Delhi District Court
State vs Parveen Kumar on 28 July, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-002979-2015
SC No.28059/2016
FIR No.137/2015
U/s 392/397/411/34 IPC
P. S. Kashmere Gate
STATE VERSUS PARVEEN KUMAR ETC.
(i) SC No. of the case : 28059/2016
(ii) Date of commission of offence : 23.03.2015
(iii) Name, parentage and address : 1. Parveen Kumar
of accused S/o Suraj Pal
R/o J-1141, J-Block
Jahangirpuri, Delhi
2. Chand Mohd.
S/o Mohd. Akbar
R/o J-1303, J-Block,
Jahangirpuri, Delhi
3. Sachin Kumar
(abated vide order
dated 02.05.2025)
S/o Late Sh. Ajit
Kumar
R/o H. No.I-710,
Jahangirpuri, Delhi.
(iv) Offences complained of : 392/397/411/34 IPC
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(v) Plea of the accused : Pleaded not Guilty
(vi) Final order : Acquittal
(vii) Date of such order : 28.07.2025
Date of Institution : 23.07.2015
Date of Judgment reserved on : 05.07.2025
Date of Judgment : 28.07.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Anil Kumar dated 23.03.2015 which is Ex.PW2/A. It is
submitted by the complainant in his complaint that he is
working as cleaning employee at Aruna Asif Ali Hospital. On
23.03.2015 he alongwith his wife Ms. Bharkha were coming on
motorcycle No.DL 7SBL 3280. He was going on his duty.
Around 6:45 AM when he reached Yamuna Bridge on his
motorcycle then at that time another motorcycle rider came
from right side, overtook his motorcycle and obstructed
motorcycle of the complainant by obliquely putting his
motorcycle before the motorcycle of complainant. The pillion
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rider of the said overtaking motorcycle got down and came to
the complainant and removed keys of the motorcycle of the
complainant. At that time another person came from behind
who placed pistol like object on the side of the complainant and
gave threat to kill. At that time the pillion rider who had
removed the keys of the motorcycle of the complainant under
threat removed two gold rings from the right hand fingers of the
complainant which were measuring 15 grams each. The person
who came from behind had removed the purse from the
backside pocket of the complainant. The purse was black in
colour containing Voter ID Card, 1 passport photo and some
visiting cards. It also contains 150/- – 200/- rupees. After that
the said accused person ran away on 2 motorcycle. One
motorcycle was of make Yamha FZ and both the motorcycle
did not have number plate on them. One accused was aged
about 25 to 30 years. The complainant called at 100 number.
2. FIR Ex.PW1/A was registered in the matter under
Section 392/397/34 IPC. The site plan Ex.PW5/B was prepared
at the instance of the complainant. On 11.04.2015 DD No.8A
was received from Ct. Pawan from Kalkatia Gate Picket with
the information that one motorcycle without number plate
having 3 passengers was stopped. IO alongwith Ct. Kishan Lal
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had reached at that spot at Lothiyan Road where accused No.1
Parveen, accused No.3 Sachin and accused No.2 Chand Mohd.
were found with one motorcycle No. DL 9SAB 1699 make
Yamaha FZ. The said Yamaha FZ motorcycle was wanted in
FIR No.263/2015 under Section 379 IPC of PS Maurya Enclave
Delhi. Disclosure statement was given by accused No.1
Parveen from whose possession at his house from the almirah
one purse was recovered. Search was made for co-accused
Sonu who could not be found. Another motorcycle No. DL
8SBQ 6353 was also recovered at the instance of accused No.1
Parveen from Nigam Bodh Ghat parking which was wanted
being stolen from PS Sunlight Colony. Initially accused No.2
and 3 were sent before the Hon’ble Juvenile Justice Board.
However both the accused were later on found major and sent
for trial. From accused No.2 Chand Mohd. a motorcycle DL
55Q 5514 was recovered from Kudsia Ghat which was stolen in
FIR No.158/2015 of PS Kashmere Gate. Accused No.3 Sachin
got recovered motorcycle No. DL 8SAN 6672 which was
stolen from the jurisdiction of PS Mahender Park. After
completion of investigation chargesheet was filed. Accused
were summoned.
3. On 09.03.2017 charge was framed against the accused
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Parveen Kumar, Chand Mohd. and Sachin under Section
392/34, 397, 411 IPC to which all accused had pleaded not
guilty and claimed trial. Prosecution had examined PW-1 to
PW-10 as total number of prosecution witness in the present
case.
4. Statement of accused No.1 Parveen Kumar and accused
No.3 Sachin was recorded under Section 313 Cr. P. C. on
26.03.2025. Statement of accused No.2 Chand Mohd. was
recorded on 28.04.2025. Accused No.1 Parveen Kumar and
accused No.2 Chand Mohd. had preferred not to lead evidence
in defence. Accused No.3 Sachin had preferred to lead
evidence in defence. However during course of trial accused
No.3 Sachin had expired and on the report of SHO PS
Kashmere Gate the case against accused Sachin stands abated
vide order dated 02.05.2025. Hence the matter was listed for
final arguments. The statement of accused No.1 Parveen was
recorded dated 11.04.2023 vide which he had admitted TIP
proceedings Ex.A-1 conducted by the then learned MM on
15.04.2015. He had given the statement that he shall not claim
any prejudice on account of non-examination of witness of the
TIP proceedings.
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5. Final arguments are heard on behalf of both the parties
and record perused.
6. The necessary ingredients are detailed in citation titled as
State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes
228 (Bom). Section 395 IPC provides punishment for dacoity. It
was held in case titled State of Maharashtra v. Joseph Mingel
Koli (1997) 2 Crimes 228 (Bom) that when robbery is either
committed or an attempt to commit it is made by five or more
person than all such persons, who are present or aiding in its
commission or in an attempt to commit it, would commit the
offence of dacoity. The said definition is laid down u/Sec. 391
IPC. It is laid down in case titled Ganesan v. State represented
by Station House Officer in Crl. Appeal no. 903/2021 from
Hon’ble Supreme Court of India dated 29.10.2021 at para no.
12.3 that as per Section 397 IPC if at the time of committing
robbery or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person or 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. It
was further held at para no. 12.4 that the only difference
between robbery and dacoity would be number of persons
involved in co-jointly committing or attempt to commit a
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robbery. It was further held that the word used u/Sec. 390, 392
to 395, 397 and 398 of IPC is ‘offender’. Section 394 IPC is
voluntarily committing robbery/ Section 392 IPC and in
addition hurt is also caused voluntarily. It was further held that
for the aforesaid act the accused cannot be convicted on the
basis of constructive liability and only the ‘offender’ who ‘uses
any deadly weapon’ can be punished. However u/Sec. 391 IPC
‘dacoity’ and Section 396 IPC which is dacoity and murder then
the accused can be convicted on the basis of constructive
liability. The necessary ingredients were laid down at para no.
12.6 of the above judgment titled Ganesan v. State (supra) and
the relevant para are reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant
provisions with respect to ‘robbery’ and ‘dacoity’ are required to
be referred to. The relevant provisions would be Section 390 IPC
to Section 398 IPC which read as under:
“390. Robbery.–In all robbery there is either theft or
extortion. When theft is robbery.–Theft is “robbery” if, in
order to the committing of the theft, or in committing the theft,
or in carrying away or attempting to carry away property
obtained by the theft, the offender, for that end voluntarily
causes or attempts to cause to any person death or hurt or
wrongful restraint, or fear of instant death or of instant hurt, or
of instant wrongful restraint. When extortion is robbery.–
Extortion is “robbery” if the offender, at the time of
committing the extortion, is in the presence of the person put in
fear, and commits the extortion by putting that person in fear of
instant death, of instant hurt, or of instant wrongful restraint to
that person or to some other person, and, by so putting in
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fear,induces the person so put in fear then and there to deliver
up the thing extorted. Explanation.–The offender is said to be
present if he is sufficiently near to put the other person in fear
of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.–When five or more persons conjointly commit or
attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a
robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117
and the Sch., for “transportation for life” (w.e.f. 1-1-1956). 99
and aiding such commission or attempt, amount to five or
more, every person so committing, attempting or aiding, is said
to commit “dacoity”.
392. Punishment for robbery.–Whoever commits robbery shall be
punished with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine; and, if the
robbery be committed on the highway between sunset and
sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.–Whoever attempts to commit
robbery shall be punished with rigorous imprisonment for a
term which may extend to seven years, and shall also be liable
to fine.
394. Voluntarily causing hurt in committing robbery.–If any
person, in committing or in attempting to commit robbery,
voluntarily causes hurt, such person, and any other person
jointly concerned in committing or attempting to commit such
robbery, shall be punished with 1 [imprisonment for life], or
with rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.
395. Punishment for dacoity.–Whoever commits dacoity shall be
punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
396. Dacoity with murder.–If any one of five or more persons,
who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be
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punished with death, or 1 [imprisonment for life], or rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
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, or 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.
398. Attempt to commit robbery or dacoity when armed with
deadly weapon.–If, at the time of attempting to commit
robbery or dacoity, the offender is armed with any deadly
weapon, the imprisonment with which such offender shall be
punished shall not be less than seven years.”
12.3 As per Section 390 IPC, for ‘robbery’ there is either theft or
extortion. When in the committing of the theft, or in committing
the theft, or in carrying away or attempting to carry away property
obtained by the theft, the offender, voluntarily causes or attempts
to cause to any person death or hurt or wrongful restraint or fear of
instant death or of instant hurt, or of instant wrongful restraint the
theft can be said to be ‘robbery’. In similar situation the ‘extortion’
can be said to have committed ‘robbery’. As per explanation to
Section 390 IPC the offender is said to be present if he is
sufficiently near to put the other person in fear of instant death, of
instant hurt, or of instant wrongful restraint.
Section 391 IPC defines ‘dacoity’. When five or more persons
conjointly commit or attempt to commit a robbery, the accused
then can be said to have committed the ‘dacoity’.
