Delhi District Court
State vs Shahbaz Ahmed Etc. 2 on 31 July, 2025
State V. Shahbaz Ahmed & Ors.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CNR No.DLWT01-001682-2014
Case No. 57467/2016
FIR No. 327/2013
PS: Kirti Nagar
U/s. 392/394/397/411/120-B IPC
State Vs. Shahbaz Ahmed & Ors.
a) Date of commission of offence : 16/09/2013
b) Name of the complainant : Smt. Bhagwani Devi
W/o Late Sh. Tulsidas Malik
c) Name of accused and address : (1) Shahbaz Ahmed
S/o Mr. Khurshid Ahmed
R/o WZ-936-A,
Basai Darapur, New Delhi
(2) Gautam Koli
S/o Sh. Nav Rattan Koli
R/o WZ-46D/2B,
Basai Darapur, New Delhi
(3) Upender Gupta
S/o Sh. Satender Prakash
Gupta
R/o D-36, Sudarshan Park,
New Delhi Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:47:30 -0100
FIR No. 327/2013 PS Kirti Nagar Page No.1/57
State V. Shahbaz Ahmed & Ors.
d) Offence complained of : u/s. 392/394/397/411/120-B IPC
e) Plea of accused : Pleaded not guilty
f) Final order : CONVICTED
Date of institution of the case : 21/01/2014
Date of committal : 12/02/2014
Date on which judgment was : 27/05/2025
reserved
Date of judgment : 31/07/2025
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on or before
16/09/2013, all accused Shahbaz Ahmed, Gautam Koli and Upender Gupta had
entered into a criminal conspiracy to commit the robbery in the house of the
complainant Smt. Bhagwani Devi and on 16/09/2013 at about 7:20 PM at H.No.
96A, First Floor, Ramesh Nagar, New Delhi within the jurisdiction of Police
Station Kirti Nagar, in pursuance of criminal conspiracy, accused Gautam Koli
and Upender Gupta had entered into the house of the complainant and committed
the robbery of cash amount of Rs.1,00,000/-, three gold rings, one gold chain,
two gold karas, two ear rings, two small rings and one pendal from the possession
of complainant after voluntarily causing hurt to the complainant and her servant
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:47:38 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.2/57
Jagat Ram. It is also the case of the prosecution that while committing the
robbery, accused Upender Gupta had used the deadly weapon i.e. pistol by
putting the same on the tample of the complainant. It is also the case of the
prosecution that on 17/10/2013, accused Shahbaz Ahmed got recovered the
robbed one gold ring from the first floor of his house bearing no. WZ-936A,
Basai Darapur, New Delhi and on 17/10/2013, accused Upender Gupta got
recovered the robbed two gold ladies karas and one gents gold ring from his
house bearing no. D-36, Sudershan Park, New Delhi and on 17/10/2013, accused
Gautam Koli got recovered one gold pendant chain from his house no. WZ-46,
D-2B, Basai Darapur, New Delhi belonging to the complainant, which they had
received or retained knowingly or having reason to believe the same to be stolen
property.
REGISTRATION OF FIR, INVESTIGATION AND CHARGE-SHEET
2. In the present case, on the complaint of the complainant Smt.
Bhagwani Devi, FIR bearing No. 327/2013, Police Station Kirti Nagar,
u/s. 392/397/34 IPC was got registered by the Police of Police Station Kirti
Nagar. After registration of the FIR, the matter was investigated by the police and
on completion of the investigation, the present charge-sheet was submitted in the
Court of Ld. Duty MM, West District, Tis Hazari Courts, Delhi on 21/01/2014 for
trial of all accused.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:47:44 -
0100
FIR No. 327/2013 PS Kirti Nagar Page No.3/57
State V. Shahbaz Ahmed & Ors.
SUPPLY OF COPIES AND COMMITTAL
3. Copies of the charge-sheet were supplied to all accused in
compliance of section 207 Cr.P.C. Thereafter, vide order dated 12/02/2014
passed by the Ld. MM, West District, Tis Hazari Courts, Delhi, the present case
was committed to the Court of Sessions.
COGNIZANCE
4. It is pertinent to mention that in the present case, cognizance of
the offence was not taken by Ld. MM, however, cognizance of the offences was
taken by the Ld. Predecessor of this Court vide order dated 15/02/2014.
CHARGE
5. Finding a prima-facie case against the accused Shahbaz Ahmed,
Upender Gupta and Gautam Koli, charge for the offences
u/s. 120-B and section 411 IPC was framed against all accused and charge for the
offences u/s. 392/394 IPC r/w section 120-B IPC was framed against the accused
Gautam Koli and Upender Gupta and charge for the offence u/s. 397 IPC was
framed against the accused Upender Gupta, to which they pleaded not guilty and
claimed trial.
PROSECUTION EVIDENCE
6. Prosecution was then called upon to substantiate its case by
examining its witnesses. The prosecution in support of its case had examined 21
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:47:49 -0100FIR No. 327/2013 PS Kirti Nagar Page No.4/57
State V. Shahbaz Ahmed & Ors.
witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 Sh. Ankit
(2) PW-2 Smt. Bhagwani Devi
(3) PW-3 Sh. Jagat Ram
(4) PW-4 HC Mahabir
(5) PW-5 Ct. Narender Singh
(6) PW-6 Ct. Abhey
(7) PW-7 HC Anil Kumar
(8) PW-8 ASI Prahalad Singh
(9) PW-9 Ct. Jagat Singh
(10) PW-10 HC Udham Singh
(11) PW-11 ASI Ajit Singh
(12) PW-12 HC Ranvir Singh
(13) PW-13 HC Gajender
(14) PW-14 Sh. Sunil Kumar, Ahlmad in the Court of Sh. Manoj Jain,
the then Ld. ASJ, North-West District, Rohini Courts, Delhi
(15) PW-15 SI Vikas
(16) PW-16 SI Pradeep Kumar
(17) PW-17 SI Pratap Singh
(18) PW-18 Ct. Sachin
(19) PW-19 ASI Suresh Kumar
(20) PW-20 Inspector Brij Mohan
(21) PW-21 Sh. Pawan Singh, Nodal Officer, Vodafone Idea Ltd.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:47:55 -0100FIR No. 327/2013 PS Kirti Nagar Page No.5/57
State V. Shahbaz Ahmed & Ors.
DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) Complaint/statement of Smt. Bhagwani Devi Ex.PW-2/A
(2) TIP proceedings of case property Ex.PW-2/B
(3) Superdarinama Ex.PW-2/C
(4) Statement u/s 161 Cr.P.C. of the complainant Smt. Bhagwani
Devi Mark-PW-2/X
(5) Statement and supplementary statement u/s 161 Cr.P.C. of
Sh. Jagat Ram Mark-PW-3/A and Mark-PW-3/B
(6) DD No. 34-A Ex.PW-4/A
(7) Entry in register no. 19 at serial no. 2305 Ex.PW-4/B
(8) Pointing out memo of place of occurrence at the instance of
accused Upender Gupta Ex.PW-6/A
(9) Pointing out memo of place of occurrence at the instance of
accused Shahbaz Ahmed Ex.PW-6/A1
(10) Pointing out memo of place of occurrence at the instance of
accused Gautam Koli Ex.PW-6/A2
(11) Confessional statement of the accused Shahbaz Ahmed
Ex.PW-7/A
(12) Confessional statement of the accused Gautam Koli
Ex.PW-7/A1
(13) Confessional statement of the accused Upender Gupta
Ex.PW-7/A2
(14) Arrest memo of the accused Shahbaz Ahmed Ex.PW-7/B
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:00 -0100FIR No. 327/2013 PS Kirti Nagar Page No.6/57
State V. Shahbaz Ahmed & Ors.
(15) Arrest memo of the accused Gautam Koli Ex.PW-7/B1
(16) Arrest memo of the accused Upender Gupta Ex.PW-7/B2
(17) DD No. 43-A Ex.PW-8/A
(18) FIR No. 327/2013, PS Kirti Nagar Ex.PW-8/B
(19) Endorsement on rukka Ex.PW-8/C
(20) Certificate u/s 65-B Indian Evidence Act Ex.PW-8/D
(21) Negatives of photographs Ex.PW-9/A1 to Ex.PW-9/A5
(22) Photographs of the spot Ex.PW-9/B1 to Ex.PW-9/B5
(23) Mobile Crime Team Report Ex.PW-10/A
(24) FIR No. 462/2013, PS Saraswati Vihar (now PS Subhash Place)
with rukka and index Ex.PW-12/A
(25) Entry in register no. 19 at serial no. 5026 Ex.PW-13/A
(26) Road certificate no. 203/21/13 Ex.PW-13/B
(27) Copy of recovery memo u/s 102 Cr.P.C. prepared in FIR No.
462/2013 PS Subhash Place in respect of recovery effected from
the accused Upender Gupta Ex.PW-14/A
(28) Copy of recovery memo u/s 102 Cr.P.C. prepared in FIR No.
462/2013 PS Subhash Place in respect of recovery effected from
the accused Gautam Koli Ex.PW-14/B
(29) Copy of recovery memo u/s 102 Cr.P.C. prepared in FIR No.
462/2013 PS Subhash Place in respect of recovery effected from
the accused Shahbaz Ahmed Ex.PW-14/C
(30) Copy of disclosure statement of the accused Shahbaz Ahmed
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:05 -0100FIR No. 327/2013 PS Kirti Nagar Page No.7/57
State V. Shahbaz Ahmed & Ors.
recorded in FIR No. 462/2013 PS Subhash Place Ex.PW-14/D1
(31) Copy of disclosure statement of the accused Gautam Koli
recorded in FIR No. 462/2013 PS Subhash Place Ex.PW-14/D2
(32) Copy of disclosure statement of the accused Upender Gupta
recorded in FIR No. 462/2013 PS Subhash Place Ex.PW-14/D3
(33) Copy of sketch of pistol and cartridges prepared in FIR No.
