg, opposite Manoj Electronics where he prepared site
plan, Ex. PW-2/A at instance of complainant. During
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investigation, IO served notice under Sec. 160 Cr.PC to auto
driver/accused Mohd. Bichalu for joining the investigation on
next day. IO also made efforts to trace the case property as well
as accused persons but he could not trace them. Thereafter
further investigation of the present case was entrusted to PW-15
Retd. SI Virender Kumar (then ASI). On 24.04.2012, suspect
Bichalu @ Salim, driver of TSR bearing registration no.
DL-1RK-1069 joined the investigation pursuant to notice under
Sec. 160 Cr.PC and on interrogation, he confessed his
involvement in the present case and disclosed that he had assisted
his associates in robbery. Thereafter, PW-15 IO/Retd. SI Virender
Kumar arrested him in the present case, conducted his personal
search and recorded his disclosure statement. IO also seized the
TSR bearing registration no. DL-1RK-1069 alongwith with its
documents in the present case and efforts were made to trace the
associates of accused Bichalu @ Saleem but no clue could be
found.
4. During investigation, on 28.04.2012, during interrogation,
accused Bichalu @ Saleem disclosed the names of his associates
as Mohd. Sahid and Mohd. Akil. On 04.02.2012, accused persons
namely Mohd. Sahid and Mohd Akil were apprehended by the IO
on the basis of secret information from Tikona Park, Daryaganj
and on their cursory search, one black mobile phone make
Samsung (without SIM) and one knife were recovered from right
dub of accused namely Mohd. Sahid and one dagger type knife
was recovered from right side dub of accused Akil. Thereafter IO
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State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 4 of 38
seized the recovered Samsung mobile phone, prepared sketch of
both the knives and seized the same. Thereafter, IO arrested both
the accused persons in the present case, conducted their personal
search and recorded their disclosure statements. During
investigation, accused persons namely Mohd. Sahid and Akil led
the IO to Shop No. 1399, Jama Masjid, Delhi where they had
sold the robbed mobile phone to accused Mohd. Ujeb, where
accused Mohd. Ujeb produced the black mobile phone make
Samsung Galaxy which was sold to him by the aforesaid accused
persons. Thereafter IO seized the said mobile phone and prepared
site plan of recovery of said mobile phone. IO also arrested
arrested accused Mohd. Ujeb in the present case, conducted his
personal search and recorded his disclosure statement. During
investigation, IO moved application for TIP of accused persons
namely Mohd. Sahid and Akil but they refused to participate in
TIP proceedings. IO also collected CDR and CAF of robbed
mobile phone make Samsung Galaxy and found that one SIM
which was issued in name of Sabbir Ali was being used in the
said mobile phone and thereafter IO made inquiry from Sabbir
Ali who informed that he had given his SIM to accused Mohd.
Ujeb. During investigation, IO also got conducted TIP of case
properties in which complainant correctly identified the
recovered mobile phones, got identified the accused persons
through complainant, collected CDRs of mobile phone numbers
of accused persons and recorded statements of witnesses. On
completion of investigation, charge-sheet was filed by the IO
before the Court through the SHO.
FIR No. 88/2012, PS: Darya Ganj
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5. Vide order dated 2 3 . 0 7 . 2 0 1 2 , copy of the charge-
sheet under Section 207 Cr.P.C was supplied to the accused
persons and vide order dated 29.08.2012 the case was
committed to the Court of Sessions under Sec. 209 Cr.P.C.
6. Vide order dated 30.11.2012 the Ld. Predecessor Court
was pleased to frame charges under Sec. 392/397/34 IPC, Sec.
392 IPC read with Sec. 34 IPC & 411 against accused Mohd.
Sahid and charge under Sec. 411 IPC was framed against accused
Mohd. Ujeb, to which they pleaded not guilty and claimed trial.
7. To prove its case, prosecution has examined 16 witnesses.
The testimonies of presecution witnesses along with its nature
has been discussed briefly in the following paragraphs:-
8. PW-1 HC Ajay Kumar, was the Duty Officer who proved
the copy of FIR No. 88/2012, endorsement on rukka and
certificate under Sec. 65B of The Evidence Act, Ex. PW-1/A to
Ex. PW-1/C. In his cross-examination, he deposed that he did not
know who had brought rukka to PS. He admitted that he had no
personal knowledge about the case.
9. PW-2 SI Mahipal Singh, was the first IO in the present
case. He deposed that on 23.04.2012, investigation of present
case was assigned to him and Duty Officer produced complainant
Sh. Mayur Jain and auto driver Mohd. Bichalu before him. He
further deposed that he along with them reached at the spot of
incident i.e. N. S. Marg, opposite Manoj Electronics where he
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prepared site plan, Ex. PW-2/A at instance of complainant. He
further deposed that he served notice under Sec. 160 Cr.PC to
Auto Driver Mohd. Bichalu and relieved him and he also seized
copy of bill of mobile phone, Mark, PW-2/1 from complainant
vide seizure memo Ex. PW-2/B. He further deposed that he
recorded statement of complainant under Sec. 161 Cr. PC and
served notice under Sec. 160 Cr.PC to him. He also deposed that
he made efforts to trace the case property as well as the accused
persons but in vain. He further deposed that he discussed the
matter with SHO and on his direction, he handed over the file to
MHC(R). In his cross-examination, he denied the suggestion that
the site plan was incorrect. He also deposed that he asked the
public persons to join the investigation when he was preparing
the site plan but no public person agreed to join. He denied the
suggestion that the place of incident is not correctly mentioned in
the site plan, Ex. PW-2/A. He also deposed that he recorded
statement of complainant namely Sh. Mayur Jain on the same
day at about 10:30 pm.
