Delhi District Court
State vs Rajesh @ Chuhi on 14 April, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
FIR No.: 614/2015
PS.: Kashmere Gate
U/s.: 392/397/411/34 IPC
State Vs. Rajesh @ Chuhi & Anr.
(a) SC Case No. 28738/2016
(b) CNR No. DLCT01-008792-2016
(c) Date of commission of 11.12.2015 at 11:45 p.m.
offence
(d) Name of the Sh. Ramavtar Meena, S/o. Ganga
complainant Sahai
(e) Name of the accused i) Rajesh @ Chuhi, S/o. Sh. Dal
person(s), parentage Chand, R/o. H. No. 3777,
and residence Kucha Mohttar Khan, Mori
Gate, Delhi;
ii) Sadanand @ Prince, S/o. Sh.
Panna Lal, R/o. H. No. J-5,
Kucha Mohttar Khan, Mori
Gate, Delhi; Also at; H. No.
3878, Mori Gate, Kucha
Mohttar Khan, Delhi.
(f) Plea of the accused Not guilty
person(s)
(g) Final Order Accused persons, namely,
Rajesh @ Chuhi and Sadanand
@ Prince are convicted of the
charges under Section 392/34
IPC, however, accused, Rajesh
@ Chuhi and Sadanand @ Prince
are acquitted of charges under
Section 411 and Section 397
IPC, respectively.
(h) Date of institution of 19.07.2016
case
(i) Date when judgment 04.03.2025
was reserved
(j) Date when judgment 15.04.2025 (pursuant to
was pronounced Notification No. 10/G-4/Genl.-
I/DHC, dated 07.04.2025)
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 1 of 74
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.04.15
17:00:42 +0530
JUDGMENT
INTRODUCTION:
1. Succinctly, the facts leading to the initiation of the
present proceedings are that on 12.12.2015, as ASI Krishan Pal
and Ct. Praveen No. 2948/N, while engaged in night emergency
duty and upon attending PCR Call had reached near Bholanath
Market via Mori Gate, patrolling, they met the complainant,
Ramavtar Meena S/o. Ganga Sahai. The complainant, at that point
in time, apprised the said police officials of the incident that had
transpired with him, besides, got recorded his statement.
Markedly, under his statement, the complainant inter alia asserted
that he was engaged as chalak/sepoy at Old Police Lines/OPL. As
per the complainant on the intervening night of 11/12.12.2015, he/
had reached Old Delhi Railway Station from his house via train.
Subsequently, as he/the complainant was walking towards OPL
from the railway station, and at around 11:45 p.m., had reached
near Bhola Ram Market via Dufferin Bridge, Main Road, Mori
Gate, two persons emerged from behind a truck (Bhola Ram Mkt के
पास पहुँचा तो ट्रक के पीछे से दो शक्स अचानक निकलकर आये ). Suddenly, as
per the complainant, one of the said persons grabbed his neck from
his arms/hand in a loop and choked his neck (जिनमें से एक शक्स ने मेरे
गले मे अपने हाथ का फं दा बनाकर मेरा गला दबा दिया) and the other person
grabbed the complainant’s hand (व दूसरे ने मेरा हाथ पकड लिया).
Subsequently, both the said persons are proclaimed to have
dragged the complainant towards gali and the person who had
placed his arms around the complainant’s neck, took out a
chaku/knife from his possession and brandished the same at
him/the complainant (और मुझे गली मे खींचकर ले गये जो फं दा डालने वाले
शक्स ने चाकू निकालकर मुझे डराया). Thereupon, as per the complainant,
both the said persons are asserted to have taken out a sum of Rs.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 2 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:00:47 +0530
1,200/- (Rupees One Thousand Two Hundred only), HDFC Bank
and Axis Bank debit cards as well as Driving License from the
pocket of the complainant’s wearing pants (दोनों शक्सों ने मेरी पैन्ट की
जेब में रक्खे 1200/- रू० नगद व HDFC BANK व AXIS BANK के दो Debit
Card व Driving Licence निकाल लिये ). As the complainant raised an
alarm, Ct. Anil No 1025/N and Ct. Rajesh No 1769/N, who are
professed to be patrolling in the area, reached there and upon
seeing them, both the persons/perpetrators attempted to flee from
the spot. However, as per the complainant, Ct. Anil and Ct. Rajesh
followed and caught hold of one of the said perpetrators, whose
identity was later on, revealed as, Rajesh @ Chuhi S/o. Dal Chand
R/o. H. No 3777, Kucha Mohtar Khan, Mori Gate, Delhi.
2. The complainant further proclaimed that the said
person, who was apprehended on the spot, i.e., accused, namely,
Rajesh @ Chuhi, declared the name of his associate as Prince @
Sadananad. However, the said associate of Rajesh @ Chuhi could
not be apprehended at that point in time. Further, as per the
complainant, upon the search of Rajesh @ Chuhi, a sum of Rs.
1,200/- (Rupees One Thousand Two Hundred only) was
found/retrieved from his pocket, which was identified by the
complainant as the amount, which was robbed from him. Further,
as per the complainant, Rajesh @ Chuhi and his associate
committed the incident of robbery with him, while brandishing
knife and choking the complainant’s neck.
REGISTRATION OF FIR AND INVESTIGATION:
3. Notably, under the aforenoted facts and
circumstances as well as on the basis of the complainant’s
complaint, the concerned ASI prepared tehrir and directed Ct.
Praveen to take the same to PS. Kashmere Gate for the registration
of the FIR. Consequently, the present FIR was registered at PS
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 3 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:00:51 +0530
Kashmere Gate on 12.12.2015 for the offences under Sections
392/397/34 of the Indian Penal Code, 1860 (hereinafter referred to
as ‘IPC‘) and the investigation ensued. Correspondingly, during
the ensuing investigation, the robbed articles, which were
retrieved/recovered from the possession of accused Rajesh @
Chuhi, were seized as well as site plan was prepared by the IO.
Correspondingly, accused, Rajesh @ Chuhi was formally arrested
vide arrest memo and his personal search as well as disclosure
statement was recorded. Notably, as per the prosecution, accused,
Rajesh @ Chuhi, is asserted to have initially offered assistance to
facilitate apprehension of his co-accused, Sadanand @ Prince.
However, the chargesheet records that despite repeated
endeavours, the said co-accused, Sadanand @ Prince could not be
apprehended. Consequently, NBWs were obtained by the
concerned police official(s) for the apprehension of the said co-
accused.
FILING OF CHARGESHEET, SUPPLEMENTARY
CHARGESHEET AND COMMITTAL PROCEEDINGS:
4. Markedly, upon conclusion of investigation in the
instant case, in so far as accused, Rajesh @ Chuhi is concerned,
chargesheet was filed by the concerned IO before Ld. MM-03,
Central, Tis Hazari Courts under Sections 392/397/411/34 IPC.
Notably, the cognizance of offences under Sections 392, 397, 411,
34 IPC, was taken by the Ld. MM-03, Central, Tis Hazari Courts
on 15.02.2016.
5. Pertinently, during the ongoing search for co-
accused, namely, Sadanand @ Prince, as aforenoted, NBWs were
obtained for his/the said accused’s apprehension. However, since
accused, Sadanand @ Prince could not be apprehended,
proceedings/proclamation under Section 82 of the Code of
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 4 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:00:55 +0530
Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’),
was got issued. However, on 21.04.2016, the accused, namely,
Sadanand @ Prince is stated to have surrendered before the
concerned Court/before Ld. MM, upon which, the concerned Ld.
MM permitted interrogation/custody of accused, Sadanand @
Prince. Consequently, the said accused was formally arrested in
the present case and he tendered his disclosure statement.
Correspondingly, during the investigation proceeding, Test
Identification Parade proceedings/TIP proceedings of accused,
Sadanand @ Prince was scheduled to be undertaken for
28.04.2016. However, accused, Sadanand @ Prince is avowed to
have refused to undergo his TIP proceedings on the said date
(दिनांक 28.04.16 को मुलजिम Sadanand @ Prince ने माननीय अदालत Sh.
Babru Bhan साहब के समक्ष अपनी TIP कराने से मना किया था). Thereupon,
police remand of Sadanand @ Prince was obtained, wherein it was
endeavoured to search and seize the weapon used during the
commission of the offence. However, the said weapon is asserted
to have not been found despite all possible attempts (मुकदमा हजा की
वारदात मे प्रयोग किये गये चाकू की तलाश की परंतु हर संभव कोशिशो के बाद भी
कोई सुराग नही चल सका). Consequently, upon conclusion of the
investigation qua accused, Sadanand @ Prince, supplementary
chargesheet was filed before the Ld. MM-03, Central, Tis Hazari
Court on 24.06.2016, which was directed tagged by the Ld.
MM-03 along with the main chargesheet, pursuant to order dated
28.06.2016. Subsequently, upon the chargesheet and
supplementary chargesheets having been clubbed together and
upon conclusion/compliance of the provisions under Section 207
Cr.P.C., Ld. MM-03 (Central), Tis Hazari Courts vide its order
dated 14.07.2016, passed an order of committal of the present case
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 5 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:00:59 +0530
before the Ld. Predecessor Judge, routed via Ld. District &
Sessions Judge (HQ), Tis Hazari Courts.
CHARGE FRAMING:
6. Relevantly, the Ld. Predecessor Judge heard the
arguments addressed on behalf of the accused persons namely,
Rajesh @ Chuhi and Sadanand @ Prince (hereinafter accused,
namely, Rajesh @ Chuhi and Sadanand @ Prince are collectively
referred to as the ‘accused persons’) as well as by Ld. Addl. PP for
the State and upon conclusion of the same, charge(s) under
Sections 392/34 IPC were framed against the accused
persons/accused, namely, Rajesh @ Chuhi and Sadanand @
Prince; charge(s) under Section 397 IPC was additionally framed
against accused, namely, Sadanand @ Prince and charge(s) under
Section 411 IPC was additionally framed against accused, namely,
Rajesh @ Chuhi vide order dated 02.08.2016 of the Ld.
Predecessor Judge. Notably, the relevant extracts of the said order
of charge/order dated 02.08.2016 of the Ld. Predecessor Judge are
reproduced as under;
“…It is submitted on behalf of accused Sadanand
@ Prince that there is mere disclosure statement of
accused and no recovery has been affected from him.
As the name of said accused is appearing also in
the FIR itself and that he refused to join the TIP and
considering the statement of complainant wherein he
has specifically levelled allegations against both the
accused to the effect that he was looted at the point of
knife, I am of the considered opinion that a prima facie
case u/S 392/34 IPC is made out and a separate
Charge 397 IPC is made out against accused
Sadanand @ Prince and u/S 411 IPC against accused
Rajesh @ Chuhi…”
(Emphasis supplied)
7. Further, it is apposite to reproduce the charges, as
framed by the Ld. Predecessor Judge, against the accused persons
on 02.08.2016, pursuant to the aforesaid order, as under;
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“…I, ***, Addl. Sessions Judge-III [Central],
Delhi do hereby charge you 1. Rajesh @ Chuhi S/o
Dal Chand; 2. Sadanand @ Prince S/o Sh. Panna Lal;
as under:
That on 11.12.2015 at about 11.45 p.m. in the Gali
near Bhola Nath Market, Main Road, Mori Gate,
Delhi within the jurisdiction of PS Kashmere Gate,
Delhi, you both in furtherance of your common
intention robbed the complainant Ram Avtar Meena
of Rs.1200/-, Two Debit Cards of the Bank and
Driving Licence, and thus, committed an offence u/s
392/34 IPC within my cognizance.
And, I hereby direct that you both be tried by this
Court for the aforesaid offence…
*** *** ***
“…I, ***, Addl. Sessions Judge-III [Central],
Delhi do hereby charge you Sadanand @ Prince S/o
Panna Lal; as under:
That on 11.12.2015 at about 11.45 p.m. in the Gali
near Bhola Nath Market, Main Road, Mori Gate,
Delhi within the jurisdiction of PS Kashmere Gate,
Delhi, while committing the robbery of Rs.1200/-,
Two Debit Cards of the Bank and Driving Licence of
the complainant Ram Avtar Meena, you used a knife,
a deadly weapon in coming the said robbery along
with your co-accused and thus, rendered yourself
liable to be punished with minimum mandatory
punishment as provided u/S 397 IPC and show cause
as to why you should not be punished with the said
minimum mandatory punishment.
And, I hereby direct that you be tried by this Court
for the aforesaid offence…
*** *** ***
“…I, ***, Addl. Sessions Judge-III [Central],
Delhi do hereby charge you Rajesh @ Chuhi S/o Dal
Chand; as under:
That on 12.12.2015 in the Gali near Bhola Nath
Market, Main Road, Mori Gate, Delhi within the
jurisdiction of PS Kashmere Gate, Delhi, you were
found in possession of Rs. 1200/- recovered from your
possession belonging to the complainant Ram Avtar
Meena, which you received or retained having reasons
to believe the same to be stolen property and thus,
committed an offence u/s 411 IPC within my
cognizance.
And, I hereby direct that you be tried by this Court
for the aforesaid offence.”
(Emphasis supplied)
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.04.15
17:01:06
+0530
PROSECUTION EVIDENCE:
8. Notably, during the course of proceedings,
prosecution examined 12 (twelve) witnesses/prosecution
witnesses, who deposed in their respective testimonies as under;
8.1. PW-1/Sh. Ram Avtar Meena/complainant deposed
that he was working as Constable/driver in Delhi Police and at the
time of incident, he/PW-1 was posted in Old Police Line. As per
PW-1, on the intervening night of 11/12.12.2015, he/PW-1 had
returned from his village and reached at Old Delhi Railway Station
at about 11:30 p.m. Further, as per PW-1, as he was going to Old
Police Line on foot from Old Delhi Railway Station and at around
11:40 p.m., had reached near Dufferin Bridge, then, two persons
caught hold of him/PW-1 from behind. PW-1 further deposed that
one of the said persons, wrapped his hand around his neck. Further,
as per PW-1, the said persons put a knife on PW-1’s back and took
him/PW-1 in a gali where they took out Rs. 1,200/- (Rupees One
Thousand Two Hundred only), Debit Card of AXIS Bank and
HDFC Bank as well as photocopy of his/PW-1’s driving license,
from his/PW-1’s pocket. It was further asserted by PW-1 that he
raised an alarm, and the police, who were on patrolling duty
reached there and one of the said robbers was apprehended on the
spot, whilst the other succeeded in evading from there. PW-1
further deposed that the name of the person, who was
apprehended, was revealed as Rajesh @ Chuhi, who was correctly
identified by PW-1 in Court at the time of his deposition. It was
further asserted by PW-1 that on formal search of the aforesaid
accused, Rs. 1,200/- (Rupees One Thousand Two Hundred only)
and photocopy of PW-1’s driving license was recovered from the
possession of accused Rajesh @ Chuhi. Subsequently, as per
PW-1, they went to the police station, where his/PW-1’s statement
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 8 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:01:10 +0530
(Ex. PW1/A) was recorded, bearing PW-1’s signatures at point A.
PW-1 further declared that after the registration of FIR, he/PW-1
came to the spot along with the IO and the IO prepared the site plan
(Ex. PW1/B) at PW-1’s instance, bearing the signature of PW-1 at
point A. PW-1 further proclaimed that Rs. 1,200/- (Rupees One
Thousand Two Hundred only) was seized by the IO vide seizure
memo (Ex. PW1/C), bearing PW-1’s signatures at point A, as well
as the accused Rajesh @ Chuhi was arrested vide memo Ex.
PW1/D, bearing the signatures of PW-1 at point A. It was further
asserted by PW-1 that accused Rajesh’s @ Chuhi’s personal
search was conducted vide memo Ex. PW1/E, bearing PW-1’s
signatures at point A. PW-1 also deposed in his evidence that once,
he/PW-1 visited Tihar Jail for taking part in TIP proceedings of
another accused, however, could not recollect the date of
his/PW-1’s visit to Tihar Jail. Correspondingly, as per PW-1, the
said accused, who was produced for TIP, refused to take part in the
TIP proceedings, however, PW-1 correctly identified the said
accused person as accused Sadanand @ Prince in his deposition
before this Court. Correspondingly, as per PW-1, accused
Sadanand @ Prince had put a knife on his/PW-1’s back. PW-1
further identified the currency notes of Rs. 1,200/- (Rupees One
Thousand and Two Hundred only), i.e., Ex. PW1/P-1, in the
denomination of 01 (one) currency note of Rs. 1,000/- (Rupees
One Thousand only) and 01 (two) currency notes of Rs. 100/-
(Rupees One Hundred only) each, upon production of MHC(M) in
Court, as the same which were recovered from accused, namely,
Rajesh @Chuhi.