462/2013 PS Subhash Place Ex.PW-14/E
(34) Copy of seizure memo of pistol and cartridges prepared in FIR
No. 462/2013 PS Subhash Place Ex.PW-14/F
(35) Photograph of recovered jewellery articles Ex.PW-15/A
(36) Rukka Ex.PW-17/A
(37) Site plan of the spot Ex.PW-17/B
(38) Portraits of accused persons Mark PW-17/1 and Mark PW-17/2
(39) Seizure memo of recovered jewellery articles Ex.PW-20/A
(40) Certificate u/s 65-B Indian Evidence Act Ex.PW-21/A
(41) CDRs of mobile numbers 9711529575, 9899633131 &
9899533711 dated 16/09/2013 Ex.PW-21/B, Ex.PW-21/C and
Ex.PW-21/D
(42) Subscriber details record of mobile phones Ex.PW-20/E
(43) CAF in respect of mobile no. 9711529575 in the name of Gautam
Koli Ex.PW-21/F
(44) CAF in respect of mobile no. 9899533711 in the name of
Shahnawaz Ahmed Ex.PW-21/G Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:10 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.8/57
(45) CAF in respect of mobile no. 9899633131 in the name of
Hanuman Ex.PW-21/HIt is pertinent to mention here that during the course of cross-
examination of PW-1, statement u/s 161 Cr.P.C. of PW-1 Sh. Ankit was exhibited
as Ex.PW-1/DA and during the course of cross-examination of PW-21,
guidelines dated 17/05/2012 regarding destroying the original CAFs was
exhibited as Ex.PW-21/D1.
Apart from aforesaid documentary evidence, the prosecution has
also relied upon the other evidence (case property) i.e. two gold kadas Ex.P-1
(colly), gold chain Ex.P-2 and two gold rings Ex.P-3 (colly).
It is pertinent to mention here that vide joint statement u/s. 294
Cr.P.C. of all accused recorded on 03/03/2023, all accused had admitted the TIP
proceedings of the accused Gautam Koli and Upender Gupta Ex.PX1 and PX2 as
well as TIP proceedings of the case property Ex.PW-2/B.
8. TESTIMONIES OF PROSECUTION WITNESSES
(i) PW-1 in his testimony had deposed that he was residing with his
nani Bhagwani Devi. He does not remember the month but it was 16 of the
month about 6-7 months ago in the year 2013, he alongwith his parents had gone
to Chhatarpur Temple to meet his guruji. When they reached at their house at
about 7-7:30 PM after returning from Chhatarpur, he found that his Nani and
Chotu i.e. servant namely Jagat Ram were locked. He broke the lock of the room
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:14 -0100FIR No. 327/2013 PS Kirti Nagar Page No.9/57
State V. Shahbaz Ahmed & Ors.
in which his nani and Jagat Ram were locked and he inquired from them and they
told him about the incident. Thereafter, he made a call first to his friend, then to
his parents and thereafter, to police at 100 number and police reached at the spot.
Accused Shahbaz was known to him even prior to the incident as he had met him
on some occasion in gym etc.
PW-1 was cross-examined by counsels for all accused.
(ii) PW-2 in her testimony had deposed that she was residing with her
family including her grandson (dohta) and servant Jagat Ram. On 16/09/2013
she was present at her house alongwith her servant Jagat Ram. Her grand son
Ankit had gone to temple at that time. At about 7:20 PM, two boys came at the
door of her house and they pressed the door bell and thereafter, she alongwith her
servant Jagat Ram reached at the door and found two boys present outside the
door. They told them that they had come to deliver an invitation card pertaining
to opening of a boutique and they were also carrying a sweet box. They opened
the door and thereafter, both the boys, who were aged about 35-36 years, entered
inside their house and sat inside their house and they gave water to them. After
sitting there for about 5 minutes, said boys asked to show the bathroom and her
servant Jagat Ram took those boys towards the bathroom. Out of those two boys,
one immediately came back towards drawing room, where she was sitting and in
the meantime, other boy also reached there. One boy had dragged her after
putting hand on her mouth and also stated that she would be shot (goli maar
denge). Other boy was also with him at that time. Both the boys had already
locked her servant Jagat Ram inside the bathroom. Thereafter, both the boys
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:20 -0100FIR No. 327/2013 PS Kirti Nagar Page No.10/57
State V. Shahbaz Ahmed & Ors.
dragged her inside the room and directed her to open/unlock the locker of
Almirah lying there. Thereafter, she got opened the Almirah due to fear and
thereafter, those two boys had taken away two gold kada, one gold chain, three
gold rings, two gold earrings, cash amount of Rs.1,00,000/- and some other
jewellery articles. They put all the abovesaid articles and cash in one bag picked
from their house and thereafter, they locked her also inside the room and
thereafter, both the boys ran away from the spot with the abovementioned
articles. At about 8:00 PM, her grand son Ankit came back from the temple and
opened the door after breaking open the lock, which was put by the accused
persons. Before leaving the room, those two boys had taken her servant Jagat
Ram out from the bathroom and had confined him also with her in the same
room. They told all the facts to Ankit and he informed the police. Police reached
at the spot at about 9-9:30 PM and recorded her statement Ex.PW-2/A and same
was signed by her. After some time of incident, she was informed by the police
that some of her jewellery articles were recovered from the accused persons and
thereafter, she reached at Tis Hazari Court and identified the jewellery articles
i.e. two gold kada, one gold chain and two gold rings in the Court and signed the
proceedings in this regard before Ld. MM. She had obtained her abovementioned
jewellery articles on superdari as per the order of the Court vide superdarinama
Ex.PW-2/C. She had pointed out the place of occurrence to police, who prepared
the site plan of the spot at her instance.
Addl. PP for the State was permitted to cross-examine PW-2 as
she was not disclosing the whole facts. PW-2 was cross-examined by Addl. PP
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:25 -0100FIR No. 327/2013 PS Kirti Nagar Page No.11/57
State V. Shahbaz Ahmed & Ors.
for the State. PW-2 was not cross-examined by counsels for all accused, despite
opportunity.
(iii) PW-3 in his testimony had deposed that he was working as servant
in the house of Smt. Bhagwan Devi at house no. 96-A, first floor, Ramesh Nagar,
Delhi for about three months prior to the incident. On the date of incident, at
about 7:00 pm, he alongwith Nani (landlady Smt. Bhagwan Devi) was present
inside the house. In the meantime, someone pressed the door bell of the house
and thereafter, he alongwith Smt. Bhagwan Devi reached at the door and found
two boys present outside the door. One of those two boys was carrying a sweet
box in his hand and they told them that they had come to give invitation regarding
opening a boutique. Thereafter, they opened the door of the house and those two
boys entered in the house and sat on the sofa. He had provided water to them.
After about 5 minutes, they asked him to show them the bathroom of the house
and he led them towards the bathroom. After reaching at the bathroom, they
locked him inside the bathroom. Those two boys did not ask anything from him
or gave any direction. He had not heard the voice of his Nani while he was
confined in the bathroom. After some time, when he knocked the door of the
bathroom from inside, he found the same opened. Thereafter, he came out from
the bathroom and subsequently, he was locked alongwith Nani in her room and
those two boys left from there. After some time, Ankit, grand son of Bhagwan
Devi, reached at the house and he opened the door by breaking the lock and they
told all facts to him. Police reached at the spot and made inquiry from him and
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:29 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.12/57
Nani and recorded his statement.
Addl. PP for the State was permitted to cross-examine PW-3 as he
was not disclosing the whole facts. PW-3 was cross-examined by Addl. PP for
the State. PW-3 was not cross-examined by counsels for all accused, despite
opportunity.
(iv) PW-4 in his testimony had deposed that on 19/10/2013 at about
9:30 pm, he had received a call from PS Subhash Place regarding the
apprehending of accused Sehbaz Ahmed, Upender Gupta and Gutam Kohli, who
were wanted in the present case and it was also intimated that some recovery of
case property were affected from their possession. In this regard, he had made
entry in Rojnamcha against DD No. 34-A Ex.PW-4/A and copy of said DD was
sent to IO Inspector Brij Mohan. On 24/10/2013, Inspector Brij Mohan had
deposited three ‘Dibbies ‘ in sealed condition containing the case property. He
had made entry in register No. 19 against serial No. 2305 Ex.PW-4/B. On
16/11/2013, the deposited case properties were released on Superdari in favour of
Bhagwan Devi and in this regard, he had made entry against above mentioned
serial number in register no. 19. No tampering took place with the case properties
so far as it remained in his custody.
PW-4 was cross-examined by counsels for the accused Shahbaz
Ahmed and Gautam Koli. PW-4 was not cross-examined by the accused Upender
Gupta, despite opportunity.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:34 -
0100
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State V. Shahbaz Ahmed & Ors.
(v) PW-5 in his testimony had deposed that on 31/10/2013, he
alongwith Inspector Brij Mohan, Ct. Abhey, Ct. Amit and accused persons went
to the house of accused Shahbaz at Basai Dara Pur, to get recover the case
property. At the house of accused Shahbaz, during search, they could not recover
anything and thereafter, they went to the house of accused Gautam, however,
nothing was recovered from there also. Thereafter, they went to the house of
accused Upender Gupta at Sudershan Park, however, there also they could not
recover anything. Accused persons pointed out the place of occurrence.
PW-5 was cross-examined by counsels for the accused Shahbaz
Ahmed and Gautam Koli. Accused Upender Gupta had adopted the cross-
examination conducted by counsels for the accused Shahbaz Ahmed and Gautam
Koli.
(vi) PW-6 in his testimony had deposed that on 31/10/2011, he
alongwith Inspector Brij Mohan, Ct. Amit, Ct. Narender and accused persons
went to the respective houses of the accused persons to get recover the case
properties but in vain. Accused persons also pointed out the place of occurrence
vide memos Ex.PW-6/A, Ex.PW-6/A-1 and Ex.PW-6/A-2.
