Delhi District Court
Mohd Tahseem vs State Gnct Of Delhi on 18 February, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-016986-2024
CRIMINAL APPEAL No.: 446/2024
MOHD. TAHSEEM,
S/o. Mohd. Yasin,
R/o. D-183, Gali No. 9,
Village Wazirabad,
Delhi-110054. ... APPELLANT
VERSUS
STATE (GNCT OF DELHI) ... RESPONDENT
Date of e-filing : 23.10.2024
Date of institution : 25.10.2024
Date when judgment was reserved : 17.12.2025
Date when judgment is pronounced : 18.02.2026
JUDGMENT
1. The present appeal has been filed under Section 374
of the Code of Criminal Procedure, 1973 ( hereinafter, referred to
as ‘Cr.P.C./Code’)/Section 415 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (hereinafter referred to as ‘BNSS’) against the
judgment dated 29.05.2024 (hereinafter referred to as ‘impugned
judgment’), passed by learned Metropolitan Magistrate-02/Ld.
MM-02, Central, Tis Hazari Court, Delhi (hereinafter referred to
as the ‘Ld. Trial Court/Ld. MM’) in case bearing; ‘State v.
Mohd. Tahseem & Ors., Cr. Case No. 300839/2016’, arising out
of FIR No. 913/2015, PS. Timarpur, under Sections 394/411/34 of
the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC‘),
convicting the appellant, namely, Mohd. Tahseem (hereinafter
referred to as the ‘appellant’) of the offence under Section(s)
394/34 IPC and the consequent order of sentence dated 26.09.2024
(hereinafter referred to as ‘impugned order’), passed by the Ld.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 1 of 60
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2026.02.18
16:39:04 +0530
Trial Court, sentencing the appellant with rigorous imprisonment
for a period of 03 (three) years along with fine of Rs. 10,000/-
(Rupees Ten Thousand only) and in default of payment of which,
to undergo rigorous imprisonment for a further period of 06 (six)
month, for the said offence. Further, the appellant was directed to
be entitled to the benefit of the provisions under Section 428
Cr.P.C., besides out of the said fine amount, a sum of Rs. 9,017/-
(Rupees Nine Thousand and Seventeen only) was directed to be
adjusted against the expenditure, incurred by the prosecution
(hereinafter the impugned judgment and impugned order are
collectively referred to as the ‘impugned judgment and order’).
2. Succinctly, the case of the prosecution is that on
27.11.2015, on receipt of PCR Call vide DD No. 43A, the
concerned police officials reached at the spot, i.e., near the main
gate of village Gopalpur, Delhi (hereinafter referred to as the
‘spot’). Upon reaching at the spot, the concerned police officials,
met the complainant, namely, Sunil Kumar (hereinafter referred to
as the ‘complainant’). Correspondingly, one person, namely,
Mohd. Tahseem/the appellant, who was apprehended on the spot
was presented to the police official(s) along with hook of the
broken gold chain. Thereafter, the complainant was sent to Trauma
Centre along with the concerned police officials. Markedly, the
complainant was got examined in the said Hospital vide MLC No.
216887 and thereafter, the complainant and the said police
official(s), returned to the spot. Subsequently, the statement of the
complainant was recorded wherein he/the complainant inter alia
proclaimed that he was the resident of Gopalpur village ad
engaged in the business/operation of milk dairy. Congruently, the
complainant asserted under his complaint that on 27.11.2015 at
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Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:08 +0530
around 08:30 p.m., he was on his way from his milk dairy at
Bhajanpura to his house at Gopalpur on his scooty bearing
registration no. DL-8SBL-1181 (दिनांक 27/11/15 को समय करीब 8.30 pm
पर मैं अपनी दूध की दुकान भजनपुरा से अपने घर गाव गोपालपुर के लिए अपनी
Sooty No. DL8SBL1181 पर सवार होकर आ रहा था). It was further
proclaimed by the complainant that when he reached in front of
the main gate at Gopalpur, he noted that one motorcycle was
approaching from front, where four persons/passengers were
present (जब मैं गाव गोपालपुर के Main Gate के पास पहुँचा तो सामने से एक
M/Cycle पर चार लडकें सवार होकर आ रहे थे ). The complainant further
proclaimed under his complaint that the said motorcycle collided
with his vehicle/scooty, whereupon, he raised objection, leading to
a scuffle between him and the said persons and that the said
persons slapped him (जिनकी M/Cycle मेरी Sccoty से टकरा गयी जो मैने
इनको टोका तो कहासुनी हो गयी जो इन्होने मेरे थप्पड मार दिया).
2.1. Notably, it was further chronicled under the
complainant’s complaint that when he took out his mobile phone
bearing no. 9582094288 from his pocket, to call at 100 number,
one of the said persons, grabbed his/complainant’s mobile phone,
while the other person snatched his/complainant’s gold chain,
which he was wearing at that point in time and weighing around
2½ tola (जो मैं अपनी जेब से Mobile Phone No. 9582094288 को निकालकर
100 न० पर Call करने लगा तो इनमे से एक लडके ने मेरे हाथ से मेरा मोबाइल Phone
छीन लिया तथा दूसरे लडके ने मेरे गले में पहनी हु ई मेरी सोने की चेन वजन करीब 2½
तोले तोड ली). Congruently, as per the complainant, the other two
persons, grabbed hold of him, grabbed stones which were lying
there and inflicted injuries on the complainant’s head (तथा बाकी दोनो
लडको ने मुझे पकड कर वही पर से पत्थर उठाकर मेरे सिर में मार दिया). As per
the complainant, the said four persons, robbed him of his mobile
phone and gold chain. However, it was avowed by the complainant
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:39:12 +0530
that he was in a position to apprehend the person, who had
snatched his gold chain and had handed over the same to his
associate (जो इन चारो ने मेरे साथ मारपीट करके मेरा मोबाइल Phone व सोने की
चेन लूट लिये जो मैने चेन तोडने वाले व्यक्ति को हिम्मत करके पकड लिया जसने मेरे
तोडी हु ई चेन अपनी साथी को दे दी). It was further asserted by the
complainant that the other three persons/accused persons, fled
from the spot with his/complainant’s mobile phone and his gold
chain (जो कि बाकी इसके तीनो साथी मेरा मोबाइल फोन व चेन लेकर भाग गये ).
Further, as per the complainant, he somehow called 100 number
from someone’s phone and handed over the said apprehended
person along with the hook of his broken/robbed gold chain, upon
police officials reaching at the spot. Further, as per the
complainant, the name of of the said apprehended person was later
on revealed as Mohd. Tahseem, the appellant herein (जो मैने किसी के
Phone से 100 न० पर Call कर दी पकडे गये व्यक्ति ने पूछताछ पर अपना पता मौ०
तहसीम s/o मौ० यासीन R/o Gali No. 17, शिव मन्दिर वजीराबाद बताया तथा मेरी
टूटी हु ई चेन की कु ण्डी इस व्यक्ति के हाथ में ही रह गयी थी जो मैने इस व्यक्ति को
टूटी हु ई चेन की कु ण्डी के साथ आपको पेश किया).
2.2. Relevantly, under the aforenoted facts and
circumstances, and on the basis of the complainant’s complaint,
the instant FIR came to be registered, and investigation ensued.
Markedly, during the course of investigation, site plan was
prepared and the appellant was apprehended, besides the hook of
the broken gold chain was seized from/at the behest of the
appellant and the disclosure statement of the appellant was
recorded. Pertinently, on the basis of appellant’s disclosure
statement, co-accused, Amit @ Bola and Mool Chand @ Ramu
(hereinafter the appellant and co-accused persons, namely, Amit
@ Bhola and Mool Chand @ Ramu are collectively referred to
as the ‘accused persons’) were apprehended. However, the said
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:39:15
+0530
co-accused persons are asserted to have denied participation in the
test-identification parade/TIP proceedings. Correspondingly,
opinion on the injuries of the complainant was obtained by the IO,
wherein the nature of complainant’s injuries were opined to be
‘simple’ (शिकायतकर्ता सुनील की MLC को दाखिल अस्पताला कराया था जिस
पर Doctor साहब ने simple तहरीर किया।), besides the CAF and CDRs of
the mobile phones were obtained. However, it was determined by
the concerned IO at that point in time that one of the co-accused
persons was not traceable at that point in time, besides the robbed
gold chain could not be located/seized.
2.3. Noticeably, upon conclusion of the investigation,
chargesheet was prepared and filed by the concerned police
official/IO before the Ld. MM, upon which, cognizance of the
offence(s) was taken by the Ld. Trial Court on 25.02.2016.
Subsequently, on compliance of the provisions under Section 207
Cr.P.C. qua the accused persons and upon arguments on charge,
having been addressed by/on behalf of the accused persons and
State, charges under Section 394/411/34 IPC, were directed to be
framed by the Ld. Trial Court against the accused persons vide
order dated 12.07.2016, inter alia noting as under;
“…Arguments on point of charge submitted.
Vide separate order accused persons are charged for
offence u/s. 394/411/34 IPC to which accused persons
pleaded not guilty and claimed trial.
To come up for PE on …”
(Emphasis supplied)
2.4. Pertinent to reproduce the charges framed against
the appellant as well as co-accused, Mool Chand and Amit @
Bhola/accused persons on 12.07.2016, as under;
“…I, ***, MM-02, THC, Central, Delhi do hereby
charge you 1. Amit @ Bhola, S/o. Sh. Barham
Prakash, 2. Md. Tehseem S/o. Sh. Md. Yamin and
Moolchand @ Ramu S/o Sh. Mangroo as under:-
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 5 of 60
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:39:19
+0530
That on 27.11.2015, at about 08:30 p.m. near main
gate of village Gopal Pur, Delhi, within jurisdiction of
PS. Timar Pur, you all in furtherance of your common
intention voluntarily caused hurt to Sunil Kumar
while committing robbery of his mobile phone and
wearing gold chain and thereby committed an
offence U/s 394/34 IPC and within my cognizance.
Secondly, on 12.02.2016, you, Moolchand found
in possession of stolen mobile phone of the
complainant which you received or retained with the
knowledge or having reason to believe the same to
be the stolen property and thereby committed an
offence u/s 411 IPC.
Thirdly, on 28.11.2015, you, Tehsim were found
in possession of part of the stolen chain of the
complainant which you received or retained with the
knowledge or having reason to believe the same to
be the stolen property and thereby committed an
offence u/s 411 IPC.
Alternatively, the said robbed articles were
recovered from your possession which you all
received or retained knowingly or having reasons to
believe that the same was stolen property and
thereby you have committed an offence punishable
u/s 411/34 IPC, and within my cognizance.