10. PW-3 ASI Amar Pal, deposed that on 04.05.2012, he
joined the investigation of the present case along with ASI
Virender Kumar, HC Shanti Swaroop and Ct. Jeet Singh. He
narrated about apprehension of accused persons namely Mohd.
Sahid and Akil on the basis on pointing out of secret informer
from Patri, Subhash Marg near Parda Bagh by the IO. He also
narrated about recovery of one dagger type knife and robbed
Samsung mobile phone from accused Sahid and proved sketch of
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knife, seizure memos of knife and seizure memo of Samsung
mobile phone as Ex. PW-3/A to Ex. PW-3/C. He also narrated
about recovery of one dagger type knife from accused Mohd.
Akil, proved its sketch and seizure memo as Ex. PW-3/D & Ex.
PW-3/E. He also proved arrest memos, personal search memos
and disclosure statements of accused Sahid and Akil as Ex.
PW-3/F to Ex. PW-3/K. He also proved site plan of recovery of
abovesaid articles as well as pointing out memo of place of
occurrence by accused persons as Ex. PW-3/L to Ex. PW-3/O. He
also narrated about recovery of robbed Samsung Galaxy mobile
phone from possession of accused Mohd. Ujeb and proved its
seizure memo as Ex. PW-3/P. He also proved arrest memo,
personal search memo and disclosure statement of accused
Mohd. Ujeb as Ex. PW-3/Q to PW-3/S. He correctly identified
accused persons as well as case properties during his deposition
before the court. In his cross-examination, he admitted that
complainant was not with them at the time of apprehension of
accused persons namely Mohd. Sahid and Mohd. Akil. He also
deposed that IO requested some of the passer bys to join the
proceedings at that time, however none agreed and IO did not
serve notice to those passer bys. He also deposed that IO did not
check or verify identity of accused persons namely Mohd. Sahid
and Mohd. Akil when they were apprehended. He also deposed
that the he did not remember if IO tried to lift fingerprints from
the knives recovered from accused persons. He denied the
suggestion that knives and mobile phones were planted upon the
accused persons or that no recovery was effected from them.
FIR No. 88/2012, PS: Darya Ganj
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11. PW-4 HC Jitender Kumar, deposed that on 28.04.2012 he
joined the investigation in the present case along with IO. He
further deposed that accused Mohd. Bichalu was taken out from
the custody and on interrogation by IO, accused Mohd. Bichalu
told that he had given a wrong statement on the previous day and
he gave his fresh disclosure statement, Ex. PW-4/A. He further
deposed that in his disclosure statement, Ex. PW-4/A he
confessed his involvement in the present case along with Mohd.
Sahid and Mohd. Akil. This witness was not cross-examined on
behalf of accused persons despite opportunity given to them.
12. PW-5 ASI Shanti Swaroop, deposed that on 24.04.2012 he
joined the investigation in the present case along with IO. He
deposed that on that day at about 05:45 pm, one Mohd. Bichalu
came in the PS along with a TSR bearing registration no.
DL-1RK-1069. He further deposed that on interrogation by IO,
accused Mohd. Bichalu confessed his involvement in the present
case. He proved arrest memo, personal search memo, disclosure
statement and pointing out memo of accused Mohd. Bichalu as
Ex. PW-5/A to Ex. PW-5/D. He further deposed that on
04.05.2012 he again joined the investigation in the present case
along with IO and narrated on the lines of PW-3 Retd. SI Amar
Pal about apprehension of accused Mohd. Sahid and Mohd. Akil
and proved their arrest memos, personal search memos and
disclosure statements. He also narrated about recovery of robbed
Samsung mobile phone and knife from possession of accused
Sahid and proved their seizure memos. He also narrated about
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recovery of knife from accused Mohd. Akil and proved their
seizure memo. He also narrated about recovery of robbed
Samsung Galaxy mobile phone from possession of accused
Mohd. Ujeb and proved its seizure memo. He also proved arrest
memo, personal search memo and disclosure statement of
accused Mohd. Ujeb. This witness correctly identified accused
persons as well as case properties during his deposition before
the court. In his cross-examination, he deposed that no notice
was served upon the public persons who had refused to join the
investigation at the time of arrest of accused persons namely
Mohd. Sahid. He denied the suggestion that since the accused
was not arrested in the manner as deposed by him and all the
proceedings were conducted while sitting in the police station, no
notice was served upon any public person. He denied the
suggestion that no knife or no mobile phone, as deposed by him,
was recovered from the accused persons or that the same were
planted upon them. He also denied the suggestion that since
nothing incriminating was recovered from the possession of
accused persons, so no independent public person was joined in
the investigation.
13. PW-6 Mohd. Raza, deposed that in the year 2012, he was
running a shop in the area of Malviya Nagar Delhi in the name
and style of Maaz Telecom. He further deposed that he had sold
one SIM of Airtel to Sabir Ali and he had taken copy of his
election card and one photograph and after filling the customer
application form, the SIM was got activated. The photocopy of
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customer application as Mark-PW-6/1 and copy of election i-
card, Mark-PW-6/2 were shown to witness but he could not
identify the said document as he did not remember due to lapse
of time. In his cross-examination, he deposed that he did not
identify the person who took SIM card of Airtel from his shop.
He also deposed that IO obtained his signatures on the papers
without disclosing him that what was written in the said papers.
14. PW-7 Sh. Sabir Ali, deposed that he knew accused Mohd.
Ujeb and once he had come to him as he was not having any SIM
card. He further deposed that on his request, he got one SIM card
issued for accused Ujeb in his name and he provided one
photograph and one copy of his id proof. He proved copy of
customer application form and copy of his election id card as Ex.