PW-6 was cross-examined by counsels for the accused Shahbaz
Ahmed and Gautam Koli. Accused Upender Gupta had adopted the cross-
examination conducted by counsels for the accused Shahbaz Ahmed and Gautam
Koli.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:38 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.14/57
(vii) PW-7 in his testimony had deposed that on 23/10/2013, he
alongwith Inspector Brij Mohan came at Tis Hazari Court and with the
permission of the Court, accused persons were interrogated and the confessional
statements of accused persons Ex.PW-7/A, Ex.PW-7/A-1 and Ex.PW-7/A-2
were recorded by the IO. Accused persons were also arrested in the present case
vide arrest memos Ex.PW-7/B, Ex.PW-7/B-1 and Ex.PW-7/B-2
PW-7 was cross-examined by counsels for the accused Shahbaz
Ahmed and Gautam Koli. Accused Upender Gupta had adopted the cross-
examination conducted by counsels for the accused Shahbaz Ahmed and Gautam
Koli.
(viii) PW-8 in his testimony had deposed that on 16/09/2013 at about
08:07 pm, he had received message through wireless that at house no. 96,
Ramesh Nagar, Kirti Nagar ‘gar ka saman jabardasti lai kar ja rahe hai ‘. He had
recorded this message in the DD register vide DD no. 43-A Ex.PW-8/A and the
copy of the said DD was sent to SI Pratap Singh for necessary action. On the
same day, at about 10:15 pm, Ct. Sachin came to him in DO Room and handed
over rukka prepared and sent by SI Pratap Singh for the registration of the case,
on the basis of which, he got recorded the present FIR Ex.PW-8/B through
computer operator and signed the print of the FIR. He had made endorsement
Ex.PW-8/C on the rukka regarding the registration of the present FIR and he had
also issued certificate u/s 65-B Indian Evidence Act Ex.PW-8/D regarding
registration of the present FIR on computer. After the registration of the case, he
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:43 -0100FIR No. 327/2013 PS Kirti Nagar Page No.15/57
State V. Shahbaz Ahmed & Ors.
had handed over original rukka and the copy of the FIR to Ct. Sachin to deliver
the same to IO.
PW-8 was not cross-examined by counsels for all accused,
despite opportunity.
(ix) PW-9 in his testimony had deposed that on 16/09/2013, he was
posted as photographer in mobile crime team. On that day, after receiving
information from district control room, he alongwith ASI Ajit Singh, In-charge
crime team, HC Udham Singh, finger print proficient and other staff reached at
the spot i.e. H. No. 96-A, First Floor, Ramesh Nagar, Delhi, where they found SI
Pratap Singh and his staff present. They inspected the spot and he took five
photographs Ex.PW-9/B1 to Ex. PW-9/B5 of the spot from the different angles.
PW-9 was not cross-examined by counsels for all accused,
despite opportunity.
(x) PW-10 in his testimony had deposed that on 16/09/2013, upon
receiving the information from the control room, he alongwith other members of
the crime team including ASI Ajit Singh, In-charge reached at the spot i.e. 96-A,
Ramesh Nagar, First Floor, Delhi, at around 9:20 pm, where on the directions of
the IO, he had lifted the finger prints from the locker of the steel almirah and
small iron box. Two chance prints were found on the locker of the steel almirah
and he had mentioned about it in column no. 16 of the report of mobile crime
team Ex.PW-10/A. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:49 -0100FIR No. 327/2013 PS Kirti Nagar Page No.16/57
State V. Shahbaz Ahmed & Ors.
PW-10 was cross-examined by counsel for the accused Gautam
Koli. PW-10 was not cross-examined by counsels for the accused Shahbaz
Ahmed and Upender Gupta, despite opportunity.
(xi) PW-11 in his testimony had deposed that on 16/09/2013, he was
posted as In-charge, crime team, West District. On that day, he had received
information from the control room and upon receiving the said information, he
alongwith other members of the crime team reached at first floor, 96-A, Ramesh
Nagar, Delhi. They had inspected the spot and two chance prints were lifted by
HC Udham Singh, proficient. Ct. Jagat Singh, photographer took the
photographs of the spot. He had prepared the report Ex.PW-10/A and handed
over the same to the IO SI Pratap Singh.
PW-11 was cross-examined by counsel for the accused Gautam
Koli. Counsels for the accused Shahbaz Ahmed and Upender Gupta had adopted
the cross-examination conducted by counsel for the accused Gautam Koli.
(xii) PW-12 during the course of his testimony had produced the
original FIR No. 462/2013 of PS Saraswati Vihar (now PS Subhash Place),
original rukka and index Ex. PW-12/A.
PW-12 was cross-examined by counsel for the accused Gautam
Koli. Counsels for the accused Shahbaz Ahmed and Upender Gupta had adopted
the cross-examination conducted by counsel for the accused Gautam Koli.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:48:55 -0100
FIR No. 327/2013 PS Kirti Nagar Page No.17/57
State V. Shahbaz Ahmed & Ors.
(xiii) PW-13 in his testimony had deposed that on 17/10/2013, SI
Pradeep Kumar had deposited six sealed pullandas sealed with the seal of PK, out
of which, three pullandas of the jewellery seized u/s 102 Cr.P.C. pertaining to the
present case with one Innova Car No. DL-4C-AE 8743 were deposited in case
FIR No. 462/2013 of PS Subhash Place and he had deposited the aforesaid
pullandas and car and made entry in register no. 19 at serial no. 5026
Ex.PW-13/A. On 24/10/2013, the aforesaid three pullandas were given to Insp.
Brij Mohan, PS Kirti Nagar, on the directions of the IO of the case FIR No.
462/2013 PS Subhash Place and he had made relevant entry to this effect at point
X-1, Y-1 & Z-1 on Ex.PW-13/A. The aforesaid pullandas were given against the
road certificate no. 203/21/13 Ex.PW-13/B to Insp. Brij Mohan IO of the case
FIR No. 327/2013 of PS Kirti Nagar. He did not tamper the seal of the pullandas
or the case property as long as it remained in his possession.
PW-13 was cross-examined by counsel for the accused Gautam
Koli. Counsels for the accused Shahbaz Ahmed and Upender Gupta had adopted
the cross-examination conducted by counsel for the accused Gautam Koli.
(xiv) PW-14 during the course of his testimony had produced the
record/case file of FIR No. 462/2013 PS Subhash Palace and deposed that the
trial of the said case is pending in the Court of Sh. Manoj Jain, Ld. ASJ, North-
West District.
PW-14 was cross-examined by counsel for the accused Shahbaz
Ahmed. Counsel for the accused Gautam Koli had adopted the cross-examination
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:02 -0100FIR No. 327/2013 PS Kirti Nagar Page No.18/57
State V. Shahbaz Ahmed & Ors.
conducted by counsel for the accused Shahbaz Ahmed. PW-14 was not cross-
examined by counsel for the accused Upender Gupta, despite opportunity.
(xv) PW-15 in his testimony had deposed that on 16/10/2013, SI
Pardeep had received secret information and he had discussed the same with the
then SHO and thereafter, he alongwith HC Suresh, ASI Sushil, Ct. Halwant and
Ct. Somveer had joined investigation of case bearing FIR No. 462/2013 PS
Subhash Place. PW-15 in his testimony had deposed the same facts as deposed by
PW-16 in his testimony.
PW-15 was cross-examined by counsels for all accused.
(xvi) PW-16 in his testimony had deposed that on 16/10/2013, he had
received secret information in respect of case FIR No.462/2013 PS Subhash
Place u/s. 394/397/34 IPC. He had apprised the SHO about the same and on the
direction of SHO, he had sent SI Vikas, HC Suresh, ASI Sushil and other staff at
the place of information i.e. Near Govt. Girls School, Basai Darapur for
verification of the information. Thereafter, he also went to the aforesaid place,
where the secret informer met him and pointed towards Innova car bearing
no.DL-4C-AE-8743, which was standing nearby and he left from the spot. He
had apprised the staff about the information and he alongwith staff surrounded
the said Innova car. One person was sitting on the driver seat and two persons
were sitting on the back seat. The said persons were apprehended with the help of
staff. The name of the person sitting on the driver seat was disclosed as Shahbaz
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:06 -0100FIR No. 327/2013 PS Kirti Nagar Page No.19/57
State V. Shahbaz Ahmed & Ors.
Ahmed and names of other two persons sitting on the back seat were disclosed as
Gautam Koli and Upender Gupta. On taking the formal search of Shahbaz
Ahmed, one country made pistol was recovered from the left dub of pant worn by
him. On checking the aforesaid pistol, three live cartridges were recovered from
its magazine. He had prepared sketch of the aforesaid pistol and cartridges
Ex.PW-14/E and also prepared pullanda of recovered pistol and sealed the same
with the seal of “PK” and he had also sealed recovered cartridges after putting the
same in plastic box with the seal of “PK” and seized vide seizure memo
Ex.PW-14/F. One diamond ring was recovered from accused Gautam Koli,
which he was wearing at that time and one Rolex wrist watch was recovered from
accused Upender Gupta, which he was wearing at that time. The said ring and
wrist watch were seized by him. Accused persons were arrested and their
personal search were conducted by him. Disclosure statement of accused
Shahbaz Ahmed was recorded vide memo Ex.PW-14/D-1, disclosure statement
of accused Gautam Koli was recorded vide memo Ex.PW- 14/D-2 and disclosure
statement of accused Upender Gupta was recorded vide memo Ex.PW-14/D-3.
Innova car was also seized by him. Thereafter, accused Shahbaz Ahmed led
them to a room at the first floor of his house and got recovered one jewelery bag
from the wooden almirah affixed on the wall of that room. Accused took out one
gold ring having pink stone and told that same was looted from the area of P.S.