And I hereby direct that you be tried by this
Court for the aforesaid offence…”
(Emphasis supplied)
2.5. Relevantly, during the course of trial, prosecution
examined 16 (sixteen) witnesses/prosecution witnesses, who
deposed in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Akram Ali Eyewitness of the incident, who inter
alia asserted of him having witnessed
the incident, as well as identified the
appellant as one of the perpetrators
before the Ld. Trial Court.
PW-2 HC Sandeep Deposed regarding him, receiving the
rukka from Ct. Arvind and
consequently of him/PW-2's
registering the instant FIR.
PW-3 Sunil Kumar Complainant/victim, who inter alia
deposed of the incident as well as
identified the accused persons before
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Digitally signed by
ABHISHEK ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:23 +0530
the Ld. Trial Court.
PW-4 Dr. Lalit Deposed of him, examining the
Tanwar complainant on 27.11.2015 and
preparing the complainant's MLC
bearing no. 216887.
PW-5 ASI Johnson Deposed regarding him receiving a
Surin call of a scuffle at around 08:53 p.m.
and of recording of DD No. 43.
PW-6 Asif Deposed of him being present at the
time of the alleged incident as well as
of the complainant's making a PCR
call using his/PW-6's mobile phone.
PW-7 Aditya @ The witness inter alia proclaiming of
Sanjit him receiving Samsung mobile phone
from accused Ramu @ Monu, which
was further taken by PW-7's friend,
namely, Pradeep. However, the said
mobile phone is asserted to have been
returned to Ramu @ Monu.
PW-8 Pradeep Deposed inter alia of being
approached by Aditya for a SIM card
and of him/PW-8's handing over
his/PW-8's father's SIM card to
Aditya for use. PW-8 further deposed
that the said SIM was eventually
returned to him by Aditya.
PW-9 Lekhpal @ Deposed of him, handing over his
Lekhraj SIM card pertaining to mobile no.
8860746310 to his/PW-9's son,
Pradeep, which was handed over by
Pradeep to the police official in the
present case.
PW-10 Ct. Saurav Proclaimed of him having joined the
investigation along with the IO and
joining the PC remand proceedings of
accused Amit @ Bhola.
PW-11 Ct. Arvind Deposed inter alia regarding him
joining the investigation of the
present case along with the IO as well
as of him, proceeding for registration
of FIR at the instance of the IO,
getting the instant FIR registered.
PW-12 Ct. Rakesh Joined the investigation of the present
Kumar case along with the IO and deposed of
him joining the arrest proceedings of
the accused persons.
PW-13 Ct. Manohar Proclaimed of him having joined the
Singh investigation of the present case,
including the arrest proceedings of
accused Bhola @ Amit.
PW-14 Maninder Produced the CAF and CDR of the
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Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:27 +0530
Singh, mobile no. 9582094288 for the period
Alternate from 26.11.2015 to 29.11.2015 as
Nodal officer, well as of mobile no. 8860746310 for
Vodafone-Idea the period from 14.12.2015 to
18.12.2015.
PW-15 ASI Ram MHC(M) at the relevant point in time.
(wrongly Nivas Produced and proved the relevant
noted as entries in the register no. 19,
PW-16) regarding deposit of case property in
malkhana.
PW-16 Insp. Yogesh Investigating Officer of the present
(wrongly Kumar case who inter alia deposed of him
noted as having conducted the investigation in
PW-17) the present case, arrested the accused
persons, etc.
2.6. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the
following documents and objects, during the course of their
respective evidence;
Exhibit Description of Exhibit Proved
no./Material by/Attested by
objects
Ex. PW2/A Present FIR bearing No. PW-2/HC
913/2015, PS. Timarpur. Sandeep
Ex. PW2/B Endorsement on rukka by PW-2. PW-2/HC
Sandeep
Ex. PW3/A Statement/complaint of the PW-3/Sunil
complainant before the police Kumar
officials.
Ex. PX-1 Mobile phone of Samsung make, PW-3/Sunil
white in colour. Kumar
Ex. PX-2 SIM card of Vodafone company. PW-3/Sunil
Kumar
Ex. PW5/A MLC bearing no. 216887 of the PW-4/Dr. Lalit
(wrongly complainant, namely, Sunil Tanwar
numbered as Kumar
Ex. 5/A,
instead of Ex.
PW4/A)
Ex. PW5/A DD no. 43A, dated 27.11.2015 PW-5/ASI
Johnson Surin
Ex. PW11/A Seizure memo of hook (kundi) of PW-11/Ct. Arvind
the gold chain.
Ex. PW11/B Disclosure statement of accused, PW-11/Ct. Arvind
Mod. Tahseem/appellant.
Ex. PW11/C Arrest memo of accused, Mod. PW-11/Ct. Arvind
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.02.18
16:39:30
+0530
Tahseem/appellant.
Ex. X-1 Hook/kundi of the gold chain. PW-11/Ct. Arvind
Ex. PW16/A Entry no. 3062 of register no. 19 PW-15/ASI Ram
in respect of broken hook/kundi Nivas
of gold chain.
Ex. PW16/B Entry no. 2118 of register no.19 PW-15/ASI Ram
in respect of case property, i.e., Nivas
mobile phone, sim and personal
search memo.
Ex. PW17/A Tehrir on the statement tendered PW-16/Insp.
by the complainant Yogesh Kumar
Ex. PW17/B Site plan of the spot of PW-16/Insp.
occurrence. Yogesh Kumar
2.7. Relevantly, during the course of trial, the appellant
and co-accused persons/accused persons, admitted the
genuineness and correctness of MLC No. 216887, dated
27.11.2015, wherein the Senior ENT had tendered an opinion
regarding the injury, inflicted to the complainant Sunil and which
was Ex. PW5/A, in term of the provisions under Section 294
Cr.P.C., on 20.05.2022. Consequently, the Ld. Trial Court,
dispensed/dropped the corresponding witness, i.e., Dr. Eshaan, Sr.
ENT from the list of prosecution witnesses, in view of such
admission. Pertinent to further note that during the course of trial
proceedings, co-accused Mool Chand @ Ramu, left for heavenly
abode. Consequently, upon receipt of death verification report of
the said accused from the concerned IO, proceedings qua the said
accused/accused, Mool Chand @ Ramu were abated vide order
dated 03.11.2023. Markedly, subsequently, to the conclusion of
prosecution evidence, statements of the appellant and co-accused
Amit @ Bola, in terms of the provisions under Section 313/281
Cr.P.C. were recorded on 12.03.2024, wherein the appellant and
said co-accused submitted that they did not desire to lead any
evidence/witness in their defence. Consequently, on conclusion of
arguments by/on behalf of the State and the appellant/accused
persons, the Ld. Trial Court vide impugned judgment and order,
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by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2026.02.18
16:39:34
+0530
while inter alia holding the appellant guilty of the offence
punishable under Sections 394/34 IPC, sentenced him in the
manner, as noted hereinabove.
3. Ld. Counsel for the appellant outrightly contended
that the impugned judgment and order were passed by the Ld. Trial
Court on mere conjunctures, surmises and in contravention of the
settled principles of law, deserving their setting aside at the outset.
As per the Ld. Counsel, the Ld. Trial Court, miserably failed to
consider the real facts of the case as well as various improvements,
contradictions and discrepancies in the testimonies of various
prosecution witnesses, while reaching a finding of guilt of the
appellant, thereby, erroneously convicting and sentencing him, in
the manner, as specified under the impugned judgment and order.
It was further vehemently asserted by the Ld. Counsel that the
impugned judgment and order are not maintainable/sustainable in
the eyes of law as the same were passed by the Ld. Trial Court in
utter contradiction of the settled law/judicial dictates and facts of
the present case. Congruently, it was argued by the Ld. Counsel
that the impugned judgment suffers from mis-appreciation of
evidence on record, thereby, resulting in miscarriage of justice.
In this regard, Ld. Counsel strenuously asserted that under the
impugned judgment, the Ld. Trial Court erred in not considering
that PW-1/Akram Ali, nowhere under his examination-in-chief
asserted that the appellant had committed the offence of robbery.
Correspondingly, it was argued that though, PW-6/Asif
proclaimed under his examination-in-chief regarding an incident
of scuffle between the complainant and the (alleged) accused
persons, however, PW-6 too did not depose of any offence of
robbery by the said accused persons with the complainant or
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Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2026.02.18
16:39:37 +0530
otherwise, belying the version put forth by the prosecution. At the
same time, Ld. Counsel for the appellant accentuated that nowhere
during the course of his deposition/examination in chief,
PW-11/Ct. Arvind Kumar identified the appellant as alleged
perpetrator of offence.
3.1. Ld. Counsel for the appellant further submitted that
the Ld. Trial Court even failed to consider that are several
inconsistencies, improvements, discrepancies and/or variations in
the case put forth by the prosecution. Correspondingly, as per the
Ld. Counsel, while reaching a finding of appellant’s guilt, Ld.
Trial Court failed to consider that the investigation in the instant
case was not fairly and properly conducted, disproving the version
put forth by the prosecution against the appellant. Ld. Counsel
further vehemently asserted that the Ld. Trial Court failed to
appreciate that in the instant case, there are numerous gaping holes
in the case put forth by the prosecution and that the prosecution’s
story does not inspire any confidence, not appealing to the senses
of a prudent man. Further, as per the Ld. Counsel, the Ld. Trial
Court decided the matter in a mechanical manner and in an utter
haste, without appreciating the evidence/material brough forth on
record. It was further strenuously reiterated by the Ld. Counsel
that a perusal of the testimonies of the various witnesses, who were
examined before the Ld. Trial Court would clearly demonstrate
that there are glaring, and material contradictions and the Ld. Trial
Court has committed grave error by not considering the same,
leading to gross miscarriage of justice. Further, it was argued by
the Ld. Counsel, that while reaching the finding of appellant’s
guilt, the Ld. Trial Court erred in not considering the settled law
that where on the basis of evidence on record, two views are
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:39:40 +0530
possible, one favouring an accused and other against him, the one
favouring an accused should always be accepted.