As per Section 392 IPC 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. However, if the robbery
is committed on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years. As per Section
393 IPC even an attempt to commit robbery is punishable with
rigorous imprisonment for a term which may extend to seven
years with fine. As per Section 394 IPC if any person, in
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committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly concerned in
committing or attempting to commit such robbery, shall be
punished with imprisonment for life or with rigorous imprisonment
for a term which may extend to ten years and shall also be liable to
fine.
Section 395 IPC provides for punishment for ‘dacoity’. Whoever
commits dacoity shall be punished with imprisonment for life or
with rigorous imprisonment for a term which may extend to ten
years and shall also be liable to fine. In case of dacoity with
murder if any one of five or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity,
every one of those persons shall be punished with death, or
imprisonment for life, or rigorous imprisonment for a term which
may extend to ten years with fine.
As per Section 397 IPC if at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous
hurt to any person, or 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. Similarly, if, at the
time of committing robbery or dacoity the offender is armed with
any deadly weapon, the imprisonment with which such offender
shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission
of ‘robbery’ is sine qua non. The ‘dacoity’ can be said to be an
exaggerated version of robbery. If five or more persons conjointly
commit or attempt to commit robbery it can be said to be
committing the ‘dacoity’. Therefore, the only difference between
the ‘robbery’ and the ‘dacoity’ would be the number of persons
involved in conjointly committing or attempt to commit a
‘robbery’. The punishment for ‘dacoity’ and ‘robbery’ would be
the same except that in the case of ‘dacoity’ the punishment can be
with imprisonment for life. However, in the case of ‘dacoity with
murder’ the punishment can be with death also. However, in a case
where the offender uses any deadly weapon or causes grievous hurt
to any person, or 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. Learned Counsel
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appearing on behalf of the appellants have rightly submitted that to
bring the case within Section 397 IPC, the offender who uses any
deadly weapon, or causes grievous hurt to any person shall be
liable for minimum punishment under Section 397 IPC. Section
392 and Section 390 IPC are couched in different words. In
Sections 390, 394, 397 and 398 IPC the word used is ‘offender’.
Therefore, for the purpose of Sections 390, 391, 392, 393, 394,
395, 396, 397, 398 IPC only the offender/person who committed
robbery and/or voluntarily causes hurt or attempt to commit such
robbery and who uses any deadly weapon or causes grievous hurt
to any person, or commits to cause death or grievous death any
person at the time of committing robbery or dacoity can be
punished for the offences under Sections 390, 392, 393, 394, 395
and 397 and 398 IPC. For the aforesaid the accused cannot be
convicted on the basis of constructive liability and only the
‘offender’ who ‘uses any deadly weapon….’ can be punished.
However, so far as Section 391 IPC ‘dacoity’ and Section 396 IPC
– ‘dacoity with murder’ is concerned an accused can be convicted
on the basis of constructive liability, however the only requirement
would be the involvement of five or more persons conjointly
committing or attempting to commit a robbery – dacoity/dacoity
with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar
(Supra) is required to be referred to. In the aforesaid decision this
Court has observed and considered Sections 397 and 398 IPC and
on interpretation of the aforesaid provisions, it is observed and held
in paragraphs 5 to 7 as under:
“5. Section 392 of the Penal Code provides: “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.” The
sentence of imprisonment to be awarded under Section 392 cannot
be less than seven years if at the time of committing robbery the
offender uses any deadly weapon or causes grievous hurt to any
person or attempts to cause death or grievous hurt to any person:
vide Section 397. A difficulty arose in several High Courts as to
the meaning of the word “uses” in Section 397. The term
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“offender” in that section, as rightly held by several High Courts, is
confined to the offender who uses any deadly weapon. The use of a
deadly weapon by one offender at the time of committing robbery
cannot attract Section 397 for the imposition of the minimum
punishment on another offender who had not used any deadly
weapon. In that view of the matter use of the gun by one of the
culprits whether he was accused Ram Kumar or somebody else,
(surely one was there who had fired three shots) could not be and
has not been the basis of sentencing the appellant with the aid of
Section 397. So far as he is concerned he is said to be armed with a
knife which is also a deadly weapon. To be more precise from the
evidence of PW 16 “Phool Kumar had a knife in his hand”. He was
therefore carrying a deadly weapon open to the view of the victims
sufficient to frighten or terrorize them. Any other overt act, such
as, brandishing of the knife or causing of grievous hurt with it was
not necessary to bring the offender within the ambit of Section 397
of the Penal Code.
6. Section 398 uses the expression “armed with any deadly
weapon” and the minimum punishment provided therein is also
seven years if at the time of attempting to commit robbery the
offender is armed with any deadly weapon. This has created an
anomaly. It is unreasonable to think that if the offender who merely
attempted to commit robbery but did not succeed in committing it
attracts the minimum punishment of seven years under Section 398
if he is merely armed with any deadly weapon, while an offender
so armed will not incur the liability of the minimum punishment
under Section 397 if he succeeded in committing the robbery. But
then, what was the purport behind the use of the different words
by the Legislature in the two sections viz. “uses” in Section 397
and “is armed” in Section 398. In our judgment the anomaly is
resolved if the two terms are given the identical meaning. There
seems to be a reasonable explanation for the use of the two
different expressions in the sections. When the offence of robbery
is committed by an offender being armed with a deadly weapon
which was within the vision of the victim so as to be capable of
creating a terror in his mind, the offender must be deemed to have
used that deadly weapon in the commission of the robbery. On the
other hand, if an offender was armed with a deadly weapon at the
time of attempting to commit a robbery, then the weapon was not
put to any fruitful use because it would have been of use only when
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the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the
commission of the robbery such as in causing grievous hurt, death
or the like then it is clearly used. In the cases of Chandra Nath v.
Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR
1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522]
some overt act such as brandishing the weapon against another
person in order to overawe him or displaying the deadly weapon to
frighten his victim have been held to attract the provisions of
Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the
Bombay High Court have said in the case of Govind Dipaji More
v. State [AIR 1956 Bom 353] that if the knife was used for the
purpose of producing such an impression upon the mind of a
person that he would be compelled to part with his property, that
would amount to ‘using’ the weapon within the meaning of Section
397. In that case also the evidence against the appellant was that he
carried a knife in his hand when he went to the shop of the victim.
In our opinion this is the correct view of the law and the restricted
meaning given to the word “uses” in the case of Chand Singh [ILR
(1970) 2 Punj and Har 108] is not correct.”
12.6. The aforesaid view has been subsequently reiterated by this
Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to
21 it is observed and held as under:
“19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. “Offender” refers to only culprit who actually used deadly
weapon. When only one has used the deadly weapon, others cannot
be awarded the minimum punishment. It only envisages the
individual liability and not any constructive liability. Section 397
IPC is attracted only against the particular accused who uses the
deadly weapon or does any of the acts mentioned in the provision.
But the other accused are not vicariously liable under that section
for acts of the co-accused.
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20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975)
1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term
“offender” under Section 397 IPC is confined to the offender who
uses any deadly weapon. Use of deadly weapon by one offender at
the time of committing robbery cannot attract Section 397 IPC for
the imposition of minimum punishment on another offender who
had not used any deadly weapon. There is distinction between
“uses” as used in Sections 397 IPC and 398 IPC. Section 397 IPC
connotes something more than merely being armed with deadly
weapon.
21. In the instant case admittedly no injury has been inflicted. The
use of weapon by offender for creating terror in mind of victim is
sufficient. It need not be further shown to have been actually used
for cutting, stabbing or shooting, as the case may be. [See Ashfaq
v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC
(Cri) 687 : AIR 2004 SC 1253].”
7. The first ingredient the prosecution has to prove that the
accused has committed robbery. Robbery is only an aggravated
form of the offence of theft or extortion in the use of violation of
death, hurt or restraint in the same process. Even the attempt to
commit such violence is punishable as robbery. The robbery is
defined u/Sec. 390 IPC and essential ingredients of which were laid
down in citation titled Venu @ Venugopal & Ors. v. State of
Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
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(c) In carrying away or in the attempt to carry away property
obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The
essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property
obtained by theft.
9. It is to be noted that the Section 392 provides punishment for
robbery. It is punishment for the offence defined in Section 390.
Punishment is higher if it is committed on a highway and between
sunset and sunrise.
Section 390 which defines “robbery” reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is “robbery” if, in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by theft, the
offender, for the end, voluntarily causes or attempts to cause to any
person death or hurt wrongful restraint, or fear of instant death or
of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is “robbery” if the offender at
the time of committing the extortion, is in the presence of the
person put in fear, and commits the extortion by putting that person
in fear of instant death, of instant hurt, or of instant wrongful
restraint to that person or to some other person, and, by so putting
in fear, induces the person so put in fear then, and there to deliver
up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently
near put the other person in fear of instant death, of instant hurt, or
of instant wrongful restraint.”
10. The provision defines robbery which is theft or extortion when
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caused with violence of death, hurt or wrongful restraint. When
there is no theft committed, then as a natural corollary there cannot
be robbery. Robbery is only an aggravated form of offence of theft
or extortion. Aggravation is in the use of violence of death, hurt or
restraint. Violence must be in course of theft and not subsequently.
It is not necessary that violence actually should be committed but
even attempt to commit it is enough.
11. The authors of the Code observed as follows:
“In one single class of cases, theft and extortion are in practice
confounded together so inextricably, that no judge, however,
sagacious, could discriminate between them. This class of cases,
therefore, has, in all systems of jurisprudence … been treated as a
perfectly distinct class … we have, therefore, made robbery a
separate crime.
There can be no case of robbery which does not fall within the
definition either of theft or of extortion; but in a practice it will
perpetually be a matter of doubt whether a particular act of robbery
was a theft or an extortion. A large proportion of robberies will be
half theft, half extortion. A seizes Z, threatens to murder him,
unless he delivers all his property, and begins to pull off Z’s
ornaments. Z in terror begs that A will take all he has, and spare his
life, assists in taking off his ornaments, and delivers them to A.