Kirti Nagar. He put that ring in a plastic container and sealed the same with the
seal of “PK” and seized vide seizure memo Ex.PW-14/C. Rest of the jewellery
were placed in the same plastic bag and a pullanda was prepared and same was
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:11 -0100FIR No. 327/2013 PS Kirti Nagar Page No.20/57
State V. Shahbaz Ahmed & Ors.
sealed with the seal of ‘PK’. Thereafter, accused Gautam Koli led them to his
house and got recovered the jewellery from his house and told them that white
and golden pendent chain out of the recovered jewellery was looted from the area
of PS Kirti Nagar and he put the pendent chain and other recovered jewellery in
the separate plastic containers and sealed the same with the seal of ‘PK’ and
seized the same vide seizure memo Ex.PW14/B. Thereafter, accused Upender
Gupta led them to his house and got recovered two gold ladies bangles and one
gold gents ring and told them that same were looted from the area of PS Kirti
Nagar and he also got recovered one ladies gold ring and told them that same was
looted from the area of Noida. He placed ladies bangles and gents gold ring in a
plastic container and sealed the same with the seal of ‘PK’. Ladies gold ring was
also placed in a separate plastic container and same was sealed with the seal of
‘PK’ and the aforesaid case properties were seized by him vide seizure memo
Ex.PW-14/A. Thereafter, all the accused persons pointed towards the place of
incident at Pitam Pura and he had prepared pointing out memo. Thereafter,
accused persons were taken to the police station and case property was deposited
in the malkhana of PS Subhash Place and information was given to PS Kirti
Nagar about the disclosure of accused persons and recovery of case property. IO
had recorded his statement on 21/10/2013.
PW-16 was cross-examined by counsels for all accused.
(xvii) PW-17 in his testimony had deposed that on 16/09/2013, he had
received DD No.43-A at about 8:10 PM regarding robbery. Thereafter, he
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:16 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.21/57
alongwith Ct. Sachin reached at the spot i.e. H.No.96-A, First Floor, Ramesh
Nagar, Delhi. There they met complainant Bhagwani Devi and he recorded her
statement Ex.PW-2/A and he had prepared rukka Ex.PW-17/A and handed over
the same to Ct. Sachin for registration of FIR. Ct. Sachin went to PS Kirti Nagar
for registration of FIR. He had called Crime Team at the spot and Crime Team
had arrived at the spot and inspected the spot. Photographs were clicked by the
photographer of the Crime Team. ASI Ajeet Singh, In-charge, Crime Team had
prepared scene of crime report Ex.PW-10/A and handed over the same to him. He
had inspected the spot and prepared site plan Ex.PW-17/B at the instance of
complainant. In the meantime, Ct. Sachin had arrived at the spot with original
rukka and copy of FIR and handed over the same to him. He had recorded
statement of Jagat, Ankit and supplementary statement of Bhagwani Devi. He
had also made enquiries from the relative of the complainant namely Monika.
Thereafter, they made efforts for searching accused persons but in vain. He had
recorded statement of Ct. Sachin. On the next day, portraits of accused persons
Mark PW-17/1 and Mark PW-17/2 were got prepared at the instance of Jagat
Ram. On 24/09/2013, he had handed over the case file to the MHC(R) as he was
transferred to PS Mundka.
PW-17 was cross-examined by counsel for all accused.
(xviii) PW-18 in his testimony had deposed that on 16/09/2013, SI Pratap
Singh had received DD No. 43-A at about 8:10 PM and he alongwith SI Pratap
Singh went to H.No. 96A, First Floor, Ramesh Nagar, Delhi and met Bhagwani
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:21 -0100FIR No. 327/2013 PS Kirti Nagar Page No.22/57
State V. Shahbaz Ahmed & Ors.
Devi. IO had recorded her statement and prepared rukka and handed over the
same to him for registration of FIR. Accordingly, he went to police station for
getting the case registered and after registration of FIR, returned back to the spot
with original rukka and computerized copy of FIR and handed over the same to
IO. Efforts were made to trace out the accused persons but in vain. IO had
recorded his statement.
PW-18 was cross-examined by counsel for all accused.
(xix) PW-19 in his testimony had deposed that on 16/10/2013, SI
Pardeep had received secret information and he had discussed the same with the
then SHO and on the direction of SHO, SI Pradeep had prepared a raiding party
consisting of himself and thereafter, he alongwith ASI Sushil, Ct. Somveer and
Ct. Halwant had joined investigation of case bearing FIR No. 462/2013 PS
Subhash Place with SI Pradeep. PW-19 in his testimony had deposed the same
facts as deposed by PW-16 in his testimony.
PW-19 was cross-examined by counsel for all accused.
(xx) PW-20 in his testimony had deposed that on 17/10/2013, further
investigation of the present case was marked to him and he had perused the case
file. During investigation, on 19/10/2013 DD No. 34A was marked to him. As
per the contents of the said DD, three accused persons namely Shabhaz Ahmed,
Upender Gupta and Gautam were arrested in case FIR No. 762/2013
u/s 392/397/34 IPC at PS Subhash Place. Thereafter, on 21/10/2013, he went to
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:27 -0100FIR No. 327/2013 PS Kirti Nagar Page No.23/57
State V. Shahbaz Ahmed & Ors.
PS Subhash Place and met SI Pradeep Kumar and collected the relevant
documents i.e. disclosure statement and other memos from SI Pradeep Kumar.
On the same day, he had recorded the statements u/s 161 Cr.P.C of SI Pradeep, SI
Vikas and HC Suresh. During investigation, on 22/10/2013, he got issued the
production warrants of aforesaid accused persons. Accordingly, the aforesaid
accused persons were produced before the concerned Court on 23/10/2013 in
muffled face. He had moved an application for interrogation of the accused
persons namely Shabhaz Ahmed, Upender Gupta and Gautam and after
interrogation, effected their arrest vide arrest memos Ex. PW-7/B, Ex. PW-7/B2
and Ex. PW-7/B1. He had also recorded the disclosure statements of the
aforesaid accused persons Ex.PW-7/A, Ex.PW-7/A2 and Ex.PW-7/A1. On the
same day, he had moved an application for judicial TIP of accused Upender
Gupta and Gautam Kohli and the said TIP was fixed for 26/10/2013 and
ultimately, the TIP was conducted by Ld. MM on 30/10/2013, wherein both the
aforesaid accused persons refused to participate in the Judicial TIP. During
investigation, he had got transferred the case property and seized the same vide
seizure memo Ex. PW-20/A. He had also moved an application for TIP of case
property and on 07/11/2013, complainant had correctly identified the case
property during judicial TIP. He had also obtained one day PC remand of all the
aforesaid accused persons and during PC remand, the aforesaid accused persons
pointed out the place of commission of offence vide pointing out memos
Ex. PW-6/A, Ex. PW-6/A1 and Ex. PW-6/A2 respectively. During investigation,
he had recorded the statements of witnesses. He had also obtained the finger
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:32 -0100FIR No. 327/2013 PS Kirti Nagar Page No.24/57
State V. Shahbaz Ahmed & Ors.
print of the accused persons along with chance print and sent the same to finger
print bureau for matching purposes. He had also obtained the CDRs of the
mobile phones of accused persons and perusal of the said CDRs revealed that all
the accused persons were in contact with each other and their mobile locations
shows their presence at the place of commission of offence at the time of
commission of offence. Upon completion of investigation, he had filed the
charge-sheet.
PW-20 was cross-examined by counsels for all accused.
(xxi) PW-21 during the course of his testimony had produced CDRs in
respect of mobile no. 9711529575, 9899633131 and 9899533711 for 16/09/2013
Ex.PW-21/B, Ex.PW-21/C and Ex.PW-21/D and certificate u/s 65-B Indian
Evidence Act Ex.PW-21/A and subscriber details Ex.PW-20/E. PW-21 in his
testimony had deposed that perusal of the CDR of aforesaid mobile numbers
show that calls were made between the said numbers on 16/09/2013. As per
subscriber detail, mobile no. 9711529575 was in the name of Gautam Koli.
Mobile no. 9899633131 was in the name of Hanuman and mobile no.
9899533711 was in the name of Shahnawaz Ahmed. CAF in respect of Mobile
no. 9711529575 in the name of Gautam Koli was Ex.PW-21/F, CAF in respect of
mobile no. 9899533711 in the name of Shahnawaz Ahmed was Ex.PW-21/G and
CAF in respect of mobile no. 9899633131 in the name of Hanuman was
Ex.PW-21/H.
PW-21 was cross-examined by counsels for all accused.
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:37 -0100FIR No. 327/2013 PS Kirti Nagar Page No.25/57
State V. Shahbaz Ahmed & Ors.
STATEMENTS OF ALL ACCUSED U/S 313 CR.P.C.
9. Separate statements of all accused Shahbaz Ahmed, Gautam Koli
and Upender Gupta were recorded u/s. 313 Cr.P.C. wherein they denied the
allegations against them and rebutted the prosecution evidence against them and
claimed that they are innocent and have been falsely implicated and they have no
connection with the commission of the offence of the present case. It was also
stated that nothing was recovered from their possession or at their instance and
the recovery articles were planted upon them only to falsely implicate them in the
present case. It was also stated by the accused Upender Gupta that police officials
of case FIR No. 462/2013 PS Subhash Place had arrested him after 10:00 PM,
when he was standing outside his house, only for making some inquiry and
thereafter, police falsely implicated him in both cases. It was also stated by the
accused Upender Gupta that the mobile phone and number, which were shown to
be recovered from him, do not belong to him. It was also stated by the accused
Shahbaz Ahmed that police officials of case FIR No. 462/2013 PS Subhash Place
had arrested him at about 9:30 PM-10:00 PM, when he was standing near the
Government school, Basai Darapur. It was also stated by the accused Gautam
Koli that police officials of case FIR No. 462/2013 PS Subhash Place had
arrested him at about 8:30-9:00 PM, when he was standing outside his house,
only for making some inquiry and thereafter, police falsely implicated him in
both cases. It was also stated by all accused that they do not want to lead evidence
in their defence.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:42 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.26/57
DEFENCE EVIDENCE
10. In the present case, all accused had not led defence evidence.
FINAL ARGUMENTS
11. This Court heard the final arguments advanced by Ld. Addl. PP
for the State, Ld. Counsel for the accused Shahbaz Ahmed and Ld. Legal Aid
Counsel for the accused Gautam Koli and Upender Gupta and carefully perused
the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Addl.