PW-7/A & Ex. PW-7/B. In his cross-examination, he deposed
that he had met with accused Ujeb 5-6 years ago for the first time
in the market of Jama Masjid. He also deposed that he used to
meet accused Ujeb after 7-15 days. He also deposed that he had
given his id proof and photograph in the market. He also deposed
that he did not put any question to the effect that whey he was
taking his id for his SIM. He denied the suggestion that he
himself had taken the SIM or that he was falsely named accused
Mohd. Ujeb in this case. He also deposed that he did not know
why he took a SIM on his id despite having SIM in his name. He
denied the suggestion that he did not give any ID or photograph
to accused Mohd. Ujeb or that no SIM was issued on his ID.
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15. PW-8 Sh. Rajeev Ranjan, Nodal Officer, TATA Tele
Services Ltd., has proved CAF, CDR (from 23.04.2012 to
04.05.2012) & certificate under Sec. 65B of The Indian Evidence
Act of mobile phone no. 9212521083 issued in the name of Sh.
Rakesh Kumar Jain as Ex. PW-8/A to Ex. PW-8/C. This witness
was not cross-examined on behalf of accused persons despite
opportunity given to them.
16. PW-9 Sh. Ajit Singh, Nodal Officer, Vodafone Idea
Cellular Ltd. has proved e-CAF, certificate under Sec. 65B of
The Indian Evidence Act regarding e-CAF, CDR (from
23.04.2012 to 04.05.2012) & certificate under Sec. 65B of The
Indian Evidence Act of mobile phone no. 9711498892 issued in
the name of Sh. Mayur Jain as Ex. PW-9/A to Ex. PW-8/D. This
witness was not cross-examined on behalf of accused persons
despite opportunity given to them.
17. PW-10 Sh. Rajiv Vashisht, Nodal Officer, Bharti Airtel
Ltd. has proved CAF, Voter ID card, CDR (from 23.04.2012 to
04.05.2012) & certificate under Sec. 65B of The Indian Evidence
Act of mobile phone no. 9650701314 issued in the name of Sh.
Sabir Ali as Ex. PW-10/A to Ex. PW-10/D. He also deposed that
the aforesaid SIM card was used in mobile phone having IMEI
No. 358472047301490. This witness was not cross-examined on
behalf of accused persons despite opportunity given to them.
18. PW-10 Sh. Mayur Jain was the complainant in the present
case. He deposed that on 23.04.2012 at about 06:00 pm, he was
going towards Lal Quila from Karol Bagh in an auto-rickshaw
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and he was alone apart from the driver. He further deposed that at
about 06:15 pm, the said auto-rickshaw stopped at Red light
signal in front of Manoj Electronics, Daryaganj, where two boys
came from his left side. He further deposed that both of them
took out big knives and placed the said knives on his stomach,
one on right side and another of left side. He further deposed that
he got afraid and asked them what they wanted. He further
deposed that the accused present in the court on that day, had
snatched one of his mobile phone and another boy had snatched
his another mobile phone and thereafter they ran away towards
Golcha Cinema Hall. He further deposed that he asked auto-
driver as to why he had not raised alarm at the time of incident
then he stated that he was afraid. He further deposed that he
along with auto-driver went to PS Darya Ganj where Inspector
Mahipal met them and he made written complainant, Ex.
PW-11/A and an FIR was registered on his complaint. He further
deposed that he handed over the copy of bill of his mobile phone,
Ex. PW-2/1 to police which was seized vide seizure memo Ex.
PW-2/B. He further deposed that he along with police officials
went to the place of occurrence where IO prepared site plan, Ex.
PW-2/A at his instance. He further deposed that on 24.04.2012,
he was called to PS Daryaganj for identification of TSR driver.
He also deposed that TSR driver was telling lie again and again
and he also had doubt on TSR driver as he had not raised alarm at
the time of incident nor made any effort to avoid the incident. He
further deposed that on his information, IO/ASI Virender Singh
arrested TSR driver in the present case. He proved arrest memo,
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personal search memo and disclosure statement of TSR
driver/accused Bichalu @ Saleem as Ex. PW-5/A to Ex. PW-5/C.
He also deposed that his robbed mobile phones were of Samsung
company and both were of black colour, having SIM Nos.
9711498892 & 9212521083. He also proved his signature on TIP
proceedings of case properties and application for releasing the
mobile phones on superdari as Ex. PW-11/B & Ex. PW-11/C. In
his cross-examination, he deposed that when he reached near
Daryaganj, the driver of auto-rickshaw had not called anybody
by making phone call. He also deposed that the driver of auto-
rickshaw had not made any effort to save him or to apprehend the
said two persons. He denied the suggestion that the said persons
had not shown him any knife at the time of incident when his
mobile phones were snatched. He further deposed that he had
doubt on the auto-rickshaw driver as he had not raised alarm at
the time of incident and he had lied to the police that he did not
use mobile phone, however, mobile phone was recovered from
his possession. He denied the suggestion that he gave his
complaint, Ex. PW-11/A at the instance of police. This witness
was re-examined by Ld. Addl. PP for the State in which he
deposed that the incident happened in 10-15 seconds and he
could not say with certainty that the accused Sahid was the same
person who along with his associate had robbed his mobile
phones. He also deposed that he saw accused Sahid during court
hearing. He also deposed that after the incident, he saw the
accused in the court of Ms. Ekta Gauba, Ld. MM, Delhi during
superdari proceedings. This witness was cross-examined by Ld.
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Addl. PP for State in which he denied the suggestion that on
02.06.2012, he identified accused Sahid with certainty as the
same person who along with accused Akil in conspiracy with
accused Bichalu had robbed his mobile phones. He also denied
the suggestion that he deliberately and intentionally not
identifying accused Sahid with certainty as he had been won over
by accused Sahid.