3.2. Ld. Counsel for the appellant further submitted that
the impugned judgment and order were passed in utter
violation/contradiction of the settled principles of law and judicial
precedents, unmindful of the significant improvement in the
versions put forth by the prosecution witnesses. Correspondingly,
it was asserted that even the investigation in the instant case was
not fairly conducted and the police officials. Accordingly, in light
of the foregoing, Ld. Counsel for the appellant submitted that not
only did the Ld. Trial Court fail to consider the truth of
circumstances and passed its judgment/decision in haste, rather,
the Ld. Trial Court also did not properly appreciate/examine the
facts of the present case, wrongly holding the appellant guilty of
the aforementioned offence(s). Even otherwise, it was submitted
by the Ld. Counsel that the order of sentence was also passed by
the Ld. Trial Court, whimsically, while failing to appreciate that
the appellant was of young age at the relevant point in time, as
well as responsible for the look after and take care of his family
members. Ld. Counsel further vehemently argued that the
punishment/penalty must not be retributive in nature, rather,
humanizing, considering that sentencing the appellant with severe
sentence would subject his family members to grave depravity.
Further, as per the Ld. Counsel, substantial time has lapsed since
the incident in question and in case relaxation/leniency is not
afforded to the appellant, serious/severe repercussions would
ensue to their physical and mental well-being. Consequently, the
Ld. Counsel for the appellant inter alia prayed that the present
appeal be allowed, and the impugned judgment and order be set
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Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2026.02.18
16:39:45 +0530
aside. In the alternate, Ld. Counsel submitted that the appellant be
permitted/granted the benefit/relaxation in terms of the provisions
under the Probation of Offenders Act, 1958 (hereinafter referred
to as the ‘Probation of Offenders Act‘) and/or Section 360 Cr.P.C.
In fact, as per the Ld. Counsel, the Ld. Trial Court erred in
appreciating that the appellant was clearly covered within the
ambit of provisions under the Probation of Offenders Act and
entitled to the benefit of probation. In support of the said
contentions, reliance was placed upon the decisions in; State
through CBI, Anti-Corruption Branch, Chandigarh v. Sanjiv
Bhalla & Anr., Crl. Appeal Nos. 1338-39/2014, dated
04.07.2014 (SC); State v. Lucky, Crl. Appeal No. 539/2016, dated
17.05.2017 (DHC); Mohd. Samim v. State (Govt. NCT of
Delhi), 2014 (4) LRC 295 (Del.); Akram @ Babu Musahid v. State
(Govt. of NCT of Delhi), 2014 (3) LRC 279 (Del.); Islam & Anr.
v. State NCT of Delhi, 2014 (9) LRC 403 (Del.); and Govt. of
NCT of Delhi v. Manoj & Anr., (2014) 8 LRC 247 (Del.).
4. Per contra, Ld. Addl. PP for the State submitted that
the impugned judgment and order was passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
Ld. Addl. PP for the State further submitted that the testimonies of
various witnesses placed on record, unambiguously prove the
commission of the offences by the appellant. It was further
contended by Ld. Addl. PP for the State that the
deposition/testimonies of the prosecution witnesses have not only
been consistent, rather, unblemished as well as lucidly point
towards the only inference of appellant’s guilt. As per the Ld.
Addl. PP for the State, the facts and circumstances put forth as
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well as the evidence placed on record, unerringly point out towards
the guilt of the appellant and that no fault can be attributed to the
finding of the Ld. Trial Court, which is based on proper
appreciation of facts as well as law. Concomitantly, it was
submitted by the Ld. Addl. PP for the State that no ground of any
indulgence or relaxation even in the sentence granted to the
appellant is made out, besides considering the gravity of offence
involved, the appellant is not entitled to the benefit of the
provisions under the Probation of Offenders Act. Accordingly, Ld.
Addl. PP for the State submitted that the present appeal deserves
to be dismissed at the outset, as grossly malicious and devoid of
merits.
5. The arguments of Ld. Counsel for the appellant as
well as that of Ld. Addl. PP for the State have been heard and the
record(s), including the Trial Court Record and the other material,
including the case laws relied upon have been thoroughly
perused.
6. At the outset, this Court deems it apposite to
enunciate the scope of jurisdiction of this Court in an appeal
against conviction. In this regard, this Court it is pertinent to
outrightly make a reference to the decision of the Hon’ble
Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC
621, wherein the Hon’ble Court, while delving into the ‘scope and
ambit’ of appellate court’s jurisdiction inter alia noted as under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can
be relied upon, then whether the prosecution can be
said to have been proved beyond reasonable doubt
on the said evidence. The credibility of a witness has
to be adjudged by the appellate court in drawing
inference from proved and admitted facts. It must beC.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 14 of 60
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remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and that
presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged
is of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it can be perspicuously deduced that
the jurisdiction of this Court in an appeal extends to reappreciation
of the entire material placed on record of the trial court and to
arrive at an independent conclusion as to whether the said evidence
can be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not required to consider the question
of law, rather, also question of facts to affirmatively reach a
conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being wary of the aforesaid principles,
however, before proceeding with the determination of the rival
contentions of the parties, it would be pertinent to reproduce the
relevant provisions under law/IPC, germane for the purpose of
present adjudication, as under;
“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.
*** *** ***
39. “Voluntarily”-A person is said to cause an
effect “voluntarily” when he causes it by means
whereby he intended to cause it, or by means which,
at the time of employing those means, he knew or had
reason to believe to be likely to cause it.
*** *** ***
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
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.
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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.
*** *** ***
394. Voluntarily causing hurt in committing
robbery-If any person, in committing or in
attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly
concerned in committing or attempting to commit
such robbery, shall be punished with imprisonment
for life, or with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable
to fine.
*** *** ***
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)
10. Appositely, from a conscientious perusal of the
above, it is outrightly observed that the provisions under Section
34 IPC recognize the principle of vicarious liability 2 in criminal
jurisprudence, attracting culpability against a person for an
act/offence, not committed by him but by another person with
whom he shared the common intention. It is trite law3 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
2
Suresh v. State of U.P., (2001) 3 SCC 673.
3
Virendra Singh v. State of M.P., (2010) 8 SCC 407.
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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 evidently4, 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 34 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 or4
Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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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)
11. Markedly, from the above, it is noted that in the
instances where the provisions under Section 34 IPC are proposed
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
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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 intention5. 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 significance
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.
5
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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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)
12. In so far as accountability under Section 390 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
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
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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)
13. Apposite to further note here that in terms of the
unambiguous provision under law, culpability under Section 394
IPC can be attracted in a given case, only when the offender while
committing or attempting to commit robbery voluntarily causes
hurt6. In fact, law is trite that the provisions under Section 394 IPC
are attracted in instances, where during the course of robbery
voluntary hurt is caused by7, “two distinct class of persons as
follows: “(1) Firstly, those who actually cause hurt; and (2)
Secondly, those who do not actually cause hurt, but are “jointly
6
Dudhnath v. State of Maharashtra, 2011 SCC OnLine Bom 1390.
7
Arab Sk. v. State of W.B., 2015 SCC OnLine Cal 1435.
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concerned” in the commission of offence of robbery.” Relevantly,
the Hon’ble Supreme Court in Aslam v. State of Rajasthan, (2008)
9 SCC 227, while articulating the contours of the said provision,
observed as under;
“10. Section 394 describes punishment for
voluntarily causing hurt in committing or attempting
to commit robbery. The offence under this section is
more serious offence than one under Section 392.
Section 394 postulates and contemplates the causing
of harm during commission of robbery or in
attempting to commit robbery when such causing of
hurt is hardly necessary to facilitate the commission
of robbery. Section 394 applies to cases where
during the course of robbery voluntary hurt is
caused. Section 394 classifies two distinct class of
persons. Firstly, those who actually cause hurt and
secondly, those who do not actually cause hurt but are
“jointly concerned” in the commission of offence of
robbery. The second class of persons may not be
concerned in the causing of hurt, but they become
liable independently of the knowledge of its
likelihood or a reasonable belief in its probability.”
(Emphasis supplied)
14. In so far as the culpability under Section 411 IPC is
concerned, law is settled that to attract culpability under the said
provision, 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.,
(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
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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)
15. Correspondingly, reference is further made to the
decision in State of U.P. v. Nawab, 2014 SCC Online All 14976 ,
wherein the Hon’ble High Court of Allahabad noted that
conviction under Section 392 and Section 411 IPC cannot be
maintained simultaneously8 against same accused. In this regard,
it is pertinent to reproduce the relevant extracts from the said
decision as under;
“20. 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 dishonest 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.”
8
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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(Emphasis supplied)
16. Reference in respect of the foregoing is further made
to the decision in Gopi Jaiswal v. State of U.P., 2011 SCC
Online All 1775, wherein the Hon’ble High Court of Allahabad in
akin terms, remarked as under,
“…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)
17. Consequently, being mindful of the principles
hereinunder observed, this Court would now proceed with the
appreciation of the evidence and material placed on record. In
particular, at the outset, this court deems it pertinent to make a
reference to the testimony of the complainant/PW-3/Sunil Kumar,
who inter alia deposed regarding the incident in question as well
as the role of the accused persons, including the appellant herein.
In this regard, it is apposite to note that the complainant/PW-3
inter alia avowed in his deposition that on 27.11.2015, he/PW-3
was returning to his home from his shop, on his scooty bearing
registration no. DL-8SBL-1181. Correspondingly, as per PW-3, at
around 08:30 p.m., when he reached in front of the main gate of
his village, four boys riding on a motorcycle came from the front
side and hit his/PW-3’s scooty and thereafter, some dispute arose
between them. Pertinently, during the course of his deposition
PW-3, while pointing towards the appellant, Md. Tahseem,
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 25 of 60
ABHISHEK Digitally signed by
ABHISHEK GOYAL
GOYAL Date: 2026.02.18 16:40:34
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asserted that he/the appellant had slapped him in the said scuffle.
It was further deposed by PW-3 that when he tried to call at 100
number by his phone, co-accused, Mool Chand, who was correctly
identified by the complainant/PW-3 before the Ld. Trial Court,
snatched his/PW-3’s said mobile phone from his hand, whilst
other co-accused persons manhandled him/PW-3. Further, as per
PW-3, the accused persons also snatched his gold chain, which he
was wearing at that point in time, as well as the accused persons
also took a piece of stone, lying at the spot and hit him/PW-3
behind his head and on his eye. After the said incident, as per
PW-3, the said accused persons endeavored to flee from the spot,
however, he apprehended the appellant, namely, Tahseem, who
was again correctly identified by the complainant before the Ld.
Trial Court, while the other accused persons fled from the spot.