Here, such ornaments as A took without Z’s consent are taken by
theft. Those which Z delivered up from fear of death are acquired
by extortion. It is by no means improbable that Z’s right arm
bracelet may have been obtained by theft, and left-arm bracelet by
extortion; that the rupees in Z’s girdle may have been obtained by
theft, and those in his turban by extortion. Probably in nine-tenths
of the robberies which are committed, something like this actually
takes place, and it is probable that a few minutes later neither the
robber nor the person robbed would be able to recollect in what
proportions theft and extortion were mixed in the crime; nor is it at
all necessary for the ends of justice that this should be ascertained.
For though, in general, the consent of a sufferer is a circumstance
which very materially modifies the character of the offence, and
which ought, therefore, to be made known to the Courts, yet the
consent which a person gives to the taking of this property by a
ruffian who holds a pistol to his breast is a circumstance altogether
immaterial”.
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12. The words “for that end” in Section 390 clearly mean that the
hurt caused must be with the object of facilitating the committing
of the theft or must be caused while the offender is committing
theft or is carrying away or is attempting to carry away property
obtained by the theft.
13. As the provision itself provides when the highway robbery is
committed, deterrent punishment is called for.
Xxxxxxxxxx
8. The first ingredient the prosecution has to prove under
Section 392 IPC is that the accused had attempted to commit
theft. The accused No.1 Parveen had made disclosure and
thereby he was taken to his home for the purpose of search on
the basis of disclosure made by him. Accused Parveen got
recovered one purse from the Almirah of his home. The
disclosure statement of accused Parveen is Mark-P9/E. In the
disclosure statement accused Parveen Kumar had allegedly
stated that he can get recovered the robbed articles which are
the golden rings and he can get arrested his 4 th accomplice. The
disclosure statement is not recorded exactly in the words of the
accused Parveen Kumar and therefore it cannot be said that
whether the accused had meant to say what is actually recorded
by the IO in the disclosure statement. Other than this the
disclosure statement does not mention the specific place from
which the accused can get recovered the articles which were
robbed. Hence in the absence of it there is no such material
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disclosure on record on the basis of which any recovery under
Section 27 of Indian Evidence Act 1872 was effected from
accused Parveen. Hon’ble Supreme Court of India in case titled
Ramanand @ Nand Lal Bharti vs. State of Uttar Pradesh 2022
SCC OnLine SC 1396 (Coram:3) has laid down the law at para
No.51 to 76 that how recovery under Section 27 of Indian
Evidence Act 1872 has to be proved. It was laid down that the
disclosure must be out of free will and volition. At that time
when the disclosure statement was made the first thing the IO
has to do was to call 2 independent witness at the police station
itself. Thereafter in the presence of those independent witness
the accused should be asked to make an appropriate statement.
The said 2 independent witness will be Panch witness. The
exact words uttered by the accused should be incorporated in
the 1st part of Panchnama. In the present case neither the
Panchanama was recorded at the police station nor the exact
words uttered by the accused Parveen were recorded. The
independent witness are also not joined in the present case.
Hence prosecution has failed to prove that the alleged
disclosure was made out of free will of the accused Parveen nor
what was the exact disclosure is proved on record. Only after
completion of the 1st part the police has to proceed for recovery
of articles of offence which would form the 2 nd part of the
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Panchnama. Similarly IO is expected to depose in evidence the
exact words uttered by the accused at the police station to prove
the contents of discovery Panchnama. The authorship of
concealment has to be proved. The relevant para No.51 to 76
are reproduced hereasunder:
51. It is the case of the prosecution that on 24.01.2010 the accused
appellant was picked up by the investigating officer from nearby a
bus stand and was arrested in connection with the alleged crime.
After the arrest of the accused appellant and while he being in the
custody at the police station, he is said to have on his own free
will and volition made a statement that he would like to point out
the place where he had hidden the weapon of offence (Banka) and
his bloodstained clothes after the commission of the alleged
crime. According to him, after such statement was made by the
accused appellant, he along with his subordinates set forth for the
place as led by the accused. There is something very unusual, that
we have noticed in the oral evidence of the investigating officer.
According to him while the police party along with the accused
were on their way, all of a sudden, the investigating officer
realized that he should have two independent witnesses with him
for the purpose of drawing the panchnama of discovery. In such
circumstances, while on the way the investigating officer picked
up PW2, Chhatarpal Raidas and Pratap to act as the panch
witnesses. According to the investigating officer the accused led
them to a coriander field and from a bush he took out the weapon
of offence (Banka) and the bloodstained clothes. The weapon of
offence and the bloodstained clothes were collected in the
presence of the two panch witnesses and the panchnama Exh. 5
was accordingly drawn. The weapon of offence and the blood
stained clothes thereafter were sent for the Serological Test to the
Forensic Science laboratory. We are of the view that the Courts
below committed a serious error in relying upon this piece of
evidence of discovery of a fact, i.e., the weapon & clothes at the
instance of the accused as one of the incriminating circumstances
in the chain of other circumstances. We shall explain here below
why we are saying so.
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In the aforesaid
52. Section 27 of the Evidence Act, 1872 reads thus:
“27. How much of information received from 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.”
53. 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 would 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 for the purpose of Section 27 of the
Evidence Act is always drawn at the police station in the presence
of the 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 the first part of
the panchnama is completed thereafter the police party along with
the accused and the two independent witnesses (panch witnesses)
would proceed to the particular place as may be led by the
accused. If from that particular place anything like the weapon of
offence or blood stained clothes or any other article is discovered
then that part of the entire process would form the second part of
the panchnama. This is how the law expects the investigating
officer to draw the discovery panchnama as contemplated
under Section 27 of the Evidence Act. If we read the entire oral
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evidence of the investigating officer then it is clear that the same
is deficient in all the aforesaid relevant aspects of the matter.
54. The reason why we are not ready or rather reluctant to accept
the evidence of discovery is that the investigating officer in his
oral evidence has not said about the exact words uttered by the
accused at the police station. The second reason to discard the
evidence of discovery is that the investigating officer has failed to
prove the contents of the discovery panchnama. The third reason
to discard the evidence is that even if the entire oral evidence of
the investigating officer is accepted as it is, what is lacking is the
authorship of concealment. The fourth reason to discard the
evidence of the discovery is that although one of the panch
witnesses PW2, Chhatarpal Raidas was examined by the
prosecution in the course of the trial, yet has not said a word that
he had also acted as a panch witness for the purpose of discovery
of the weapon of offence and the blood stained clothes. The
second panch witness namely Pratap though available was not
examined by the prosecution for some reason. Therefore, we are
now left with the evidence of the investigating officer so far as the
discovery of the weapon of offence and the blood stained clothes
as one of the incriminating pieces of circumstances is concerned.
We are conscious of the position of law that even if the
independent witnesses to the discovery panchnama are not
examined or if no witness was present at the time of discovery or
if no person had agreed to affix his signature on the document, it
is difficult to lay down, as a proposition of law, that the document
so prepared by the police officer must be treated as tainted and the
discovery evidence unreliable. In such circumstances, the Court
has to consider the evidence of the investigating officer who
deposed to the fact of discovery based on the statement elicited
from the accused on its own worth.
55. Applying the aforesaid principle of law, we find the evidence
of the investigating officer not only unreliable but we can go to
the extent to saying that the same does not constitute legal
evidence.
56. The requirement of law that needs to be fulfilled before
accepting the evidence of discovery is that by proving the contents
of the panchnama. The investigating officer in his deposition is
obliged in law to prove the contents of the panchnama and it is
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only if the investigating officer has successfully proved the
contents of the discovery panchnama in accordance with law,
then in that case the prosecution may be justified in relying upon
such evidence and the trial court may also accept the evidence. In
the present case, what we have noticed from the oral evidence of
the investigating officer, PW7, Yogendra Singh is that he has not
proved the contents of the discovery panchnama and all that he
has deposed is that as the accused expressed his willingness to
point out the weapon of offence the same was discovered under a
panchnama. We have minutely gone through this part of the
evidence of the investigating officer and are convinced that by no
stretch of imagination it could be said that the investigating officer
has proved the contents of the discovery panchnama (Exh.5).
There is a reason why we are laying emphasis on proving the
contents of the panchnama at the end of the investigating officer,
more particularly when the independent panch witnesses though
examined yet have not said a word about such discovery or turned
hostile and have not supported the prosecution. In order to enable
the Court to safely rely upon the evidence of the investigating
officer, it is necessary that the exact words attributed to an
accused, as statement made by him, be brought on record and, for
this purpose the investigating officer is obliged to depose in his
evidence the exact statement and not by merely saying that a
discovery panchnama of weapon of offence was drawn as the
accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery
panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant
portion as under:
“Today on 24.1.2010, the arrested accused Ramanand alias
Nandlal Bharti son of Late Shri Gobre, resident of Naamdar
Purwa, Hamlet Amethi, original resident of village Basadhiya,
Police Station Isanagar, District Lakhimpur Kheri has been taken
out of the lockup, taken in confidence and then interrogated by
me the Station House Officer Yogendra Singh before Hamrah
S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374
Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar
Singh, Co. 394 Shrawan Kumar then he confessed the offence
occurred in the incident and weepingly said in apologizing manner
that, “I myself have committed this crime to get government grant
for being a rich man and to marry Km. Manju D/o Kanhai,
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resident of Pakadiya, Police Station Tambaur, District Sitapur
regarding whereof the detailed statement has been recorded by
you. The baanka used in the incident and the pant shirt, on which
blood spilled from the bodies of deceased persons got stained and
which had been put off by me due to fear, have been kept hidden
at a secret place by me which I can get recovered by going there.”
In expectation of recovery of murder weapon and bloodstained
clothes, I the Station House Officer Yogendra Singh alongwith
aforesaid Hamrahis departed carrying accused Ramanand alias
Nandlal Bharti by official jeep UP70AG0326 alongwith driver
Raj Kishor Dixit for the destination pointed out by the accused,
vide Rapat No. 7 time 07.15…” [Emphasis supplied]
58. We shall now look into the oral evidence of the PW7,
Investigating Officer wherein, in his examination in chief, he has
deposed as under:
“In January 2010 I was posted as Station House Officer, Kotwali
Dhaurahara. On 22.1.10, I myself had taken the investigation of
aforesaid case. On that day I had copied chik, rapat and recorded
the statements of chik writer H. Constable Dhaniram Verma and
complainant of the case. After recording the statement of
complainant of the case Shambhu Raidas I inspected the
occurrence spot on his pointing out and prepared the site plan
which is present on record; on which Exhibit Ka6 has been
marked. And I had also recorded the statement of hearsay
witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I
recorded the statements of witnesses Kshatrapal, Rustam Raidas.