19. PW-12 Sh. S. Ranjan, LDC, RTO, Transport Office,
Burari, Delhi, had produced ownership record of TSR bearing
registration no. DL-1RK-1069. He deposed that as per record, the
said vehicle was registered in the name of Mr. Shiv Charan, R/o
3609, Narang Colony, Tri Nagar, Delhi in the year 2012. He
proved copy of record as Ex. PW-12/A. He further deposed that
in the year 2017, the said vehicle was transferred in the name of
Mr. Kulwant Singh, S/o Sh. Kapoor Singh, R/o A-25, Kh. No.
45/3, Gurunanak Vihar, Phase-II, Nilothi Extension,
Delhi-110041. He proved report in this regard as Ex. PW-12/B.
This witness was not cross-examined on behalf of accused
persons despite opportunity given to them.
20. PW-13 Sh. Shiv Charan, was the registered owner of TSR.
He deposed that he had purchased the TSR bearing registration
no. DL-1RK-1069 and the same was registered in his name. He
further deposed that he was not driving the said TSR and the said
TSR was used to be driven by his neighbour but he did not
remember his name. He further deposed that the said TSR
remained with him for 2-3 years and thereafter the said TSR was
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lifted by the official of finance company as he could not pay the
installments amount regularly. This witness had correctly
identified the photographs of TSR bearing registration no.
DL-1RK-1069, Ex. P-6 during his deposition in the court. He
also deposed that he did not know anything else about the present
case. The witness was cross-examined by Ld. Addl. PP for the
State in which he identified copy of his voter id card, Ex.
PW-13/A and admitted his signature on superdarinama and
application for releasing of said vehicle as Ex. P-13/B to Ex.
PW-13/D. He denied the suggestion that around six months prior
to 30.05.2012, he had given the aforesaid vehicle to Mohd.
Bichalu on rent of Rs. 500/- per month and on 23.04.2012, the
said TSR was being driven by Bichalu @ Saleem. This witness
was confronted with his statement recorded under Sec. 161
Cr.PC, Mark-PW-13/1. This witness was not cross-examined on
behalf of accused persons despite opportunity given to them.
21. PW-14 Inspector Guarav, deposed that in the intervening
night of 23-24.04.2012, he was posted as Constable at PS
Daryaganj and was on emergency duty. He further deposed that
at about 09:00 pm, Duty Officer HC Ajay Kumar handed over
one original tehrir and copy of FIR and sent him to Netaji
Subhash Marg opposite Manoj Electronics, Daryaganj. He
further deposed that he went there and handed over the aforesaid
documents to IO/SI Mahipal. He narrated about proceedings
conducted by IO at spot as well as at PS Daryaganj viz. seizure
of mobile phone bill, Mark-PW-2/1, vide seizure memo Ex.
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PW-2/B and inquiry from complainant Sh. Mayur Jain in which
complainant raised suspicion over TSR driver Bichalu. He also
deposed that he along with IO went to Maujpur in search of
accused Bichalu as complainant had raised suspicion over him
but he was not found there. This witness was not cross-examined
on behalf of accused persons despite opportunity given to them.
22. PW-15 Retd. Sub-Inspector Virender Kumar was the
Investigating Officer in the present case. He deposed that on
24.04.2012, investigation of present case was assigned to him
and he received original complaint along with copy of FIR and
certificate under Sec. 65B of The Indian Evidence Act from SI
Mahipal on order of SHO, PS Daryaganj. He further accused
accused Bichalu, who was suspect at that time, had come to
Police Station along with his TSR pursuant to notice under Sec.
160 Cr.PC. He further deposed that he interrogated accused
Bichalu regarding the incident and he confessed his involvement
in the present case and stated that he assisted his associates
namely Mohd. Akil and Mohd. Sahid in robbery. He further
deposed that thereafter he arrested accused Bichalu @ Saleem in
the present case and proved his arrest memo, personal search
memo and disclosure statements as Ex. PW-5/A to Ex. PW-5/C.
He also narrated about seizure of TSR alongwith its documents
and proved their seizure memos as Ex. PW-5/E & Ex. PW-5/F.
He also narrated about apprehension of accused persons namely
Mohd. Sahid and Mohd. Akil from Tikona Park, Daryaganj, near
Loha Pul, on the basis of secret information and proved their
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 17 of 38
arrest memos, personal search memos and disclosure statements
as Ex. PW-3/F to Ex. PW-3/K. He also narrated about recovery
of one black mobile phone make Samsung (without SIM) and
one knife from right dub of accused namely Mohd. Sahid and
one dagger type knife from right side dub of accused Mohd. Akil
and proved seizure memo of recovered mobile phone, sketches of
knives and seizure memos of knives as Ex. PW-3/A to Ex.
PW-3/D. He also narrated about recovery of another robbed
mobile phone from the shop of accused Mohd. Ujeb at Jama
Masjid, Delhi and proved its seizure memo Ex. PW-3/P. He also
narrated about apprehension of accused Mohd. Ujeb and proved
his arrest memo, personal search memo and disclosure statement
as Ex. PW-3/Q to Ex. PW-3/S. He also narrated about
conducting of TIP of case properties in which complainant
correctly identified the recovered mobile phones, identification
of the accused persons through complainant and collection of
CDRs of mobile phone numbers. This witness correctly
identified accused persons as well as case properties during his
deposition before the court. In his cross-examination, he admitted
that neither complainant nor accused Bichalu were with them at
the time of apprehension of accused persons namely Mohd.