PP for the State that the prosecution witnesses have duly supported the case of the
prosecution and from the testimonies of prosecution witnesses and the
documentary as well as other evidence relied upon by the prosecution, the
prosecution has been able to prove its case against all accused beyond reasonable
doubt and all accused be convicted for the offences as mentioned in the charge.
On the other hand, during the course of final arguments, it was submitted by
counsel for all accused that all accused have been falsely implicated in the
present case and there is no incriminating evidence on record against all accused
and the prosecution has failed to prove its case against all accused beyond
reasonable doubt and all accused be acquitted in the present case.
Counsels for the accused Shahbaz Ahmed and Upender Gupta in
support of their contentions have relied upon the following case laws:-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:47 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.27/57
(1) Shiv Kumar V. The State of Madhya Pradesh {2022 LiveLaw (SC)
746}
(2) Hiralal Babulal Soni & Ors. V. The State of Maharashtra & Ors.
{2025 INSC 266}
(3) Manjinder Singh V. State of Punjab {Criminal Appeal No. 418-
SB/1995 decided by the Hon’ble High Court of Punjab & Haryana on
05/05/2009}
In order to bring home conviction, the prosecution has to show on
record an unbroken chain of events leading to commission of actual offence.
Further, it is the duty of the prosecution to prove its case in such a manner so as
to bring it outside the pale of any reasonable doubt.
12. Law relating to appreciation of evidence of the witnesses has
been elaborated by the Hon’ble High Court of Delhi in case titled as “Satish @
Bombaiya V. State” { 44 (1991) DLT 561} and it was held that :-
“…….. While appreciating the evidence of a witness
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 then undoubtedly it is 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
earlier evaluation of the evidence is shaken as to render it
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:51 -0100FIR No. 327/2013 PS Kirti Nagar Page No.28/57
State V. Shahbaz Ahmed & Ors.
unworthy of behalf. Minor discrepancies on trivial matters
not touching the core of the case, hyper technical approach
by taking sentences torn out of context here and 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. The main thing to be seen is, whether
those inconsistencies go to the root of the matter or pertain
to insignificant aspects thereof. In the former case, the
defense may be justified in seeking advantage of the
inconsistencies in the evidence. In the latter, however, no
such benefit may be available to it. That is a salutary
method of appreciation of evidence in criminal cases.”
13. Law relating to appreciation of ocular evidence has been
elaborated by the Hon’ble Supreme Court of India in case titled as “Shahaja @
Shahjahan Ismail Mohd. Shaikh V. State of Maharashtra” {Crl. Appeal No.
739/2017 decided on 14/07/2022} and it was held that :-
“27. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under :-
I. 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 scrutinize 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
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:49:57 -0100FIR No. 327/2013 PS Kirti Nagar Page No.29/57
State V. Shahbaz Ahmed & Ors.
evidence is shaken as to render it unworthy of belief.
II. 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.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. 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.
IV. 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.
V. 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.
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:02 -0100FIR No. 327/2013 PS Kirti Nagar Page No.30/57
State V. Shahbaz Ahmed & Ors.
incident. It is not as if a video tape is replayed on the mental
screen.
VII. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An object or
movement might emboss its image on one person’s mind
whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them or
heard by them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, 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.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to get
confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:06 -0100FIR No. 327/2013 PS Kirti Nagar Page No.31/57
State V. Shahbaz Ahmed & Ors.
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The
sub- conscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to
amount to contradiction. Unless the former statement has
the potency to discredit the later statement, even if the later
statement is at variance with the former to some extent it
would not be helpful to contradict that witness.”
14. FINDINGS
(i) Testimonies of complainant and public witnesses
In the present case, charge for the offences
u/s. 120-B and section 411 IPC was framed against all accused and charge for the
offences u/s. 392/394 IPC r/w section 120-B IPC was framed against the accused
Gautam Koli and Upender Gupta and charge for the offence u/s. 397 IPC was
framed against the accused Upender Gupta.
It is the case of the prosecution that on or before 16/09/2013, all
accused Shahbaz Ahmed, Gautam Koli and Upender Gupta had entered into a
criminal conspiracy to commit the robbery in the house of the complainant Smt.
Bhagwani Devi and on 16/09/2013 at about 7:20 PM at H.No. 96A, First Floor,
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:12 -0100FIR No. 327/2013 PS Kirti Nagar Page No.32/57
State V. Shahbaz Ahmed & Ors.
Ramesh Nagar, New Delhi within the jurisdiction of Police Station Kirti Nagar,
in pursuance of criminal conspiracy, accused Gautam Koli and Upender Gupta
had entered into the house of the complainant and committed the robbery of cash
amount of Rs.1,00,000/-, three gold rings, one gold chain, two gold karas, two
ear rings, two small rings and one pendal from the possession of complainant
after voluntarily causing hurt to the complainant and her servant Jagat Ram. It is
also the case of the prosecution that while committing the robbery, accused
Upender Gupta had used the deadly weapon i.e. pistol by putting the same on the
tample of the complainant. It is also the case of the prosecution that on
17/10/2013, accused Shahbaz Ahmed got recovered the robbed one gold ring
from the first floor of his house bearing no. WZ-936A, Basai Darapur, New Delhi
and on 17/10/2013, accused Upender Gupta got recovered the robbed two gold
ladies karas and one gents gold ring from his house bearing no. D-36, Sudershan
Park, New Delhi and on 17/10/2013, accused Gautam Koli got recovered one
gold pendant chain from his house no. WZ-46, D-2B, Basai Darapur, New Delhi
belonging to the complainant, which they had received or retained knowingly or
having reason to believe the same to be stolen property.
During the course of final arguments, it was submitted by counsel
for all accused that PW-2 and PW-3 have not supported the case of the
prosecution and turned hostile and in view of the same, benefit of doubt be given
to all accused.
It is well settled law that evidence of a hostile witness cannot be
discarded as a whole and relevant parts thereof which are admissible in law can
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:17 -0100FIR No. 327/2013 PS Kirti Nagar Page No.33/57
State V. Shahbaz Ahmed & Ors.
be used by the prosecution or the defence.
Law relating to hostile witness has been elaborated by the
Hon’ble Supreme Court of India in case titled as ” Rajesh Yadav & Anr. V. State
of UP” {Criminal Appeal No.339-340/2014 decided on 04/02/2022} and it was
held that :-
“The expression “hostile witness” does not find a place in
the Indian Evidence Act. It is coined to mean testimony of a
witness turning to depose in favour of the opposite party.
We must bear it in mind that a witness may depose in favour
of a party in whose favour it is meant to be giving through
his chief examination, while later on change his view in
favour of the opposite side. Similarly, there would be cases
where a witness does not support the case of the party
starting from chief examination itself. This classification
has to be borne in mind by the Court. With respect to the
first category, the Court is not denuded of its power to make
an appropriate assessment of the evidence rendered by such
a witness. Even a chief examination could be termed as
evidence. Such evidence would become complete after the
cross examination. Once evidence is completed, the said
testimony as a whole is meant for the court to assess and
appreciate qua a fact. Therefore, not only the specific part in
which a witness has turned hostile but the circumstances
under which it happened can also be considered,
particularly in a situation where the chief examination was
completed and there are circumstances indicating the
reasons behind the subsequent statement, which could be
deciphered by the court. It is well within the powers of the
court to make an assessment, being a matter before it and
come to the correct conclusion.”
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:21 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.34/57
It was held by Hon’ble Supreme Court of India in case titled as
“Neeraj Dutta V. State (Govt. of NCT of Delhi)” {Criminal Appeal
No.1669/2009 decided on 15/12/2022} that :-
“Therefore, this Court cautioned that even if a witness is
treated as “hostile” and is cross-examined, his evidence
cannot be written off altogether but must be considered with
due care and circumspection and that part of the testimony
which is creditworthy must be considered and acted upon. It
is for the judge as a matter of prudence to consider the
extent of evidence which is creditworthy for the purpose of
proof of the case. In other words, the fact that a witness has
been declared “hostile” does not result in an automatic
rejection of his evidence. Even, the evidence of a “hostile
witness” if it finds corroboration from the facts of the case
may be taken into account while judging the guilt of the
accused. Thus, there is no legal bar to raise a conviction
upon a “hostile witness” testimony if corroborated by other
reliable evidence.”
PW-1 is the maternal grand-son of the complainant. PW-2 is the
complainant/victim and eye-witness in the present case. PW-3 is the eye-witness
in the present case.
PW-2 in her testimony had categorically, elaborately and
graphically described as to how the robbery of cash amount and jewellery articles
was committed by two robbers from her house at the relevant time and date.
PW-2 had not supported the case of the prosecution only on the
point of identity of the accused persons. PW-2 in her examination-in-chief had
deposed that none of those two boys is present in the Court. PW-2 in her
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:26 -0100FIR No. 327/2013 PS Kirti Nagar Page No.35/57
State V. Shahbaz Ahmed & Ors.
examination-in-chief had deposed that none of the accused persons were seen by
her in the custody of the police, during the course of investigation. During the
course of her examination, PW-2 had not identified the accused persons and
when the attention of PW-2 was drawn towards the accused Gautam Koli and
Upender Gupta, it was submitted by PW-2 that the aforesaid accused persons are
not the persons, who committed the robbery. PW-2 in her cross-examination by
Addl. PP for the State had deposed that she had not stated to the police that those
two boys had put pistols on her head (kanpati ) and asked for the keys of almirah
from her. PW-2 in her cross-examination by Addl. PP for the State had also
deposed that she had also not stated to the police that those two boys had slapped
her and threatened to kill her and her servant Jagat Ram. Factum regarding
showing the pistols by the robbers had been denied by PW-2 in her testimony.