On 24.1.10, I arrested accused Ramanand and recorded his
statement and when he expressed that he may get recovered the
murder weapon used in the incident, I recovered the murder
weapon baanka before the witnesses on his pointing out; which
had been sealedstamped at the spot and its recovery memo had
been prepared at the spot itself, which is present on record as
Exhibit Ka5….” [Emphasis supplied]
59. We shall also look into the oral evidence of the PW6, Uma
Shankar Mishra who at the relevant point of time was serving as a
SubInspector Chowki Incharge Bahjam, Police Station. It appears
that the PW6 had also participated in the proceedings of discovery
panchnama. He has deposed in his examination in chief as under:
“On 24.11.2010, I was posted at Police Station Dhaurahara. That
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day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station
Dhaurahara, domicile of village Basadhiya, Police Station Isha
Ganj, District Kheri, the arrested accused of Crime No. 49/10 U/S
302 State versus Ramanand alias Nandlal Bharti, was taken out of
male lock up by the then Incharge Inspector and followers S.I.
Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh
Kumar Singh and Co. Shravan Kumar, and interrogated by the
Incharge Inspector in my presence, during which he confessed and
told that he would get recovered the murder weapon used in the
murder and his blood stained pantshirt which he had kept hidden
at a secret place. On this, expecting the recovery of murder
weapon and blood stained clothes, the SHO along with followers
and force, carrying accused Ramanand with him, departed on an
official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On
the way, he picked up public witnesses Chhatrapal S/o
Rameshwar and Pratap S/o Asharfi Lal, both residents of
Naamdar Purwa, Hamlet Amethi for the purpose of recovery.”
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original
panchnama (Exh.5), the statement said to have been made by the
accused appellant figures, however, in the oral evidence of the
PW7, investigating officer & PW6, Sub Inspector the exact
statement has not been deposed, more particularly when it comes
to the authorship of concealment. The contents of the panchnama
cannot be read into evidence as those do not constitute substantive
evidence.
61. Further, the examination in chief of the PW6, Sub Inspector
and PW7, investigating officer does not indicate that they were
read over the panchnama (Exh.5) before it was exhibited, since
one of the panch witnesses was not examined and the second
panch witness though examined yet has not said a word about the
proceedings of the discovery panchnama. Everything thereafter
fell upon the oral evidence of the investigating officer and the
Sub Inspector (PW6).
62. In the aforesaid context, we may refer to and rely upon the
decision of this Court in the case of Murli v. State of
Rajasthan reported in (2009) 9 SCC 417, held as under:
“34. The contents of the panchnama are not the substantive
evidence. The law is settled on that issue. What is substantive
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evidence is what has been stated by the panchas or the person
concerned in the witness box…….” [Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard
to the authorship of concealment by the person who is said to have
discovered the weapon.
64. The conditions necessary for the applicability of Section 27 of
the Act are broadly as under:
(1) Discovery of fact in consequence of an information received
from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctly to the fact thereby
discovered is admissible – Mohmed Inayatullah v. The State of
Maharashtra: AIR (1976) SC 483
65. Two conditions for application –
(1) information must be such as has caused discovery of the fact;
and
(2) information must relate distinctly to the fact discovered –
Earabhadrappa v. State of Karnataka: AIR (1983) SC 446″
66. We may refer to and rely upon a Constitution Bench decision
of this Court in the case of State of Uttar Pradesh v. Deoman
Upadhyaya reported in AIR (1960) SC 1125, wherein, Paragraph-
71 explains the position of law as regards the Section 27 of the
Evidence Act:
“71. The law has thus made a classification of accused persons
into two: (1) those who have the danger brought home to them by
detention on a charge; and (2) those who are yet free. In the
former category are also those persons who surrender to the
custody by words or action. The protection given to these two
classes is different. In the case of persons belonging to the first
category the law has ruled that their statements are not admissible,
and in the case of the second category, only that portion, of the
statement is admissible as is guaranteed by the discovery of a
relevant fact unknown before the statement to the investigating
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authority. That statement may even be confessional in nature, as
when the person in custody says: “I pushed him down such and
such mineshaft”, and the body of the victim is found as a result,
and it can be proved that his death was due to injuries received by
a fall down the mineshaft.” [Emphasis supplied]
67. The scope and ambit of Section 27 of the Evidence Act were
illuminatingly stated in Pulukuri Kottaya and Others v. Emperor,
AIR 1947 PC 67, which have become locus classicus, in the
following words:
“10. ….It is fallacious to treat the “fact discovered” within the
section as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given
must relate distinctly to this fact. Information as to past user, or
the past history, of the object produced is not related to its
discovery in the setting in which it is discovered. Information
supplied by a person in custody that “I will produce a knife
concealed in the roof of my house” does not lead to the discovery
of a knife; knives were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the house of the
informant to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the fact discovered is
very relevant. But if to the statement the words be added “with
which I stabbed A” these words are inadmissible since they do not
relate to the discovery of the knife in the house of the informant.”
68. What emerges from the evidence in the form of panchnama is
that the appellant stated before the panch witnesses to the effect
that “I will show you the weapon used in the commission of
offence”. This is the exact statement which we could read from
the discovery panchnama and the Investigating Officer also could
not have deposed as regards the exact statement other than what
has been recorded in the panchnama. This statement does not
suggest that the appellant indicated anything about his
involvement in concealment of the weapon. Mere discovery
cannot be interpreted as sufficient to infer authorship of
concealment by the person who discovered the weapon. He could
have derived knowledge of the existence of that weapon at the
place through some other source. He may have even seen
somebody concealing the weapon, and, therefore, it cannot be
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presumed or inferred that because a person discovered weapon, he
was the person who concealed it, least it can be presumed that he
used it. Therefore, even if discovery by the appellant is accepted,
what emerges from the panchnama of the discovery of weapon
and the evidence in this regard is that he disclosed that he would
show the weapon used in the commission of offence. In the same
manner we have also perused the panchnama Exh.32 wherein the
statement said to have been made by the accused before the
panchas in exact words is “the accused resident of Roghada
village on his own free will informs to take out cash and other
valuables”.
69. What emerges from the evidence of the investigating officer is
that the accused appellant stated before him while he was in
custody, “I may get discovered the murder weapon used in the
incident”. This statement does not indicate or suggest that the
accused appellant indicated anything about his involvement in the
concealment of the weapon. It is a vague statement. Mere
discovery cannot be interpreted as sufficient to infer authorship of
concealment by the person who discovered the weapon. He could
have derived knowledge of the existence of that weapon at the
place through some other source also. He might have even seen
somebody concealing the weapon, and, therefore, it cannot be
presumed or inferred that because a person discovered the
weapon, he was the person who had concealed it, least it can be
presumed that he used it. Therefore, even if discovery by the
appellant is accepted, what emerges from the substantive evidence
as regards the discovery of weapon is that the appellant disclosed
that he would show the weapon used in the commission of
offence.
70. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911,
this Court observed that the evidence of discovery of pistol at the
instance of the appellant cannot, by itself, prove that he who
pointed out the weapon wielded it in the offence. The statement
accompanying the discovery was found to be vague to identify the
authorship of concealment and it was held that pointing out of the
weapon may, at the best, prove the appellant’s knowledge as to
where the weapon was kept.
71. Thus, in the absence of exact words, attributed to an accused
person, as statement made by him being deposed by the
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investigating officer in his evidence, and also without proving the
contents of the panchnama (Exh.5), the trial court as well as the
High Court was not justified in placing reliance upon the
circumstance of discovery of weapon.
72. If it is the case of the prosecution that the PW2, Chhatarpal
Raidas, s/o Rameshwar Raidas had acted as one of the panch
witnesses to the drawing of the discovery panchnama, then why
the PW2, Chhatarpal Raidas in his oral evidence has not said a
word about he having acted as a panch witness and the discovery
of the weapon of the offence and blood stained clothes being
made in his presence. The fact that he is absolutely silent in his
oral evidence on the aforesaid itself casts a doubt on the very
credibility of the two police witnesses i.e. PW6 and PW7
respectively.
73. In the aforesaid context, we may also refer to a decision of this
Court in the case of Bodhraj alias Bodha and Others v. State of
Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
“18. …..It would appear that under Section 27 as it stands in
order to render the evidence leading to discovery of any fact
admissible, the information must come from any accused in
custody of the police. The requirement of police custody is
productive of extremely anomalous results and may lead to the
exclusion of much valuable evidence in cases where a person,
who is subsequently taken into custody and becomes an
accused, after committing a crime meets a police officer or
voluntarily goes to him or to the police station and states the
circumstances of the crime which lead to the discovery of the
dead body, weapon or any other material fact, in consequence of
the information thus received from him. This information which
is otherwise admissible becomes inadmissible under Section 27
if the information did not come from a person in the custody of
a police officer or did come from a person not in the custody of
a police officer. The statement which is admissible under
Section 27 is the one which is the information leading to
discovery. Thus, what is admissible being the information, the
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police officer. In other words, the exact information given by the
accused while in custody which led to recovery of the articles
has to be proved. It is, therefore, necessary for the benefit of
both the accused and the prosecution that information given
should be recorded and proved and if not so recorded, the exact
information must be adduced through evidence. The basic idea
embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on
the principle that if any fact is discovered as a search made on
the strength of any information obtained from a prisoner, such a
discovery is a guarantee that the information supplied by the
prisoner is true. The information might be confessional or non-
inculpatory in nature but if it results in discovery of a fact, it
becomes a reliable information. It is now well settled that
recovery of an object is not discovery of fact envisaged in the
section. Decision of the Privy Council in Pulukuri Kottaya v.
Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the
most quoted authority for supporting the interpretation that the
“fact discovered” envisaged in the section embraces the place
from which the object was produced, the knowledge of the
accused as to it, but the information given must relate distinctly
to that effect. (See State of Maharashtra v. Damu Gopinath
Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ
2301] .) No doubt, the information permitted to be admitted in
evidence is confined to that portion of the information which
“distinctly relates to the fact thereby discovered”. But the
information to get admissibility need not be so truncated as to
make it insensible or incomprehensible. The extent of
information admitted should be consistent with
understandability. Mere statement that the accused led the police
and the witnesses to the place where he had concealed the
articles is not indicative of the information given.” [Emphasis
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74. Mr. Upadhyay, the learned counsel for the State would submit
that even while discarding the evidence in the form of discovery
panchnama the conduct of the appellant herein would be relevant
under Section 8 of the Evidence Act. The evidence of discovery
would be admissible as conduct under Section 8 of the Evidence
Act quite apart from the admissibility of the disclosure statement
under Section 27 of the said Act, as this Court observed in A.N.
Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
“9. By virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. The evidence of
the circumstance, simpliciter, that the accused pointed out to the
police officer, the place where the dead body of the kidnapped
boy was found and on their pointing out the body was exhumed,
would be admissible as conduct under Section 8 irrespective of
the fact whether the statement made by the accused
contemporaneously with or antecedent to such conduct falls
within the purview of Section 27 or not as held by this Court in
Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979
SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the
disclosure statement made by the accusedappellants (Exts. P15
and P16) is not admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8…..” [Emphasis supplied]
75. In the aforesaid context, we would like to sound a note of
caution. Although the conduct of an accused may be a relevant fact
under Section 8 of the Evidence Act, yet the same, by itself, cannot
be a ground to convict him or hold him guilty and that too, for a
serious offence like murder. Like any other piece of evidence, the
conduct of an accused is also one of the circumstances which the
court may take into consideration along with the other evidence on
record, direct or indirect. What we are trying to convey is that the
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conduct of the accused alone, though may be relevant under
Section 8 of the Evidence Act, cannot form the basis of conviction.
76. Thus, in view of the aforesaid discussion, we have reached to
the conclusion that the evidence of discovery of the weapon and
the blood stained clothes at the instance of the accused appellant
can hardly be treated as legal evidence, more particularly,
considering the various legal infirmities in the same.
Xxxxxxxxxxxxxxxx
81. Confessions may be divided into two classes, i.e. judicial and
extra judicial. Judicial confessions are those which are made before
Magistrate or Court in the course of judicial proceedings. Extra
judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra judicial
confessions are generally those made by a party to or before a
private individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is not especially
empowered to record confessions under Section 164 of the CrPC or
a Magistrate so empowered but receiving the confession at a stage
when Section 164 does not apply. As to extra judicial confessions,
two questions arise :
(i) were they made voluntarily? And
(ii) are they true?
As the Section enacts, a confession made by an accused person is
irrelevant in a criminal proceedings, if the making of the
confession appears to the Court to have been caused by any
inducement, threat or promise,
(1) having reference to the charge against the accused person,
(2) proceeding from a person in authority, and
(3) sufficient, in the opinion of the Court to give the accused
person grounds which would appear to him reasonable for
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supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings
against him.
It follows that a confession would be voluntary if it is made by the
accused in a fit state of mind, and if it is not caused by any
inducement, threat or promise which has reference to the charge
against him, proceeding from a person in authority. It would not be
involuntary, if the inducement,
(a) does not have reference to the charge against the accused
person, or (
b) it does not proceed from a person in authority; or
(c) it is not sufficient, in the opinion of the Court to give the
accused person grounds which would appear to him reasonable for
supposing that, by making it, he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings
against him.
Whether or not the confession was voluntary would depend upon
the facts and circumstances of each case, judged in the light of
Section 24 of the Evidence Act. The law is clear that a confession
cannot be used against an accused person unless the Court is
satisfied that it was voluntary and at that stage the question
whether it is true or false does not arise. If the facts and
circumstances surrounding the making of a confession appear to
cast a doubt on the veracity or voluntariness of the confession, the
Court may refuse to act upon the confession, even if it is
admissible in evidence. One important question, in regard to which
the Court has to be satisfied with is, whether when the accused
made confession, he was a free man or his movements were
controlled by the police either by themselves or through some other
agency employed by them for the purpose of securing such a
confession. The question whether a confession is voluntary or not
is always a question of fact. All the factors and all the
circumstances of the case, including the important factors at the
time given for reflection, scope of the accused getting a feeling of
threat, inducement or promise, must be considered before deciding
whether the Court is satisfied that its opinion, the impression
caused by the inducement, threat or promise, if any, has been fully
removed. A free and voluntary confession is deserving of highest
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credit, because it is presumed to flow from the highest sense of
guilt. [See R.V. Warwickshall, (1783) Lesch 263)]. It is not to be
conceived that a man would be induced to make a free and
voluntary confession of guilt, so contrary to the feelings and
principles of human nature, if the facts confessed were not true.
Deliberate and voluntary confessions of guilt, if clearly proved, are
among the most effectual proofs in law. An involuntary confession
is one which is not the result of the free will of the maker of it. So,
where the statement is made as a result of the harassment and
continuous interrogation for several hours after the person is
treated as an offender and accused, such statement must be
regarded as involuntary. The inducement may take the form of a
promise or of threat, and often the inducement involves both
promise and threat, a promise of forgiveness if disclosure is made
and threat of prosecution if it is not. (See Woodroffe Evidence, 9th
Edn. Page 284). A promise is always attached to the confession,
alternative while a threat is always attached to the silence-
alternative; thus, in the one case the prisoner is measuring the net
advantage of the promise, minus the general undesirability of a
false confession, as against the present unsatisfactory situation;
while in the other case he is measuring the net advantages of the
present satisfactory situation, minus the general undesirability of
the confession against the threatened harm. It must be borne in
mind that every inducement, threat or promise does not vitiate a
confession. Since the object of the rule is to exclude only those
confessions which are testimonially untrustworthy, the inducement,
threat or promise must be such as is calculated to lead to an untrue
confession. On the aforesaid analysis the Court is to determine the
absence or presence of inducement, promise etc. or its sufficiency
and how or in what measure it worked on the mind of the accused.
If the inducement, promise or threat is sufficient in the opinion of
the Court, to give the accused person grounds which would appear
to him reasonable for supposing that by making it he would gain
any advantage or avoid any evil, it is enough to exclude the
confession. The words ‘appear to him’ in the last part of the section
refer to the mentality of the accused. (See State of Rajasthan v.
Raja Ram, (2003) 8 SCC 180)
82. An extra judicial confession, if voluntary and true and made in
a fit state of mind, can be relied upon by the Court. The confession
will have to be proved like any other fact. The value of the
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evidence as to confession, like any other evidence, depends upon
the veracity of the witness to whom it has been made. The value of
the evidence as to the confession depends on the reliability of the
witness who gives the evidence. It is not open to any Court to start
with a presumption that extra judicial confession is a weak type of
evidence. It would depend on the nature of the circumstances, the
time when the confession was made and the credibility of the
witnesses who speak to such a confession. Such a confession can
be relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of witnesses
who appear to be unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is brought out which may
tend to indicate that he may have a motive for attributing an
untruthful statement to the accused, the words spoken to by the
witness are clear, unambiguous and unmistakably convey that the
accused is the perpetrator of the crime and nothing is omitted by
the witness which may militate against it. After subjecting the
evidence of the witness to a rigorous test on the touchstone of
credibility, the extra judicial confession can be accepted and can be
the basis of a conviction if it passes the test of credibility.
83. Extra judicial confession is a weak piece of evidence and the
court must ensure that the same inspires confidence and is
corroborated by other prosecution evidence. It is considered to be a
weak piece of evidence as it can be easily procured whenever
direct evidence is not available. In order to accept extra judicial
confession, it must be voluntary and must inspire confidence. If the
court is satisfied that the extra judicial confession is voluntary, it
can be acted upon to base the conviction.
84. Considering the admissibility and evidentiary value of extra
judicial confession, after referring to various judgments, in
Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403, this Court
held as under:–
“15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC
259 : 1996 SCC (Cri) 59] this Court stated the principle that : (SCC
p. 265, para 10)
“10. An extra-judicial confession by its very nature is rather a weak
type of evidence and requires appreciation with a great deal of care
and caution. Where an extra-judicial confession is surrounded by
suspicious circumstances, its credibility becomes doubtful and it
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loses its importance.”
xxxxxxxxx
15.4. While explaining the dimensions of the principles governing
the admissibility and evidentiary value of an extra-judicial
confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8
SCC 180 : 2003 SCC (Cri) 1965] stated the principle that : (SCC p.
192, para 19)
“19. An extra-judicial confession, if voluntary and true and made
in a fit state of mind, can be relied upon by the court. The
confession will have to be proved like any other fact. The value of
the evidence as to confession, like any other evidence, depends
upon the veracity of the witness to whom it has been made.”
The Court further expressed the view that : (SCC p. 192, para 19)
“19. … Such a confession can be relied upon and conviction can be
founded thereon if the evidence about the confession comes from
the mouth of witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of whom nothing
is brought out which may tend to indicate that he may have a
motive of attributing an untruthful statement to the accused….”
xxxxxxxxx
15.6. Accepting the admissibility of the extra-judicial confession,
the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC
604 : (2011) 1 SCC (Cri) 79] held that : (SCC p. 611, paras 29-30)
“29. There is no absolute rule that an extra-judicial confession can
never be the basis of a conviction, although ordinarily an extra-
judicial confession should be corroborated by some other material.