Sahid and Mohd. Akil. He also deposed that he requested some
of the passersbys to join the proceedings at that time, however,
none agreed and he did not serve notice to those passersbys. He
also deposed that he did not check or verify the identity of
accused persons namely Mohd. Sahid and Mohd. Akil when they
were apprehended. He also deposed that he did not try to lift
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fingerprints from the knives recovered from accused persons. He
also deposed that he requested some of the nearby shopkeepers to
join the proceedings of recovery of mobile phone Samsung
Galaxy from the shop of accused Ujeb, however, none agreed
and he did not serve notice to them. He denied the suggestion
that he did not conduct fair inquiry or that the knives and mobile
phones were planted upon the accused persons.
23. PW-16 HC Jitender, produced register no. 19 with respect
to FIR No. 88/2012, PS Darya Ganj. He proved the entries made
by the then MHC(M) in register no. 19 exhibited as Ex. PW16/A
& Ex. PW-16/B regarding deposit of case properties by the IO. In
his cross-examination, he admitted that none of the entries bears
the endorsement by SHO.
24. During trial of the case, accused persons namely Mohd.
Sahid and Mohd. Ujeb admitted the genuineness of TIP
proceedings of accused Mohd. Akil and Mohd. Sahid as Ex.
PX-1 and TIP proceedings of case properties already exhibited as
Ex. PW-11/B, under Sec. 294 Cr.PC and thereafter, prosecution
evidence was closed.
25. After closing of Prosecution Evidence, separate statements
of accused persons namely Mohd. Sahid and Mohd. Ujeb were
recorded under Sec. 313 Cr.PC, wherein they denied all the
charges against them. They claimed themselves innocent and all
the witnesses were interested witnesses. The further stated that
police officials had filed false case against them to work out their
pending cases and they had been falsely implicated by the IO in
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this case. Accused persons did not lead defence evidence in this
case.
26. Final arguments were advanced by Sh. Pankaj Kumar
Ranga, Ld. Addl. PP for the State and Sh. Khitiz Mahipal & Ms.
Ritu Tayal, Ld. Counsels for accused persons namely Mohd.
Shahid and Mohd. Ujeb.
27. Ld. Addl. PP for the State argued that the prosecution has
proved its case beyond reasonable doubt and all the prosecution
witnesses have supported the prosecution story and have
corroborated each other’s version. To substantiate his
submissions, he argued that PW-11/complainant Sh. Mayur Jain
has supported the case of the prosecution and he has not
completely turned hostile on identity of accused Mohd. Sahid. He
further argued that knife used in the commission of offence has
been recovered from possession of accused Mohd. Sahid for
which he has not given any explanation. He also argued that
robbed mobile phones of complainant have been recovered from
possession of accused persons. He also argued that the all the
proceedings have been duly proved by the police witnesses and
all the prosecution witnesses are of the sterling quality and hence
both the accused persons should be convicted under all the
Sections of law under which charges have been framed against
them.
28. Per Contra Ld. Defence Counsels argued that the
prosecution has miserably failed to prove its case beyond
reasonable doubt. To substantiate their point, they argued that the
FIR No. 88/2012, PS: Darya Ganj
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investigation in the present case has been conducted in an
arbitrary manner. They further argued that PW-11/complainant
Sh. Mayur Jain has turned hostile on the identity of accused
Mohd. Sahid and hence offence punishable under Sec.
392/397/34 IPC has not been proved by the prosecution. They
also argued that the allegedly recovered knife from possession of
accused Mohd. Sahid has not been shown to the complainant.
They also argued that no independent witness was joined in the
investigation at the time of recovery of case properties and hence
the proceedings of police officials in this regard cannot be relied
upon. They also argued that the no fingerprints were lifted from
the allegedly recovered knives. They also argued that PW-15/IO
Retd. SI Virender Kumar in his cross-examination admitted that
neither complainant nor accused Bichalu @ Saleem were present
with him at the time of apprehension of accused persons namely
Mohd. Sahid and Mohd. Akil and hence it is not clear as to
identity of these accused persons were established by the IO.
They further argued that since the prosecution has failed to prove
its case against accused persons beyond reasonable doubts, both
the accused persons should be acquitted under all sections of law
under which charges has been framed against them.
29. In the present case, charges under Sec. 392/397/411/34
IPC have been framed against the accused Mohd. Sahid and
charge under Sec. 411 IPC has been framed against accused
Mohd. Ujeb. These Sections have been elaborated as under:
392. Punishment for robbery:-
FIR No. 88/2012, PS: Darya Ganj
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Whoever commits robbery shall be punished with rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine; and, if the robbery be committed on the
highway between sunset and sunrise, the imprisonment may be
extended to fourteen years.
397. Robbery or dacoity, with attempt to cause death or
grievous hurt:-
If, at the time of committing robbery or dacoity, the
offender uses any deadly weapon, or causes grievous hurt to any
person, so attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be
punished shall not be less than seven years.
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.
34. Acts done by several persons in furtherance of common
intention:-
When a criminal act is done by several persons, in
furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him
alone.
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 22 of 38
30. I have thoughtfully considered the arguments advanced,
perused the material available on record, scrutinized the evidence
led by the prosecution and gone through the relevant provisions
of law. I have also considered the judgments relied upon by the
Ld. Addl. PP for the State as well as Ld. Counsels for accused
persons.
31. PW-11/complainant Sh. Mayur Jain is the star witness of
the prosecution as he is the only eyewitness of the alleged
incident. No independent eyewitness has been examined in the
present case and hence the testimony of PW-11/complainant Sh.
Mayur Jain is to be appreciated as per the established principles
of law pertaining to the appreciation of testimony of sole
eyewitness.
32. PW-11/complainant Sh. Mayur Jain deposed that on
23.04.2012 at about 06:15 pm, the auto-rickshaw in which he
was travelling stopped at the red light signal in front of Manoj
Electronics, Daryaganj and at that time two boys came from his
left side, who took out big knives and put on his stomach. He
further deposed that said persons snatched his mobile phones and
thereafter they ran away towards Golcha Cinema.