Factum regarding beating and threatening had also been denied by PW-2 in her
testimony. However, complainant/PW-2 had not disputed/ denied the factum
regarding robbery of her cash amount and jewellery articles. PW-2 had duly
supported the case of the prosecution in respect of robbery of jewellery articles
and cash amount by two robbers.
PW-3 in his testimony had categorically, elaborately and
graphically described as to how the robbery of cash amount and jewellery articles
was committed by two robbers at the relevant time, date and place.
PW-3 had not supported the case of the prosecution only on the
point of identity of the accused persons. PW-3 in his examination-in-chief had
deposed that none of those two boys is present in the Court. During the course of
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:31 -0100FIR No. 327/2013 PS Kirti Nagar Page No.36/57
State V. Shahbaz Ahmed & Ors.
his examination, PW-3 had not identified the accused persons and when the
attention of PW-3 was drawn towards the accused Gautam Koli and Upender
Gupta, it was submitted by PW-3 that the aforesaid accused persons are not the
persons, who committed the robbery. PW-3 in his cross-examination by Addl. PP
for the State had denied the suggestion that both the accused persons had
threatened him with the pistol and had shown the pistol to the complainant and
slapped him and complainant. However, PW-3 had not disputed/ denied the
factum regarding robbery of cash amount and jewellery articles of the
complainant. PW-3 had duly supported the case of the prosecution in respect of
robbery of jewellery articles and cash amount by two robbers.
During the course of examination of PW-2, recovered robbed
jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 were produced by PW-2. During the
course of examination of prosecution witnesses, all accused had not disputed the
identity of the aforesaid recovered jewellery articles.
On perusal of testimonies of PW-2 and PW-3, it is clear that they
were not completely hostile. PW-2 and PW-3 were hostile only on the point of
identity of accused persons. In view of the same, the whole testimonies of PW-2
and PW-3 cannot be washed off/discarded.
In the present case, PW-2 and PW-3 were not cross-examined by
counsels for all accused. Hence, testimonies of PW-2 and PW-3 have gone un-
rebutted, un-challenged and un-controverted.
Hence, factum regarding commission of offence of robbery of
cash amount and jewellery articles has been duly proved on record by the
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:36 -0100FIR No. 327/2013 PS Kirti Nagar Page No.37/57
State V. Shahbaz Ahmed & Ors.
prosecution from the testimonies of prosecution witnesses as well as
documentary evidence and other evidence relied upon by the prosecution.
However, factum regarding commission of offence of robbery of cash amount
and jewellery articles by the accused persons has not been proved by the
prosecution.
PW-1 is stated to be not the eye-witness of the incident. PW-1 in
his testimony had deposed that when they reached at their house at about 7-7:30
PM after returning from Chhatarpur, he found that his Nani and Chhotu i.e.
servant Jagat Ram were locked and he broke the lock of the room in which her
Nani and Jagat Ram were locked and thereafter, he called the police at 100
number. Nothing incriminating had been deposed by PW-1 in his testimony
against all accused persons.
(ii) Identity of all accused
PW-2 is the complainant/victim/eye-witness and PW-3 is the eye-
witness in the present case. During the course of their testimonies, PW-2 and
PW-3 have not identified the accused persons.
During the course of his examination, PW-1 had identified the
accused Shahbaz Ahmed but nothing incriminating had been deposed by PW-1
against all accused persons.
On the other hand, PW-5, PW-6, PW-7, PW-15, PW-16, PW-19
and PW-20, who are the police officials, in their testimonies had duly identified
all accused. Admittedly, aforesaid police witnesses are not the eye-witnesses
Digitally
of
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:41 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.38/57
the robbery. Counsels for all accused had not put any question in the cross-
examination of PW-5, PW-6, PW-7, PW-15, PW-16, PW-19 and PW-20 to
dispute the identity of all accused.
Hence, identity of all accused have not been proved/established
by eye-witnesses i.e. PW-2 and PW-3. However, identity of all accused have
been proved/established by PW-5, PW-6, PW-7, PW-15, PW-16, PW-19 and
PW-20.
(iii) Presence of all accused
PW-2 is the complainant/victim/eye-witness and PW-3 is the eye-
witness of the incident/robbery.
PW-2 and PW-3 had not supported the case of the prosecution
and turned hostile on the point of identity of all accused persons. PW-2 and PW-3
in their examination-in-chief had deposed that none of those two boys is present
in the Court. During the course of their testimonies, PW-2 and PW-3 had not
identified the accused persons and when the attention of PW-2 and PW-3 was
drawn towards the accused Gautam Koli and Upender Gupta, it was submitted by
PW-2 and PW-3 that the aforesaid accused persons are not the persons, who
committed the robbery. Factum regarding presence of all accused at the place of
incident/robbery i.e. house of the complainant at the relevant time and date has
not been established/ proved by the prosecution.
PW-15, PW-16 and PW-19 are the recovery witnesses of the
recovered robbed jewellery articles and police officials of FIR No. 462/2013 PS
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:45 -0100FIR No. 327/2013 PS Kirti Nagar Page No.39/57
State V. Shahbaz Ahmed & Ors.
Subhash Place. PW-15, PW-16 and PW-19 in their testimonies had deposed that
recovered robbed jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 were recovered at
the instance of all accused from their respective houses. Factum regarding
recovery of robbed jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 at the instance
of all accused from their respective houses has been duly proved on record by the
prosecution. Hence, factum regarding presence of all accused at the time of
recovery of aforesaid robbed jewellery articles has been established/ proved by
the prosecution.
(iv) Identity of the case property/ recovered robbed jewellery articles
It is the case of the prosecution that on 17/10/2013, accused
Shahbaz Ahmed got recovered the robbed one gold ring from the first floor of his
house bearing no. WZ-936A, Basai Darapur, New Delhi and on 17/10/2013,
accused Upender Gupta got recovered the robbed two gold ladies karas and one
gents gold ring from his house bearing no. D-36, Sudershan Park, New Delhi and
on 17/10/2013, accused Gautam Koli got recovered one gold pendant chain from
his house no. WZ-46, D-2B, Basai Darapur, New Delhi belonging to the
complainant, which they had received or retained knowingly or having reason to
believe the same to be stolen property.
As per case of the prosecution, cash amount of Rs.1,00,000/-, three
gold rings, one gold chain, two gold karas, two ear rings, two small rings and one
pendal were robbed by two robbers from the complainant at the relevant time,
date and place. It is also the case of the prosecution that in the present case,
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:50 -0100FIR No. 327/2013 PS Kirti Nagar Page No.40/57
State V. Shahbaz Ahmed & Ors.
robbed jewellery articles i.e. two kadas Ex.P-1, gold chain Ex.P-2 and two gold
rings Ex.P-3 were recovered from the respective houses of the accused persons at
their instance.
During the course of examination of PW-2, aforesaid
robbed/recovered jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 were produced in
the Court by PW-2. In the present case, PW-2 was not cross-examined by
counsels for all accused. In the cross-examination of PW-2, counsels for all
accused had not put any question to dispute the identity of Ex.P-1, Ex.P-2 and
Ex.P-3.
Testimony of PW-2 has gone un-rebutted, un-challenged and un-
controverted on the aspect of identity of robbed/recovered jewellery articles i.e.
Ex.P-1, Ex.P-2 and Ex.P-3.
In the present case, TIP of robbed/recovered jewellery articles
Ex.P-1, Ex.P-2 and Ex.P-3 was got conducted by the Ld. MM. TIP of aforesaid
robbed/recovered jewellery articles was conducted vide TIP proceedings
Ex.PW-2/B. In the cross-examination of PW-2, counsel for all accused had not
put any question to dispute the authenticity of Ex.PW-2/B.
During the course of his examination, PW-15 had duly identified
Ex.P-2 and Ex.P-3 from the photograph Ex.PW-15/A.
During the course of examination of PW-16 and PW-19, it was
submitted by all accused that they are not disputing the identity of case property
but they are disputing the factum of recovery of case property from their
possession. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:50:55 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.41/57
It is pertinent to mention here that vide joint statement u/s. 294
Cr.P.C. of all accused recorded on 03/03/2023, all accused had admitted the TIP
proceedings of the case property Ex.PW-2/B.
Hence, identity of robbed/recovered jewellery articles Ex.P-1,
Ex.P-2 and Ex.P-3 has been duly established/proved by the prosecution.
(v) Factum regarding recovery of robbed/recovered jewellery articles
It is the case of the prosecution that on 17/10/2013, accused
Shahbaz Ahmed got recovered the robbed one gold ring from the first floor of his
house bearing no. WZ-936A, Basai Darapur, New Delhi and on 17/10/2013,
accused Upender Gupta got recovered the robbed two ladies gold karas and one
gents gold ring from his house bearing no. D-36, Sudershan Park, New Delhi and
on 17/10/2013, accused Gautam Koli got recovered one gold pendant chain from
his house no. WZ-46, D-2B, Basai Darapur, New Delhi belonging to the
complainant, which they had received or retained knowingly or having reason to
believe the same to be stolen property.
It is the case of the prosecution that the aforesaid robbed
jewellery were recovered by the recovery witnesses at the instance of all accused
persons from their respective houses.
PW-15, PW-16 and PW-19 are the recovery witnesses and police
officials of case FIR No. 462/2013 PS Subhash Place. PW-16 is the IO of case
FIR No. 462/2013 PS Subhash Place. PW-15, PW-16 and PW-19 in their
testimonies have specifically deposed regarding recovery of aforesaid robbed
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:00 -0100FIR No. 327/2013 PS Kirti Nagar Page No.42/57
State V. Shahbaz Ahmed & Ors.
jewellery articles i.e. Ex.P-1, Ex.P-2 and Ex.P-3 at the instance of all accused
from their respective houses vide seizure memos u/s 102 Cr.P.C. Ex.PW-14/A,
Ex.PW-14/B and Ex.PW-14/C. Seizure memos u/s 102 Cr.P.C. Ex.PW-14/A,
Ex.PW-14/B and Ex.PW-14/C have been duly proved on record by the
prosecution. Seizure memo Ex.PW-20/A of aforesaid robbed/ recovered
jewellery articles was prepared in the present case and the same has also been
duly proved on record by the prosecution.