8.2. PW-2/HC Rajesh deposed that on the intervening
night of 11/12.12.2015, he/PW-2 was posted as Constable at PS
Kashmere Gate and was on night patrolling duty along with Ct.
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Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:01:13
+0530
Anil. PW-2 further asserted that at around 11:45 p.m., while they
were present in a gali near Shiva Market, Main Road, Mori Gate,
they heard some noise and saw that two boys were running.
Further, as per PW-2, he/PW-2 apprehended one of the said boys,
however, the other (boy) succeeded in running away. As per
PW-2, the name of the apprehended person was revealed as Rajesh
@ Chuhi and he took formal search of the said accused and
recovered, Rs. 1,200/- (Rupees One Thousand Two Hundred
only), which were in the denomination of one currency note of Rs.
1,000/- (Rupees One Thousand only) and two currency notes of
Rs. 100/- (Rupees Hundred only), each. Further, PW-2 proclaimed
that one Ramavtar, who was following the aforesaid boys reached
there and told PW-2 that the aforesaid money belonged to
him/Ramavtar and that he/Ramavtar had been robbed by the
aforesaid two persons. In the meanwhile, as per PW-2, ASI
Krishan Pal and Ct. Praveen reached at the spot and they , i.e.,
he/PW-2 and Ct. Anil, handed over the custody of accused as well
as the recovered amount to him and he took over the further
proceedings. PW-2 further proclaimed that ASI Krishan Pal sent
rukka through Ct. Praveen and made efforts to arrest the co-
accused, but he was not found. PW-2 further correctly identified
the accused, Rajesh @ Chuhi, in his deposition before this Court.
8.3. PW-3/HC Mahabir Singh deposed that on
11.12.2015, he/PW-3 was posted as Constable at PS Kashmere
Gate and, was working as the DD Writer on the said day. PW-3
further asserted that on the said day at around 06:10 a.m., he/PW-3
recorded DD no. 57B, which is Ex. PW3/A.
8.4. PW-4/Ct. Anil deposed that on the intervening night
of 11/12.12.2015, he/PW-4 was posted at Constable at PS
Kashmere Gate and on that night, he/PW-4 along with constable
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:01:16 +0530
Rajesh/PW-3 were on night patrolling duty in the area. It was
further proclaimed by PW-4 that at about 11:45 p.m., they reached
near roundabout of Mori Gate and heard some noise. As per PW-4
at that point in time, one person approached them and told that he
was working in Delhi Authorities and that two persons had robbed
his purse. PW-4 further asserted that they followed in the direction
told by said person and apprehended one person whose name was
later on revealed as Rajesh. It was further proclaimed by PW-4 that
they brought him/accused Rajesh at the spot and he/PW-4 made a
call to the IO and after some time, the IO reached there as well as
formal search of accused, Rajesh was taken and Rs. 1,200/-
(Rupees One Thousand and Two Hundred only) were recovered
from his possession. Correspondingly, as per PW-4, they handed
over the custody of accused to the IO and thereafter, further
proceedings were conducted by the IO. PW-4 further asserted that
the site plan (Ex. PW1/B), prepared by IO, bears PW-4’s
signatures at point B and the seizure memo of currency note, i.e.,
Ex. PW1/C, bears PW-4’s signatures at point B. Further, as per
PW-4, the said accused was arrested by arrest memo (Ex. PW1/D),
bearing PW-4’s signatures at point B and his personal search was
taken vide memo, Ex.PW1/E. PW-4 further correctly identified
accused Rajesh before this Court in his deposition. PW-4
correspondingly expressed his ability to identify the case property,
however, it was noted by the Ld. Predecessor Judge that MHC(M)
informed that the currency notes had already been deposited in the
account of DCP-North during demonetization.
8.5. PW-5/ASI Harpal Singh declared in his testimony
that on 12.12.2015, he/PW-5 was posted as Head Constable at PS.
Kashmere Gate and was working as duty officer from 01:00 a.m.
to 09:00 p.m. Further, as per PW-5, on that night, at around 02:30
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.04.15
17:01:20
+0530
a.m. on receipt of rukka from Ct. Praveen, he/PW-5 recorded FIR
No. 614/15. PW-5 further produced the original FIR register, copy
of which FIR was proved as Ex. PW5/A, bearing PW-5’s
signatures at point A. PW-5 further proclaimed that he made an
endorsement on the rukka which is Ex. PW5/B, bearing PW-5’s
signature at point A. It was further deposed by PW-5 that the FIR
was typed in CIPA by the operator on the computer maintained
there in the ordinary course of official duties. Correspondingly, as
per PW-5, he also issued a certificate under Section 65B of the
Indian Evidence Act, 1872 (hereinafter referred to as the
‘Evidence Act‘) in respect of recording of FIR on the computer,
which is Ex. PW5/C, bearing PW-5’s signature at point A.
8.6. PW-6/ASI Krishan Kumar deposed that on the
intervening night of 11/12.12.2015, he/PW-6 was posted as ASI at
PS Kashmere Gate and on that day, he was present in the area of
Mori Gate along with Ct. Parveen, in connection with some call.
PW-6 further proclaimed that when he/PW-6 was going towards
Bhola Nath Market, at about 11:45 p.m., Ct. Anil and Ct. Rajesh
met him and they produced victim Ramavtar Meena and accused
Rajesh @ Chuhi, who was correctly identified by PW-6 in Court.
Thereafter, as per PW-6, he recorded the statement of Ramavtar
Meena as Ex. PW1/A bearing PW-6’s signature at point B.
Correspondingly, as per PW-6, he made his endorsement Ex.
PW6/A, bearing PW-6’s signature at point A and, sent Ct. Parveen
to get the case registered. Further, as per PW-6, he took formal
search of the accused Rajesh @ Chuhi and recovered Rs. 1,200/-
(Rupees One Thousand Two Hundred only), which were identified
by complainant Ramavtar Meena. PW-6 further deposed that he
seized the said amount vide seizure memo (Ex. PW1/C), bearing
PW-6’s signatures at point C. In the meantime, as per PW-6, Ct.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 12 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:01:24 +0530
Parveen returned to that place and handed over the rukka and copy
of FIR to him/PW-6. Correspondingly, as per PW-6, he prepared
site plan (Ex. PW1/B), bearing PW-6’s signatures at point C. It
was further avowed by PW-6 that he arrested accused Rajesh @
Chuhi vide arrest memo (Ex. PW1/D), bearing PW-6’s signatures
at point C. Further, PW-6 proclaimed that he took personal search
of the accused vide memo (Ex. PW1/E), bearing PW-6’s
signatures at point C. As per PW-6, accused also made his
disclosure statement, which is Ex. PW6/B, bearing PW-6’s
signature at point A. Thereafter, as per PW-6, they returned to
police station and recorded the statement of witnesses. PW-6 also
asserted that he produced the accused before the concerned court
and his police custody remand was taken and thereafter, he/PW-6
made efforts to trace the co-accused, however, no clue was found.
PW-6 further proclaimed that thereafter, he was transferred and he
handed over the file to MHC(R). PW-6 further expressed his
ability to identify the case property, however, it was noted by the
Ld. Predecessor Judge that MHC(M) informed that the currency
notes had already been deposited in the account of DCP-North
during demonetization.
8.7. PW-7/ASI Raghunath Prasad deposed that on
12.12.2015, he/PW-7 was posted as Head Constable at police
station Kashmere Gate and on the said day, he was working as
MHC(M). As per PW-7, ASI Kishan Kumar deposited him/PW-7,
Rs. 1,200/- (Rupees One Thousand Two Hundred only) in
denomination of 01 (one) currency note of Rs. 1,000/- (Rupees
One Thousand only, old currency) and 02 (two) currency notes of
Rs. 100/- (Rupees One Hundred only) each. PW-7 further
proclaimed that he/PW-7 deposited the same/said notes in
malkhana and made an entry in this regard at serial no. 3083 in
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GOYAL
ABHISHEK
Date:
GOYAL 2025.04.15
17:01:30
+0530
register no. 19. PW-7 further produced the original register no. 19
and the copy of relevant entry is Ex. PW7/A (OSR). Further, as per
PW-7, as long as exhibits remained in his custody, same were
intact and nobody tampered with them. It was further proclaimed
by PW-7 that the said currency notes were deposited in the account
of DCP, North District due to demonetization. Further, PW-7
proved the copy of order for depositing the old currency notes in
the account of DCP passed by the Ld. Metropolitan Magistrate as
Mark PW7/1.
8.8. PW-8/Ct. Ranjan Bansal deposed that on 30.09.2016,
he/PW-8 was posted as Constable at PS. Kashmere Gate and on the
said day, he/PW-8 had joined the investigation of the present case
along with the IO/investigating officer. As per PW-8, accused
Sadanand @ Prince was also with them and at the instance of the
said accused/accused, Sadanand @ Prince, they conducted raid in
the area of Railway Line under Dufrene Bridge. Correspondingly,
as per PW-8, the investigating officer tried to recover the case
property, however, nothing was recovered. As per PW-8, the IO
also recorded his statement. PW-8 further correctly identified the
accused Sadanand @ Prince in Court.
8.9. PW-9/ASI Anil deposed that on 21.04.2016,
he/PW-9 was posted as Constable at PS Kashmere Gate and on the
said day, he/PW-9 joined the investigation of the present case. As
per PW-9, he along with SI Manohar Lal went to Court Room No.
150, Tis Hazari Courts, Delhi and that accused, namely, Sadanand
@ Prince had surrendered before the Court. It was further
proclaimed by PW-9 that there, IO SI Manohar Lal interrogated
and arrested the accused, namely, Sadanand @ Prince with the
permission of the Court and the arrest memo of the accused,
namely, Sadanand @ Prince is Ex. PW9/A, bearing PW-9’s
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
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signatures at point A. Further, as per PW-9, the IO carried out
personal search of the accused, namely, Sadanand @ Prince vide
memo Ex. PW9/B, bearing PW-9’s signatures at point A.
Correspondingly, as per PW-9, IO/SI Manohar Lal recorded the
disclosure statement of accused, Sadanand @ Prince as Ex.
PW9/C, bearing PW-9’s signatures at point A. IO if further
avowed by PW-9 to have produced the accused, Sadanand @
Prince before the Court and that the said accused was sent to
judicial custody. Markedly, during the course of deposition of
PW-9, exemption of accused Sadanand was allowed subject to the
said accused not disputing his identity and recording of evidence in
his absence and in presence of his counsel.
8.10. PW-10/HC Praveen Kumar deposed that in the
intervening night of 11.12.2015 and 12.12.2015, he/PW-10 was
posted as Constable at PS Kashmere Gate and on that night,
he/PW-10 along with ASI Krishan Kumar was on emergency duty.
As per PW-10, during night, he/PW-10 along with ASI Krishan
Kumar were returning to PS after attending PCR call and
patrolling in Mori Gate. At about 11:55 p.m., as per PW-10, when
they reached near Bholanath Market, Ct. Anil, Ct. Rajesh along
with the complainant, namely, Ramavtar met them. Further, as per
PW-10, IO ASI Krishan Kumar recorded the statement of the
complainant and the complainant informed that two boys robbed
him/the complainant with the help of knife. As per PW-10, two
debit cards, cash of Rs. 1,200/- (Rupees One Thousand Two
Hundred only) and driving license were robbed. Further, as per
PW-10, Ct. Anil produced the accused, Rajesh @ Chuhi and the
complainant identified him as the same person who along with his
associate robbed him/the complainant by showing knife.
Correspondingly, it was proclaimed by PW-10 that the IO carried
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ABHISHEK GOYAL
GOYAL Date:
2025.04.15
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out search of the accused, Rajesh @ Chuhi and 01 (one) bank note
of Rs. 1,000/- (Rupees One Thousand only, old currency) and 02
(two) bank notes of Rs. 100/- (Rupees One Hundred only) were
recovered from pocket of wearing pant of the accused, namely,
Rajesh @ Chuhi. Further, as per PW-10, the complainant
identified the bank notes as the same which were robbed by the
accused, Rajesh @ Chuhi along with his associate. IO is
correspondingly asserted to have prepared tehrir and handed it
over to him/PW-10 for the registration of FIR. Thereupon, as per
PW-10, he/PW-10 went to the PS Kashmere Gate and handed over
the original tehrir to Duty Officer. Subsequently, as per PW-10,
the Duty Officer registered FIR No. 614/15 and handed over
original tehrir and copy of FIR to him/PW-10 and he/PW-10 went
to the spot as well as handed over the said documents to IO. It was
further avowed by PW-10 that the IO seized cash of Rs. 1,200/-
(Rupees One Thousand and Two Hundred only) vide seizure
memo Ex. PW1/C, bearing PW-10’s signatures at point D and as
per PW-10, IO also arrest the said accused at about 03:40 a.m. vide
arrest memo Ex.PW1/D, bearing PW-10’s signatures at point D.
IO, as per PW-10, interrogated the accused and recorded his
disclosure statement (Ex.PW6/B), bearing signatures of PW-10 at
point B. Thereafter, as per PW-10, they went to PS Kashmere Gate
and the IO deposited the case property in malkhana as well as put
the accused in lock-up. Subsequently, on the following day, the
accused was produced before Court and sent to judicial custody,
whereupon, PW-10’s statement was recorded by the IO. PW-10
correctly identified accused Rajesh @ Chuhi in Court. PW-10
further expressed his ability to identify the case property, however,
it was noted by the Ld. Predecessor Judge that MHC(M) informed
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ABHISHEK GOYAL
Date:
GOYAL 2025.04.15
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+0530
that the currency notes had already been deposited in the account
of DCP-North during demonetization.
8.11. PW-11/SI (Retd.) Manohar Lal deposed on
04.02.2016, he was posted as SI at PS Kashmere Gate and on that
day, further investigation of the present case was assigned to
him/PW-11. Further, as per PW-11, he received the case file from
MHC(R) and he perused the same, as well as found that the
accused, namely, Sadanand @ Prince was yet to be arrested.
Consequently, as per PW-11, he made search of the accused,
namely, Sadanand @ Prince and case property, however, no clue
was found. As per PW-11, he prepared the chargesheet against
accused, Rajesh @ Chuhi and filed the same before the court.
Simultaneously, as per PW-11, on his application, Ld. MM issued
non-bailable warrants/NBWs against accused, Sadanand @
Prince, however, the same/NBWs could not be executed against
the accused, Sadanand @ Prince. Thereupon, as per PW-11, he
filed report before the Court and process under Section 82 Cr.P.C.
was issued against the said accused, which PW-11, executed. It
was further proclaimed by PW-11 that on 21.04.2014, accused,
Sadanand @ Prince surrender before the Court and he/PW-11
interrogated the accused, Sadanand @ Prince and arrested him
with the permission of the Court vide arrest memo Ex. PW9/A,
bearing signatures of PW-11 at point B. PW-11 further asserted
that he carried out personal search of the accused, Sadanand @
Prince vide memo (Ex. PW9/B), bearing PW-11’s signatures at
point B. Further, PW-11 declared that he recorded the disclosure
statement of said accused as Ex. PW9/C, bearing PW-11’s
signatures at point B. Thereafter, PW-11 asserted that he kept the
accused in muffled face and produced him before the Court, as
well as applied for TIP vide application Ex. PW11/A, bearing
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.04.15
17:01:43
+0530
PW-11’s signatures at point A. PW-11 further deposed that the TIP
of Sadanand @ Prince was scheduled for 28.04.2016, however, the
said accused refused to participate in TIP proceedings. Further, as
per PW-11, he received copy of TIP proceedings vide application
Ex. PW11/B, bearing PW-11’s signatures at point A and the copy
of TIP proceedings was Ex. PW11/C. PW-11 also asserted that he
applied for production warrant of the accused, Sadanand @ Prince
on 29.04.2016 vide application Ex. PW11/D and on 30.04.2016,
one day police custody remand of the said accused was granted on
PW-11’s application Ex. PW11/E, both, bearing PW-11’s
signatures at point A. It was correspondingly deposed by PW-11
that he prepared the pointing out memo Ex. PW11/F of the place of
occurrence at the instance of the accused, namely, Sadanand @
Prince, bearing PW-11’s signatures at point A. As per PW-11, he
produced the accused before the Court and he/said accused was
remanded to judicial custody. Thereafter, as per PW-11 on his
transfer, he/PW-11 handed over the case file to MHC(R). PW-11
further correctly identified accused, namely, Sadanand @ Prince
before this Court.