PW-11/complainant Sh. Mayur Jain narrated the incident in
detail, however, he could not identify accused Mohd. Sahid in the
court. He deposed that the person present in the court was
perhaps one of the said boys. In his cross-examination,
PW-11/complainant Sh. Mayur Jain while pointing out towards
accused Mohd. Sahid deposed that probably he was one of the
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said boys but he was not sure about the identity of said accused.
This witness was cross-examined by the Ld. Addl. PP for the
State in which he denied the on 02.06.2012, he identified accused
Mohd. Sahid with certainty as the same person who along with
accused Mohd. Akil (since expired) in conspiracy with accused
Bichalu @ Saleem had robbed his mobile phone. He also denied
the suggestion that he was not deliberately and intentionally
identified accused Mohd. Sahid as he was won over by accused
Mohd. Sahid. Thus, PW-11/complainant Sh. Mayur Jain has
turned hostile on the identity of accused Mohd. Sahid against
whom charges under Sec. 392/397/34 IPC & Sec. 392/34 IPC
have been framed. There is no other eyewitness of the alleged
incident. Thus, the prosecution has failed to prove the ingredients
of offences punishable under Sec. 392/397/34 IPC & Sec. 392/34
IPC against accused Mohd. Sahid.
33. The alleged incident took place at a public place i.e. at Red
Light, Daryaganj where several people were present in their
vehicle as well as on the road. The IO has not collected any
CCTV footage of the area showing the presence of accused
persons at the spot of incident. In the present case, IO has not
cited any independent eyewitness to corroborate or prove the
prosecution story. Hon’ble High Court of Delhi in Judgment
titled as ‘Mohammad Burhan Vs. Directorate of Revenue
Intelligence, cited as MANU/DE/3131/2017′ has held that:-
‘ joining of independent public witness is not mere a
formality; it is a vital safeguard to avoid falseFIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 24 of 38
implication of individual. In number of cases either
no independent public witnesses are associated on
the pretext that none of them is available; in some
cases only passerbyes are requested to join the
investigation. Non-examination of independent public
witness in the instant case is serious flaw and adverse
inference is to be drawn against the prosecution for
withholding them’.
In view of the law laid down by the Hon’ble High Court
of Delhi in Mohammad Burhan (Supra), due to non-examination
of any independent eyewitness and non-collection of the CCTV
footage of the spot of incident or the area adjacent to that, the
adverse inference is being drawn against the case of the
prosecution in the present case.
34. As per the case of the prosecution, the knives recovered
from possession of accused Mohd. Sahid and Mohd. Akil (since
expired) were used by the abovesaid accused persons in the
commission of offence. PW-11/complainant Sh. Mayur Jain had
not given detail description of the knives used by the persons
who committed robbery upon him. The recovered knives were
also not shown to PW-11/complainant Sh. Mayur Jain and hence
in these circumstances, it cannot be said that the recovered knives
from possession of accused Mohd. Sahid and Mohd. Akil (since
expired) were used by them in the commission of offence.
Moreover, IO has not collected the fingerprints of accused
FIR No. 88/2012, PS: Darya Ganj
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persons from the recovered knives. This has weakened the the
case of the prosecution.
35. PW-15 Retd. SI Virender Kumar deposed that on
04.05.2012 on secret information, he arrested accused persons
namely Mohd. Sahid and Mohd. Akil (since expired). In his
cross-examination, PW-15 IO/Retd. Virender Kumar admitted
that neither complainant nor accused Bichalu @ Saleem (auto
rickshaw driver) (since PO) were present with him at the
apprehension of accused Mohd. Sahid and Mohd. Akil.
PW-11/complainant Sh. Mayur Jain had not given the complete
description of abovesaid accused persons nor any sketch of
accused persons was got prepared through PW-11/complainant
Sh. Mayur Jain. In these circumstances, it was very difficult to
fix the identity of accused persons and PW-15 IO/Retd. SI
Virender Kumar has not explained as to how he fixed the identity
of accused persons. PW-11/complainant Sh. Mayur Jain in cross-
examination by the Ld. Addl. PP for the State has specifically
denied that on 02.06.2012, he had identified accused Mohd.
Sahid in the Police Station. This raises serious doubts on the
prosecution story as well as the faulty investigation conducted by
the IO.
36. As per prosecution story, one knife allegedly used in the
commission of offence and one mobile phone make Samsung
belonging to complainant were recovered from possession of
accused Mohd. Sahid and one knife/dagger allegedly used in the
commission of offence was recovered from possession of accused
FIR No. 88/2012, PS: Darya Ganj
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Mohd. Akil (since expired). Similarly, one mobile phone make
Samsung Galaxy belonging to complainant was recovered from
accused Ujeb from his mobile shop. The recovery of the case
property has to be proved by the prosecution beyond reasonable
doubt in compliance with the law laid down in this regard by
Hon’ble Supreme Court of India. Section 27 of Indian Evidence
Act is an exception to Section 25 and Section 26 of the said Act.
Section 27 is based on the doctrine of confirmation by
subsequent events. The principle under Sec. 27 of Indian
Evidence Act is based on the principle that if any fact is
discovered on the basis of disclosure statement of accused, the
discovery of said fact is a guarantee that the information given by
the accused in his disclosure statement is true. Such information
may be confessional or non-inculpating in nature but if any new
fact is discovered from such information it will be considered as
a reliable information.
37. The fact discovered on the basis of disclosure of statement
of accused must be relevant facts. Such information must be
given by the person who is accused of an offence and the
recovery of article or discovery of fact must be based upon the
information given by such accused.