PW-3 also proclaimed that he made a call at 100 number by getting
the phone of one public person, whereupon one PCR van came to
the spot after some time. It was further avowed by PW-3 that on
conducting a cursory search of the appellant, one broken piece of
his snatched/robbed gold chain was recovered from his/appellant’s
possession. It was further deposed by PW-3 that the PCR took him
to Trauma Centre and after some time, two police person came at
the Taruma Center for taking his/PW-3’s statement, however,
he/PW-3 was not able to tender the same as he was not feeling
well. Thereafter, as per PW-3, the police officials took him/PW-3
to the spot, where his statement (Ex. PW3/A) was recorded. After
some days, as per PW-3, the police official called him for the
identification of one accused and he went to the police station,
where he identified co-accused/Mool Chand, who was
apprehended by the police person, as well as also identified his
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 26 of 60
Digitally signed by
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GOYAL Date: 2026.02.18
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mobile, i.e., Samsung make at PS Timarpur. After some days, as
per PW-3, he was again called to PS. Timarpur for identification
of other accused persons. Needless to mention that PW-3 also
correctly identified his mobile phone of Samsung make as well as
the recovered SIM card of Vodafone company, as belonging to
him, as Ex. PX-1 and Ex. PX-2, respectively.
18. Relevantly, upon being cross-examined by/on behalf
of the appellant, the complainant/PW-3, asserted as under;
“XXXXXX By Sh. ***, LAC for the accused
Amit & Tehsin.
The incident had happened around 8:45 pm. There
was proper light at the spot & it was right time. I do
not remember whether the alleged motorcycle’s head
light was on. I had not fallen down on the road after
hitting by the motorcycle. At the time of the incident,
around 10-15 public persons had gathered on the spot.
The public persons had reached at the spot after
snatching of my mobile and gold chain. The PCR
van came to the spot within 5 minutes of making the
call. The IO of this case met me for the first time in
the hospital. The police had recorded my statement
at the spot on the same day after my discharge from
the hospital. I do not know whether police had
recorded the statement of any other person who claims
to be the eye witness of the incident. There was jhuggi
cluster on the opposite side of the road where the
incident had happened called the PCR by the use of
the mobile phone of one by stander After the incident,
I met the IO two times at the PS. After 2-3 days of the
incident, I was called by the police to identify one of
the accused. 3-4 days thereafter, I was again called to
the PS by the IO to identify another accused. The
search of the accused Tehsim (the witness pointed out
towards the accused, present in the court today) was
conducted by the police after I handed over him to the
IO. It is wrong suggest that I myself handed over the
hook of golden chain to the IO. It is wrong to suggest
that no such incident had happened with the accused
persons. It is wrong to suggest that it was a mere
case of road rage where we all were involved in the
scuffle and no incident of robbery or snatching took
place. It is wrong to suggest that concocted the false
story in order to falsely implicate the accused
persons.
XXXXXX by Sh. ***, counsel for accused Mool
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 27 of 60Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:40:41 +0530
Chand.
I had not stated the motorcycle number to the IO.
The accused persons had fled away after leaving the
motorcycle on the spot. I had not stated the description
of the accused persons to the police. Vol. Some public
persons from jhuggi had stated the name of the
accused persons as Bhola & Vijay. The police had
inquired from those public persons. I had informed
to the PCR on 100 number call that I had been injured
& my belongings are snatched. The gold chain was
recovered from Tehsim on search made by the IO. No
pieces of stones were seized by the police from the
spot. I had stated to the police after identification of
the accused Mool Chand & Amit. At this stage, the
witness is confronted with his statement recorded u/s
161 Cr.P.C dt. 18.02.16 EXPW3/D1 where it is not so
recorded, and the statement is to the effect that the
witness identify the accused Mool Chand in the
photograph shown by the IO. I had stated the IEMI
number of the said mobile phone to the police. At this
stage, witness is confronted with his statement Ex.
PW3/A where it is not so recorded. I had not
submitted any bill or invoice of the said mobile phone
to the IO. It is wrong to suggest that I am deposing
falsely regarding the incident as mere scuffle took
place between us and I exaggerated the facts to falsely
implicate the accused.”
(Emphasis supplied)
19. Here, it is further pertinent to refer to the testimony
of PW-1/Akram Ali, who deposed before the Ld. Trial Court that
he was a resident of N-15, B-30, T Huts, Indira Vikas Colony.
Delhi, at the relevant point in time and engaged in the business of
selling vegetables. It was further asserted by PW-1 that on
27.11.2015, he/PW-1 was selling vegetables at Gopalpur market,
were one boy, whom he could identify, approached him from
Wazirabad side on scooty to buy the vegetables, and 3-4 boys
came on motorcycle from the side of Mukherjee Nagar. As per
PW-1, the motorcycle of the said boys touched the scooty,
whereupon an altercation ensued between the boys standing with
scooty and the persons, who had reached there on motorcycle.
Further, as per PW-1, the said four persons started beating the boy
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 28 of 60
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
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who was on the scooty and when he/the person on scooty, tried to
make a call at number 100, the aforesaid boys snatched the
phone and threw it away. In the altercation, as per PW-1, one of
them fell down and others managed to flee, however, they also
snatched the chain of the boy. PW-1 avowed that the name of the
person, who had fallen down from the motorcycle was Md.
Tahseem, the appellant herein, who was apprehended by public
and later on arrested by the police. PW-1 further proclaimed that
the IO recorded his statement. Correspondingly, PW-1 correctly
identified the appellant before the Ld. Trial Court. Here, it is
apposite to reproduce the extracts from cross examination of
PW-1, as under;
“XXXXXX by ***, Ld. LAC for the accused
persons namely Tehseem and Amit.
I was present at the spot at about 8-8:15 pm. I do
not know about the boy who came on a scooty, but I
can recognized as he used to live in Gopalpur
Village. I do not know registration number of
abovesaid scooty and motorcycle, but the colour of
scooty was white and I do not remember the colour of
motorcycle. There was a bazar and the person who
was beaten up was standing at one) corner of the
road alongwith his scooty and buying vegetables from
market. The area was crowdy. It is correct that there
was scuffle between person standing on the scooty
and the motorcyclist as the cause of altercation was
collision of their vehicles. Thereafter, they both
started abusing each other and started fighting with
each other. No other incident was committed in my
presence, but the person on scooty shouted that
accused person had snatched one chain and broken the
mobile. I had not seen any person snatching the phone
and gold chain. I had not stated the fact of snatching
of gold chain and about breaking the mobile to IO of
this case in my statement recorded U/s 161 Cr.P.C.
which is Ex. PW-1/D-1.
At this stage. the statement of witness recorded
U/s 161 Cr.P.C. is shown to him and confronted
from Point A to A1 where it is so written. I remained
present at the spot till 11:00 pm. Police persons came
at the spot in my presence. I do not know whether any
personal search has been conducted by the police
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 29 of 60Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:40:49 +0530
official of the accused who was apprehended at the
spot. On the day of incident police official met and
thereafter, I never met them. My statement was
recorded at Gopalpur at about 9:30 pm. It is correct
that this incident was of road rage, but I had not seen
any snatching of gold chain, or breaking of mobile.
At this stage, Ld. APP for the State seeks
permission to re-examine the witness as he stated
contradictory fact in his cross-examination.
Court observation.
Contradictions are bound to come vide cross-
examination of any witnesses. Moreover, re-
examination is not for the purpose of filling the lacuna
of the case. Hence, disallowed.
XXXXXX by ***, Ld. Counsel for accused Mool
Chand.
Nil. Opportunity given…”
(Emphasis supplied)
20. Correspondingly, reference is here made to the
testimony of PW-6/Asif, who deposed before the Ld. Trial Court
that on 27.11.2015, at around 09:30 p.m., when he was present
near his jhuggi, i.e., Nand Lal jhuggi, H. No. 1050, Vil. Gopalpur,
he saw that 3-4 person were beating one person at near main gate
Gopalpur. It is further deposed by PW-6 that large number of
public person had gathered till he/PW-6 reached there.
Correspondingly, PW-6 testified that 2-3 person had fled away and
one of them was apprehended by the public. It was further asserted
by PW-6 that since the person, who was beaten did not have a
mobile phone, said person, asked PW-6 for his mobile phone.
Thereafter, as per PW-6, the person who was beaten, made a PCR
call by using his/PW-6’s mobile phone and after some time, PCR
Van reached at the spot, and took the injured as well as one of the
said boys, who were beating the said person. Markedly, upon
being cross-examined by/on behalf of the accused persons, PW-6
asserted, as under;
“XXXXXX by ***, Ld. Counsel for Mool
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 30 of 60ABHISHEK Digitally signed by
ABHISHEK GOYALGOYAL Date: 2026.02.18 16:40:55
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Chand.
The main gate of Gopal Pur is in front of my jhuggi
with the distance of around 40 meter. At the time of
incident, there were around 50 public person as the
incident had happened at the time of Friday Market
(weekly market). (vol. There was bleeding from the
head of the injured and I had not stated the same to the
police as it was not asked). I had stated my mobile
number to the police in my statement.
At this stage, the witness is confronted with his
statement Ex PW 6/D1 where it is not so mentioned.
The police had reached at the pot in my presence. Due
to some urgent work, I had left the spot, hence, I
cannot tell whether any public person was inquired by
the police. I was contacted on telephone by the
police regarding this case on 03.12.2015. I had never
met the IO of this case. I was only inquired on
telephone. I cannot say whether the police had
recorded my statement in this case. It is wrong to
suggest that my mobile phone was not used by the
injured to make the PCR call. It is wrong to suggest
that I am deposing falsely at the instance of IO.
XXXXXX by ***, Ld. LAC for accused Bhola
and Tehseem.
I remained at the spot for about 15-20 minutes. It
is wrong to suggest that I was not present at the spot.
It is wrong to suggest that I am deposing falsely at the
instance of IO”
(Emphasis supplied)
21. Here, it is further pertinent to refer, the deposition of
PW-4/Dr. Lalit Tanwar, who testified that on 27.11.2015, he was
working as CMO at Sushruta Trauma Centre, Delhi. Further, as
per PW-4, on the said day, one patient, namely, Sunil was brought
to the Hospital with alleged history of physical assault.
Correspondingly, as per PW-4, he medically examined the said
patient and prepared his MLC bearing no. 216887 (Ex PW5/A)
and thereafter, the said patient was further referred to ENT
specialist. Pertinently, PW-4 was not cross examined by/on behalf
of the accused persons, including the appellant, herein, despite
being afforded an opportunity. Congruently, it is germane for the
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GOYAL Date: 2026.02.18
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purpose(s) of the present discourse to make reference to the
deposition of PW-5/ASI Johnson Surin, wherein he/PW-5 inter
alia testified that on 27.11.2015, he was posted as Head Constable
at PS. Timarpur and on that day, he was deputed as Duty Officer
from 04:00 p.m. to 12:00 midnight. PW-5 further deposed that he
received a call at 08:53 p.m., on the said date, regarding an incident
of scuffle at house no. 1050 at T-huts, Gopalpur, whereupon,
he/PW-5 recorded DD entry 43 in original rojnamcha (Ex
PW5/A), which was handed over to SI Yogesh to investigate the
case. Apposite to note that during the course of his cross
examination, PW-5 denied the suggestion that no DD entry was
recorded by him/PW-5, as aforenoted and further denied that such
DD entry was ante-timed and ante-dated. Needless to mention,
PW-5 further denied that he was deposing falsely.