8.12. PW-12/Gaurav Kumar deposed In the year 2016, he
was posted as SI at PS Kashmere Gate and that the present case
was assigned to him/PW-12 for further investigation. As per
PW-12, he received the case file from MHC (R) and he perused the
same. Correspondingly, PW-12 proclaimed that the investigation
of the case had already been completed and he/PW-12 prepared
supplementary charge-sheet against the accused, namely,
Sadanand @ Prince as well as filed the same before Court.
8.13. Notably, all the aforenoted prosecution witnesses
were thoroughly examined by/on behalf of the accused persons by
the respective Ld. Counsel for the accused persons.
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8.14. Apposite to further note that during the course of
recording of evidence of prosecution witnesses, accused,
Sadanand @ Prince admitted the TIP proceedings dated
28.04.2016, as Ex. PW11/C on 21.03.2023, in terms of the
provisions under Section 294 Cr.P.C. Consequently, the Ld.
Predecessor Judge vide his order of the same date, i.e., order dated
21.03.2023, dispensed with the recording of evidence of/deleted
from the array of prosecution witnesses, PW Mr. Babru Bhan, Ld.
MM.
EXAMINATION OF ACCUSED PERSONS:
9. Apposite to note here that upon conclusion of
prosecution evidence, statements of accused persons in terms of
the provisions under Section 313 Cr.P.C. were recorded on
22.01.2024, wherein the accused persons denied their involvement
in the present case and proclaimed that they have been falsely
implicated in the present proceedings/case. Notably, accused,
Rajesh @ Chuhi, inter alia denied his involvement as well as
recovery from his person as well as proclaimed that he was falsely
implicated in the present case owing to some enmity with the
police officials of PS Kashmere Gate. Apposite to reproduce the
relevant extracts from the statement of accused Rajesh @ Chuhi,
recorded under Section 313 Cr.P.C., as under;
“Q. 1: It is in evidence against you that PW-1,
Ram Avtar Meena, deposed that he is working as
Constable/driver in Delhi Police and at the time of
incident, he/PW-1 was posted in Old Police Line. It is
further in evidence that as per PW-1, on the
intervening night of 11/12.12.2015, he/PW-1 had
come from his village and reached at Old Delhi
Railway Station at about 11:30 p.m. It is further in
evidence that as per PW-1, he was going to Old Police
Line on foot from Old Delhi Railway Station. It is
further in evidence that as per PW-1, at about 11:40
p.m., he/PW-1 reached near Duffrin Bridge, two
persons caught hold of him from behind and that oneSC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 19 of 74
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GOYAL
GOYAL Date: 2025.04.15
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of them, wrapped his hand around his/PW-1’s neck.
What do you have to say?
Answer: It is incorrect.
Q. 2: It is in evidence against you that as per
PW-1/Ram Avtar Meena, the aforesaid persons put a
knife on his/PW-1’s back and took him/PW-1 in a gali
and took out Rs. 1,200/-, Debit Card of AXIS Bank,
HDFC Bank and photocopy of his/PW-1’s driving
license, from his/PW-1’s pocket. It is further in
evidence that as per PW-1, he raised an alarm and the
police who were patrolling came there and one of the
robbers was apprehended, however, the another
succeeded in running away. It is further in evidence
that as per PW-1, the name of person who was
apprehended, was revealed as Rajesh @ Chuhi. It is
further in evidence against you that PW-1, on
20.09.2016 correctly identified the accused Rajesh @
Chuhi in Court, who was present in Court on the said
day. What do you have to say?
Answer: It is incorrect.
Q. 3: It is in evidence against you that PW-1/Ram
Avtar Meena has further deposed that on formal
search of the aforesaid accused, Rs. 1,200/- and
photocopy of his/PW-1’s driving licence was
recovered from the accused Rajesh @ Chuhi. What do
you have to say?
Answer: It is incorrect.
Q. 4: It is in evidence against you that as per
PW-1/Ram Avtar Meena, thereafter, they went to the
PS where his/PW-1’s statement Ex. PW1/A, was
recorded, bearing the signatures of PW-1 at point A. It
is further in evidence that as per PW-1, after the
registration of FIR, he/PW-1 came to the spot along
with the IO and the IO prepared the site plan Ex.
PW1/B at his/PW-1’s instance, bearing the signature
of PW-1 at point A. What do you have to say?
Answer: I do not know.
*** *** ***
Q. 39: Why was this case registered against you?
Answer: I had some dipsute with the police
officers of PS Kashmere Gate and they have falsely
implicated in the present case.
Q. 40: Why have the PWs deposed against you?
Answer: Being police officials, they have deposed
against me.
Q. 41: Do you want to lead any evidence in your
defence?
Answer: No.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 20 of 74
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ABHISHEK GOYAL
GOYAL Date:
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Q. 42: Do you want to say anything else?
Answer: I am innocent. I have been falsely
implicated in the present case as the police officials
were having grudge against me…”
(Emphasis supplied)
9.1. In so far as accused, Sadanand @ Prince is concerned,
as aforenoted, the said accused also denied his involvement in the
present case as well as affirmed about his false implication. In
particular, accused, Sadanand @ Prince denied his connection
with the co-accused as well as denied of having made any
disclosure statement to the police officials. Correspondingly, as
per the said accused, reason for his refusal to undergo TIP
proceeding was owing to the reason that his photographs (as per
the said accused) were shown to the complainant by the concerned
police officials. Relevant extracts of accused, Sadanand’s @
Prince’s statement under Section 313 Cr.P.C. are reproduced as
under;
“…Q. 6: It is in evidence against you that
PW-1/Ram Avtar Meena has further deposed that
once he/PW-1 visited the Tihar Jail for taking part in
TIP proceedings of another accused, but he/PW-1
could not remember/recollect the date of his visit to
Tihar Jail. It is further in evidence that as per PW-1,
the said accused, who was produced for TIP, refused
to take part in the TIP proceedings. It is further in
evidence that PW-1 correctly identified the accused
Sadanand @ Prince on 20.09.2016 in Court, who was
present in Court on the said day. It is further in
evidence that as per PW-1, the accused Sadanand @
Prince had put knife on his/PW-1’s back. What do you
have to say?
Answer: It is incorrect. Police had shown my
photographs to the aforesaid complainant namely
Ram Avtar Meena before applying for my TIP and
that is why I refused to participate in TIP proceedings.
The complainant has wrongly identified me in the
Court.
*** *** ***
Q. 22: It is further in evidence that as per
PW-6/ASI Krishan Kumar, the aforesaid accused
made his disclosure statement Ex. PW6/B, bearing the
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ABHISHEK GOYAL
GOYAL Date:
2025.04.15
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signatures of PW-6 at point A and thereafter, they
returned to the PS. It is further in evidence that as per
PW-6, he/PW-6 recorded statement of witnesses;
produced the accused before the concerned Court and
the police custody remand of the accused was taken. It
is further in evidence that as per PW-6, he/PW-6 made
efforts to trace the co-accused but no clue was found.
It is further in evidence that as per PW-6, thereafter,
he/PW-6 was transferred and he/PW-6 handed over
the file to the MHC(R). It is further in evidence
against you that upon production by the MHC(M) of
one unsealed envelope, containing one currency note
of Rs. 1000/- and two currency notes of Rs. 100/-
each, PW-6 identified the same/said amount and the
case property is Ex. PW1/P-1(colly). What do you
have to say?
Answer: I am not aware. I have no connection
with co accused Rajesh @ Chuhi.
*** *** ***
Q. 26: It is in evidence against you that PW-9/ASI
Anil has deposed that on 21.04.2016, he was posted as
Constable at PS Kashmere Gate and that he had joined
the investigation of the present case on the said day. It
is further in evidence that as per PW-9, he along with
SI Manohar Lal went to Court Room No. 150, Tis
Hazari Courts, Delhi. It is further in evidence that as
per PW-9, the accused, namely, Sadanand @ Prince
had surrendered before the Court. It is further in
evidence that as per PW-9, there, IO SI Manohar Lal
interrogated and arrested the accused, namely,
Sadanand @ Prince with the permission of the Court.
It is further in evidence that as per PW-9, the arrest
memo of the accused, namely, Sadanand @ Prince is
Ex.PW9/A, bearing the signatures of PW-9 at point A.
It is further in evidence that as per PW-9, the IO
carried out personal search of the accused, namely,
Sadanand @ Prince vide memo Ex.PW9/B, bearing
the signatures of PW-9 at point A. It is further in
evidence that as per PW-9, IO SI Manohar Lal
recorded disclosure statement of the accused, namely,
Sadanand @ Prince, which is Ex.PW9/C, bearing the
signatures of PW-9 at point A. What do you have to
say?
Answer: It is incorrect. I had surrendered before
the Court but I had not made any disclosure statement.
Police obtained my signatures on blank paper and
used against me.
*** *** ***
Q. 34: It is in evidence against you that PW-11/SI
(Retd.) Manohar Lal further deposed that on
his/PW-11’s application, the Court of Ld. MM issuedSC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 22 of 74
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ABHISHEK GOYAL
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non-bailable warrants against the accused, namely,
Sadanand @ Prince, however, the said non-bailable
warrants could not be executed against the accused,
namely, Sadanand @ Prince. It is further in evidence
that as per PW-11, he/PW-11 filed report before the
Court. It is further in evidence that as per PW-11,
process under Section 82 Cr.P.C. against the accused,
namely, Sadanand @ Prince (were issued) and that
he/PW-11, executed the said process/process under
Section 82 Cr. P.C. What do you have to say?
Answer: I am not aware. I have been falsely
implicated in the present case. The police officials had
never contacted me before and during issue of process
under Section 82 Cr.P.C.
*** *** ***
Q. 36: It is further in evidence that as per PW-11/
SI (Retd.) Manohar Lal, he kept the aforesaid accused
in muffled face and produced him before the Court. It
is further in evidence that as per PW-11, he/PW-11
applied for TIP vide application Ex.PW11/A, bearing
the signatures of PW-11 at point A. It is further in
evidence that as per PW-11, the TIP was fixed for
28.04.2016, however, the accused, namely, Sadanand
@ Prince refused to participate in TIP proceedings. It
is further in evidence that as per PW-11, he/PW-11
received copy of TIP proceedings vide his/PW-11’s
application Ex.PW11/B, bearing his signature of
PW-11 at point A and the copy of TIP proceedings is
Ex. PW11/C. What do you have to say?
Answer: It is incorrect. Police had shown my
photographs to the aforesaid complainant namely
Ram Avtar Meena before applying for my TIP and
that is why I refused to participate in TIP proceedings.
The complainant has wrongly identified me in the
Court.
*** *** ***
Q. 39: Why was this case registered against you?
Answer: Some local police officers had enmity
with me and that is why I have been implicated in this
case.
Q. 40: Why have the PWs deposed against you?
Answer: Being police officials, they have deposed
against me.
Q. 41: Do you want to lead any evidence in your
defence?
Answer: Yes.
Q. 42: Do you want to say anything else?
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Answer: I am innocent. I have been falsely
implicated in the present case as the police officials
were having grudge against me…”
(Emphasis supplied)
DEFENCE EVIDENCE:
10. Significantly, on conclusion of recording of
respective statements of the accused persons, in terms of the
provisions under Section 313 Cr.P.C., accused, namely, Sadanand
@ Prince expressed his willingness to lead evidence/defence
witnesses in support of his case. Markedly, accused, Sadanand @
Price, consequently, produced, DW-1/Raj Gautam, who deposed
as under;
10.1. DW-1/Shri. Raj Gautam deposed that in the year,
2015, he was working as a property dealer and that he/DW-1 knew
the accused, Sadanand since then. Further, as per DW-1, accused,
Sadanand used to work with him/DW1- in his office in the name of
Om Sai Ram, situated at Bapa Nagar, Karol Bagh. DW-1 further
proclaimed that on 11.12.2015, at about 08:00-08:30 p.m., accused
Sadanand was in aforesaid office and, had received a phone call
from his sister. As per DW-1, Sadanand’s sister told him/Sadanand
to come to Tirath Ram Hospital as her/Sadanand’s sister’s husband
was not well. Correspondingly, as per DW-1, Sadanand asked
him/DW-1 to accompany him/said accused to Hospital for help
and he/DW-1 along with Sadanand went to Tirath Ram Hospital
and remained there/in the said Hospital for the whole intervening
night of 11/12.12.2015. Further, as per DW-1, on next morning,
he/DW-1 left the Hospital and went to his/DW-1’s house.
10.2. Relevantly, though, accused Sadanand @ Prince,
initially expressed an inclination to produce another witness/DW
in support of his case, however, despite repeated adjournments on
02.03.2024, 06.04.2024 and 01.05.2024, the accused was unable
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to produce any further witness(es). On the contrary, on
27.05.2024, accused Sadanand @ Prince asserted that he would
not be in a position to produce any further witness/Ms. Kusum due
to some personal difficulty. Ergo, separate statement of accused
Sadanand @ Prince was recorded to the said effect and accused’s
right to lead further defence evidence was closed.
CONTENTIONS OF STATE:
11. Ld. Addl. PP for the State outrightly submitted that
from the material placed on record and, in particular, from the
testimony of PW-1/Sh. Ramavtar Meena, seen in conjunction with
other witnesses, the role, complicity as well as active involvement
of both the accused persons in the commission of the offences
alleged against them stands proved. As per the Ld. Addl. PP for the
State, the complainant/PW-1/Sh. Ramavtar Meena, in his
testimony, has specifically deposed about the commission of
incident by the accused persons on the intervening night of
11/12.12.2015, as the complainant was on his way to Old Police
Lines. Correspondingly, PW-1 specifically asserted that the
accused persons, while acting in concert with each other
committed robbery on him, while putting him under fear/threat of
injury/hurt and accused Sadanand @ Prince had deployed knife at
that point in time. Further, as per Ld. Addl. PP for the State,
accused, Rajesh @ Chuhi was apprehended at the spot as well as
complainant’s robbed amount was recovered from his possession.
Correspondingly, upon apprehension, Sadanand @ Prince refused
to undergo TIP proceedings, though, both the said accused persons
were identified as the perpetrators of offence by the complainant
during his deposition before this Court. Ld. Addl. PP for the State
further submitted that the apprehension of the accused Rajesh @
Chuhi and recovery from his person is duly corroborated under the
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ABHISHEK GOYAL
GOYAL Date:
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testimonies of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI
Krishan Kumar and PW-10/HC Praveen Kumar. Correspondingly,
as per Ld. Addl. PP for the State, apprehension of co-accused,
Sadanand @ Prince as well as his refusal to undergo TIP, etc.,
stand proved from the testimonies of PW-9/ASI Anil and
PW-11/SI (Retd.) Manohar Lal. It was further contended by the
Ld. Addl. PP for the State that despite an extensive and though
cross examination of the said witnesses, the defence has not been
able to rebut the sterling testimonies of the prosecution witnesses,
clearly, indicating towards the only inference of guilt of the
accused persons. Further, as per the Ld. Addl. PP for the State, the
testimonies of defence witness is not only replete with
contradictions and material improvements, rather, does not inspire
confidence. As per the Ld. Addl. PP for the defence witness has
further not withstood the rigours of cross examination, making his
deposition(s), to be outrightly rejected as being false, concocted,
and untrustworthy. Accordingly, Ld. Addl. PP for the State
reiterated that from the material, evidence and documents, placed
on record the charges levelled against the accused persons stand
duly proved, making the accused persons to be held guilty for the
same.
CONTENTIONS OF DEFENCE:
12. Per contra, Ld. Counsel for the accused persons
outrightly submitted that from the material placed on record, the
ingredients of offences under Sections 392/397/411/34 IPC are not
made out against the accused persons in the instant case. In this
regard, Ld. Counsel submitted that the testimony of the
complainant and other prosecution witnesses are replete with
contradictions and material variations, making the same
unreliable, unworthy of credit and insufficient to bring home
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charges against the accused persons, levelled against them. As per
the Ld. Counsel, on the contrary, the accused persons are entitled
to benefit of doubt. In this regard, Ld. Counsel for accused Rajesh
@ Chuhi submitted that while PW-1 in his examination-in-chief
submitted that the accused persons put his knife on his back and
took out Rs. 1,200/- (Rupees One Thousand Two Hundred only),
debit cards as well as photocopy of driving license from his pocket,
however, in his cross examination, PW-1 proclaimed that the
accused persons took out his purse from his pocket, which
contained his ticket of the train, which was disposed of by the
accused persons. Even otherwise, as per the Ld. Counsel submitted
that the complainant nowhere under his initial complaint
mentioned about the photocopy of driving license and merely
mentioned that his driving license was robbed by the accused. Ld.