[Vide Thimma and Thimma Raju v. State of Mysore [(1970) 2
SCC 105 : 1970 SCC (Cri) 320], Mulk Raj v. State of U.P. [AIR
1959 SC 902 : 1959 Cri LJ 1219], Sivakumar v. State [(2006) 1
SCC 714 : (2006) 1 SCC (Cri) 470] (SCC paras 40 and 41 : AIR
paras 41 and 42), Shiva Karam Payaswami Tewari v. State of
Maharashtra [(2009) 11 SCC 262 : (2009) 3 SCC (Cri) 1320] and
Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC
(Cri) 1082]]””
[Emphasis supplied]
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85. It is well settled that conviction can be based on a voluntarily
confession but the rule of prudence requires that wherever possible
it should be corroborated by independent evidence. Extra judicial
confession of accused need not in all cases be corroborated. In
Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, this
Court after referring to Piara Singh v. State of Punjab, (1977) 4
SCC 452, held that the law does not require that the evidence of an
extra judicial confession should in all cases be corroborated. The
rule of prudence does not require that each and every circumstance
mentioned in the confession must be separately and independently
corroborated.
86. The sum and substance of the aforesaid is that an extra judicial
confession by its very nature is rather a weak type of evidence and
requires appreciation with great deal of care and caution. Where an
extra judicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance like the case in hand. The Courts generally look for an
independent reliable corroboration before placing any reliance
upon an extra judicial confession.
9. Hence the prosecution has failed to prove the recovery
from accused Parveen Kumar of the alleged golden rings as
stated in the disclosure statement Mark-P9/E. The site plan
about recovery of articles from accused Parveen is Ex.PW5/B
(at page No.47 of the document file) and at point A is a place
where the accused is staying and from the point B Almirah at
first floor recovery was effected. From an Almirah inside the
room the recovery of a black purse was effected. The site plan
Mark-P9/F (page No.103 of document file) at point A shows the
place where the accused Parveen were apprehended with bike
No.DL 9SAB 1699. The place where the robbery was
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committed is shown in the site plan Ex.PW9/B (at page No.95
of document file). The TIP of accused Parveen is Ex.A-1
which was conducted on 15.04.2015 (at page No.177A of the
document file) where accused No.1 Parveen was correctly
identified by witness Anil Kumar. The offence is dated
23.03.2015. The TIP proceedings were supplied to IO vide
Ex.PW9/K1. With such correct identification of accused
Parveen which is a corroborative piece of evidence the matter
could be proceeded further against accused Parveen. However
it still requires more evidence as it is settled law that merely on
the basis of TIP evidence a person cannot be convicted.
10. The DD No.7A dated 23.03.2015 (at page No.49 of
document file) was recorded at 7:05 AM. Vide the said DD
information was given that at Yamuna Bridge two bikes
carrying two boys each on each of the bike had robbed gold ring
of the caller and ran towards ISBT. Hence as per the said DD
No.7A there were 4 accused and not 3 accused whereas IO has
apprehended only 3 accused in the present case. As per the said
DD entry only 1 gold ring was claimed to be stolen and not a
purse from the complainant whereas in the complaint it is
alleged that 2 gold rings were robbed. Another point to be
noted is that as per the complaint Ex.PW2/A and the depositionPage 37 of 58
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of PW-2 he is the resident of H. No.B-294, Sangam Park, Rana
Pratap Bagh, Delhi-07. He was going to his office at that time
of the morning around 6:45 AM. His office is at Aruna Asif Ali
Hospital. It is noted that if a person is to proceed from Rana
Pratap Bagh to Aruna Asif Ali Hospital he need not go to
Yamuna Bridge/ Yudhishtar Setu and therefore it creates doubt
that the complainant was going from Yamuna Bridge /
Yudhishtar Setu to his office if he had to proceed from his
home.
11. In his complaint Ex.PW2/A it is claimed by the
complainant that his purse had Rs.150/- –
Rs.200/- amount of money whereas in his examination dated
04.05.2017 it is deposed that his purse was containing Rs.500/-
– Rs.800/- amount of money. Accused Parveen is correctly
identified by PW-2 before the Court. However he could not
identify the other accused as one of them was wearing helmet
and other had come from behind. He could not identify any
other accused except accused Parveen. PW-2 could not
produce invoice of purchase of said 2 gold rings and it is
claimed that the said gold rings were given to him in his
marriage. However no such evidence of gifting of such gold
ring is produced by PW-2. The gold rings were also not gotPage 38 of 58
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recovered by the prosecution.
12. Learned Counsel for the accused has submitted that as
per the case of the prosecution PW-2 was robbed of his 2 gold
rings, purse and still mobile phone of the complainant was not
taken by the accused. PW-2 in his cross examination dated
14.07.2017 has deposed that he had made call at 100 number
after the incident at about 6:45 AM from his mobile number
9953226012. Within 5 minutes police had reached at the spot.
Vide DD No.7A the call to the police was made at 7:05 AM
from the said mobile number belonging to the complainant.
Therefore any doubt cannot be created as delay is not seen in
calling the police when the robbery was allegedly committed at
6:45 AM and intimation was given to the police by 7:05 AM. A
person who was so robbed remains in the state of shock and it
may take sometime to him to come to his senses. The argument
by learned Counsel for the accused that it cannot be believed
that the mobile phone was not robbed and therefore no robbery
was committed cannot be sustained as it is not necessary that in
every case of robbery every article could be robbed. It cannot
be said that at that time the accused person came to know about
the possession of mobile phone with the complainant and in
such process of commission of robbery which was performed inPage 39 of 58
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quick time shows that accused themselves were in hurry and
therefore not robbing of mobile phone does not create doubt in
the case of the prosecution. It affirms the case of the
prosecution as from the same mobile phone police was called
immediately.
13. At page No.157 of document file there is statement under
Section 161 Cr.P.C. of Ms. Barkha the wife of the complainant
Anil Kumar wherein it is recorded that one person on
motorcycle had overtook and obstructed the motorcycle of the
complainant. The pillion rider on the said motorcycle had
robbed the 2 gold rings and the person who came from behind
had robbed the purse of her husband from backside pocket. In
his deposition dated 04.05.2017 PW-2 has improved his version
that the person who was pillion rider on the motorcycle
overtook his motorcycle after getting down started scuffling
with the complainant. It is deposed that the person who had
taken his gold rings was identified by him at Rohini Jail which
means that accused No.1 Parveen was identified in TIP by
PW-2 at Rohini Jail is the accused who is the pillion rider who
had taken out the gold ring. Hence accused Parveen had not
taken out the purse of PW-2 but it was robbed by another
person who came from behind. The purse was recovered fromPage 40 of 58
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accused Parveen. The gold rings were not recovered in the case.
The TIP of purse was not conducted in the matter. In absence
of conducting of TIP proceedings of the said purse it cannot be
said that this purse belongs to the complainant. Hence in the
absence of TIP of articles it cannot be said that it is the same
purse which was robbed from the complainant by the accused
person. Further the ownership of the house from where the said
purse was recovered is also not proved on record and exclusive
possession of the said premises with accused No.1 is also not
proved on record. Hence recovery of said purse from the
accused No.1 Parveen is held not proved on record. The
relevant citation is this regard is Ramanand @ Nand Lal Bharti
vs. State of Uttar Pradesh 2022 SCC OnLine SC 1396
(Coram:3) (supra).
14. In the statement (at page No.157A of the document file)
additional statement under Section 161 Cr. P. C. of the
complainant is recorded wherein he has stated that he does not
have any bill of the gold rings. It can be believed that the
complainant does not have bills of gold ring which were gifted
to him in marriage. However prosecution could have examined
the person who had gifted such ring to the complainant in his
marriage.
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15. In examination in chief dated 04.05.2017 PW-2/
complainant has deposed that he resides at address H. No.294,
Sangam Park, Rana Pratap Bagh, Delhi. However in the
complaint Ex.PW2/A it is stated that the complainant was
coming from Yamuna Pul. In the statement under Section 161
Cr.P.C. (at page 157 of the document file) Ms. Barkha / PW-6
has stated that she was coming with her husband via Pusta from
their tenanted house at Usmanpur. However the PW-6 has not
stated so in her deposition nor PW-2 the complainant has stated
so in his deposition. No rent deed and proper address of
Usmanpur is filed. Hence the prosecution has not proved that
the complainant would be coming from Yamuna Pul to his
office at Aruna Asif Ali Hospital when the complainant is
residing at H. No.294, Sangam Park, Rana Pratap Bagh, Delhi.
Learned Counsel for the accused has submitted that no gold ring
was recovered nor any ring was recovered from accused Chand
Mohd.
16. Learned Counsel for the accused has referred to the
deposition of PW-7 dated 11.04.2023 at page No.3 where it is
deposed that they made call to the PS Kashmere Gate at about
4:15 AM. SI Ashok came to police picket within 5 minutes
whereas PW-8 in his examination in chief dated 22.05.2023 hasPage 42 of 58
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deposed that at about 4:45 AM 3 boys came riding on
motorcycle from Lal Quila side after which Ct. Pawan/PW-7
had informed at PS Kashmere Gate. After that SI Ashok with
staff came there. Hence there is contradiction in the deposition
of PW-7 and PW-8 regarding the apprehension of accused
persons at police picket and the time at which SI Ashok came
alongwith staff at the said police picket. SI Ashok / PW-9 at
page No.2 of his examination in chief dated 11.01.2024 has
deposed that 4:30 – 4:45 AM information was received by him
from DO vide DD No.8A regarding apprehension of 3 culprits
at GPO Kashmere Gate. When PW-8 was apprehended the
accused person at 4:45 AM then how the above DD No.8A was
made at PS at 4:15 AM or at 4:30 – 4:45 AM. There could be
gap of few minutes but it cannot extend for a period of ½ an
hour regarding arrest of accused person. Hence the arrest of 3
accused person at police picket had become doubtful. PW-7
therefore has deposed that SI Ashok had reached at the spot by
4:20 AM within 5 minutes. Hence the prosecution witness are
deposing contrary to each other. Learned Counsel for the
accused has submitted that the approximate distance between
PS Kashmere Gate to police picket is about 100-150 meters
only. PW-8 HC Amit at page No.3 of his cross examination has
deposed that they handed over accused persons to SI Ashok atPage 43 of 58
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5:15 AM and accused persons were with them for about ½ an
hour till SI Ashok had arrived.