22. Conspicuously, reference is made to the deposition
of PW-2/HC Sandeep, who inter alia asserted that on 28.11.2015,
he was posted as Head Constable at PS. Timarpur and on that day,
he was deputed as Duty Officer from 12:00 midnight to 08:00 a.m.
Further, as per PW-2, on that day, at around 12:05 a.m., Ct. Arvind
handed over rukka to him, sent by IO/SI Yogesh and on the basis
of the said rukka, he/PW-2 registered the present FIR (Ex.
PW2/A). It was further deposed by PW-2 that he also made his
endorsement on rukka (Ex. PW2/B), bearing PW-2’s signatures at
point A. Congruently, as per PW-2, after the registration of FIR,
he handed over the copy of FIR and original rukka to Ct. Arvind
for further handing over to the same to IO, for necessary action.
Relevantly, the deposition of PW-2, finds corroboration with the
deposition of PW-11/Ct. Arvind Kumar, who inter alia proclaimed
that on 27.11.2015, he/PW-11 was posted as Constable at PS.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 32 of 60
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GOYAL
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Timarpur and on that day, IO/SI Yogesh received DD No. 43A.
Further, as per PW-11, thereafter, he/PW-11 along with the said
IO, went to the spot, i.e., near Main Gate of Gopalpur and saw that
complainant Sunil Kumar was in injured condition and he/the
complainant, had apprehended one person. As per PW-11, said
apprehended person, had hand lock/hook of broken gold chain of
the complainant in his hand. It was further avowed by PW-11 that
the complainant produced the said person before IO and after
inquiry, name of the said accused was revealed as Mohd. Tahseem.
Thereafter, as per PW-11, the injured was taken to Trauma Centre
by PCR and the IO had left him/PW-11 to the spot with the
accused, while himself proceeding to Trauma Centre. After
medical examination of the complainant, as per PW-11, IO along
with the complainant returned to the spot and he recorded the
statement of the complainant, Sunil as well as prepared tehrir and
handed over the same to him/PW-11 for the registration of FIR.
PW-11 further asserted that after registration of FIR, he returned
to spot along with a copy of FIR and rukka and handed over the
same to IO and thereafter, the IO prepared the site plan at the
instance of complainant. Further, as per PW-11, the IO seized the
hook/lock (kundi) of broken gold chain of complainant vide
seizure memo Ex. PW11/A, by placing it in a plastic container
(dibbi), converted the same into pullanda and affixed the seal of
‘YS’. Further, as per PW-11, the IO also interrogated accused
Mohd. Tahseem, who admitted his involvement in the commission
of offence in present case along with his two associates namely
Vijay and Bhola. PW-11 also proclaimed that the IO recorded the
disclosure statement of the said accused (Ex. PW11/B) and
thereafter, formally, arrested as well as conducted personal search
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 33 of 60
Digitally signed by
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of the said accused vide memos Ex. PW11/C and Ex. PW11/D,
respectively. Apposite to note here that PW-11 failed to identify
the appellant, both, under his examination in chief as well as in his
cross examination by/at the behest of Ld. Addl. PP for the State,
before the Ld. Trial Court, though, he correctly identified the
hook/kundi of the gold chain as Ex. X1. Needless to further
mention here that PW-11 was not cross examined by any of the
accused persons, despite opportunity.
23. Germane for the purpose(s) of the present discourse
to further refer to the deposition of PW-15 (wrongly mentioned as
PW-16, in cosonance with the decision of the Ld. Trial Court)/ASI
Ram Nivas, who deposed that on 28.11.2015 and 12.02.2016,
he/PW-15 was posted as MHC(M) at PS. Timarpur, besides,
PW-15 also produced register no. 19 of years 2015 and 2016,
before the Ld. Trial Court. Markedly, as per PW-15, as per record,
on 28.11.2015, SI Yogesh Kumar, deposited the case property ,
i.e., one sealed pullanda containing ‘sone ki chain ki tuti hui
kundi’ and personal search articles. PW-15 further produced the
records of the entry regarding the same in register no. 19 at S. No.
3062, photocopy of which was proved as Ex. PW16/A.
Correspondingly, PW-15 proved the entry bearing no. 2118 in
register no. 19, in respect of deposit of case property , i.e., mobile
phone, sim and personal search memo on 12.02.2016, as Ex.
PW16/B. Markedly, under his cross examination, PW-15
proclaimed, as under;
“XXXXXX by ***, Ld. Counsel for the accused.
It is correct that I had not issued any
acknowledgement/receipt to SI Yogesh. It is correct
that I had not obtained his signatures on the register
no. 19.
It is wrong to suggest that I had not received the
above said case property in the malkhana on the above
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 34 of 60
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2026.02.18
16:41:12 +0530
said dates. It is wrong to suggest that I am deposing
falsely at the instance of the IO.”
(Emphasis supplied)
24. Strikingly, PW-16 (wrongly mentioned as PW-17, as
consonance with the decision of Ld. Trial Court)/IO/SI Yogesh
Kumar deposed before the Ld. Trial Court that on 27.11.2015, he
was posted as Sub-Inspector at PS. Timarpur and on that day, he
was on night emergency duty from 08:00 p.m. to 08:00 a.m. As
per PW-16, he received DD no. 43A and thereafter, he along
with Ct. Arvind went to the spot, i.e., near Main Gate of Gopalpur
and met the complainant, namely, Sunil Kumar, who was in
injured condition and the complainant had apprehended one
person, who had one lock/hook of broken gold chain of the
complainant in his hand. It was further deposed by PW-16 that the
complainant produced the said person before him/PW-16 and
his/accused’s name was revealed as Mohd. Tahseem. Thereafter,
as per PW-16, the injured was taken to Trauma Centre by PCR and
he/PW-16 left Ct. Arvind at the spot with accused, and he/PW-16
proceeded to Trauma Centre. PW-16 further asserted that he
collected the MLC of the victim and after complainant’s medical
examination, he/PW-16 and the complainant returned to the spot.
Correspondingly, as per PW-16, he recorded the statement of the
complainant (Ex. PW3/A) and thereafter, prepared tehrir
(Ex.PW17/A), which was handed over to Ct. Arvind for
registration of FIR. Thereafter, as per PW-16, Ct. Arvind left the
spot and after registration of FIR, returned to spot along with copy
of FIR and rukka, which were handed over to him/PW-16. PW-16
further testified regarding preparation of site plan (Ex. PW17/B)
by him/PW-16, at the instance of the complainant, as well as of
seizure of the hook/lock (kundi) of complainant’s broken gold
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 35 of 60
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2026.02.18
16:41:15 +0530
chain vide memo Ex. PW11/A, recovered from the appellant, by
placing it in a plastic container (dibbi), converting it into pullanda
and on affixation of seal of ‘YS’. PW-16 further deposed that he
interrogated the appellant, who admitted his involvement in the
commission of offence in present case along with his two
associates namely, Vijay and Bhola. Thereafter, as per PW-16, he
formally arrested and conducted personal search of the appellant
vide memos, Ex. PW11/C and Ex. PW11/D, as well as recorded
appellant’s disclosure statement, Ex. PW11/B. PW-16 further
inter alia deposed that he deposited the case property to malkhana.
Subsequently, as per PW-16, on 29.11.2015, he along with Ct.
Manohar went into the search of accused Bhola and Vijay at Gali
No. 17 Wazirabad Village Shiv Mandir, where they met a secret
informer who disclosed the information regarding the accused
Bhola @ Amit and on the pointing of the secret informer, Ct.
Manohar apprehended accused Bhola @ Amit, who was arrested
vide memo Ex. PW13/B and personally searched vide memo Ex.
PW13/C. PW-16 further deposed that he recorded the disclosure
statement (Ex. PW13/A) of accused Bhola. Thereafter, as per
PW-16, accused Bhola was produced before the concerned court
for conducting his TIP proceedings, however, the same was
refused by the said accused. It was further proclaimed by PW-16
that the robbed mobile phone was put on tracing mode and it was
found running in the name of one Lekh Pal S/o. Virpal, which
eventually led them to co-accused Mool Chand, who was
apprehended and interrogated about the said mobile.
Correspondingly, as per PW-16, on search of Mool Chand, the said
mobile phone was recovered from the right pocket of his wearing
pants, which was seized vide memo, Ex. PW7/B.
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 36 of 60
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2026.02.18
16:41:20 +0530
Correspondingly, as per PW-16, accused Mool Chand also denied
participation in TIP proceedings. Thereafter, as per PW-16, he
collected the certified copies of CDRS, CAF of mobile number
involved in the present case, as well as prepared the chargesheet,
which was filed before the concerned court. Needless to mention,
PW-16 correctly identified the appellant as one of the perpetrators
as well as the case property, before the Ld. Trial Court.
25. Significantly, during the course of his cross-
examination, PW-16/IO/SI Yogesh Kumar, deposed as under;
“XXXXXX by ***, Ld. Counsel for accused Amit
and Tahseem.
I received the DD No.43A at about 8:30 pm. We
went to the spot on my private motorcycle. Public
persons were present at the spot and 02 public persons
have been made witnesses in the present case. No
videography of recovery proceedings was done by
me. I reached at the hospital for medical examination
of complainant at Trauma Centre at about 9:30 pm
and returned back at the spot at about 11 pm. Rukka
was prepared at the spot and handed over to Ct.
Arvind at about 11:50 pm. The seal of mine was
prepared from the shop and I do not know about the
shop.
The signatures of accused Tahseem was not taken
on pullanda of gold chain kundi, however, his
signature was taken on the seizure memo of the
same.
No public person was joined at the time of arrest
of accused Amit @ Bhola. No case property was
recovered from the possession of accused Amit @
Bhola.