Counsel further submitted that there is also contradiction in
PW-1’s deposition regarding him informing the police of the travel
ticket in his examination in chief, whilst, no such declaration exists
under his complaint. Ld. Counsel further submitted that there is
also discrepancy under the testimonies of PW-2 and PW-10 in so
far as it relates to the alleged recovery from accused, Rajesh @
Chuhi. In this regard, Ld. Counsel asserted that PW-2 deposed that
such recovery was made by him, whereas, as per PW-10 the so
called recovery was effected from the said accused by the IO. It
was further submitted by the Ld. Counsel that the entire material
placed on record would demonstrate gross variance in the version
put forth by the witnesses, making their narrative grossly
unreliable as well as unworthy of credit. Ergo, it was submitted
that the entire story of the prosecution is cooked up, fabricated and
has been concocted to falsely implicate the accused persons in the
present case. Ld. Counsel further submitted that since complainant
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is also a police officer, it is quite easy to frame the accused persons
in the present concocted case, especially when the police officials
had dispute with accused persons in the past. In this regard, Ld.
Counsel further submitted that the falsity in the prosecution case is
further accentuated with the fact that despite presence of several
public persons, not a single person was joined in the entire
investigation process, including, so called recovery, search,
seizure and arrest of the accused persons.
13. Ld. Counsel for accused Sadanand @ Prince, while
reiterating the submissions made by Ld. Counsel for accused
Rajesh @ Chuhi, supplemented that the assertion of PW-1 that
they returned to the spot after visiting the police station for the
preparation of site plan, demonstrating the fallaciousness in the
prosecution case as well as of false implication of the accused
persons. It was further submitted by the Ld. Counsel that search
and seizure in the instant case was conducted prior to the
registration of FIR, therefore, it is not demonstrable from the
material on record as to how the FIR number came to be specified
under the said memos, where the FIR was subsequent to such
search, seizure, etc. Even otherwise, it was submitted by the Ld.
Counsel that the complainant never disclosed that accused
Sadanand @ Prince has used knife, rather, he confirmed that
he/complainant came to know of the role of said accused from
disclosure of the co-accused. Ld. Counsel further submitted that,
even otherwise, in the absence of recovery of any deadly weapon
from/at the behest of said accused, no culpability under Section
397 IPC can be attracted against him. Ld. Counsel further while
reiterating the contradictions in the testimony of prosecution
witnesses, further, argued that the disclosure statement of the
accused was recorded by the IO on the spot and the IO had not
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informed the accused that he had a right of legal consultation
before being interrogated. Correspondingly, as per Ld. Counsel,
IO has deliberately not joined any public persons during the
investigation. Ergo, in light of the foregoing, Ld. Counsel
vehemently asserted that the prosecution has failed to prove its
case beyond a shadow of doubt against the accused persons,
entitling the accused persons to be released from the
allegations/charges levelled against them. Ld. Counsel further
reiterated that the witnesses brought forth have not supported the
case of the prosecution, besides the police officials have made no
attempt for recovery of the alleged robbed articles, except the ‘so
called’ money and the weapon allegedly used in the offence,
belying the story put forth against the accused persons.
Accordingly, in view of the foregoing submissions, Ld. Counsel
submitted that the accused persons be permitted to benefit of doubt
and be acquitted of the charges levelled against them. In support of
the said contentions, reliance was placed upon the decisions in;
Murari v. State, 2011 (2) JCC 1233; Ghanshyam @ Bablu v. State,
Crl. Appeal No. 757/2007, dated 05.12.2009 (DHC); and Avdhesh
@ Akhlesh v. State, 2010 (1) JCC 240.
APPEARANCE:
14. The arguments of Ld. Addl. PP for the State and that
of Ld. Counsel for the accused persons have been heard as well as
the record(s), including the testimonies of various witnesses,
document(s)/material/evidence placed on record (oral and
documentary evidence) as well as the written
submissions/arguments filed on behalf of the accused persons
have also been thoroughly perused.
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LEGAL PROVISIONS:
15. Before proceeding with the determination of the rival
contentions of the parties, this Court deems it prudent to reproduce
the relevant provisions under law/IPC as under;
“23. “Wrongful gain”- “Wrongful gain” is gain by
unlawful means of property to which the person
gaining is not legally entitled.
“Wrongful loss”- “Wrongful loss” is the loss by
unlawful means of property to which the person losing
it is legally entitled.
Gaining wrongfully, losing wrongfully-A person
is said to gain wrongfully when such person retains
wrongfully, as well as when such person acquires
wrongfully. A person is said to lose wrongfully when
such person is wrongfully kept out of any property, as
well as when such person is wrongfully deprived of
property.
24. “Dishonestly”-Whoever does anything with
the intention of causing wrongful gain to one person
or wrongful loss to another person, is said to do that
thing “dishonestly”.
*** *** ***
34. Acts done by several persons in furtherance of
common intention-When a criminal act is done by
several persons, in furtherance of the common
intention of all, each of such persons is liable for that
act in the same manner as if it were done by him alone.
*** *** ***
378. Theft-Whoever, intending to take dishonestly
any movable property out of the possession of any
person without that person’s consent, moves that
property in order to such taking, is said to commit
theft…
*** *** ***
383. Extortion-Whoever intentionally puts any
person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so
put in fear to deliver to any person any property or
valuable security or anything signed or sealed which
may be converted into a valuable security, commits
“extortion”.
*** *** ***
390. Robbery-In all robbery there is either theft or
extortion.
When theft is robbery-Theft is “robbery” if, in
order to the committing of the theft, or in committing
the theft, or in carrying away or attempting to carry
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away property obtained by the theft, the offender, for
that end, voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of
instant death or of instant hurt, or of instant wrongful
restraint.
When extortion is robbery-Extortion is “robbery”
if the offender, at the time of committing the
extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in
fear of instant death, of instant hurt, or of instant
wrongful restraint to that person, or to some other
person, and, by so putting in fear, induces the person
so put in fear then and there to deliver up the thing
extorted.
Explanation-The offender is said to be present if
he is sufficiently near to put the other person in fear of
instant death, of instant hurt, or of instant wrongful
restraint.
*** *** ***
392. Punishment for robbery-Whoever commits
robbery shall be punished with rigorous imprisonment
for a term which may extend to ten years, and shall
also be liable to fine; and, if the robbery be committed
on the highway between sunset and sunrise, the
imprisonment may be extended to fourteen years.
*** *** ***
397. Robbery, or dacoity, with attempt to cause
death or grievous hurt-If, at the time of commuting
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.
*** *** ***
411. Dishonestly receiving stolen property-
Whoever dishonestly receives or retains any stolen
property, knowing or having reason to believe the
same to be stolen property, shall be punished with
imprisonment of either description for a term which
may extend to three years, or with fine, or with both.”
(Emphasis supplied)
16. Notably, from a perusal of the aforesaid, it is
outrightly observed that the provisions under Section 34 IPC
recognize the principle of vicarious liability1 in criminal
jurisprudence, attracting culpability against a person for an
1
Suresh v. State of U.P., (2001) 3 SCC 673.
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act/offence, not committed by him but by another person with
whom he shared the common intention. It is trite law2 that Section
34 IPC does not provide for a substantive offence, rather,
envisages culpability on the part of an accused only upon the proof
of two conditions, i.e., “the mental element or the intention to
commit the criminal act conjointly with another or others; and the
other is the actual participation in one form or the other in the
commission of the crime.” Quite evidently3, mere common
intention on the part of any such accused, per se may not attract the
provisions under Section 34 IPC, sans an action in furtherance
thereof. Strikingly, the Hon’ble Supreme Court in Ram Naresh v.
State of U.P., (2024) 1 SCC 443, while explicating the contours of
the provisions under Section 34 IPC inter alia remarked as under;
“7. A reading of Section 34 IPC reveals that when
a criminal act is done by several persons with a
common intention each of the person is liable for that
act as it has been done by him alone. Therefore, where
participation of the accused in a crime is proved and
the common intention is also established, Section
34IPC would come into play. To attract Section
34IPC, it is not necessary that there must be a prior
conspiracy or premeditated mind. The common
intention can be formed even in the course of the
incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the
decision of this Court in Krishnamurthy v. State of
Karnataka [Krishnamurthy v. State of Karnataka,
(2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is
reproduced herein below: (SCC p. 537)
“26. Section 34 IPC makes a co-perpetrator,
who had participated in the offence, equally liable
on the principle of joint liability. For Section 34 to
apply there should be common intention between
the co-perpetrators, which means that there should
be community of purpose and common design or
prearranged plan. However, this does not mean
that co-perpetrators should have engaged in any
discussion, agreement or valuation. For Section 342
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
3
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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to apply, it is not necessary that the plan should be
prearranged or hatched for a considerable time
before the criminal act is performed. Common
intention can be formed just a minute before the
actual act happens. Common intention is
necessarily a psychological fact as it requires prior
meeting of minds. In such cases, direct evidence
normally will not be available and in most cases,
whether or not there exists a common intention has
to be determined by drawing inference from the
facts proved. This requires an inquiry into the
antecedents, conduct of the co-participants or
perpetrators at the time and after the occurrence.
The manner in which the accused arrived,
mounted the attack, nature and type of injuries
inflicted, the weapon used, conduct or acts of the
co-assailants/perpetrators, object and purpose
behind the occurrence or the attack, etc. are all
relevant facts from which inference has to be
drawn to arrive at a conclusion whether or not the
ingredients of Section 34IPC are satisfied. We
must remember that Section 34IPC comes into
operation against the co-perpetrators because they
have not committed the principal or main act,
which is undertaken/performed or is attributed to
the main culprit or perpetrator. Where an accused
is the main or final perpetrator, resort to Section
34IPC is not necessary as the said perpetrator is
himself individually liable for having caused the
injury/offence. A person is liable for his own acts.
Section 34 or the principle of common intention is
invoked to implicate and fasten joint liability on
other co-participants.”
12. A plain reading of the above paragraph of
Krishnamurthy case [Krishnamurthy v. State of
Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri)
192] reveals that for applying Section 34IPC there
should be a common intention of all the co-accused
persons which means community of purpose and
common design. Common intention does not mean
that the co-accused persons should have engaged in
any discussion or agreement so as to prepare a plan or
hatch a conspiracy for committing the offence.
Common intention is a psychological fact and it can
be formed a minute before the actual happening of the
incidence or as stated earlier even during the
occurrence of the incidence.”
(Emphasis supplied)
17. Markedly, from the above, it is noted that in the
instances where the provisions under Section 34 IPC are proposed
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to be invoked by the prosecution against accused persons, it is not
mandatory to demonstrate that there such persons engaged in any
prior discussion or agreement so as to prepare a plan or hatch a
conspiracy for committing the offence. On the contrary, common
intention may be formed at a spur of moment, even during the
commission/occurrence of incident, which is to be discernible
from the facts of circumstances of each case. Correspondingly, it is
also a settled law that for proving formation of common intention
by accused persons, direct evidence may seldomly be available,
yet, in order to attract the provisions under Section 34 IPC,
prosecution is under a bounden duty to prove that the participants
had shared a common intention4. Reference, in regard the
foregoing is further made to the decision in Virendra Singh v. State
of M.P., (2010) 8 SCC 407, wherein the Hon’ble Supreme Court,
elucidated as under;
“38. The vicarious or constructive liability under
Section 34 IPC can arise only when two conditions
stand fulfilled i.e. the mental element or the intention
to commit the criminal act conjointly with another or
others; and the other is the actual participation in one
form or the other in the commission of the crime.
39. The common intention postulates the
existence of a prearranged plan implying a prior
meeting of the minds. It is the intention to commit the
crime and the accused can be convicted only if such an
intention has been shared by all the accused. Such a
common intention should be anterior in point of time
to the commission of the crime, but may also develop
on the spot when such a crime is committed . In most
of the cases it is difficult to procure direct evidence of
such intention. In most of the cases, it can be inferred
from the acts or conduct of the accused and other
relevant circumstances. Therefore, in inferring the
common intention under Section 34 IPC, the evidence
and documents on record acquire a great significance4
Hon’ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this
regard, remarked; “72. It is settled law that the common intention or the intention of the individual concerned
in furtherance of the common intention could be proved either from direct evidence or by inference from the
acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is
seldom available and, therefore, such intention can only be inferred from the circumstances appearing from
the proved facts of the case and the proved circumstances.” (Emphasis supplied)
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and they have to be very carefully scrutinised by the
court. This is particularly important in cases where
evidence regarding development of the common
intention to commit the offence graver than the one
originally designed, during execution of the original
plan, should be clear and cogent.
40. The dominant feature of Section 34 is the
element of intention and participation in action. This
participation need not in all cases be by physical
presence. Common intention implies acting in
concert.
*** *** ***
42. Section 34 IPC does not create any distinct
offence, but it lays down the principle of constructive
liability. Section 34 IPC stipulates that the act must
have been done in furtherance of the common
intention. In order to incur joint liability for an offence
there must be a prearranged and premeditated concert
between the accused persons for doing the act actually
done, though there might not be long interval between
the act and the premeditation and though the plan may
be formed suddenly. In order that Section 34 IPC may
apply, it is not necessary that the prosecution must
prove that the act was done by a particular or a
specified person. In fact, the section is intended to
cover a case where a number of persons act together
and on the facts of the case it is not possible for the
prosecution to prove as to which of the persons who
acted together actually committed the crime. Little or
no distinction exists between a charge for an offence
under a particular section and a charge under that
section read with Section 34.”
(Emphasis supplied)
18. In so far as accountability under Section 390/392 IPC
is concerned, this Court deems it pertinent at this stage to make a
reference to the decision of the Hon’ble Supreme Court in Mohd.
Wajid v. State of U.P., 2023 SCC OnLine SC 951 , wherein the
Hon’ble Court, while considering the ingredients and scope of the
provisions under Section 390 IPC noted as under;
“15. Theft amounts to ‘robbery’ if, in order to the
committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property
obtained by the theft, the offender for that end,
voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant
death or of instant hurt, or of instant wrongful
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restraint. Before theft can amount to ‘robbery’, the
offender must have voluntarily caused or attempted to
cause to any person death or hurt or wrongful
restraint, or fear of instant death or of instant hurt, or
of instant wrongful restraint. The second necessary
ingredient is that this must be in order to the
committing of the theft, or in committing the theft, or
in carrying away or attempting to carry away property
obtained by the theft. The third necessary ingredient is
that the offender must voluntarily cause or attempt to
cause to any person hurt etc., for that end, that is, in
order to the committing of the theft or for the purpose
of committing theft or for carrying away or attempting
to carry away property obtained by the theft. It is not
sufficient that in the transaction of committing theft,
hurt, etc., had been caused. If hurt, etc., is caused at
the time of the commission of the theft but for an
object other than the one referred to in Section 390,
IPC, theft would not amount to robbery. It is also not
sufficient that hurt had been caused in the course of
the same transaction as commission of the theft.
16. The three ingredients mentioned in Section
390, IPC, must always be satisfied before theft can
amount to robbery, and this has been explained in
Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in
the following words:
“The words “for that end” in sec. 390 clearly
mean that the hurt caused by the offender must be
with the express object of facilitating the
committing of the theft, or must be caused while
the offender is committing the theft or is carrying
away or is attempting to carry away the property
obtained by theft. It does not mean that the assault
or the hurt must be caused in the same transaction
or in the same circumstances.”…”
(Emphasis supplied)
19. Conspicuously, in order to convict a person under
Section 392 IPC, ingredients of Section 390 IPC 5 must be
established, inert alia to the effect that the offender should
voluntarily cause or attempts to cause to any person death or hurt
or wrongful restrain, or put such persons in fear of instant death or
of instant hurt, or of instant wrongful restrain, inter alia in order to
commit or while committing theft or extortion, as the case may be.
5
Tuleshwar Dangi v. State of Jharkhand, 2017 SCC OnLine Jhar 1499.
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Correspondingly, the Hon’ble Supreme Court in Dilawar Singh v.