During the course of examination of PW-2, aforesaid
robbed/recovered jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 were produced in
the Court by PW-2. In the present case, PW-2 was not cross-examined by
counsels for all accused. In the cross-examination of PW-2, counsels for all
accused had not put any question to dispute the identity of Ex.P-1, Ex.P-2 and
Ex.P-3. Testimony of PW-2 has gone un-rebutted, un-challenged and un-
controverted on the aspect of identity of robbed/recovered jewellery articles i.e.
Ex.P-1, Ex.P-2 and Ex.P-3.
In the present case, TIP of robbed/recovered jewellery articles
Ex.P-1, Ex.P-2 and Ex.P-3 was got conducted by the Ld. MM. TIP of aforesaid
robbed/recovered jewellery articles was conducted vide TIP proceedings
Ex.PW-2/B. In the cross-examination of PW-2, counsels for all accused had not
put any question to dispute the authenticity of Ex.PW-2/B.
During the course of his examination, PW-15 had duly identified
Ex.P-1, Ex.P-2 and Ex.P-3 from the photograph Ex.PW-15/A. During the course
of examination of PW-16 and PW-19, it was submitted by all accused that they
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:05 -0100FIR No. 327/2013 PS Kirti Nagar Page No.43/57
State V. Shahbaz Ahmed & Ors.
are not disputing the identity of case property but they are disputing the factum of
recovery of case property from their possession.
It is pertinent to mention here that vide joint statement u/s. 294
Cr.P.C. of all accused recorded on 03/03/2023, all accused had admitted the TIP
proceedings of the case property Ex.PW-2/B.
Hence, factum regarding recovery of aforesaid robbed/recovered
jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 at the instance of all accused from
their respective houses has been duly established/proved by the prosecution.
(vi) Admitted documents
It is pertinent to mention here that vide joint statement u/s. 294
Cr.P.C. of all accused recorded on 03/03/2023, all accused had admitted the TIP
proceedings of the accused Gautam Koli and Upender Gupta Ex.PX1 and PX2 as
well as TIP proceedings of the case property Ex.PW-2/B.
Hence, TIP proceedings of case property Ex.PW-2/B and TIP
proceedings of the accused Gautam Koli and Upender Gupta Ex.PX-1 and
Ex.PX-2 have been duly proved on record by the prosecution.
(vii) Testimonies of police witnesses
In the present case, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9,
PW-10, PW-11, PW-12, PW-13, PW-15, PW-16, PW-17, PW-18, PW-19 and
PW-20 are the police officials. From the testimonies of the aforesaid police
witnesses, it is evident that investigation conducted including the documents
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:10 -0100FIR No. 327/2013 PS Kirti Nagar Page No.44/57
State V. Shahbaz Ahmed & Ors.
prepared in the present case during the course of investigation have been
substantially proved by the aforesaid police witnesses.
PW-15, PW-16 and PW-19 are the recovery witnesses and police
officials of case FIR No. 462/2013 PS Subhash Place. PW-16 is the IO of case
FIR No. 462/2013 PS Subhash Place. PW-15, PW-16 and PW-19 in their
testimony have specifically deposed regarding recovery of robbed jewellery
articles at the instance of all accused from their respective houses
PW-17 and PW-20 are the IOs in the present case, who deposed
regarding investigation conducted by them and they duly proved on record the
documents relating to the investigation conducted by them.
15. CONTENTIONS OF COUNSEL FOR ALL ACCUSED
(a) During the course of final arguments, it was submitted by
counsels for all accused that PW-2 and PW-3 have turned hostile and they have
not supported the case of the prosecution and in view of the same, benefit of
doubt be given to all accused.
As already discussed above that PW-2 and PW-3 were not
completely hostile and they were hostile only on the point of identity of accused
persons. Factum regarding commission of offence of robbery of cash amount
and jewellery articles has been duly proved on record by the prosecution from the
testimonies of prosecution witnesses as well as documentary evidence and other
evidence relied upon by the prosecution. However, factum regarding
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:14 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.45/57
commission of offence of robbery of cash amount and jewellery articles by the
accused persons has not been proved by the prosecution. However, the factum
regarding recovery of robbed jewellery articles at the instance of all accused
from their respective houses has been duly proved on record by the prosecution.
In view of the same, the whole case of the prosecution as well as testimonies of
PW-2 and PW-3 cannot be washed off/discarded.
Hence, the contention of counsels for all accused in this regard is
not tenable.
(b) During the course of final arguments, it was submitted by
counsels for all accused that in the present case, no independent public witness
was asked to join the investigation by the police at the time of recovery of robbed
jewellery articles nor cited/ examined in the present case and in view of the same,
benefit of doubt be given to all accused.
It is well settled law that non-examination of any witness per se
will not vitiate the case of the prosecution and it depends upon the quality and not
the quantity of the witnesses and its importance. It is also well settled law that
testimonies of police witnesses cannot be completed discarded only on the
ground that no independent public witness was joined in the investigation of the
case.
It was held by Hon’ble Supreme Court of India in case titled as
“Baldev Singh V. State of Haryana” {2015 AIR SCW 6174} that:-
“There is no legal proposition that evidence of police
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:19 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.46/57
officials unless supported by independent evidence is
unworthy of acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that they belong
to police force and interested in the investigation and their
desire to see the success of the case. Prudence however
requires that the evidence of police officials who are
interested in the outcome of the result of the case needs to
be carefully scrutinized and independently appreciated.
Mere fact that they are police officials does not by itself
give rise to any doubt about their creditworthiness.”
It was held by Hon’ble Supreme Court of India in case titled as
“Rajesh Yadav & Anr. V. State of UP” {Criminal Appeal No.339-340/2014
decided on 04/02/2022} that:-
“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….”
It was held by Hon’ble High Court of Delhi in case titled as
“Ram Prasad & Ors. V. State of NCT of Delhi ” {CRL. A. 825/2017, 849/2017
& 816/2017 decided on 13/11/2017} that:-
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:24 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.47/57
“Therefore, the investigating team had made all possible
efforts to associate independent witness. It is well settled
principle of law that mere non joining of the independent
witnesses itself is no ground to discard the prosecution
version. The appellants Kripa Shankar Sharma and Vikas
Chaudhary have not made any specific allegations against
the Investigating Officer or the other prosecution witnesses
that they had any motive for the false implication of the
appellant or they were having any ill-will against them. In
the case of Appa Bai and another v. State of Gujarat,
reported in AIR 1988 Supreme Court 696, the Supreme
Court has observed that the prosecution story cannot be
thrown out on the ground that an independent witness has
not been examined. The Hon’ble Apex Court has further
observed that the civilized people, are generally insensitive
when a crime is committed even in their presence and they
withdraw from the victims side. They keep themselves
away from the Courts unless it is inevitable.
Keeping in view the principles laid down by the
Apex Court it cannot be disputed that the general public is
very much reluctant to get dragged in police and criminal
case because of long drawn trials and needless harassment.
Mere fact of non-association of secret informer or other
independent persons as a witness at the time of recording
the disclosure statement of the appellants and effecting the
recovery, itself is no ground to render the testimonies of the
official witnesses unworthy of credence and to create any
dent in the prosecution case. Hence, no adverse inference
on account of non-joining of public witnesses in such raids
can be drawn.”
It is well settled law that non-joining of public witness in the
investigation is not fatal in every case. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:29 –
0100
FIR No. 327/2013 PS Kirti Nagar Page No.48/57
PW-15, PW-16 and PW-19 are the recovery witnesses of the
recovered robbed jewellery articles and police officials of FIR No. 462/2013 PS
Subhash Place. PW-16 in his testimony had deposed that he had requested 2-3
passersby to join them in the raid but none agreed. On perusal of testimony of
PW-16, it is clear that PW-16 had made efforts to join the public persons in the
investigation.
There is nothing on the record to show that the investigating
officer of the present case as well as investigating officer of FIR No. 462/2013 PS
Subhash Place or other police officials had any motive for the false implication of
all accused or they were having any ill-will against them.
In the present case, all recovery as well as other police witnesses
have duly supported the case of the prosecution and their testimonies have been
corroborated with the case of the prosecution as well as documentary evidence
and case property relied upon by the prosecution. Hence, the contention of
counsels for all accused in this regard is not tenable.
(c) During the course of final arguments, it was submitted by
counsels for all accused that the prosecution has failed to prove the fact that the
recovered jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3 are the same jewellery
articles, which were robbed from the complainant. It was also submitted by
counsels for all accused that ownership document of robbed/recovered jewellery
articles has not been proved on record by the prosecution. It was further
submitted that in view of the same, benefit of doubt be given to all accused. On
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:33 -0100FIR No. 327/2013 PS Kirti Nagar Page No.49/57
State V. Shahbaz Ahmed & Ors.
the other hand, it was submitted by Addl. PP for the State that identity of
recovered jewellery articles has been duly proved on record by the prosecution.
In the present case, identity of recovered jewellery articles
Ex.P-1, Ex.P-2 and Ex.P-3 has been duly proved/established by the prosecution.
In the cross-examination of PW-2, counsels for all accused had not put any
question to dispute the ownership of robbed/recovered jewellery articles. On the
one hand, all accused are disputing the identity of aforesaid recovered jewellery
articles. On the other hand, during the course of examination of PW-16 and
PW-19, it was submitted by all accused that they are not disputing the identity of
case property but they are disputing the factum of recovery of case property from
their possession. No explanation has been furnished by counsels for all accused
for the same.
Hence, the contention of counsels for all accused in this regard is
not tenable.