It is wrong to suggest that I prepared the site plan
at my own instance. It is wrong to suggest that I took
the signatures of accused Tahseem and Amit @ Bhola
on black papers which were converted into their
disclosure statements. It is wrong to suggest that it
was a road rage matter and no robbery was
committed. It is wrong to suggest that the aforesaid
gold chain kundi was not recovered from the
possession of accused Tahseem and it was in the
possession of the complainant. It is wrong to suggest
that no pointing out memo was prepared at the
instance of Amit @ Bhola. It is wrong to suggest that
C.A. No. 446/2024 Mohd. Tahseem v. State (NCT of Delhi) Page 37 of 60Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:41:25 +0530
all the proceedings were conducted while sitting in the
PS. It is wrong to suggest that I have not conducted
the fair investigations and falsely implicated accused
persons in the present case. It is wrong to suggest that
I am deposing falsely.”
(Emphasis supplied)
26. Conspicuously, in light of the foregoing, this Court
would now proceed with the evaluation of the material placed on
record, in light of the arguments addressed by/on behalf of the
appellant and by Ld. Addl. PP for the State. However, before
proceeding further, this Court deems it pertinent to deal with the
contention of Ld. Counsel for the appellant inter alia to the effect
that the conviction of the appellant could not have been premised
on the deposition of the complainant in the instant case. However,
in this regard, this Court deems it pertinent to outrightly note that
the superior courts have persistently avowed9 that there is no legal
hurdle in convicting a person on the testimony of a single/sole
eyewitness/victim, 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, reference is
made to the decision of the Hon’ble Supreme Court in Sunil
Kumar v. State (Govt. of NCT of Delhi), (2003) 11 SCC 367,
wherein the Hon’ble Court in unambiguous terms, remarked as
under;
“9. Vadivelu Thevar case [AIR 1957 SC 614: 1957
Cri LJ 1000] was referred to with approval in the case
of Jagdish Prasad v. State of M.P. [1995 SCC (Cri)
160: AIR 1994 SC 1251] 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 on9
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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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 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)
27. Correspondingly, reference is made to the decision
of the Hon’ble Apex Court in Balu Sudam Khalde v. State of
Maharashtra, (2023) 13 SCC 365, wherein the Hon’ble Court
enunciated the principles to be kept in mind, while appreciating
the evidence of an injured eye-witness, as under;
“26. When the evidence of an injured eyewitness
is to be appreciated, the undernoted legal principles
enunciated by the courts are required to be kept in
mind:
26.1. The presence of an injured eyewitness at the
time and place of the occurrence cannot be doubted
unless there are material contradictions in his
deposition.
26.2. Unless, it is otherwise established by the
evidence, it must be believed that an injured witness
would not allow the real culprits to escape and falsely
implicate the accused.
26.3. The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be
doubted on account of some embellishment in
natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured
witness, then such contradiction, exaggeration or
embellishment should be discarded from the evidence
of injured, but not the whole evidence.
26.6. The broad substratum of the prosecution
version must be taken into consideration and
discrepancies which normally creep due to loss of
memory with passage of time should be discarded.
27. In assessing the value of the evidence of the
eyewitnesses, two principal considerations are
whether, in the circumstances of the case, it is possible
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to believe their presence at the scene of occurrence
or in such situations as would make it possible for
them to witness the facts deposed to by them and
secondly, whether there is anything inherently
improbable or unreliable in their evidence. In respect
of both these considerations, circumstances either
elicited from those witnesses themselves or
established by other evidence tending to
improbabilise their presence or to discredit the
veracity of their statements, will have a bearing upon
the value which a court would attach to their
evidence. Although in cases where the plea of the
accused is a mere denial, the evidence of the
prosecution witnesses has to be examined on its own
merits, where the accused raise a definite plea or put
forward a positive case which is inconsistent with that
of the prosecution, the nature of such plea or case and
the probabilities in respect of it will also have to be
taken into account while assessing the value of the
prosecution evidence.”
(Emphasis supplied)
28. Pertinently, Ld. Counsel for the appellant has further
strenuously contended that the Ld. Trial Court did not consider the
contradictions, variations and/or improvements, in the testimonies
of various prosecution witnesses while pronouncing the impugned
judgment. However, in order to appreciate the said contention, this
Court deems it apposite to iterate and explore the judicial
precedents governing the law of contradictions in the testimony of
the witness. In particular, in this regard, this Court deems it apt to
outrightly make a reference to the decision of the Hon’ble
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
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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)
29. Similarly, 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
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
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scrutiny.”
(Emphasis supplied)
30. 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 law10, 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 its
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.”…
Therefore, mere marginal variations in the
statements of a witness cannot be dubbed as
improvements as the same may be elaborations of10
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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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)
31. 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. Consequently, when
the testimonies of prosecution witnesses in the instant case are
analysed, mindful of aforenoted revered principles, this Court
finds itself difficult to be convinced with the contention of the Ld.
Counsel for the appellant that there are any material contradictions
to belie the testimonies of the said witnesses. On the contrary, it is
seen from a conscientious scrutiny of the evidence of the
complainant/PW-3/Sunil Kumar, PW-1/Akram Ali and
PW-6/Asif that they have consistently deposed of the incident in
question, as well as of the involvement of the appellant therein. In
particular, it is seen from the testimony of the complainant/PW-3
that he deposed before the Ld. Trial Court that on on 27.11.2015,
when he/PW-3 was returning to his home from his shop, on his
scooty bearing registration no. DL-8SBL-1181 and had reached in
front of main gate of his village at around 08:30 p.m., four boys
riding on a motorcycle came from the front side and hit his/PW-3’s
scooty and thereafter, some dispute arose between them. Further,
as aforenoted, PW-3 further identified the appellant as the person,
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who slapped him in the said scuffle, besides asserted that when
he/PW-3 tried to call at 100 number by his phone, co-accused,
Mool Chand snatched his/PW-3’s said mobile phone from his
hand, whilst other co-accused persons manhandled him/PW-3.
Further, as per PW-3, the accused persons also snatched his gold
chain, which he was wearing at that point in time, as well as the
accused persons also took a piece of stone, lying at the spot and hit
him/PW-3 behind his head and on his eye. After the said incident,
as per PW-3, the said accused persons endeavoured to flee from
the spot, however, he apprehended the appellant, and from
whose/appellant’s possession, one broken piece of
his/complainant’s snatched/robbed gold chain was recovered.
Pertinently, the material part of PW-3’s deposition in so far as it
pertains to the ensuing scuffle between the boy on scooty and the
boys on motorcycle; presence of four boys on motorcycle;
snatching of complainant’s mobile phone in the process as well as
of them/the said boys’ injuring/hurting the complainant; and that
pertaining to one of the said perpetrators being apprehended on the
spot, finds corroboration from the deposition of PW-1/Akram Ali.
Correspondingly, PW-6/Asif corroborated the deposition of the
complainant in so far as it related to the incident of beating of one
person by 3-4 persons at the spot; apprehension of one such
persons/perpetrators at the spot; of the complainant’s using
PW-6’s mobile phone to make at 100 number; and that of the PCR
van reaching the spot as well as taking the injured to the
Hospital.
32. Congruently, the deposition of the foregoing
witnesses, further finds corroboration from the testimony of
PW-4/Dr. Lalit Tanwar, who proved the MLC bearing no. 216887
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(Ex PW5/A) of the complainant, wherein the complainant is noted
to have inter alia sustained, “… lacerated wound pt. Lt. eyebrow-
3*0.1 cm…mild swelling around 1*0.5 cm over mid occipital
region…mild tenderness (+) over Rt. zygomatic region …”.
Needless to reiterate that the appellant duly admitted the nature of
injuries, being ‘simple’ in the complainant’s MLC No. 216887,
dated 27.11.2015, in term of the provisions under Section 294
Cr.P.C., on 20.05.2022, leading to dispensation/dropping of Dr.
Eshaan, Sr. ENT from the list of prosecution witnesses. Pertinent
to further note that the factum of apprehension of the appellant at
the spot as well as of recovery of the hook/ kundi of the
complainant’s gold chain from the possession of the appellant,
further finds credence from the deposition of PW-11/Ct. Arvind
Kumar as well as from the deposition of PW-16 (wrongly
mentioned as PW-17)/IO/SI Yogesh Kumar. Ergo, under such
circumstances, this Court finds itself in concurrence with the
finding of the Ld. Trial Court that the prosecution has been able to
prove the commission of incident by the appellant, while acting in
collusion/connivance and in furtherance of common intention with
each other. In fact, even in the considered opinion of this Court,
the appellant has failed to bring forth any material even under the
cross examination of any of the foregoing witnesses, so as to
demolish the case put forth against him by the prosecution.
Correspondingly, the appellant has not even been able to bring
forth any malice/ill will or wrongful intention on the part of the
complainant to falsely implicate him in the present case. In fact,
not only has the appellant not even given any suggestion to any of
the witnesses so as to suggest any reasons for his false implication,
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at the time of the alleged incident or that of him being falsely roped
in subsequently in the case. In fact, even the explanation tendered
by the appellant in his statement, recorded in terms of Section 313
Cr.P.C. is quite uninspiring of confidence, and seemingly
specious.
33. In so far as the fulfilment/establishment of
ingredients of offence under Section 394/34 IPC against the
appellant is concerned in the instant case, this Court is in
concurrence with the finding of the Ld. Trial Court, under the
impugned judgment. In fact, this Court concedes with the
observations of the Ld. Trial Court that PW-1, PW-3 and PW-6,
all deposed regarding the complainant being beaten by 3-4 boys,
besides the complainant persistently asserted that he was slapped
by the appellant and manhandled by the co-accused persons.
Correspondingly, PW-3 proclaimed that the accused persons also
snatched his gold chain, which he was wearing at that point in
time, as well as the accused persons also took a piece of stone,
lying at the spot and hit him/PW-3 behind his head and on his eye.
Needless to reiterate that the injuries sustained by the complainant
stand duly corroborated/validated from his MLC and the
deposition of PW-4/Dr. Lalit Tanwar. Clearly, under the said facts,
there is clear evidence that the appellant and co-accused persons
inflicted injuries on the complainant, in which process the
perpetrators, dishonestly took movable property , i.e., his gold
chain out of the possession of the complainant, without his consent
and moved the same, in order to such taking. Ergo, under such
circumstances, this Court concedes with the finding of the Ld.
Trial Court that the ingredients of offence under Section 394 IPC
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read with Section 34 IPC stand proved beyond reasonable doubt
against the appellant herein.