38. Hon’ble High Court of Delhi in Judgment titled as
Mohammad Burhan Vs. Directorate of Revenue Intelligence,
cited as ‘MANU/DE/3131/2017’ has held that:-
“joining of independent public witness is not mere
FIR No. 88/2012, PS: Darya Ganj
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a formality; it is a vital safeguard to avoid false
implication of individual. In number of cases
either no independent public witnesses are
associated on the pretext that none of them is
available; in some cases only passerbyes are
requested to join the investigation. Non-
examination of independent public witness in the
instant case is serious flaw and adverse inference
is to be drawn against the prosecution for
withholding them.
39. Similarly Hon’ble Supreme Court of India in Judgment
titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh
cited as 2022 SCC online SC 1396 has observed as under:-“52.
Section 27 of the Evidence Act, 1872 reads thus:-
’27 How much of information received from the
accused may be proved-Provided that, when any fact
is deposed to as discovered in consequence of
information, received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession
or not as relates distinctly to the fact thereby
discovered may be proved.
If, it is say of the investigating officer that the
accused appellant while in custody on his own free
will and volition made a statement that he wouldFIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 28 of 38
lead to the place where he had hidden the weapon of
offence along with his blood stained clothes then the
first thing that the investigating officer should have
done was to call for two independent witnesses at the
police station itself. Once the two independent
witnesses arrive at the police station thereafter in
their presence the accused should be asked to make
an appropriate statement as he may desire, in regard
to pointing out the place where he is said to have
hidden the weapon of offence. When the accused
while in custody makes such statement before the
two independent witnesses (panch witnesses) the
exact statement or rather the exact words uttered by
the accused should be incorporated in the first part
of the panchnama that the investigating officer may
draw in accordance with law. This first part of the
panchnama that the investigating officer may draw in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of the
Evidence Act is always drawn at the police station in
the presence of that independent witnesses so as to
lend credence that a particular statement was made
by the accused expressing his willingness on his own
free will and volition to point out the place where the
weapon of offence or any other article used in the
commission of the offence had been hidden. Once theFIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 29 of 38
first part of the panchnama is completed thereafter
the police party along with the accused and the two
particular place anything like the weapon of offence
of blood stained clothes or any other article is
discovered then the part of the entire process expects
the investigating officer then it is clear that the same
is deficient in all the aforesaid relevant aspects of the
matter.”
40. PW-15 IO/Retd. SI Virender Kumar deposed that he made
efforts to join the persons after sharing secret information but
none of them agreed to join the investigation stating their
personal difficulty. However, the version of PW-15 IO/Retd. SI
Virender Kumar seems to be vague as he had not served any
notice to such person under Sec. 160 Cr.PC nor he recorded their
names and addresses. As per the case of the prosecution, accused
Ujeb was running a mobile repair shop at Jama Masjid and one of
the mobile phone of PW-11/complainant Sh. Mayur Jain was
recovered from his shop. IO has not joined any independent
witness including the neighbouring shopkeepers nor he
videographed the proceedings. The IO has also not collected the
CCTV footage from the shop of accused Ujeb or the
neighbouring shops to corroborate his version. Accused persons
have taken defence that they have been falsely implicated in the
present case and the case properties have been planted upon them
and nothing was recovered from their possession. Non-joining of
any independent public person at the time of recovery of knives
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 30 of 38
and mobile phones and the defence taken by accused persons has
put a serious dent on the prosecution story. Applying the law laid
down by the Hon’ble Supreme Court of India in ‘Mohammad
Burhan (Supra)’ and ‘Ramanand @ Nand Lal Bharti (Supra), this
Court is of considered opinion that due to non-joining of
independent public person at the time of recovery of knives and
mobile phones, the recovery of knives and mobile phones
exhibited as Ex. P-1 to Ex. P-4 from possession of accused
persons has not been proved by the prosecution beyond
reasonable doubt.
41. PW-8 Sh. Rajiv Ranjan, Nodal Officer, Tata Teleservices
Ltd. has proved the CAF & CDR of mobile phone no.
9212521083 along with certificate under Sec. 65 of The Indian
Evidence Act, issued in name of Sh. Rakesh Kumar Jain.
Similarly, PW-9 Sh. Ajit Singh, Alternate Nodal Officer,
Vodafone Idea Ltd. has proved the CDR & CAF of mobile phone
no. 9711498892, issued in name of PW-11/complainant Sh.
Mayur Jain. PW-10 Sh. Rajiv Vashisth, Nodal Officer, Bharti
Airtel Ltd. has proved the CAF & CDR of mobile phone no.
9650701314, issued in name of Sh. Sabir Ali. The relevance of
the abovesaid CAF & CDRs is to be seen in connection with the
recovered mobile phones. PW-7 Sh. Sabir Ali deposed that
mobile phone no. 9650701314 was issued in his name and he had
given the same to accused Mohd. Ujeb for use. PW-3 ASI
Amarpal and PW-15 IO/Retd. SI Virender Kumar have proved
the seizure memos of mobile phones recovered from possession
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 31 of 38
of accused Mohd. Sahid and Mohd. Ujeb exhibited as Ex.
PW-3/C & Ex. PW-3/P. On the careful perusal of seizure memos
Ex. PW-3/C & Ex. PW-3/P, it is revealed that both the mobile
phones were recovered without any SIM card. Due to non-
recovery of SIM card from possession of accused Ujeb the
testimony of PW-7 Sh. Sabir Ali that he had given his SIM card
to accused Mohd. Ujeb does not have much evidentiary value.
Similarly, mobile phone no. 9212521083 was issued in name of
one Sh. Rakesh Kumar Jain. Prosecution has not examined Sh.