17. Ex.PW9/G1 is apprehension memo of accused Chand
Mohd. who had initially pleaded as JCL. The Kalandra in
respect of apprehension of the accused is Mark-P9/C (at page
No.93 of document file). The page No.94 of the Kalandra
records that parents of the accused Chand Mohd. could not be
contacted whereas in the apprehension memo Ex.PW9/G1
records that mother of JCL Chand Mohd. namely Ms. Parveen
was informed about the apprehension of accused Chand. Mohd.
and her mobile No.9999153092 is also recorded in the
apprehension memo. Hence the correct preparation of record
by the investigating agency is not seen regarding the arrest of
accused person. In Ex.PW9/G1 (at page No.119 of document
file) bears signature of parent. The social report is Ex.PW9/G2
of JCL. The apprehension memo of accused Sachin Kumar is
Ex.PW9/G3 which is at page No.125 of document file and it
also bears the signature of Smt. Aman who is the mother of
accused and it also bears her mobile No.8866900539. Hence
parents of the accused were contacted by investigating agency
and contrary to which is recorded in the Kalandra Mark-P9/C.Page 44 of 58
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18. PW-3 at page No.4 of his cross examination dated
01.09.2017 (at page No.217 of the evidence file) records that
the accused person were interrogated at PS. At page No.3
records in the evidence of PW-3 that Duty Officer had informed
him about the call around 7-8 AM of the morning dated
11.04.2015 and at about 8:20 AM the accused person and the
said motorcycle was brought to the PS. At PS accused person
were interrogated by SI Ashok Kumar and recorded their
disclosure. The seizure memo of motorcycle and document of
arrest were prepared at the spot itself. To the contrary PW-8 at
1st page of his examination in chief dated 22.05.2023 has
deposed that SI Ashok interrogated the above boys at the spot.
They had handed over the accused to SI Ashok at about 5:15
AM which is recorded at page No.3 of the same examination.
Hence there is doubt that proper disclosure of accused person
was recorded and there is doubt about the place at which the
disclosure of accused persons was recorded.
19. The apprehension memo of accused Chand Mohd. was
prepared vide Ex.PW3/B on 11.04.2015 at about 5:40 AM (at
page No.67 of the document file) and in the version of JCL
Chand Mohd. Ex.PW9/I records the signature of father of
accused Chand Mohd. To the contrary in the Kalandra Mark-
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P9/C (at page No.94 of the document file) records that the
family members of the accused No.2 Chand Mohd. and accused
No.3 Sachin Kumar could not be contacted. Mark-P9/G (at
page No.97 of document file) records at page 98 that the family
members of the accused person could not be contacted on the
mobile number provided.
20. PW-2 has deposed in cross examination dated 14.07.2017
as correct that nothing was recovered from any of the accused
whereas it is the case of the prosecution that purse was
recovered from the accused Parveen. Hence the only link in the
entire chain of evidence produced by the prosecution is the
evidence of TIP conducted against accused No.1 Parveen. The
said accused Parveen was also identified in the Court. However
it is settled law that merely on the basis of evidence of TIP in
the absence of any other corroborative evidence the accused
cannot be held guilty. The relevant citation in this regard is
reproduced hereinunder:
Hon’ble High Court of Orissa, Cuttack in case titled Baikuntha
Bhoi and Another Versus State of Odisha 2024 SCC OnLine Ori
1264 has laid down as under:
Whether the evidence of identification of the appellants is
acceptable?:
8. P.W.4, the informant has not named any of the accused persons
in the F.I.R. (Ext.1) and that is how it was lodged against four
unknown persons. In the examination-in-chief, P.W.4 has stated
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that he knew the appellants Bishnu Bishnu Charan Nayak and Raju
@ Rajesh Behera. He further stated that while he was waiting near
Master Canteen, a Maruti Omni vehicle being driven by appellant
Raju @ Rajesh Behera arrived there. He further stated that the
appellant Raju @ Rajesh Behera assaulted on his head, squeezed
his neck and asked him to deliver his belongings. He further stated
that the appellant Bishnu Nayak was all along assaulting him.
Thus, from the examination-in-chief, it appears as if P.W.4 knew
the two appellants, namely, Bishnu Nayak and Raju @ Rajesh
Behera beforehand. If that be so, it was expected of him to mention
their names in the F.I.R., but since the names of these two
appellants do not find place in the F.I.R., their involvement in the
crime becomes a doubtful feature. In the case of Tukuna Rauta v.
State of Odisha, (2021) 84 Orissa Criminal Reports 55, this Court
has held that despite knowing the name of the accused, omission
on the part of the informant to mention the same in the F.I.R.
affects the probabilities of the case and such omission is relevant
under section 11 of the Evidence Act in judging veracity of the
prosecution case and also gives rise to the reasonable doubt that the
appellant was not a participant in the crime.
In the cross-examination, P.W.4 has stated that he did not know
appellant Raju @ Rajesh Behera prior to the occurrence and the
police conducted T.I. parade wherein he identified appellant Raju
@ Rajesh Behera. It is the prosecution case that only one T.I.
parade has been conducted in Jharpada Jail, Bhubaneswar on
26.06.2010 in connection with this case by the Magistrate, who has
not been examined. However, the T.I. parade report (Ext.2) has
been proved by none else than the informant (P.W.4). If P.W.4 got
the scope to identify the appellant Raju @ Rajesh Behera in the
T.I. parade conducted by the police, then the sanctity of T.I. parade
which was conducted at a later point of time by the Magistrate is
lost. The Hon’ble Supreme Court has made it clear that the
requirement to hold an identification parade can only arise when
the accused are not previously known to the informant/witnesses.
In the case of Amitsingh Bhikamsingh Thakur v. State of
Maharashtra, (2007) 2 SCC 310, the above position of law has
been clarified as follows:
“13…The necessity for holding an identification parade can arise
only when the accused are not previously known to the witnesses.
The whole idea of a test identification parade is that witnesses who
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claim to have seen the culprits at the time of occurrence are to
identify them from the midst of other persons without any aid or
any other source. The test is done to check upon their veracity. In
other words, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the
witnesses based upon first impression and also to enable the
prosecution to decide whether all or any of them could be cited as
eye witnesses of the crime.”
The Hon’ble Supreme Court has time and again held that test
identification parade of accused persons known to the
informant/witnesses is of no value and meaningless. In the case of
Dhananjay Shanker Shetty v. State of Maharashtra, (2002) 6 SCC
596, the Hon’ble Court held as follows:
“8. Next circumstance against the appellant was his so-called
identification in the test identification parade by P.W.s 1, 3 and 9.
The trial court as well as the High Court has found various legal
infirmities in the holding of test identification parade, as such no
reliance has been placed thereon. Moreover, as the appellant was
named accused person, his so-called identification in the test
identification parade could not be of any avail to the prosecution as
it was meaningless.”
[Emphasis added]
Above all, the prosecution has not offered any explanation as to
why the Magistrate, who conducted T.I. parade was not examined
to prove the report, inasmuch as many things the defence could
have brought out by way of cross-examination of the Magistrate
regarding the irregularities or procedural infirmities, if any, made
during conduct of the T.I. parade. Recently, in the case of Umesh
Chandra v. State of Uttarakhand, (2021) 17 SCC 616, the Hon’ble
Supreme Court has expressed concern about non-examination of
Magistrates to prove the sanctity of T.I. parade and observed as
follows:
“10. But more important than that, the test identification parade
being a part of the investigation, has to be proved by the
prosecution as having been held in accordance with law. The onus
lies on the prosecution to establish that the T.I parade was held in
accordance with law. It is only after the prosecution prima facie
establishes a valid T.I parade having been held, the question of
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considering any objection to the same arises. If the prosecution has
failed to establish that a T.I parade was properly held by examining
the witnesses to the same, there is nothing for the accused to
disprove. In the present case, a Magistrate is stated to have
conducted the T.I parade. The Magistrate has not been examined.
No explanation is forthcoming why the Magistrate was not
examined.”
Thus, it is undisputed that the Public Prosecutor has a duty to
examine the Magistrate who conducts the T.I. parade so that the
legal sanctity of the T.I. parade report can be ascertained during the
trial. Non-examination of the Magistrate strikes a severe blow not
only to the prosecution case but also to the cause of justice as
irregularities, if any, committed in such T.I. parade cannot be
canvassed and discussed by the trial Court in his absence from the
witness box. In the present case, no plausible explanation has been
offered as to why the Magistrate was not examined in the Court to
prove the T.I. parade report. In the case in hand, the prosecution
has proved the T.I. parade report through P.W.4, the informant
who has stated that he had signed the T.I. parade report and
accordingly, the report was marked as Ext.2 and the signature of
P.W.4 was marked as Ext.2/1. Mere marking of the T.I. parade
report is not enough inasmuch as the person who conducted the
T.I. parade could only highlight what precautions he took, what
procedure he followed during such T.I. parade. Lapses, if any, on
his part during the proceedings of the T.I. parade which strikes at
the root of the identification evidence, can be brought out by the
defence counsel in the cross-examination. If the Magistrate is dead
or his attendance could not be procured during trial for any reason,
the trial Court has to specifically mention the same in the order-
sheet and thereafter the prosecution can adduce cogent evidence to
prove such T.I. parade report. Identification proceedings are not
conducted for the pleasure of the prosecution. It has got a valuable
purpose even though the identification test does not constitute
substantive evidence.
There is absolutely no material on record against the appellants
Baikuntha Bhoi and Prasanta Nayak except the confessional
statement of the appellant Raju @ Rajesh Behera, which has been
marked as Ext.4. No T.I. parade has also been conducted in respect
of those two appellants and the informant has also not identified
these two appellants in Court during trial.