34. Conclusively, in conspectus of the above and inter
alia keeping in view consistent testimonies of the
complainant/PW-3/Sunil Kumar, PW-1/Akram Ali, PW-6/Asif
and PW-4/Dr. Lalit Tanwar, as well as considering other material
on record, including the testimonies of other witnesses, seizure and
recovery memos, etc., the only conclusion which can be
unambiguously arrived at in the facts and circumstances brought
forth is that the prosecution has been able to prove its case ‘beyond
reasonable doubt’ against the appellant for the offences under
Section 394/34 IPC. On the contrary, the appellant has failed to
raise a probable defence/defence by ‘preponderance of
probabilities’ in his favour and/or to belie the case put forth by the
prosecution for the reasons, hereinunder, observed. However, in
as much as the allegations/charges under Section 411 IPC is
concerned, this Court unambiguously reiterates 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 for the commission of
offence under Section 394/34 IPC has been reached by this Court,
it would not be proper to convict the appellant for the offence
under Section 411 IPC in the instant case.
35. In so far as the quantum of sentence to be awarded
to the appellant is concerned, this Court deems it pertinent to
outrightly observe that though the penal provisions under law, in
particular that under IPC, prescribe for penalties to be imposed for
offences, however, do not lay down any set guidelines for the
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same. Nonetheless, the persistent avowals of the superior courts 11
have laid down certain guidelines, which may be considered by
the courts, when confronted with conundrum regarding such
determination. Undoubtedly, the inclination of courts is usually
tilted towards the reformation and rehabilitation of the accused,
however, at the same time, court have incessantly cautioned that
sentencing should be adequate as undue sympathy, by imposing
inadequate sentence may result into causing more harm to the
justice system. In this regard, reference is made to the decision of
the Hon’ble Supreme Court in Hazara Singh v. Raj Kumar, (2013)
9 SCC 516, wherein the Hon’ble Court observed as under;
“17. …We also reiterate that undue sympathy to
impose inadequate sentence would do more harm to
the justice system to undermine the public confidence
in the efficacy of law. It is the duty of every court to
award proper sentence having regard to the nature of
the offence and the manner in which it was executed
or committed. The court must not only keep in view
the rights of the victim of the crime but also the
society at large while considering the imposition of
appropriate punishment.”
(Emphasis supplied)
36. Concurrently, the Hon’ble Supreme Court in Raju
Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while
iterating the objective behind sentencing enunciated as under;
“9. …Punishment is the just desert of an
offender. The society punishes not because it has the
moral right to give offenders what they deserve, but
also because punishment will yield social useful
consequences: the protection of society by
incapacitating criminals, the rehabilitation of past
offenders, or the deterrence of potential
wrongdoers…The purposes of criminal sentencing
have traditionally been said to be retribution,
deterrence and rehabilitation. To these there may now
perhaps be added: incapacitation (i.e. putting it out of
the power of the offender to commit further11
‘X’ v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4
SCC 375.
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37. Apposite to further observe that besides the
tenacious affirmations of the superior courts, inclined towards the
grant of just and appropriate sentence, there has also been a
cautionary word12 that mere long pendency of case is no ground to
award lesser sentence. However, this Court is equally cognizant
that the superior courts have incessantly asserted that while
determining the quantum of sentence, courts cannot be oblivious
to the mitigating circumstances, which are required to be accorded
due weightage, alongside aggravating factors. In fact, law is
settled13 that the discretion in the matter of sentence is to be
exercised by court(s), after balancing all the aggravating and
mitigating circumstances of the crime. Further, as per the superior
courts14, a balance sheet of aggravating and mitigating
circumstances has to be drawn up at such a stage and while doing
so, “the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option is
exercised.” In this regard, reference is made to the decision of the
Hon’ble Apex Court in Vasanta Sampat Dupare v. State of
Maharashtra, (2017) 6 SCC 631, wherein the Hon’ble Court while
delving into the aspect of award of sentence/sentencing,
enunciated as under;
“20. It is thus well settled, “the court would
consider the cumulative effect of both the aspects
(namely, aggravating factors as well as mitigating
circumstances) and it may not be very appropriate
for the Court to decide the most significant aspect of12
State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13.
13
Bachan Singh v. State of Punjab, (1980) 2 SCC 684
14
Machhi Singh v. State of Punjab, (1983) 3 SCC 470
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sentencing policy with reference to one of the classes
completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the
two”. Further, “it is always preferred not to fetter the
judicial discretion by attempting to make excessive
enumeration, in one way or another; and that both
aspects, namely, aggravating and mitigating
circumstances have to be given their respective
weightage and that the Court has to strike the
balance between the two and see towards which side
the scale/balance of justice tilts”. With these
principles in mind, we now consider the present
review petition.”‘
(Emphasis supplied)
38. Here, it is further apposite to make a reference to the
decision of the Hon’ble Supreme Court in Ramnaresh v. State of
Chhattisgarh, (2012) 4 SCC 257, wherein the Hon’ble Court,
while iterated the law as under;
“76. The law enunciated by this Court in its recent
judgments, as already noticed, adds and elaborates the
principles that were stated in Bachan Singh [(1980) 2
SCC 684: 1980 SCC (Cri) 580] and thereafter, in
Machhi Singh [(1983) 3 SCC 470: 1983 SCC (Cri)
681] . The aforesaid judgments, primarily dissect
these principles into two different compartments–
one being the “aggravating circumstances” while the
other being the “mitigating circumstances”. The court
would consider the cumulative effect of both these
aspects and normally, it may not be very appropriate
for the court to decide the most significant aspect of
sentencing policy with reference to one of the classes
under any of the following heads while completely
ignoring other classes under other heads. To balance
the two is the primary duty of the court. It will be
appropriate for the court to come to a final conclusion
upon balancing the exercise that would help to
administer the criminal justice system better and
provide an effective and meaningful reasoning by the
court as contemplated under Section 354(3) CrPC.
Aggravating circumstances
(1) The offences relating to the commission of
heinous crimes like murder, rape, armed dacoity,
kidnapping, etc. by the accused with a prior record of
conviction for capital felony or offences committed
by the person having a substantial history of serious
assaults and criminal convictions.
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(2) The offence was committed while the offender
was engaged in the commission of another serious
offence.
(3) The offence was committed with the intention
to create a fear psychosis in the public at large and was
committed in a public place by a weapon or device
which clearly could be hazardous to the life of more
than one person.
(4) The offence of murder was committed for
ransom or like offences to receive money or monetary
benefits.
(5) Hired killings.
(6) The offence was committed outrageously for
want only while involving inhumane treatment and
torture to the victim.
(7) The offence was committed by a person while
in lawful custody.
(8) The murder or the offence was committed to
prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful confinement of
himself or another. For instance, murder is of a person
who had acted in lawful discharge of his duty under
Section 43 CrPC.
(9) When the crime is enormous in proportion like
making an attempt of murder of the entire family or
members of a particular community.
(10) When the victim is innocent, helpless or a
person relies upon the trust of relationship and social
norms, like a child, helpless woman, a daughter or a
niece staying with a father/uncle and is inflicted with
the crime by such a trusted person.
(11) When murder is committed for a motive
which evidences total depravity and meanness.
(12) When there is a cold-blooded murder without
provocation.
(13) The crime is committed so brutally that it
pricks or shocks not only the judicial conscience but
even the conscience of the society.
Mitigating circumstances
(1) The manner and circumstances in and under
which the offence was committed, for example,
extreme mental or emotional disturbance or extreme
provocation in contradistinction to all these
situations in normal course.
(2) The age of the accused is a relevant
consideration but not a determinative factor by itself.
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(3) The chances of the accused of not indulging
in commission of the crime again and the probability
of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was
mentally defective and the defect impaired his
capacity to appreciate the circumstances of his
criminal conduct.
(5) The circumstances which, in normal course of
life, would render such a behaviour possible and could
have the effect of giving rise to mental imbalance in
that given situation like persistent harassment or, in
fact, leading to such a peak of human behaviour that,
in the facts and circumstances of the case, the accused
believed that he was morally justified in committing
the offence.
(6) Where the court upon proper appreciation of
evidence is of the view that the crime was not
committed in a preordained manner and that the death
resulted in the course of commission of another crime
and that there was a possibility of it being construed
as consequences to the commission of the primary
crime.
(7) Where it is absolutely unsafe to rely upon the
testimony of a sole eyewitness though the prosecution
has brought home the guilt of the accused.”
(Emphasis supplied)
39. At this stage, this Court deems it apposite to further
reproduce the relevant provisions under the Probation of
Offenders Act, as under;
“4. Power of court to release certain offenders on
probation of good conduct-(1) When any person is
found guilty of having committed an offence not
punishable with death or imprisonment for life and the
court by which the person is found guilty is of opinion
that, having regard to the circumstances of the case
including the nature of the offence and the character
of the offender, it is expedient to release him on
probation of good conduct, then, notwithstanding
anything contained in any other law for the time being
in force, the court may, instead of sentencing him at
once to any punishment, direct that he be released on
his entering into a bond, with or without sureties, to
appear and receive sentence when called upon during
such period, not exceeding three years, as the court
may direct, and in the meantime to keep the peace and
be of good behaviour:
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Provided that the court shall not direct such release
of an offender unless it is satisfied that the offender or
his surety, if any, has a fixed place of abode or regular
occupation in the place over which the court exercises
jurisdiction or in which the offender is likely to live
during the period for which he enters into the bond.
(2) Before making any order under sub-section (1)
is made, the court shall take into consideration the
report, if any, of the probation officer concerned in
relation to the case.
(3) When an order under sub-section (1), the court
may, if it is of opinion that in the interests of the
offender and of the public it is expedient so to do, in
addition pass a supervision order directing that the
offender shall remain under the supervision of a
probation officer named in the order during such
period, not being less than one year, as may be
specified therein, and may in such supervision order
or impose such conditions as it deems necessary for
the due supervision of the offender.
(4) The court making a supervision order under
sub-section (3) shall require the offender, before he
is released, to enter into a bond, with or without
sureties, to observe the conditions specified in such
order and such additional conditions with respect to
residence, abstention from intoxicants or any other
matter as the court may, having regard to the
particular circumstances, consider fit to impose for
preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order under
sub-section (3) shall explain to the offender the terms
and conditions of the order and shall forthwith furnish
one copy of the supervision order to each of the
offenders, the sureties, if any, and the probation
officer concerned.