Rakesh Kumar Jain to prove as to who was using his mobile
phone at the time of incident. In these circumstances, the proving
of CDR & CAF of mobile phones has not strengthened the case
of prosecution against the accused persons.
42. To prove the prosecution case, the testimony of the
prosecution witnesses must be reliable. It is not the quantity but
the quality of the testimony of the witness that helps a court in
arriving at a conclusion in any case. The test in this regard is that
the evidence adduced by the parties must have a ring of truth. In
a criminal trial, the prosecution has to prove the case beyond
reasonable doubt and it is possible only when the testimony of
prosecution witnesses is cogent, trustworthy and credible. To
secure a conviction of accused, the testimony of the prosecution
witness must be of sterling quality.
43. In case titled as ‘Rai Sandeep @ Deepu Vs. State (NCT
of Delhi), (2012) 8 SCC 21′, it is held that:-
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 32 of 38
“22. In our considered opinion, the “sterling
witness” should be of a very high quality and
caliber whose version should, therefore, be
unassailable. The court considering the
version of such witness should be in a
position to accept it for its face value without
any hesitation. To test the quality of such a
witness, the status of the witness would be
immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would
be the consistency of the statement right from
the starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in the
version of such a witness. The witness should
be in a position to withstand the cross-
examination of any length and howsoever
strenuous it may be and under no
circumstances should given room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have corelation with
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each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of very
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of
the offence alleged against him. Only, if the
version of such a witness qualifies the above
test as well as all other such similar tests to
be applied, can it be held that such a witness
can be called as a “sterling witness’ whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 34 of 38
the other supporting materials for holding the
offender guilty of the charge alleged.”
44. Similarly, in case of Ramdas Vs. State of Maharashtra,
(2007) SCC 170, it is held that :
“23. It is no doubt true that the conviction in a
case of rape can be based solely on the testimony
of the prosecutrix, but that can be done in a case
where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstances
with cast of shadow of doubt over her veracity. It
the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of
conviction solely on the basis of her testimony. In
the instant case we do not fine her evidence to be
of such quality.”
45. Thus, from the above said judgments, it is clear that the
version of the witness should be natural one and it must
corroborate the prosecution case. Such version must match with
the testimony of other prosecution witnesses. It should be of such
a quality that there should not be any shadow of doubt upon it.
46. Due to turning of hostile of PW-11/complainant Sh.
Mayur Jain on the identity of accused Mohd. Sahid coupled with
non-joining of any independent eyewitness, serious doubts have
been created upon the prosecution story. The version of
PW-11/complainant Sh. Mayur Jain is not natural one and it
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 35 of 38
castes a shadow of doubt on his veracity. The things appears to
have not happened in the manner these have been projected. In
the light of aforesaid discussion, this court is of the considered
opinion that the testimony of PW-11/complainant Sh. Mayur Jain
is not clear, cogent, credible and trustworthy and same is not
corroborated by other material evidence. The testimony PW-11/
complainant Sh. Mayur Jain in the present case cannot be said to
be of sterling quality to secure the conviction of the accused
persons.
47. It is established principle of law that if two views are
possible, the view favourable to the accused must be accepted.
The benefit of doubt must always go to the accused as the
prosecution has to prove the case beyond reasonable doubt.
48. The Hon’ble Apex court in Rang Bahadur Singh Vs. State
of U.P. reported in AIR 2000 SC 1209 has held as follows:-
“The timetested rule in that acquittal of a
guilty person should be preferred to conviction of
an innocent person. Unless the prosecution
establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed
on the accused. A criminal court cannot afford to
deprive liberty of the appellants, lifelong liberty,
without having at least a reasonable level of
certainty that the appellants were the real
culprits.”
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 36 of 38
49. In yet another decision in State of U.P. Vs. Ram Veer
Singh and Another reported in 2007(6) Supreme 164 the Hon’ble
Apex Court has held as follows:-
“The golden thread which runs through the web
of administration of justice in criminal cases is
that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the
view which is favourable to the accused should
be adopted. The paramount consideration of the
Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may
arise from acquittal of the guilty is no less than
from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is
cast upon the appellate Court to reappreciate
the evidence where the accused has been
acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any
offence or not.”
50. In the present case, due to turning of hostile of PW-11/
complainant Sh. Mayur Jain on identity of accused Mohd. Sahid,
non-joining of any independent witnesses at the time of recovery
of case properties and non-collection of relevant CCTV footage,
serious doubts have been created on the prosecution story and
FIR No. 88/2012, PS: Darya Ganj
State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 37 of 38
two views are possible in this case and hence the benefit of the
same must go to the accused persons.
51. For the reasons stated above, this court is of the considered
opinion that the prosecution has failed to prove the ingredients of
offences punishable under Section 392/397/34 IPC, 392/34 IPC
& Sec. 411 IPC against accused Mohd. Sahid beyond reasonable
doubt. Prosecution has also failed to prove the ingredients of
offence punishable under Sec. 411 IPC against accused Mohd.
Ujeb beyond reasonable doubts.
52. Accordingly in view of the aforesaid discussion, accused
Mohd. Sahid hereby acquitted for offences punishable under
Section 392/397/34 IPC, 392/34 IPC & Sec. 411 IPC. Accused
Mohd. Ujeb is hereby also acquitted for offence punishable under
Sec. 411 IPC.
53. File be consigned to Record Room after due compliance.
Digitally signed by VIRENDER VIRENDER KUMAR KUMAR KHARTA Announced in the open court KHARTA Date: 2025.07.22 on 22nd day of July, 2025 15:30:18 +0530 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:22.07.2025 FIR No. 88/2012, PS: Darya Ganj State Vs. Mohd. Bichalu @ Saleem & Ors. Page No. 38 of 38
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