(d) During the course of final arguments, it was submitted by
counsels for all accused that the jewellery articles Ex.P-1, Ex.P-2 and Ex.P-3
were not recovered at the instance of all accused from their respective houses and
the aforesaid recovered jewellery articles were planted upon all accused and in
view of the same, benefit of doubt be given to all accused. On the other hand, it
was submitted by Addl. PP for the State that factum regarding recovery of
aforesaid recovered jewellery articles at the instance of all accused from their
respective houses has been duly proved on record by the prosecution.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:39 -0100FIR No. 327/2013 PS Kirti Nagar Page No.50/57
State V. Shahbaz Ahmed & Ors.
It is well settled law that on the information/disclosure of the
accused to the police, which led to the recovery of the incriminating article/case
property/weapon is admissible in evidence u/s 27 Indian Evidence Act. There is
nothing in Section 27 Indian Evidence Act, which renders the
statement/disclosure of the accused inadmissible, if recovery of the article/case
property/weapon was made from any place which is open or accessible to others.
PW-15, PW-16 and PW-19 are the recovery witnesses and police
officials of case FIR No. 462/2013 PS Subhash Place and the aforesaid witnesses
in their testimonies have specifically deposed regarding recovery of aforesaid
robbed jewellery articles i.e. Ex.P-1, Ex.P-2 and Ex.P-3 at the instance of all
accused from their respective houses
All accused have failed to clarify as to how the aforesaid robbed/
recovered jewellery articles were found lying in their respective houses. The
aforesaid robbed/ recovered jewellery articles were recovered only at their
instance from their respective houses. In the present case, no defence evidence
has been led by all accused to show that the aforesaid robbed jewellery articles
were planted upon all accused.
In the present case, factum regarding recovery of aforesaid
recovered jewellery articles at the instance of all accused from their respective
houses has been duly proved on record by the prosecution.
Hence, the contention of counsels for all accused in this regard is
not tenable.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:44 -0100
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State V. Shahbaz Ahmed & Ors.
(e) During the course of final arguments, it was submitted by
counsels for all accused that as per case of the prosecution, robbed jewellery
articles were recovered from the respective houses of all accused but PW-5 in his
testimony had deposed that nothing was recovered from the houses of all accused
and in view of the same, benefit of doubt be given to all accused.
PW-15, PW-16 and PW-19 are the recovery witnesses and police
officials of case FIR No. 462/2013 PS Subhash Place. As per aforesaid recovery
witnesses, the aforesaid robbed jewellery articles i.e. Ex.P-1, Ex.P-2 and Ex.P-3
were recovered at the instance of all accused from their respective houses on
17/10/2013. PW-5 in his testimony had deposed that on 31/10/2013, nothing was
recovered from the houses of all accused. It is not the case of the prosecution that
recovery of aforesaid robbed jewellery articles was made on 31/10/2013. As per
the case of the prosecution, aforesaid robbed jewellery articles were recovered
only on 17/10/2013.
Hence, the contention of counsels for all accused in this regard is
not tenable.
(f) During the course of final arguments, it was submitted by
counsels for all accused that IO had not investigated the present matter properly
and in view of the same, benefit of doubt be given to all accused. On the other
hand, it was submitted by Addl. PP for the State that IO had properly investigated
the present matter.
There is nothing on the record to show that IOs had not
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:49 –
0100
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investigated the present matter properly and investigation was defective.
Even otherwise, it was held by Hon’ble Supreme Court of India in
case titled as “Ambika Prasad & Anr. V. State (Delhi Administration)” (AIR 2000
SC 718) that :-
…..Dealing with a case of negligence on the part of the
investigating officer, this Court in Karnel Singh v. State of
MP {(1995) 5 SCC 518} observed that in a case of defective
investigation it would not be proper to acquit the accused if
the case is otherwise established conclusively because in that
event it would tantamount to be falling in the hands of erring
investigating officer…”
Hence, the contention of counsels for all accused in this regard is
not tenable.
(g) During the course of final arguments, it was submitted by
counsels for all accused that there are material contradictions and inconsistencies
in the testimonies of recovery witnesses and in view of the same, benefit of doubt
to be given to all accused. On the other hand, during the course of final
arguments, it was submitted by Addl. PP for the State that there is no material
contradiction in the testimonies of recovery witnesses.
It was held by Hon’ble Supreme Court of India in case titled as
“Sunil Kumar Sambhudayal Gupta V. State of Maharashtra” { (2010) 13 SCC
657} that:-
” While appreciating the evidence, the court has to take
into consideration whether the contradictions/ omissions Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:54 –
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had been of such magnitude that they may materially
affect the trial. Minor contradictions, inconsistencies,
embellishments or improvements on trivial matters
without effecting the core of the prosecution case should
not be made a ground to reject the evidence in its entirety.
The Trial Court, after going through the entire evidence,
must form an opinion about the credibility of the witnesses
and the appellate Court in normal course would not be
justified in reviewing the same again without justifiable
reasons.”
In the testimonies of recovery witnesses i.e. PW-15, PW-16 and
PW-19, no material contradiction and inconsistency has been surfaced except
some minor ones which are but natural. Hence, the contention of counsels for all
accused in this regard is not tenable.
16. In the present case, factum regarding criminal conspiracy for
robbery by all accused and factum regarding robbery of cash amount of
Rs.1,00,000/-, three gold rings, one gold chain, two gold karas, two ear rings, two
small rings and one pendal from the possession of complainant by accused
Gautam Koli and Upender Gupta and factum regarding use of deadly weapon i.e.
pistol by the accused Upender Gupta at the time of robbery have not been proved
by the prosecution. However, factum regarding recovery of robbed jewellery
articles Ex.P-1, Ex.P-2 and Ex.P-3 at the instance of all accused from their
respective houses at the relevant time and date has been duly proved on record by
the prosecution.
In the present case, no defence evidence had been led by all
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:51:59 -0100FIR No. 327/2013 PS Kirti Nagar Page No.54/57
State V. Shahbaz Ahmed & Ors.
accused in support of their defence and to rebut and contradict the case of the
prosecution in respect of recovery of robbed jewellery articles at their instance
from their respective houses.
17. All the essential ingredients of the offence u/s.392/394/397/120-B
IPC have not been proved on record by the prosecution against all accused.
However, all the essential ingredients of the offence u/s. 411 IPC have been duly
proved on record by the prosecution against all accused from the testimonies of
prosecution/recovery witnesses and documentary as well as other evidence relied
upon by the prosecution.
Prosecution has not been able to prove the fact that on or before
16/09/2013, all accused Shahbaz Ahmed, Gautam Koli and Upender Gupta had
entered into a criminal conspiracy to commit the robbery in the house of the
complainant Smt. Bhagwani Devi. Prosecution has also not been able to prove
the fact that on 16/09/2013 at about 7:20 PM at H.No. 96A, First Floor, Ramesh
Nagar, New Delhi within the jurisdiction of Police Station Kirti Nagar, in
pursuance of criminal conspiracy, accused Gautam Koli and Upender Gupta had
entered into the house of the complainant and committed the robbery of cash
amount of Rs.1,00,000/-, three gold rings, one gold chain, two gold karas, two
ear rings, two small rings and one pendal from the possession of complainant
after voluntarily causing hurt to the complainant and her servant Jagat Ram.
Prosecution has also not been able to prove the fact that while committing the
robbery, accused Upender Gupta had used the deadly weapon i.e. pistol by
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:52:04 –
0100
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putting the same on the tample of the complainant.
However, prosecution has been able to prove the fact that on
17/10/2013, accused Shahbaz Ahmed got recovered the robbed one gold ring
from the first floor of his house bearing no. WZ-936A, Basai Darapur, New Delhi
and on 17/10/2013, accused Upender Gupta got recovered the robbed two ladies
karas and one gents gold ring from his house bearing no. D-36, Sudershan Park,
New Delhi and on 17/10/2013, accused Gautam Koli got recovered one gold
pendant chain from his house no. WZ-46, D-2B, Basai Darapur, New Delhi
belonging to the complainant, which they had received or retained knowingly or
having reason to believe the same to be stolen property.
18. There is no dispute regarding the propositions laid down in the
case laws relied upon by counsels for the accused Shahbaz Ahmed and Upender
Gupta,
Gupta however, the same are not applicable to the facts and circumstances of the
present case.
19. CONCLUSION
Applying priori and posteriori reasonings, this Court is held that
the prosecution has not been able to establish/ prove its case against all accused
for the offence u/s. 120-B IPC and for the offences u/s. 392/394 IPC against the
accused Gautam Koli and Upender Gupta and for the offence u/s. 397 IPC
against the accused Upender Gupta beyond reasonable doubt.
Accordingly, all accused Shahbaz Ahmed, Gautam Koli and
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
16:52:09 –
0100
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Upender Gupta are acquitted for the offence u/s. 120-B IPC and accused
Gautam Koli and Upender Gupta are also acquitted for the offences u/s. 392/394
IPC and accused Upender Gupta is also acquitted for the offence u/s. 397 IPC.
Applying priori and posteriori reasonings, this Court is held that
on 17/10/2013, accused Shahbaz Ahmed got recovered the robbed one gold ring
from the first floor of his house bearing no. WZ-936A, Basai Darapur, New Delhi
and on 17/10/2013, accused Upender Gupta got recovered the robbed two ladies
karas and one gents gold ring from his house bearing no. D-36, Sudershan Park,
New Delhi and on 17/10/2013, accused Gautam Koli got recovered one gold
pendant chain from his house no. WZ-46, D-2B, Basai Darapur, New Delhi
belonging to the complainant, which they had received or retained knowingly or
having reason to believe the same to be stolen property.
In view of the aforesaid discussion, this Court is of the considered
opinion that the prosecution has been successful to prove its case against all
accused beyond reasonable doubt for the offence u/s. 411 IPC. This Court is held
that all accused have committed the offence punishable u/s. 411 IPC.
Accordingly, accused Shahbaz Ahmed, Gautam Koli and Upender Gupta are
convicted for the offence u/s. 411 IPC. Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.07.31
Announced in the open Court 16:52:15 –
0100
on 31/07/2025
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, DelhiFIR No. 327/2013 PS Kirti Nagar Page No.57/57