State of Delhi, MANU/SC/3678/2007, enunciating the ingredients
of offence under Section 397 IPC, noted as under;
“22. The essential ingredients of Section 397 IPC
are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i)
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 other accused are not vicariously liable under
that Section for acts of co-accused…”
(Emphasis supplied)
20. Markedly, in the aforesaid dictate, the Hon’ble Apex
Court in unambiguous terms observed that Section 397 IPC can be
attracted only against a particular accused/individual, who uses the
deadly weapon or does any of the acts mentioned in the said
provision. As a corollary, no culpability can be attracted against
other accused/co-accused persons, vicariously, under the said
provision. Reference in this regard is further made to the decision
in Phool Kumar v. Delhi Administration, MANU/SC/0210/1975 ,
wherein the Hon’ble Apex Court iterated similar sentimentalities
in the following terms;
“5. The sentence of imprisonment to be awarded
under Section 392 cannot be less than 7 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 ‘offender’ in that section, as
rightly held by several High Courts, is confined to the
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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 no 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 some body
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 P.W. 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.”
(Emphasis supplied)
21. Germane for the purpose(s) of the present discourse
to make a reference to the decision in Ashfaq v. State (Govt. of
NCT of Delhi), (2004) 3 SCC 116, wherein the Hon’ble Supreme
Court explicitly noted that mere brandishing of weapon/deadly
weapon is enough to attract culpability under Section 397 IPC and
that it is not required that such an accused, actually used such a
weapon for cutting, stabbing, shooting, as the case may be.
Pertinently, the relevant extract from the said dictate is as under;
“8. Thus, what is essential to satisfy the word
“uses” for the purposes of Section 397 IPC is the
robbery being committed by an offender who was
armed with a deadly weapon which was within the
vision of the victim so as to be capable of creating a
terror in the mind of the victim and not that it should
be further shown to have been actually used for
cutting, stabbing, shooting, as the case may be.”
(Emphasis supplied)
22. Congruently, the Hon’ble High Court of Delhi in
Murlidhar v. State, 2018 SCC Online Del. 9401 , while cogitating
the ingredients of offence under Section 397 IPC inter alia noted
that recovery of the weapon is not a necessary ingredient for a
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conviction under Section 397 IPC. In this regard, the Hon’ble
Court, remarked as under;
“27. This court is of the opinion that the decision
of the Supreme Court in Ashfaq is clear and
categorical that recovery of the weapon is not a
necessary ingredient for a conviction under Section
397 IPC. The ‘Use’ of the same to threaten is
sufficient. The Accused in the present case clearly
USED the knife. The same was within the vision of
both the victims as per their testimony. They were
terrorised and threatened due to the use of the same.
They were made to part with valuables, some of which
were even recovered from the house of the accused.
This Court is inclined to follow the binding precedents
of the Supreme Court in Phool Kumar and Ashfaq, as
also followed by Ld. Single Judges of this Court in
Seetal and Imran to hold that recovery of the weapon
is not needed for a conviction under Section 397 IPC.”
(Emphasis supplied)
23. Here, this Court deems it further apposite to refer to
the decision in Asif v. State (NCT of Delhi), 2022 SCC OnLine
Del 270, wherein the Hon’ble High Court observed in respect of
the foregoing, as under;
“9. It is trite law that even if the weapon of offence
is shown after snatching had taken place for running
away along with snatched article, offence under
Section 397 IPC is attracted. Section 390 Cr.P.C.
provides that in a robbery, there is either theft or
extortion. It is further provided that theft is ‘robbery’
if, in order to 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 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. Thus, if the offender uses the deadly weapon
at the time of committing robbery or dacoity which
would include even the fear of instant death or instant
hurt or wrongful restrain or an attempt to cause death
or hurt or wrongful restraint even while carrying away
or attempting to carry away the property obtained by
theft, the act of the offender will fall within the four
corners of Section 397 IPC. Thus the contention of
learned counsel for the appellant that Section 397 IPC
is not made out as the blade was allegedly shown after
the mobile phone was robbed, deserves to be rejected.
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The decisions relied upon by the learned counsel for
the appellant did not consider the necessary
ingredients of an offence of robbery which in turn is a
necessary ingredient of an offence punishable under
Section 397 IPC.”
(Emphasis supplied)
24. Quite lucidly, it is observed from above that the
Hon’ble Court explicitly remarked that even if a dangerous
weapon is deployed/brandished/shown by an accused to a victim,
after the incident of snatching had taken place, for running away
along with snatched article, offence under Section 397 IPC would
be attracted. However, in order for such weapon to fall within the
ambit/meaning of dangerous weapon, as specified under Section
392 IPC, prosecution is required to produce convincing evidence
that such knife, deployed/used by an accused was, in fact, ‘deadly
weapon’. Apposite to further note at this stage that the law is
settled6, “depending upon various factors like size, sharpness,
would throw light on the question whether the weapon was a
dangerous or deadly weapon or not.” However, the superior
courts7 have repeatedly avowed that all kinds of knives cannot be
graded as ‘deadly weapon’ within the meaning of Section 397 IPC.
In fact, it is the length, shape and the manner of use which makes a
knife ‘deadly weapon’. Reference in this regard is made to the
decision of the Hon’ble High Court in Guddu v. State,
MANU/DE/1118/2019, wherein the Hon’ble Court in respect of
the foregoing, noted as under;
“11. In Rajender Yadav Vs. The State (NCT of
Delhi) MANU/DE/2667/2013: 2013 VII AD (Delhi)
359, this Court has held that where the prosecution
case itself is that only vegetable knife was found in the
possession of the accused, the knife cannot be
considered a ‘deadly weapon’ to award the sentence of
seven years which is a minimum sentence to be given6
Mathai v. State of Kerala, (2005) 3 SCC 260.
7
Sonu v. The State (Govt of NCT of Delhi), MANU/DE/5649/2012.
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with the aid of Section 397 IPC”. In Jagdish and etc.
Vs. The State MANU/DE/0546/1985: 1985 Crl. L.J.
1621, this Court has held thus:
“Para 9. “A deadly weapon is a thing designed
to cause death, for instance, a gun, a bomb, a rifle,
a sword or even a knife. A thing not so designed
may also be used as a weapon to cause bodily
injury and even death. It will be a question of fact
in each case whether the particular weapon which
may even be a knife can be said to be a deadly
weapon. In the instant case, there is evidence to the
effect that the knives which the accused were
having were small in size. They were ordinary
vegetable cutting knives. This renders the
possibility of those knives being deadly weapons
highly doubtful and as such the appellants shall be
entitled to benefit thereof. Consequently it would
be unfair to impose the minimum sentence
contemplated in Section 397 on the appellants
merely because they used those knives in the
commission of the crime…”
12. In Rakesh Kumar Vs. State of NCT of Delhi
2005 (1) JCC 334, a Single Judge of this Court has
held that there are knives of hundreds of type
available in different length and width. All the knives
cannot be graded as “deadly weapon” within the
meaning of Section 397 IPC. It is the length, shape
and the manner of use which makes a knife “deadly
weapon”. In Charan Singh Vs. State 1998 Crl. L.J.
NOC 28 (Delhi), it was held that in order to bring
home a charge under Section 397, the prosecution
must produce convincing evidence that the knife used
by the accused was ‘deadly weapon’.”
(Emphasis supplied)
25. Pertinently, for culpability under Section 411 IPC to
arise, it is not necessary that an accused receives any stolen
property with a culpable intention, knowledge or reason to believe,
rather, even in the instance of retention of such stolen property
with such mens rea or upon the failure of the accused to make
enough inquires to comprehend the nature of good(s) procured by
him, is sufficient. Reference in this regard, is made to the decision
of the Hon’ble Supreme Court in Shiv Kumar v. State of M.P.,
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(2022) 9 SCC 676, in respect to the aforesaid, wherein the Hon’ble
Court inter alia observed as under;
“16. To establish that a person is dealing with
stolen property, the “believe” factor of the person is of
stellar import. For successful prosecution, it is not
enough to prove that the accused was either negligent
or that he had a cause to think that the property was
stolen, or that he failed to make enough inquiries to
comprehend the nature of the goods procured by him.
The initial possession of the goods in question may
not be illegal but retaining those with the knowledge
that it was stolen property, makes it culpable.”
(Emphasis supplied)
26. Correspondingly, reference is further made to the
decision in State of U.P. v. Nawab, MANU/UP/1516/2014,
wherein the Hon’ble Court noted that conviction under Section
392 and Section 411 IPC cannot be maintained simultaneously 8
against same accused. In this regard, it is pertinent to reproduce the
relevant extracts from the said decision as under;
“17. When an accused is guilty of robbery he is to
be convicted under section 392, I.P.C. When accused
is found guilty under section 392 for committing
robbery and under section 411 for retaining stolen
property, his conviction under section 411 I.P.C. is
improper. For considering the language of section
411, dishonest retention is contradistinguished in that
section from dishonest reception. The act of dishonest
removal within section 379 constitutes dishonest8
Reference is further made to the decision in Sunil Mashi v. State NCT of Delhi, MANU/DE/3768/2014,
wherein the Hon’ble High Court of Delhi, noted; “41. Even as regards offence under Section 379 IPC, the
appellant was rightly convicted inasmuch as he was found in possession of the stolen articles immediately
after the commission of theft and, therefore, the presumption under Section 114A of Indian Evidence Act,
1872 arises against him.***42. Hon’ble Supreme Court in Ganesh Lal v. State of Rajasthan,
MANU/SC/0694/2001: (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under
Section 114 Evidence Act:***”12. Section 114 of the Evidence Act provides that the Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to the common course of
natural events, human conduct and public private business, in their relation to facts of the particular case,
illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed
by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can
account for his possession. The presumption so raised is one of fact rather than of law. In the facts and
circumstances of a given case relying on the strength of the presumption the Court may dispense with direct
proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and
wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction,
recent and unexplained possession of property belonging to deceased may enable a presumption being raised
against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences
forming part of that transaction.”***43. As such, the appellant was rightly convicted under Section 379 IPC,
however, the learned Trial Court has convicted the appellant for offence under Section 411 IPC as well.
Keeping in view the fact that he has been convicted under Section 379 IPC, there was no justification for
convicting him for offence under section 411 IPC. As such, his conviction under Section 411 is set aside.”
(Emphasis supplied)
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reception within section 411 and so the thief does not
commit the offence of retaining stolen property
merely by continuing to keep possession of the
property he stole. The theft and taking and retention of
stolen goods form one and the same offence and
cannot be punished separately.”
(Emphasis supplied)
27. Reference in respect of the foregoing is further made
to the decision in Gopi Jaiswal v. State of U.P.,
MANU/UP/3723/2011, wherein the Hon’ble High Court of
Allahabad in an akin situation, carried out the review of the legal
provisions and remarked in unambiguous terms, as under,
“8. In view of the fact that the appellant Gopi
Jaiswal was the real thief, his conviction could only be
made under Section 379 IPC. His conviction under
Section 411 IPC, in such situation, was not proper. A
real thief cannot be a receiver of a stolen property. If a
person is the real thief and the stolen property is also
recovered from his possession, he should be convicted
and sentenced for the offence of theft and as such he
cannot be convicted and sentenced under Section 411
IPC. Therefore, the order of conviction and sentence
passed against the appellant under Section 411 IPC
cannot be upheld.”
(Emphasis supplied)
APPRECIATION OF EVIDENCE:
28. Therefore, being wary of the aforenoted legal
principles, judicial dictates and the rival contentions of the Ld.
Addl. PP for the State as well as that of Ld. Counsel for the
accused, this Court would now proceed with the determination on
merits of the instant case. In particular, and outrightly to the effect
as to; ‘(i) whether from the material placed on record, culpability
under Section 392/34 IPC can be attracted against the accused
persons, namely, Rajesh @ Chuhi and Sadanand @ Prince? (ii)
whether the facts and material brought forth are sufficient to
demonstrate commission of offence under Section 397 IPC
(additionally) by Sadanand @ Prince?; and (iii) whetherSC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 43 of 74
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culpability for the offence under Section 411 IPC can be attracted
against accused, Rajesh @ Chuhi in the instant case?’
Conspicuously, in order to deal with the said aspect, this Court
deems it apt to incipiently reiterate that the complainant/PW-1/Sh.
Ramavtar Meena explicated the manner of commission of offence
in the instant case as well as duly identified both the accused
persons in his deposition before this Court. As aforenoted, PW-1
unambiguously declared that on the intervening night of
11/12.12.2015, he had returned from his village and reached at Old
Delhi Railway Station at about 11:30 p.m. As per PW-1, as he was
proceeding towards Old Police Line on foot from Old Delhi
Railway Station and at around 11:40 p.m., had reached near
Dufferin Bridge, two persons caught hold of him from behind.
Correspondingly, as per PW-1 one of the said persons, wrapped his
hand around his neck. Further, as per PW-1, the said persons put a
knife on his/PW-1’s back and took him in a gali where they took
out Rs. 1,200/- (Rupees One Thousand Two Hundred only), Debit
Card of AXIS Bank and HDFC Bank as well as photocopy of
his/PW-1’s driving license, from PW-1’s pocket. It was further
asserted by PW-1 that he raised an alarm, and the police, who were
on patrolling duty reached there and one of the said robbers was
apprehended on the spot, whilst the other succeeded in evading
from there. PW-1 further deposed that the name of the person, who
was apprehended, was revealed as Rajesh @ Chuhi. It was further
asserted by PW-1 that on formal search of the said accused, Rs.
1,200/- (Rupees One Thousand Two Hundred only) and
photocopy of PW-1’s driving license was recovered from the
possession of accused Rajesh @ Chuhi. Subsequently, as per
PW-1, they went to the police station, where his/PW-1’s statement
(Ex. PW1/A) was recorded and as per PW-1, after the registration
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of FIR, he/PW-1 came to the spot along with the IO and the IO
prepared the site plan (Ex. PW1/B) at his instance. PW-1 further
proclaimed that Rs. 1,200/- (Rupees One Thousand Two Hundred
only) was seized by the IO vide seizure memo (Ex. PW1/C), as
well as the accused Rajesh @ Chuhi was arrested vide memo Ex.
PW1/D. It was further asserted by PW-1 that accused Rajesh’s @
Chuhi’s personal search was conducted vide memo Ex. PW1/E.
PW-1 also deposed that he, once, visited Tihar Jail for taking part
in TIP proceedings of another accused, however, the said accused,
who was produced for TIP, refused to take part in the said
proceedings, however, PW-1 correctly identified the said accused
person as accused Sadanand @ Prince in his deposition before this
Court. Correspondingly, as per PW-1, accused Sadanand @ Prince
had put a knife on his/PW-1’s back. PW-1 further identified the
currency notes of Rs. 1,200/- (Rupees One Thousand and Two
Hundred only), i.e., Ex. PW1/P-1, in the denomination of 01 (one)
currency note of Rs. 1,000/- (Rupees One Thousand only) and 01
(two) currency notes of Rs. 100/- (Rupees One Hundred only)
each, in Court as the same which were recovered from accused,
namely, Rajesh @Chuhi. Needless to mention, the complainant
further duly identified accused Rajesh @ Chuhi before Court as
one of the perpetrators of offence.
29. Markedly, upon being cross examined on behalf of
the accused, Rajesh @ Chuhi, PW-1 asserted as under;
“XXXXXXX by ******, counsel for accused
Rajesh @ Chuhi.
I had purchased the rail ticket from Rajgarh to Old
Delhi Railway Station. I had come by Pooja Express.
The said ticket was in my purse, which was robbed by
the accused persons and the purse could not be
recovered. I had told the IO about the purse, but IO did
not mention about the purse in my statement,
however, he had mentioned the contents of the purse.
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It is wrong to suggest that I did not tell any fact about
the purse to the police nor I was having any rail ticket
with me. The scheduled arrival time of the train was
9.55 p.m. and the train was late by one and half hours.
I do not remember the number of truck behind which
accused persons came out. When accused persons
pulled me from behind, I saw their faces. The incident
took place around 11.45 p.m. I had told in my
examination in chief the time of my reaching as 11.40
p.m, by approximation and I had not seen the watch at
that time. It is wrong to suggest What I do not
remember the exact time of incident as no such
incident had ever taken place with me. Accused
Rajesh inserted his hand in my pocket in order to take
out the money. The police officials on patrolling came
to me within 2-3 minutes. As soon as I raised alarm,
the police officials came to me on motorcycle. I did
not see them from any distance, while coming. I did
not apprehend any of the accused. Police officials
apprehended one of the accused. I do not remember
the number of debit cards. It is correct that word
‘photocopy is not mentioned in my statement
anywhere. I do not remember the time when I left the
spot. I had gone to the police station twice in respect
of the investigation of this case. The formal search of
the accused was taken at the spot itself. I do not
remember the time of arrest of the accused. It is wrong
to suggest that no such incident of robbery had taken
place with me or that none of the accused was
involved in any such incident. It is wrong to suggest
that I had falsely implicated the accused persons at the
instance of the police. It is wrong to suggest that I am
deposing falsely…”
(Emphasis supplied)
30. Correspondingly, upon being cross examined by/on
behalf of the accused, Sadanand @ Prince, the complainant,
declared as under;
“XXXXXX by ******, Ld. Counsel for accused
Sadanand @ Prince.