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P.W.4, the informant has stated that the accused persons took away
his mobile phone and money purse from his pant pocket. He has
not stated that his passport photograph was there in his money
purse. He has not stated that the xerox copy of the matriculation
certificate and original PAN allotment letter were taken away by
the accused persons. He has also not stated that the money purse
was having six nos. of hundred rupees notes. Even though as per
the evidence of the I.O. (P.W.8), at the instance of the appellant
Raju @ Rajesh Behera, one black colour money purse, passport
photograph of P.W.4 and xerox copy of the matriculation
certificate of P.W.4 and original PAN allotment letter and six nos.
of hundred rupees notes, which were kept inside the money purse,
were seized as per the seizure list (Ext.5), but since no T.I. parade
has been conducted in respect of the money purse and even P.W.4
has not identified the money purse and other documents seized as
per seizure list Ext.5 in Court during trial, recovery of such articles
cannot be a factor to hold the appellant Raju @ Rajesh Behera
guilty. The articles seized under seizure list Ext.5 were marked as
M.Os. when the I.O. (P.W.8) was examined.
21. It is further noted that even the purse allegedly recovered
from accused Parveen is not proved and identified during
evidence and the same cannot be relied upon. Further the
accused Parveen had allegedly robbed the gold rings and the
other accused came from behind had robbed the purse whereas
the purse was recovered from accused No.1 Parveen and the
gold rings in the matter are not recovered which were allegedly
robbed by the accused Parveen.
22. PW-6 Ms. Barkha has deposed that the persons who
overtook their motorcycle had thrown the keys in the Yamuna
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river. This fact is not stated by PW-6 in her statement under
Section 161 Cr.P.C. nor the same is proved in evidence by
PW-2 Sh. Anil Kumar. Further PW-6 has deposed that the
person / pillion rider got removed a gold ring from the right
hand finger of her husband wherein in complaint Ex.PW2/A it
is claimed by PW-2 that 2 gold rings were robbed. Hence the
deposition of PW-6 and PW-2 is contradictory in this regard.
PW-6 does not remember the face of robbers and she cannot
identify them. The purse is Ex.P-1 on record which is correctly
identified by PW-6. Whereas the purse belongs to PW-2 and
the same was not got identified by PW-2 by the prosecution.
TIP of the purse is not proved. The sketch of the accused
person was not prepared by the police. It is admitted by PW-5
Ct. Amit Kumar in cross examination as correct that IO had not
seen the recovered purse. Hence the tampering of purse and its
contents cannot be over-ruled. PW-5 has further deposed that
when they had went to recover the purse at the house of
accused Parveen then IO had asked the neighbours to join the
investigation but none agreed. PW-5 cannot tell the description
of building due to lapse of time. PW-9 SI Ashok Kumar the IO
has not deposed that while making search for said purse at the
alleged house of accused Parveen any public person was asked
to join the investigation. There was sufficient time with the
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investigating agency to arrange for joining the public person
which they did not join. In view of the above circumstances of
the case the recovery of purse from accused Parveen has
become doubtful.
23. Further, the charge is levelled against accused No.1 that
he had used the pistol while committing the robbery. Whereas
PW-2 and PW-6 has deposed that the pillion rider had used the
pistol. Nor there is any averment in the complaint Ex.PW2/A
that pistol was used at all by the accused No.1 Parveen. Nor
any pistol is recovered in this matter. Nor it is case of the
prosecution witness that they had seen the pistol. The PW-2
and PW-6 have deposed that they cannot identify the accused
person who had used the pistol. Under Section 397 IPC, only
the offender / person who had committed the robbery and has
attempted or caused voluntarily hurt or threaten to cause such
hurt and who had used deadly weapon can only be held liable
and punished. The principle of constructive liability does not
extend under Section 397 IPC and therefore it cannot be
extended in respect of accused No.1 Parveen. There is absence
of any evidence on record to lead accused No.2 and 3 with the
alleged use of pistol. There is absence of any evidence on
record except unproved disclosure statement of accused person
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amongst each other about their involvement in the present case.
Hence this is a case of no evidence for the applicability of
Section 397 IPC.
24. The next offence with which accused persons are
charged with is Section 411 IPC. The necessary ingredients of
which are detailed in the citation titled as Shiv Kumar vs. The
State of Madhya Pradesh Criminal Appeal No.153 of 2022 are
reproduced hereinasunder:
13. Section 411 IPC:
“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.”
The penal Section extracted above can be broken down into four
segments namely: Whoever, I. Dishonestly; II. Receives or retains
any stolen property; III. Knowing; or IV. 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.
14. “Dishonestly” is defined under Section 24 of the IPC 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 Justice K. Subba
Rao in the case of Dr. Vimla v. Delhi Administration4 in the
following paragraphs: –
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“9A. A Full Bench of the Madras High Court, in Kotamraju
Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to
consider the case of a person obtaining admission to the
matriculation examination of the Madras University as a private
candidate producing to the Registrar a certificate purporting to have
been signed by the headmaster of a recognized High School that he
was of good character and had attained his 20th year. It was found
in that case that the candidate had fabricated the signature of the
headmaster. The court held that the accused was guilty of forgery.
White, C.J., observed:
“Intending to defraud means, of course, something more than
deceiving.” He illustrated this by the following example:
“A tells B a lie and B believes him. B is deceived but it does not
follow that A intended to defraud B. But, as it seams to me, if A
tells B a lie intending that B should do something which A
conceives to be to his own benefit or advantage, and which, if
done, would be to the loss or detriment of B, A intends to defraud
B.” The learned Chief Justice indicated his line of thought, which
has some bearing on the question now raised, by the following
observations:
“I may observe, however, in this connection that by Section 24 of
the Code person does a thing dishonestly who does it with the
intention of causing wrongful gain or wrongful loss. It is not
necessary that there should be an intention to cause both. On the
analogy of this definition, it might be said that either an intention to
secure a benefit or advantage on the one hand, or to cause loss or
detriment on the other, by means of deceit is an intent to defraud.”
But, he found in that case that both the elements were present.
Benson, J. pointed out at p. 114:
“I am of opinion that the act was fraudulent not merely by reason
of the advantage which the accused intended to secure for himself
by means of his deceit, but also by reason of the injury which must
necessarily result to the University, and through it to the public
from such acts if unrepressed. The University is injured, if through
the evasion of its bye-laws, it is induced to declare that certain
persons have fulfilled the conditions prescribed for Matriculation
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and are entitled to the benefits of Matriculation, when in fact, they
have not fulfilled those conditions for the value of its examinations
is depreciated in the eyes of the public if it is found that the
certificate of the University that they have passed its examinations
is no longer a guarantee that they have in truth fulfilled the
conditions on which alone the University professes to certify them
as passed, and to admit them to the benefits of Matriculation.”
Boddam, J., agreed with the learned Chief Justice and Benson, J.
This decision accepts the principle laid down by Stephen, namely,
that the intention to defraud is made up of two elements, first an
intention to deceive and second the intention to expose some
person either to actual injury or risk of possible injury; but the
learned Judges were also inclined to hold on the analogy of the
definition of “dishonestly” in Section 24 of the Code that intention
to secure a benefit or advantage to the deceiver satisfies the second
condition.”
15. 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.
xxxxxxxxx
21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed
the essential ingredients for conviction under Section 411 of the
IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly
observed that in order to bring home the guilt under Section 411
IPC, the prosecution must prove,
“5. (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….”
Xxxxxxxx
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23. That apart, the disclosure statement of one accused cannot
be accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the utensils
seized from him were stolen articles. The factum of selling utensils
at a lower price cannot, by itself, lead to the conclusion that the
appellant was aware of the theft of those articles. The essential
ingredient of mens Rea is clearly not established for the charge
under Section 411 of IPC. The Prosecution’s evidence on this
aspect, as they would speak of the character Gratiano in Merchant
of Venice, can be appropriately described as, “you speak an infinite
deal of nothing.”6
24. In a case like this, where the fundamental evidence is not
available and the law leans in appellant’s favour, notwithstanding
the concurrent finding, the Court has to exercise corrective
jurisdiction as the circumstances justify. As such, taking a cue from
Haryana State Industrial Development Corporation vs. Cork
Manufacturing Co7., the exercise of extraordinary jurisdiction
under Article 136 is found to be merited to do justice to the
appellant who was held to be guilty, without the requisite evidence
to establish his mens rea in the crime.
25. The para No.11, 13, 18, 20, 21 and 22 above has laid
down the reasons that recovery of purse from accused Parveen
cannot be imputed and the reasons stated there are not repeated
herein for the sake of brevity. Ownership of purse is not
proved. PW-2 has not proved the purse in his evidence. The
recovery of purse from accused Parveen has also not been
proved on record in view of which it cannot be said that there is
applicability of Section 411 IPC against any of the accused in
the present case.
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26. In view of the above discussion it is held that the
prosecution has failed to prove that the accused No.1 Parveen
Kumar and accused No.2 Chand Mohd. have committed offence
under Section 392/397/411/34 IPC.
27. Hence the accused No.1 Parveen Kumar and accused
No.2 Chand Mohd. are acquitted of all the offence charged
against under Section 392/397/411/34 IPC and it is held that
prosecution has failed to prove the charge levelled against the
accused Parveen Kumar and Chand Mohd. under Section under
Section 392/397/411/34 IPC. Accordingly, the accused Parveen
Kumar and Chand Mohd. stand acquitted of the offence under
Section under Section 392/397/411/34 IPC. The earlier personal
bond of accused No.1 Parveen Kumar is cancelled and surety is
discharged and documents, if any, be returned to the surety and
endorsement on security documents is allowed to be de-
endorsed. In terms of Section 437A Cr. P. C., accused No.1 has
furnished his bail bond as directed which will be in force for
period of six months from the date of this judgment. Accused
No.2 Chand Mohd. has furnished his personal bond only in a
sum of Rs.5000/- under Section 437A Cr. P. C. as directed
which will be in force for period of six months from the date of
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this judgment. He be released henceforth if not wanted in any
other case. Jail Superintendent to comply immediately and
accordingly. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally
JOGINDER
signed by
Announced in the open court PRAKASH PRAKASH NAHAR
Date: 2025.07.28
on dated 28.07.2025 NAHAR 15:07:01 +0530
(JOGINDER PRAKASH NAHAR)
Additional Sessions Judge (FTC-I)
Tis Hazari Court/Delhi/28.07.2025
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