I had joined my duty on 12.12.2015 at 8.00 a.m. 1
used to go to my village during my rest days of duty.
On 11.12.2015, I travelled in train on a general ticket.
I had not handed over my ticket to the IO as same was
in the wallet which was dropped by the accused
persons. I had stated to the IO that my wallet was also
taken away by the accused persons. (Confronted with
statement Ex.PW1/A where it is not so recorded). It is
correct that in my statement before the court on
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20.9.2016, I had specifically not mentioned that
accused persons took out my wallet containing
Rs.1200/- Debit Cards of Axis Bank, HDFC Bank,
and photo copy of driving licence from my pocket. I
had stated to the IO that photo copy of driving licence
was taken away by the accused persons. (Confronted
with statement Ex.PW1/A where photo copy is not
mentioned). I had stated to the IO that on formal
search of accused Rajesh Chuhi copy of my driving
licence was also recovered. (Confronted with
statement Ex.PW1/A where it is not so recorded).
Robbed money was recovered from accused Rajesh @
Chuhi by police officials who were patrolling, so far
as I remember, Ct. Anil and Ct. Praveen. Robbed
money was recovered by the IO of this case. Today I
do not remember whether the aforesaid amount was
taken into sealed pulanda or not. There was no
specific mark of identification on the robbed money
but the money robbed from me was one currency note
was in the denomination of Rs.1000/- and two
currency notes were in the denomination of Rs.100/-.
It is correct that if the robbed amount is mixed with
other currency notes of same denomination, I will not
be able to identify the robbed currency notes. I had
signed my statement after going through the same. It
is correct that co-accused ran away while taking
benefit of darkness. (Vol. Accused Rajesh Chuhi was
having problem in his leg i.e, why he could not
escape). We reached at the PS at 12.00 midnight. My
statement was recorded by the IO. After registration
of the case, I went to Old Police lines. After
registration of the case, I never visited PS Kashmere
Gate and I was not called by the IO. I had mentioned
the name of accused Sadanand as I had come to know
about the same during the interrogation of accused
Rajesh @ Chuhi that accused Sadanand had put his
knife on my back. It is wrong to suggest that I did not
mention statement that accused Sadanand had put
knife. On my back as he had not done the alleged act.
It is wrong to suggest that I falsely implicated accused
Sadanand in the present case or that I am deposing
falsely.”
(Emphasis supplied)
31. Strikingly, it is seen from a conscientious perusal of
the cross examination of PW-1 that even upon being rigorously
questioned, PW-1 consistently affirmed that during the incident,
the accused persons committed the offence of robbery upon him at
the fateful date and time, besides duly identified the accused
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persons in Court. Here, it is further pertinent to refer to the
testimonies of PW-2/HC Rajesh and PW-4/Ct. Anil, who were
both members of patrolling party and had, both, asserted that they
reached at the spot, where accused accused, Rajesh @ Chuhi was
apprehended as well as, further asserted about recovery of a sum of
Rs. 1,200/- (Rupees One Thousand and Two Hundred only) from
the possession of the said accused, while the co-accused was able
to escape from the spot. Markedly, both the said witnesses further
proclaimed that the IO had reached at the spot, whereupon the
custody of accused Rajesh @ Chuhi was handed over to him/IO.
Correspondingly, the witnesses also consistently declared
regarding the IO’s undertaking the remaining proceedings,
thereafter. Relevantly, the factum of handing over of accused,
Rajesh @ Chuhi by PW-2/HC Rajesh and PW-4/Ct. Anil to the IO
as well as of the recovery of the sum of Rs. 1,200/- (Rupees One
Thousand Two Hundred only) from the said accused stands duly
corroborated from the testimonies of PW-6/ASI Krishan Kumar
and PW-10/HC Praveen Kumar.
32. Conspicuously, as aforenoted, Ld. Counsel for the
accused persons have vehemently asserted that there are material
contradictions and variance in the testimonies of PW-1 and other
prosecution witnesses, in respect to their assertion on the person by
whom recovery was undertaken, apprehension of accused, articles
allegedly recovered, presence of the complainant on the spot, etc.
However, in order to unerringly appreciate the contention, raised
by the Ld. Counsel for the accused persons in this regard, this
Court deems it pertinent to outrightly iterate and explore the
judicial precedents governing the law of contradictions in the
testimony of the witness. In this regard, this Court deems it apt to
incipiently make a reference to the decision of the Hon’ble
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Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC
505, wherein the Hon’ble Court inter alia observed as under;
“10. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth.
Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the evidence
as a whole and evaluate them to find out whether it is
against the general tenor of the evidence given by the
witness and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of belief.
Minor discrepancies on trivial matters not touching
the core of the case, hyper-technical approach by
taking sentences torn out of context here or there from
the evidence, attaching importance to some technical
error committed by the investigating officer not going
to the root of the matter would not ordinarily permit
rejection of the evidence as a whole. If the court
before whom the witness gives evidence had the
opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial
court and unless there are reasons weighty and
formidable it would not be proper to reject the
evidence on the ground of minor variations or
infirmities in the matter of trivial details. Even honest
and truthful witnesses may differ in some details
unrelated to the main incident because power of
observation, retention and reproduction differ with
individuals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having examined
the evidence of this witness, a friend and well-wisher
of the family carefully giving due weight to the
comments made by the learned counsel for the
respondent and the reasons assigned to by the High
Court for rejecting his evidence simultaneously
keeping in view the appreciation of the evidence of
this witness by the trial court, we have no hesitation in
holding that the High Court was in error in rejecting
the testimony of witness Nair whose evidence appears
to us trustworthy and credible.”
(Emphasis supplied)
33. Analogously, in this regard, the Hon’ble Apex Court
in Rammi v. State of M.P., (1999) 8 SCC 649, noted as under;
“24. When an eyewitness is examined at length it
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is quite possible for him to make some discrepancies.
No true witness can possibly escape from making
some discrepant details. Perhaps an untrue witness
who is well tutored can successfully make his
testimony totally non-discrepant. But courts should
bear in mind that it is only when discrepancies in the
evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence. But too serious a view to be
adopted on mere variations falling in the narration of
an incident (either as between the evidence of two
witnesses or as between two statements of the same
witness) is an unrealistic approach for judicial
scrutiny.”
(Emphasis supplied)
34. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into the
root of the matter and shake the basic version of the witnesses,
cannot be permitted to be annexed with any undue weight. In fact,
it is trite law9, the discrepancies which do not shake the basic
version of the prosecution and those which emanate due to normal
errors of perception or observation should not be given importance
and must necessarily be discarded. The rationale behind the same
is quite obvious, as elucidated by the Hon’ble Supreme Court in
State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as
under;
“30. In all criminal cases, normal discrepancies
are bound to occur in the depositions of witnesses due
to normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
contradiction, creating a serious doubt about the
truthfulness of the witness and other witnesses also
make material improvement while deposing in the
court, such evidence cannot be safe to rely upon.
However, minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
which do not affect the core of the prosecution case,
should not be made a ground on which the evidence
can be rejected in its entirety. The court has to form its9
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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opinion about the credibility of the witness and record
a finding as to whether his deposition inspires
confidence.
“9. Exaggerations per se do not render the
evidence brittle. But it can be one of the factors to
test credibility of the prosecution version, when
the entire evidence is put in a crucible for being
tested on the touchstone of credibility.” [Ed.: As
observed in Bihari Nath Goswami v. Shiv Kumar
Singh, (2004) 9 SCC 186, p. 192, para 9.]
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of the
statement made by the witness earlier. The omissions
which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial
or core of the prosecution’s case, render the testimony
of the witness liable to be discredited…”
(Emphasis supplied)
35. Ergo, to recapitulate, in order to disregard the
testimony of a witness, it is imperative that the same is replete with
material improvements, contradictions and variation. In contrast,
law provides for due concession to marginal variations and normal
discrepancies in the statement/testimony of a witness, which are
bound to occur due to normal errors of observation, namely, errors
of memory due to lapse of time or due to mental disposition such
as shock and horror at the time of occurrence.
36. Consequently, being cognizant of the foregoing
revered principles, when the testimonies of prosecution witnesses
in the instant case are conscientiously analyzed, this Court finds
itself difficult to be convinced with contention of Ld. Counsel for
the accused persons that the ‘so called’ contradictions/variations in
the testimonies of the said witnesses/prosecution witnesses, are
sufficient enough to discredit the entire prosecution case. Needless
to reiterate PW-1 has consistently deposed about the commission
of incident in question by the accused persons, while acting in
concert/common intention with each other, as well as of the factum
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ABHISHEK GOYAL
Date:
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of accused persons inter alia robbing him of a sum of Rs. 1,200/-
(Rupees One Thousand Two Hundred only), whilst he/PW-1 was
put under fear of instant death, instant hurt/injury or of wrongful
restraint; accused persons attempting fleeing from the spot
immediately after such occurrence; him/PW-1’s raising an alarm
and of the police officials reaching there and apprehending of the
said perpetrators, who was identified as accused Rajesh @ Chuhi;
recovery of his robbed amount of Rs. 1,200/- (Rupees One
Thousand Two Hundred only) from the possession of said accused;
and subsequently, upon apprehension of co-accused, the said co-
accused’s refusing to undergo TIP proceedings. Correspondingly,
PW-1 also duly identified both the accused persons as the
perpetrators of offence against him. Here, it is pertinent to note that
Ld. Counsel for the accused persons have questioned the presence
on the spot of occurrence by asserting that the witness has not
produced his travel ticket, besides has been inconsistent in his
deposition as to exact time of alleged occurrence. However, in this
regard, this Court outrightly notes that PW-1/complainant, under
cross examination by/at the behest of accused, Rajesh @ Chuhi
provided the particulars of the train that he had travelled from on
the date of occurrence, i.e., Pooja Express as well as the scheduled
time of its arrival as 09:55 p.m., which was further asserted by the
complainant/PW-1 to have been delayed by one and half hour on
the said date. Correspondingly, though, PW-1 failed to produce the
ticket of his travel, however, asserted that the same was in his
purse, which was robbed by the accused persons. Undoubtedly,
there appears to be contradiction in the assertion of the
complainant/PW-1 regarding the robbing of his purse and ticket
being present in the same, as proclaimed by him under his said
cross-examination, in variance to such assertion under his
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examination in chief. However, in the considered opinion of this
Court, same would not be sufficient to belie the presence of the
complainant at the spot of commission of offence. On the contrary,
this Court unambiguously notes in this regard that the presence of
the complainant on the spot as well as of the apprehension and
recovery from accused Rajesh @ Chuhi at the fateful moment and
place, stands corroborated from the testimonies of other
prosecution witnesses, i.e., from the conscientious analysis of the
depositions of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI
Krishan Kumar and PW-10/HC Praveen Kumar. Needless to
mention that despite the complainant’s asserting with precision,
the mode of transport, i.e., particulars of the train and scheduled
time of arrival, no suggestion or further cross
examination/question has been put forth to the complainant by the
accused persons, to deny the said asseveration of the complainant.
Correspondingly, PW-3/HC Mahabir Singh specifically proved
DD No. 57B as Ex. PW-3/A, recoding the factum of departure
entry of PW-2/HC Rajesh and PW-4/Ct. Anil on the said date.
However, except for a general assertion that PW-2 and PW-4 were
not present on the spot, nothing else is forthcoming under the
deposition of any of the witnesses to belie declaration of the
complainant in the instant case. Needless to mention, PW-3 was
not cross examined by/at the behest of the accused persons, despite
being afforded an opportunity to the accused persons. In fact, even
under his cross examination, PW-4 affirmed his presence on the
spot and of having making departure entry in this regard. Apposite
to reproduce the relevant extracts of cross examination of PW-4, as
under;
“XXXXXX by ******, Ld. Counsel for accused
Rajesh @ Chuhi.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 53 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:04:31 +0530
I was posted in the beat of that area and I was
performing night patrolling duty. I heard the noise
from the distance of 50 meters. At that time, I was in
the gali in Bhola Nath Market. When I reached near
the victim, the incident had already taken place. At
that time, victim was alone. It was around 11.45 p.m.
I was patrolling in the area on government
motorcycle. I do not remember the registration
number of the motorcycle. I had left the police station
at around 11.00 p.m. My departure entry was made in
the roznamcha by the DO. I do not remember the DD
entry number. I was not the beat constable of that area
where incident took place. It is wrong to suggest that I
was not on patrolling duty on that day or that no
person met me in Bhola Nath Market. The distance
between Bhola Nath Market and Mori Gate round
about is 150 yards. The said place from where the
sound was coming was not visible from the place
where I was present. Complainant did not meet me at
round about. Complainant met me on the corner of
gali in Bhola Nath Market. I do not know the property
number of the market. I immediately followed the
accused persons. Rajesh was apprehended after
chasing 100 meters. Site plan was not prepared at my
instance. However, I was present at that time. It is
wrong to suggest that accused Rajesh was lifted from
his house or that no recovery was effected from him. It
is wrong to suggest that accused did not make any
disclosure statement or that the amount of Rs. 1200/-
is planted on him at the instance of complainant. It is
wrong to suggest that I was not present in the market
on that night or that no complainant met me in the
manner as stated by me above. It is wrong to suggest
that I am deposing falsely at the instance of the IO. It
is wrong to suggest that I am deposing falsely or that
all the papers were prepared at the police station.”
(Emphasis supplied)
37. Additionally, in the considered opinion of this Court,
not much import can be accorded to the deposition of the
complainant regarding the incident having taken place at around
11:45 p.m., in distinction to the declaration of the complainant that
the scheduled time of arrival of the train was 09:55 p.m. as
contended by Ld. Counsel for the accused. In particular, Ld.
Counsel for the accused fervently argued that the IO did not verify
the reasons of presence of the complainant at the spot, despite
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by ABHISHEK
ABHISHEK GOYAL
Date:
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passage of two hours from 09:55 p.m., when the alleged time of
incident is asserted to be 11:40-11:45 p.m. However, in this regard,
this Court decidedly notes that the complainant in his cross
examination has specifically declared that though the scheduled
time of arrival of the train was 09:55 p.m., however, the same got
delayed by one and half hour. Correspondingly, PW-1 also
declared under his said cross examination that he had told under
his examination in chief, the time of his reaching as 11:40 p.m., by
approximation and he had not seen the watch at that time. Clearly,
in light of the said avowal, not only has the complainant explained
his presence on the spot at the time of occurrence in the instant
case, belying the submission that the prosecution has not been able
to explain his presence for more than two hours at the spot, rather,
this Court is also cognizant of the repeated avowal of the superior
courts10 inter alia to the effect that in respect of the exact time of an
incident, or the time duration of an occurrence lasted, “usually,
people make their estimates by guess work on the spur of the
moment at the time of interrogation. And one cannot expect people
to make very precise or reliable estimates in such matters. Again, it
depends on the time-sense of individuals which varies from person
to person.” Needless to reiterate that the presence of the
complainant on the spot as well as of the apprehension and
recovery from accused Rajesh @ Chuhi at the fateful moment and
place, stands further corroborated from the testimonies of other
prosecution witnesses, i.e., from the conscientious analysis of the
depositions of PW-2/HC Rajesh, PW-4/Ct. Anil, PW-6/ASI
Krishan Kumar and PW-10/HC Praveen Kumar. Correspondingly,
the complainant even under his cross examination by/at the behest
of accused, Rajesh @ Chuhi affirmed/reiterated that accused
10
Reference is made to the decision in; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217.
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Rajesh had inserted his hand in his/complainant’s pocket in order
to take out the money. At the same time, PW-1 confirmed that the
police official, who were on patrolling duty reached the spot as
soon as he raised and alarm and that accused Rajesh @ Chuhi was
apprehended by them on the spot itself.
38. Relevantly, as aforenoted, Ld. Counsel for the
accused persons have further strenuously contended that the
complainant did not declare in his complaint that a photocopy of
his driving license was also being carried by him in the aforesaid
purse and that the same was also recovered from the possession of
accused, Rajesh @ Chuhi. Needless to mention, the complainant
was duly confronted with such assertion for the first time under his
cross examination, in variance to the absence thereof under his
complaint to the concerned police officials. However, as
aforenoted, law is trite that court(s), while appreciating the
evidence, cannot accord undue importance to minor discrepancies,
which do not shake the basic version of the prosecution case.
Clearly, as aforenoted, discrepancies which are due to normal
errors of perception or observation should not be given importance
and that minor errors due to lapse of memory may be given due
allowance. Ergo, in light of the said understanding, in the
considered opinion of this Court, the factum of complainant’s
assertion that a photocopy of his driving license was recovered
from the possession of accused Rajesh @ Chuhi upon his
apprehension cannot be accorded much weightage as minor
variation, which is bound to occur due to lapse in time from the
commission of incident in question to the time when the deposition
of the complainant was finally recoded before this Court.
Concomitantly, for the same reason not much import can be
accorded to the deposition of PW-2/HC Rajesh on one hand,
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 56 of 74
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GOYAL Date: 2025.04.15
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asserting that recovery from accused, Rajesh @ Chuhi was
affected by him, in contrast to the assertion of PW-6/ASI Krishan
Kumar and PW-10/HC Praveen Kumar that the recovery was
effected by IO/PW-6 from the said accused in the instant case.
Needless to mention that it is not the case of the prosecution that
the incident in question occurred in presence of the police officials,
rather, all the said formal witnesses/police officials asserted that
they were informed of the incident by the complainant and it is
only upon the complainant’s raising an alarm, PW-2/HC Rajesh
and PW-4/Ct. Anil reached at the spot, whereupon accused, Rajesh
@ Chuhi was apprehended and recovery effected from the said
accused.
39. In so far as the contention of Ld. Counsel for the
accused persons regarding the absence of specific identification
mark on the recovered notes to establish their ownership to the said
notes/recovered notes to the complainant is concerned, this Court
deems it pertinent to note that the accused Rajesh @ Chuhi was
immediately apprehended on the spot by the members of the
patrolling staff, i.e., PW-2/HC Rajesh and PW-4/Ct. Anil, besides
the recovery was effected from him at the spot. Correspondingly,
on the personal search of the accused, Rajesh @ Chuhi (Ex.
PW1/E), nothing other than the said money, asserted to be the
robbed amount, was recovered from his possession. Needless to
mention, even the complainant in his cross examination
specifically asserted that the money robbed from him was one
currency note, in the denomination of Rs. 1,000/- (Rupees One
Thousand only) and two currency notes were in the denomination
of Rs.100/- (Rupees One Hundred only), which corresponds with
the denomination of the amount so recovered. Concomitantly,
accused Rajesh @ Chuhi has not claimed ownership of the said
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by ABHISHEK
ABHISHEK GOYAL
Date:
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amount. Ergo, under such circumstances, as per the mandate of
Section 114(a)11 of the Evidence Act, it was obligated on accused
Rajesh @ Chuhi to explain his possession of the said
amount/recovered amount by tendering any plausible
explanation/reasons thereof, which he failed to do in the instant
case. Even otherwise, for the sake of argument presuming that the
amount so recovered was not the robbed amount, in view of the
consistent stand of the complainant/PW-1 and other witnesses,
regarding the occurrence of robbery by the accused persons, mere
factum of non-recovery of the amount involved, would not be
sufficient to belie the case of the prosecution. In this regard, it is
pertinent to make a reference to the decision of the Hon’ble High
Court of Delhi in Mohd. Usman v. State (NCT) of Delhi,
MANU/DE/0531/2011, wherein the Hon’ble Court, while
confounded with a situation of akin kind, remarked as under;
“18. I am not impressed with the above
contention. There is no law which provides that in a
case of theft or robbery, recovery of the weapon of
offence or stolen goods is sine qua non for proving the
guilt of the accused person. If, for any reason
whatsoever, the accused, after committing the offence
has been able to dispose of, destroy or conceal the
stolen property or the weapon of offence, it cannot be
taken as a reason to disbelieve the testimony of the
victim if it is otherwise found reliable. No doubt, as
per the version of Head Constable Ramesh
Chand(PW2), he found injured Satish Kumar
surrounded by a group of people but, this by itself,
does not mean that the aforesaid public persons had
actually witnessed the occurrence. A possibility
cannot be ruled out that those public persons reached
at the spot after the occurrence.”
(Emphasis supplied)
11
114. Court may presume existence of certain facts-“The Court may presume the existence of any fact which
it thinks likely to have happened, regard being had to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the particular case.***The Court may presume
–***(a) That a man who is in possession of stolen goods soon after the theft is either the theft or has received
the goods knowing them to be stolen, unless he can account for his possession;…” (Emphasis supplied)
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 58 of 74
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by ABHISHEK
ABHISHEK GOYAL
Date:
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40. Clearly, in light of the aforenoted dictate, however,
even working on a presumption that the amount so recovered from
the possession of accused, Rajesh @ Chuhi was not the robbed
amount, this Court reiterates that the law is settled that the mere
factum of non-recovery of robbed amount, would not work to the
advantage of the accused persons, in view of the consistent
deposition of PW-1/complainant declaring the commission of
incident of robbery by the accused persons on the aforenoted date
and time, while acting in connivance, concert and common
intention with each other. Here, this Court deems it pertinent to
observe that it finds no credence in the contention of Ld. Counsel
for the accused persons that the conviction of the accused persons
cannot be based on the testimony of sole witness, in the absence of
any corroboration or joining of independent witnesses in the
instant case. In fact, in this regard, this Court unambiguously
records that it is cognizant of the repeated avowals of superior
courts12, declaring that there is no legal hurdle in convicting a
person on the testimony of a single/sole eyewitness, if his version
is clear and reliable, for the principle of law/rule of evidence is that
the evidence has to be weighed and not counted. Relevantly, in this
regard, the Hon’ble Supreme Court in Sunil Kumar v. State (Govt.
of NCT of Delhi), (2003) 11 SCC 367, noted as under;
“9. … This Court held that as a general rule the
court can and may act on the testimony of a single
witness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of
Section 134 of the Indian Evidence Act, 1872 (in short
“the Evidence Act“). But, if there are doubts about the
testimony the courts will insist on corroboration. It is
for the court to act upon the testimony of witnesses. It
is not the number, the quantity, but the quality that is
material. The time-honoured principle is that evidence
has to be weighed and not counted. On this principle
12
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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stands the edifice of Section 134 of the Evidence Act.
The test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy, or otherwise.”
(Emphasis supplied)
41. Congruently, this Court unambiguous observes that
mere fact that the prosecution opted not to produce the other public
persons, asserted to be present or would have been present at the
spot of occurrence would not be sufficient to create a dent in the
prosecution case in the instant case, in light of the decision of the
Hon’ble Supreme Court in Rajesh Yadav v. State of U.P., (2022)
12 SCC 200, wherein the Hon’ble Court in a similar situation, held
as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and could
well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
42. In as much as the contention of the Ld. Counsel for
Sadanand @ Prince regarding the factum of him refusing to
undergo TIP proceedings cannot be read against him as his
photographs had already been shown to the complainant by the
concerned police officials by the time his TIP proceedings were
proposed, does not find favour with this Court. In the instant case,
from a scrupulous analysis of the material placed on record, it is
observed that not only did accused Sadanand @ Prince was able to
evade from the scene of crime, rather, was eventually arrested only
after he had surrendered, post initiation of proceedings under
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by ABHISHEK
ABHISHEK GOYAL
Date:
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Section 82 Cr.P.C. against him. However, even thereafter, the
accused refused to undergo TIP proceedings, yet, was duly
identified as one of the perpetrators of offence by the complainant
before this Court during his deposition. In fact, as per PW-11/SI
(Retd.) Manohar Lal, upon his formal arrest, pointing out memo
(Ex.PW11/F) of the place of occurrence, was got prepared by
him/PW-11 at the instance of the accused, Sadanand @ Prince.
Apposite in this regard to refer to cross examination of PW-11 at
this stage, as under;
“XXXXXX by ******, Advocate for both the
accused persons, namely, Rajesh @ Chuhi and
Sadanand @ Prince.
I used to be on emergency duty for 12 hours.
However, I do not remember what was my duty hours
on 04.02.2016. It is wrong to suggest that the accused,
namely, Sadanand @ Prince had not given any
disclosure statement. It is wrong to suggest that I
obtained signature of the accused, namely, Sadanand
@ Prince on blank paper and converted it into his
disclosure statement. It is wrong to suggest that I had
shown the photographs of the accused, namely,
Sadanand @ Prince to the complainant before TIP of
the accused, namely, Sadanand @ Prince. It is wrong
to suggest that the accused, namely, Sadanand @
Prince had not pointed out any place of occurrence. It
is wrong to suggest that I had not conducted the
investigation proper and in fair manner.
It is wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
43. Markedly, it is seen from above that though Ld.
Counsel for the accused suggested to PW-11 that he had shown
photographs of accused Sadanand @ Prince to the complainant,
prior to his TIP proceedings, which was denied by the said witness,
however, no such suggestion was ever placed to the complainant in
the instant case. In fact, no such cross examination on the aspect of
identification of accused Sadanand @ Prince by the complainant is
forthcoming under the deposition of PW-1, except to the extent
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ABHISHEK GOYAL
GOYAL Date:
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that the complainant had not specifically named the said accused
under his complaint. Ergo, under such circumstances, it is
reiterated that mere assertion that the photographs of accused were
shown to the complainant by the IO and consequently, the TIP
refusal cannot be read against the accused in the instant case,
would not, in the considered opinion of this Court enure to the
benefit of the said accused. Correspondingly, this Court is further
not convinced with the submission of Ld. Counsel for the accused
persons that the complainant could not have, even otherwise,
identified the accused persons as the perpetrator of offence in the
instant case, in view of his/complainant’s own declaration that he
was held from behind at the time of commission of offence. On the
contrary, in this regard, this Court deems it pertinent to note that
the complainant, upon being cross examined by/on behalf of
accused Rajesh @ Chuhi, specifically avowed that when the
accused persons pulled him/the complainant from behind, he saw
their faces. However, despite such avowal, neither any suggestion
that the complainant could not have seen the faces of the
perpetrators of offence or any further cross examination on this
aspect is forthcoming in the deposition of PW-1, except to a
general suggestion that the accused persons were falsely
implicated in the present case by the complainant, at the instance
of the concerned police officials, which again, in the considered
opinion of this Court, not work to the advantage of the accused in
the instant case.
44. Correspondingly, this Court is further not convinced
with the submission of Ld. Counsel for the accused persons that
both the accused persons have been falsely implicated in the
present case due to some prior enmity with the police officials. In
this regard, this Court deems it pertinent to outrightly note that the
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 62 of 74
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ABHISHEK GOYAL
GOYAL Date:
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said defence has come forth for the first time under the statements
of accused persons, recorded in terms of the provision under
Section 313 Cr.P.C., without there being any basis thereof under
the cross examination of any of the prosecution witnesses. In fact,
from a conscientious perusal of the records it is seen that nowhere
under the cross examination of any of the prosecution witnesses,
factum of such past enmity or the particulars thereof are
forthcoming. In fact, even the name of the concerned police
officials or the reasons thereof to falsely implicate the accused
persons in the instant case are emanating from the material placed
on record. In fact, in this regard, this Court deems it apposite here
to make a reference to the decision of the Hon’ble High Court of
Madhya Pradesh in Suresh Chandra Gupta v. State of Madhya
Pradesh, Crl.M.C. No. 5117/2021, dated 26.10.2021, wherein the
Hon’ble Court, confronted with a similar conundrum, responded
as under;
“…It is basic principle of the trial that accused has
to establish his defence by cross examination of the
prosecution witness and it cannot be termed that the
accused defence shall start only at the stage of defence
evidence. By confronting the prosecution witness
with evidence and rebutting them by cross
examination is the defence of the accused at the stage
of prosecution evidence also. For free and fair trial,
the trial court is bound to allow the accused to furnish
all relevant documents for his defence at any stage.
The impugned order is per-se illegal and arbitrary.
Hence, he prayed that this petition should be allowed
and impugned order should be quashed and the
application filed by the petitioner under Section 91 of
Cr.P.C. for taking documents on record be also
allowed.”
(Emphasis supplied)
45. Clearly, in light of the aforesaid dictate, under such a
situation where neither any of the prosecution witnesses have been
cross examined nor any affirmative evidence forthcoming from
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
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the accused persons’ end regarding their assertion of past enmity
with the police officials of PS. Kashmere Gate, in the considered
opinion of this Court, not much credence can be accorded to the
accused persons’ said defence, basis/foundation of which was
neither laid down in the accused persons’ cross examination of the
prosecution witnesses nor any affirmative evidence in this regard
forthcoming on the record. On the contrary, this Court deems it
apposite at this stage to note that it is wary of the persistent
avowals of various courts, declaring the police officials to be
competent witness in criminal trials/cases and 13 that evidence of
police witnesses cannot be discarded merely on the ground that
they belong to police force and interested in the investigation.
Relevant in this regard, to further make a reference to the decision
of the Hon’ble Supreme Court in Govindaraju v. State, (2012) 4
SCC 722, wherein the Hon’ble Court, in an akin context observed
as under;
“30. It cannot be stated as a rule that a police
officer can or cannot be a sole eyewitness in a criminal
case. It will always depend upon the facts of a given
case. If the testimony of such a witness is reliable,
trustworthy, cogent and duly corroborated by other
witnesses or admissible evidence, then the statement
of such witness cannot be discarded only on the
ground that he is a police officer and may have some
interest in success of the case. It is only when his
interest in the success of the case is motivated by
overzealousness to an extent of his involving innocent
people; in that event, no credibility can be attached to
the statement of such witness.”
(Emphasis supplied)
46. At this stage, this Court deems it further pertinent to
note that, though, accused, Sadanand @ Prince produce DW-1/Raj
Gautam in support of his case, who inter alia asserted that on the
intervening night of 11/12.12.2015, the accused Sadanand and
13
Baldev Singh v. State of Haryana, MANU/SC/1268/2015.
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he/DW-1 were present in Tirath Ram hospital as Sadanand’s
sister’s husband was not well and admitted in the said Hospital. In
fact, DW-1 specifically asserted that accused Sadanand and
he/DW-1 remained in the hospital for the whole intervening night
of 11/12.12.2015. However, in the considered opinion of this
Court, DW-1 failed to face the rigours of cross examination by/on
behalf of the State. Apposite at this stage to reproduce the extracts
of cross examination of DW-1/Raj Gautam as under;
“XXXXXXXX by Ld. Addl. PP for the State.
I have studied upto 9th standard in UP. I along with
my family shifted to Delhi in the year 2000 and since
then I have been residing in Karol Bagh. I am engaged
in the work of property dealing since 2010. Earlier I
was working in the office of some other property
dealer. The office situated in Bapa Nagar, Karol Bagh
is owned by Kartar Singh and I am working there
since the year 2010. My job profile includes showing
of the properties to the clients. I was married seven
years back. Sadanand started working in the said
office in the year 2014 and he was working as my
colleague. I can not tell the exact date when Sadanand
joined the aforesaid job, due to lapse of long time. I do
not know what was the health issue to the brother in
law of Sadanand when he was admitted in Tirath Ram
Hospital in intervening night of 11/12.12.2015. I do
not remember whether the brother in law of Sadanand
was in general ward or ICU or emergency ward. I can
not tell on which floor the brother in law of Sadanand
was admitted in the said hospital. (Vol. Sister of
Sadanand met us at the ground floor and we were
indulged in bhaga daudi).
Q. What was the cause of bhaga daudi?
Ans. To carry the file and to get the tests done.
Other family members of Sadanand were also
present in the hospital, but I do not know about their
details. I had not seen the brother in law of Sadanand
in hospital. (Vol. 1 was with Sadanand). I had entered
the hospital. No visiting pass was made. I do not know
since when the brother in law of Sadanand was
admitted in the said hospital. I do not know as to when
the brother in law of Sadanand was discharged from
the hospital, neither I asked from the accused
Sadanand, nor he told me about the same. The accused
Sadanand left the job from the office of property
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 65 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:05:14 +0530
dealer after 1-1½ months of the aforesaid date. I do
not know the reason of leaving the job by the accused
Sadanand (Vol. It may be due to low salary or
harassment by the employer). I left the said job in the
year 2017. (Vol. My employer died in year 2017 and
thereafter I left the job). I cannot produce any
document showing that I was working in the aforesaid
office of Mr. Kartar Singh, who has now expired. I do
not remember the exact date when I left my job from
the said office in the year 2017. I do not remember the
exact date when I joined the said office.
Presently, I am working as courier boy. I do not
remember the exact date when Mr. Kartar Singh
expired. I have no knowledge about the facts of the
present case. It is wrong to suggest that I remember
the exact date of intervening night of 11/12.12.2015,
however, I do not remember the exact date of my
joining the office, my leaving the job or the date of
death of my employer as I have been tutored to depose
falsely in respect of intervening night of
11/12.12.2015 to save the accused Sadanand. It is
wrong to suggest that I was not present with Sadanand
on 11.12.2015 or the intervening night of
11/12.12.2015 as stated by me in my examination in
chief. It is wrong to suggest that I had deposed a false
and fabricated story in my examination in chief. It is
wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
47. Clearly, from the above it is noted that, though, DW-1
asserted that he was present in the Hospital during the entire
intervening night of 11/12.12.2015 till morning, however, failed to
disclose the heath issues of accused, Sadanand’s @ Prince’s heath
issues or whether the said patient was admitted in the general ward
or the ICU or the emergency ward of the said Hospital.
Correspondingly, DW-1 expressed inability to disclose the floor
on which the accused’s brother-in-law or of the details of the other
family members of accused Sadanand @ Prince, who are asserted
to be present there. Ergo, it is seen from above that except to the
deposition that the accused and he were present in the Hospital, the
witness has failed to disclose any other particular of such visit,
casting a doubt in the version out forth by him. Even otherwise, as
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 66 of 74
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by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.04.15
17:05:17
+0530
aforenoted, the accused Sadanand @ Prince, despite being
afforded ample opportunities, failed to produce any other witness,
in particular, the so called brother in law or his sister or even the
records of admission of his brother in law in the Hospital in the
said intervening night. Needless to further mention, no visitation
card or any other document demonstrating the accused’s presence
in the said Hospital as asserted by him is wanting, leaving this
Court with no option than to reach a conclusion that the assertion
of DW-1 is not worthy of credence and a possibility of the said
witness being tutored cannot be ruled out.
48. Notwithstanding the foregoing, this Court is
cognizant in the instant case the evidence regarding the
commission of offence under Section 397 IPC is grossly wanting.
Needless to reiterate that for the provisions Section 397 IPC to be
involved and applied it is inter alia incumbent to prove the
use/brandishing of any deadly weapon by an accused. Further, as
aforementioned, recovery of such weapon is not necessary to
attract conviction in all case. However, it is incumbent for the
prosecution to prove that the weapon so deployed was in fact a
deadly weapon. Correspondingly, as noted in Guddu v. State,
(Supra.) mere assertion of deployment of knife by an accused is
not sufficient at attract the said provision against such an accused,
as all the knives cannot be graded as “deadly weapon” within the
meaning of Section 397 IPC. In fact, it is the length, shape and the
manner of use which makes a knife “deadly weapon”. As a
corollary, in the instances, where recovery of weapon of offence is
not possible, it is expected of the prosecution 14 to prove from the
testimony of eyewitness/victim that weapon deployed/brandished,
feel within the definition and ambit of ‘deadly weapon’. However,
14
Panneer & Ors. v. State (17.09.1986 – MADHC) : MANU/TN/0400/1986.
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 67 of 74
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:05:21
+0530
in the instant case, except for the complainant’s assertion that the
accused persons put a knife on his back, no description of such
knife is forthcoming on record so as to bring the same within the
purview of ‘deadly weapon’. Correspondingly, PW-1 asserted that
he came to know that it was accused Sadanand @ Prince who had
put a knife on his back, during the interrogation of accused, Rajesh
@ Chuhi. Accordingly, under such circumstances, it would not be
safe to reach a conclusion of guilt of accused Sadanand @ Prince
for the offence under Section 397 IPC (additionally). However, in
conspectus of above and being cognizant of the arguments
addressed as well as the judicial dictates specified herein, this
Court unambiguously reaches a conclusion that the prosecution
has been able to prove, ‘beyond reasonable doubt’, commission of
offence under Section 392 read with Section 34 IPC by accused
persons, namely, Rajesh @ Chuhi and Sadanand @ Prince in the
instant case. In this regard, it is reiterated as under;
a) PW-1 has consistently deposed about the commission
of incident in question by the accused persons, while
acting in concert/common intention with each other,
as well as of the factum of accused persons inter alia
robbing him of a sum of Rs. 1,200/- (Rupees One
Thousand Two Hundred only), whilst he/PW-1 was
put under fear of instant death, instant hurt/injury or
of wrongful restraint; accused persons attempting
fleeing from the spot immediately after such
occurrence; him/PW-1’s raising an alarm and of the
police officials reaching there and apprehending of
the said perpetrators, who was identified as accused
Rajesh @ Chuhi; recovery of his robbed amount of
Rs. 1,200/- (Rupees One Thousand Two Hundred
only) from the possession of said accused; and
subsequently, upon apprehension of co-accused, the
said co-accused’s refusing to undergo TIP
proceedings. Correspondingly, PW-1 also duly
identified both the accused persons as the
perpetrators of offence against him;
b) Correspondingly, PW-2/HC Rajesh and PW-4/Ct.
Anil, who were both members of patrolling party and
had, both, asserted that they reached at the spot and
apprehended accused, Rajesh @ Chuhi at the spot as
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 68 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
17:05:24 +0530
well as asserted about recovery of a sum of Rs.
1,200/- (Rupees One Thousand and Two Hundred
only) from the possession of the said accused, while
the co-accused of said person was able to escape from
the spot. Markedly, both the said witnesses further
proclaimed that the IO had reached at the spot,
whereupon the custody of accused Rajesh @ Chuhi
was handed over to him/IO. Correspondingly, the
witnesses also consistently declared regarding the
IO’s undertaking the remaining proceedings,
thereafter. Relevantly, the factum of handing over of
accused, Rajesh @ Chuhi by PW-2/HC Rajesh and
PW-4/Ct. Anil to the IO as well as of the recovery of
the sum of Rs. 1,200/- (Rupees One Thousand Two
Hundred only) stands corroborated from the
testimonies of PW-6/ASI Krishan Kumar and
PW-10/HC Praveen Kumar;
c) The alleged discrepancies, contradictions,
improvements in the version of the prosecution
witnesses are not material. Non mentioning of
photocopy of complainant’s driving license or of
variance in the recovery by PW-2 or by PW-6/PW-10
cannot be given undue weightage in view of repeated
avowals of superior courts (State of U.P. v. M.K.
Anthony, (1985) 1 SCC 505; Rammi v. State of M.P.,
(1999) 8 SCC 649; and State of U.P. v. Naresh, (2011)
4 SCC 324);
d) Presence of the complainant on the spot as well as of
the apprehension and recovery from accused Rajesh
@ Chuhi at the fateful moment and place, stands
corroborated from the testimonies of other
prosecution witnesses, i.e., from the conscientious
analysis of the depositions of PW-2/HC Rajesh,
PW-4/Ct. Anil, PW-6/ASI Krishan Kumar and
PW-10/HC Praveen Kumar. Needless to mention that
despite the complainant’s asserting with precision,
the mode of transport, i.e., particulars of the train and
scheduled time of arrival, no suggestion or further
cross examination/question has been put forth to the
complainant by the accused persons, to deny the said
asseveration of the complainant;
e) PW-3/HC Mahabir Singh specifically proved DD No.
57B as Ex. PW-3/A, recoding the factum of departure
entry of PW-2/HC Rajesh and PW-4/Ct. Anil on the
said date. However, except for a general assertion that
PW-2 and PW-4 were not present on the spot, nothing
else is forthcoming under the deposition of any of the
witnesses to belie declaration of the complainant in
the instant case. Needless to mention, PW-3 was not
cross examined by/at the behest of the accused
persons, despite being afforded an opportunity to the
accused persons;
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 69 of 74 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.04.15 17:05:28 +0530
f) Complainant in his cross examination specifically
declared that though the scheduled time of arrival of
the train was 09:55 p.m., however, the same got
delayed by one and half hour. Correspondingly, PW-1
also declared under his said cross examination that he
had told under his examination in chief, the time of
his reaching as 11:40 p.m., by approximation and he
had not seen the watch at that time. Clearly, in light of
the said avowal, not only has the complainant
explained his presence on the spot at the time of
occurrence in the instant case. Even otherwise, law
does not demand a witness to depose of the time or
longevity of occurrence with exactitude (Ref.:
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
(1983) 3 SCC 217);
g) Rajesh @ Chuhi was immediately apprehended on
the spot by the members of the patrolling staff, i.e.,
PW-2/HC Rajesh and PW-4/Ct. Anil, besides the
recovery was effected from him at the spot.
Correspondingly, on the personal search of the
accused, Rajesh @ Chuhi (Ex. PW1/E), nothing other
than the said money, asserted to be the robbed
amount, was recovered from his possession. Needless
to mention, even the complainant in his cross
examination specifically asserted that the money
robbed from him was one currency note, in the
denomination of Rs. 1,000/- (Rupees One Thousand
only) and two currency notes were in the
denomination of Rs.100/- (Rupees One Hundred
only), which corresponds with the denomination of
the amount so recovered. Concomitantly, accused
Rajesh @ Chuhi has not claimed ownership of the
said amount. Ergo, under such circumstances, as per
the mandate of Section 114(a) of the Evidence Act, it
was incumbent on the accused to explain his said
possession, which he failed to do;
h) For the sake of argument presuming that the amount
so recovered was not the robbed amount, in view of
the consistent stand of the complainant/PW-1 and
other witnesses, regarding the occurrence of robbery
by the accused persons, mere factum of non-recovery
of the amount involved, would not be sufficient to
belie the case of the prosecution (Ref.: Mohd. Usman
v. State (NCT) of Delhi, MANU/DE/0531/2011);
i) Though, Ld. Counsel for the accused suggested to
PW-11 that he had shown photographs of accused
Sadanand @ Prince to the complainant, prior to his
TIP proceedings, however, no such suggestion was
ever placed to the complainant in the instant case. In
fact, no such cross examination on the aspect of
identification of accused Sadanand @ Prince by the
complainant is forthcoming under the deposition of
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 70 of 74
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by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.04.15
17:05:32
+0530
PW-1, except to the extent that the complainant had
not specifically named the said accused under his
complaint. Ergo, under such circumstances, it is
reiterated that mere assertion that the photographs of
accused were shown to the complainant by the IO and
consequently, the TIP refusal cannot be read against
the accused in the instant case, would not, in the
considered opinion of this Court enure to the benefit
of the said accused;
j) This Court is further not convinced with the
submission of Ld. Counsel for the accused persons
that the complainant could not have, even otherwise,
identified the accused persons as the perpetrator of
offence in the instant case, in view of
his/complainant’s own declaration that he was held
from behind at the time of commission of offence. On
the contrary, in this regard, this Court deems it
pertinent to note that the complainant, upon being
cross examined by/on behalf of accused Rajesh @
Chuhi, specifically avowed that when the accused
persons pulled him/the complainant from behind, he
saw their faces. However, despite such avowal,
neither any suggestion that the complainant could not
have seen the faces of the perpetrators of offence or
any further cross examination on this aspect is
forthcoming in the deposition of PW-1, except to a
general suggestion that the accused persons were
falsely implicated in the present case by the
complainant, at the instance of the concerned police
officials;
k) Basis of defence raised by accused persons under his
statement recorded under Section 313 Cr.P.C. has
nowhere been laid under the cross examination of any
of the prosecution witnesses. In fact, from a
conscientious perusal of the records it is seen that
nowhere under the cross examination of any of the
prosecution witnesses, factum of such past enmity or
the particulars thereof are forthcoming.
Correspondingly, even the name of the concerned
police officials or the reasons thereof to falsely
implicate the accused persons in the instant case are
emanating from the material placed on record,
making such defence unworthy of credence (Ref.:
Madhya Pradesh in Suresh Chandra Gupta v. State of
Madhya Pradesh, Crl.M.C. No. 5117/2021, dated
26.10.2021);
l) Police officials to be competent witness in criminal
trials/cases and the evidence of police witnesses
cannot be discarded merely on the ground that they
belong to police force and interested in the
investigation. (Ref: Baldev Singh v. State of Haryana,
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 71 of 74
Digitally signed
by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.04.15
MANU/SC/1268/2015; and Govindaraju v. State,
(2012) 4 SCC 722);
m) Accused, Rajesh @ Chuhi was apprehended on the
spot, identified by the complainant as one of the
perpetrators and got arrested at the instance of the
complainant as well as there was recovery from him
at that point in time. Correspondingly, co-accused
Sadanand @ Prince was identified by the
complainant in Court, post his refusal to undergo TIP
proceedings, besides as per PW-11/SI (Retd.)
Manohar Lal, upon his formal arrest, pointing out
memo (Ex.PW11/F) of the place of occurrence, was
got prepared by him/PW-11 at the instance of the
accused, Sadanand @ Prince;
n) DW-1 is not worthy of credence and a possibility of
the said witness being tutored cannot be ruled out;
and
o) Lastly, law is settled that there is no legal hurdle in
convicting a person on the testimony of a single/sole
eyewitness if the version of said witness is clear and
reliable, for the principle of law/rule of evidence is
that the evidence has to be weighed and not counted
(Ref; Sunil Kumar v. State (Govt. of NCT of Delhi),
(2003) 11 SCC 367; and Kusti Mallaiah v. State of
A.P., (2013) 12 SCC 680).
49. Lastly, in as much as the allegations/charges under
Section 411 IPC is concerned, this Court unambiguously notes that
in light of the aforementioned dictates, in particular, in terms of the
decisions in State of U.P. v. Nawab (Supra.) and Gopi Jaiswal v.
State of U.P. (Supra.), once a finding of guilt of accused persons
for the commission of offence under Section 392/34 IPC has been
reached by this Court, it would not be proper to convict accused,
Rajesh @ Chuhi for the offence under Section 411 IPC in the
instant case. Correspondingly, for the reasons, aforestated, finding
of guilt of accused Sadanand @ Prince for the offence under
Section 397 IPC cannot be reached beyond reasonable doubt in the
instant case. Apposite at this stage to lastly note that, though, this
Court holds highest regard for the decisions relied upon by Ld.
Counsel for the accused, however, the same would not, in the
considered opinion of this Court come to the aid/rescue of the
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 72 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.04.15
accused persons, in the manner as prayed for the facts and
circumstances of the said cases/dictates are clearly,
distinguishable.
CONCLUSION:
50. Conclusively, in light of the foregoing, it is reiterated
that from the material placed on record and arguments addressed
on behalf of the State as well as by/on behalf of the accused
persons, in the considered opinion of this Court, the prosecution
has been able to prove its case ‘beyond reasonable doubt’ against
the accused persons, namely, Rajesh @ Chuhi and Sadanand @
Prince for the offence under Section 392 read with Section 34 IPC,
is so far as it relates to the commission of offence of robbery from
the complainant/PW-1/Sh. Ramavtar Meena. However, it is
reiterated that the allegations/charges under Section 411 IPC
cannot sustain against Rajesh @ Chuhi and allegation/charges
under Section 397 IPC cannot sustain against accused Sadanand @
Prince, in view of the aforenoted discussion.
51. Accordingly, accused persons namely, Rajesh @
Chuhi and Sadanand @ Prince are convicted of the
charge(s)/offence under Sections 392/34 IPC. However, accused
Rajesh @ Chuhi and Sadanand @ Prince are acquitted of charges
under Section 411 IPC and Section 397 IPC, respectively.
Consequently, let the accused persons be heard on the aspect of
sentence.
52. In the meanwhile, issue notice to SHO, PS Kashmere
Gate to submit report of antecedents/previous involvements of the
convict persons, Rajesh @ Chuhi and Sadanand @ Prince. Also,
issue notice to concerned Jail Superintendent to submit conduct
report and nominal roll of the said convict persons. Further, a copy
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 73 of 74
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.04.15
17:05:47 +0530
of the present judgment be given dasti to the convict persons,
namely, Rajesh @ Chuhi and Sadanand @ Prince.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.04.15 17:05:55 +0530 Announced in the open Court (Abhishek Goyal)
on 15.04.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
SC No. 28738/2016 State Vs. Rajesh @ Chuhi & Anr. Page 74 of 74