*** *** ***
11. Courts competent to make order under the Act,
appeal and revision and powers of courts in appeal
and revision-(1) Notwithstanding anything contained
in the Code or any other law, an order under this Act,
may be made by any court empowered to try and
sentence the offender to imprisonment and also by the
High Court or any other court when the case comes
before it on appeal or in revision***”
(Emphasis supplied)
40. Notably, the Probation of Offenders Act was brought
into force, in view of the increasing emphasis on the reformation
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and rehabilitation of the offenders as useful and self-reliant
members of society without subjecting them to deleterious effects
of jail life, however, law is trite15 that no one can claim the benefit
of Sections 3/4 of the Probation of Offenders Act as a matter of
right and the court has to, “pass appropriate orders in the facts and
circumstances of each case having regard to the nature of the
offence, its general effect on the society and the character of the
offender, etc.” Correspondingly, superior courts have persistently
avowed16 that for the benefit under Probation of Offenders Act to
enure in favour of an accused, court must be cognizant of the
nature of offence, conditions stipulated under Section 4 of the said
enactment, as well as judicial precedents governing the field. Here,
this Court deems it further pertinent to note that the superior courts
have persistently avowed that merely because the maximum
sentence of life could have been awarded for the offence under
Section 394 IPC, it would be no ground for not granting the benefit
of Probation of Offenders Act17 to the respondent. Reference in
this regard is made to the decision of the Hon’ble High Court of
Delhi in State v. Lucky, 2017 SCC Online Del 8328, wherein the
Hon’ble Court, unambiguously noted, as under;
“13. What would control and affect the
applicability of the Probation of Offenders Act, 1961
would not be the maximum sentence prescribed for
the offence, but whether the Court has a discretion to
award a lesser sentence than the maximum, without
there being any caveat with respect to the minimum
sentence which has to be awarded for the offence.
Since the Penal Code does not bar the exercise of
judicial discretion in the matter of award of sentence
for the offence under Section 394 IPC, Probation of
Offenders Act, 1961 would be applicable.
15
Commandant, 20th Battalion, ITB Police v. Sanjay Binjola, (2001) 5 SCC 317.
16
Mohd. Hashim v. State of U.P., (2017) 2 SCC 198.
17
Reference is further made to the decisions in; Arvind Mohan Sinha v. Amulya Kumar Biswas, (1974) 4 SCC
222; and Ajay Kumar v. State, CRL.A. 549/2007 & CRL.M.A. 14125/2025, dated 04.07.2025.
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14. Any Court while exercising jurisdiction under
Sections 4 & 6 of the Probation of Offenders Act,
1958 has to keep in view the nature of the offence and
the conditions incorporated under the Act. It is only if
the Court forms an opinion that it is expedient to
release the convict on probation for good conduct,
regard being had to the circumstances of the case, then
only the benefit could be extended. The nature of
offence is definitely one of the circumstances. The
Court has the discretion to decide when and how it
should form such an opinion. The word “expedient”
also has been explained by the Supreme Court in State
of Gujarat v. Jamnadas G. Pabri (1975) 1 SCC 138 :
AIR 1974 SC 2233. In the aforesaid judgment, it has
been observed as hereunder:–
*** *** ***
15. Thus, merely because the maximum sentence
of life could have been awarded under Section 394
of the Penal Code, 1860, it would be no ground for not
granting the benefit of Probation of Offenders Act to
the respondent. The Court has a discretion in matters
of sentencing and the sentencing process would hinge
on the nature and circumstances of the case.”
(Emphasis supplied)
41. Whence, in light of the foregoing principles, this
Court would now proceed with the determination of rival
contentions of Ld. Counsel for the appellant as well as Ld. Addl.
PP for the State. Appositely, Ld. Counsel for the appellant
strenuously averred that the appellant belong to poor strata of
society as well as struggling for their daily sustenance. Further, as
per Ld. Counsel, the appellant has suffered the rigors of litigation,
as early as 2015 and has ever since, been diligently appearing
before court; besides, nothing has come on record to demonstrate
that the appellant misused the condition of bail/suspension of
sentence during the interregnum period. Ld. Counsel for the
appellant further reiterated that the appellant has always
cooperated during the trial as well as pendency of present appeal.
However, it was further argued that the appellant is around 42
years of age, sole bread earner in his family, besides he/the
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appellant is obligated to take care of their old/ailing mother and
other family members. Accordingly, Ld. Counsel for the
appellants have entreated for a lenient view in awarding
sentence. In contrast, Ld. Addl. PP for the State has asserted that
no relaxation in sentencing ought to be granted in favour of the
appellant, considering the gravity of offence, besides the appellant
be conferred no indulgence of probation, as prayed for.
42. Ergo, in light of the foregoing submissions of the
Ld. Counsel for the appellant and that of Ld. Addl. PP for the State,
further, being wary of the facts and circumstances of the present
case, aggravating as well as mitigating factors brought forth,
antecedents/previous involvement, nominal roll of the appellant
and the possibility of reformation in view of the reports of the
probation officer, dated 06.10.2025, this Court is of the considered
opinion that in the matter at hand, the appellant deserves the
benefit of probation18/provisions under Probation of Offenders
Act. Apposite at this stage to reproduce the relevant extracts from
the report of probation officer qua the appellant, as under;
“…Current Address (Place of residence): D-183,
18
Reference is made to the decision of the Hon’ble Apex Court in Chhanni v. State of Uttar Pradesh, Crl. Appeal
No. 721 of 2006, dated 06.07.2006: AIR 2006 SC 3051: 2006 (5) SCC 396: 2006 Cri. LJ 4068, wherein the Hon’ble
Court, noted the provisions under Section 360 Cr.P.C. vis-à-vis provisions under the Probation of offenders Act to
inter alia observe, “Where the provisions of the Probation Act are applicable the employment of Section 360 of the
Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable
consequences, which the legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the
legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial
provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special
reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the
Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing
in the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their
own in the respective areas where they are applicable.*** Section 360 of the Code relates only to persons not under
21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years
or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of
death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person
found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the
Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other
matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person
found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if
any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes
with such significant differences could not be intended to co-exist at the same time in the same area. Such co-
existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the
provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions
of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act,
where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly
inapplicable.*** Enforcement of Probation Act in some particular area excludes the applicability of the provisions
of Sections 360, 361 of the Code in that area.” (Emphasis supplied)
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Gali No. 9, Village Wazirabad, Delhi.
*** *** ***
PERSONAL HISTORY: The convict is a 41 year
old separated man (divorce). The convict us living
with his mother in Delhi in his own flat 5 gaz. rented
flat. He is study upto 3rd class. He is working as a e-
rickshaw diver and earns 10,000 rs. per month.
*** *** ***
Report of parents and relations: The family of the
Convict said positively about the behavior and
conduct of the Convict. They stated that the Convict
behaves satisfactory.
Attitude of family towards offenders and extent of
his influence on him/her: The family has a positive
attitude towards the Convict.
Report of Neighbours: Neighbours have reported
in favour of the Convict. But denied to give in
written.
*** *** ***
Offender’s own reaction to the offence and his
attitude towards possible punishment: He is worried
and strained about the possible punishment for this
act. The Convict stated that if the Hon’ble Court is
pleased to release him on Probation, he undertakes to
maintain good behavior and peace in future.
*** *** ***
Summary:
(a) Factual background of offender and his
environment and offence: The Convict is a 42 year old
Seprated man. He resides in his own flat with his
senior citizen mother. He is studied upto 3 rd class. He
is working as a E-rikshaw driver and earns 10,000 rs
per month. He is the sole bread earner of his family.
(b) Diagnosis (Offender’s attitude, defects in
character of Family, Motivation and other Factory
regarded as Causal Factors for the Offence): The
Convict denied the charges against him in the present
case. However, he also stated that now he wants to
live a normal life.
(c) Prognosis (treatment considered most suitable
and estimate of chances of improvement): There is a
possibility of improvement in the behaviour of the
Convict. If the Convict is released on probation he
will keep under the supervision of probation officer.
(d) Recommendation (if asked for you by court):
The Convict has been facing the present case since
2015. He has suffered socially, mentally as well as
economically throughout this period of trial. There is
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a possibility of Rehabilitation and Reformation in this
case. In the view of above facts and observations, the
Social Investigation Report is being submitted to the
Hon’ble Court for kind perusal please…”
(Emphasis supplied)
43. Quite evidently, it is seen from above that the
probation officer, in the probation reports has tendered a favorable
opinion regarding the chance of reformation of the appellant,
besides favored the grant of benefit of probation to the appellant.
Correspondingly, from a report of appellant’s previous
involvement and/ or antecedents, submitted by the concerned
SHO, it is noted that the appellant is not found involved in any
other case. Needless to mention that there is nothing on record to
demonstrate that the appellant preserved to harass or trouble the
victim/complainant, subsequent to the day of incident; appellant
has expressed inclination to lead normal life as well as undertaken
not to repeat similar offence in future; the appellant have remained
on bail even during the appeal and faced the ordeal of litigation as
early as year, 2015; besides, there is nothing negative in the
probation reports against the appellant, rather, as aforenoted, the
probation officer has recommended that the case of the appellant,
be considered for the benefit of probation. Conclusively, being
wary of the foregoing circumstances as well as judicial dictates,
this Court is of the considered opinion that it is expedient to release
the appellant on probation of good conduct. Needless to further
mention that as per the aforesaid report of the probation officer,
the appellant has a fixed abode in the local limits of NCT of Delhi,
besides the appellant has a favorable and positive report qua his
behavior as well as there are no complaints of anti-social behavior
against him.
44. Conclusively, in light of the foregoing discussion,
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Date:
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while upholding the conviction of the appellant for the offence(s)
under Section 394/34 IPC, under the impugned judgment dated
29.05.2024, passed by Ld. MM-02, Central, Tis Hazari Court,
Delhi in case bearing; ‘State v. Mohd. Tahseem & Ors., Cr. Case
No. 300839/2016’, arising out of FIR No. 913/2015, PS. Timarpur
for the foregoing reasons, the appellant is now, directed to be
released on probation. Ergo, the appellant is released on
probation/entitled to benefit under Section 4 of the Probation of
Offenders Act, upon him/the appellant’s furnishing a personal
bond in a sum of Rs. 15,000/- (Rupees Fifteen Thousand only)
with one surety of the like amount each, subject to the satisfaction
of the Ld. Trial Court/Ld. JMFC/Ld. Duty JMFC, with an
undertaking to appear and receive punishment when called upon
and in the meantime, to keep the peace and be of good behavior
maintain peace during the period of 02 (two) years, as well as
further subject to the following conditions;
(a) The appellant shall not involve himself in any
offence and registration of any further case shall make
them liable for cancellation of probation;
(b) The appellant shall receive the sentence as may
be given by the court, if the benefit of probation is
withdrawn;
(c) The appellant shall maintain peace and
harmony and refrain from criminal activity; and
(d) The appellant is further directed to deposit Rs.
15,000/- (Rupees Fifteen Thousand only), before the
Ld. Trial Court/ Ld. JMFC/Ld. Duty JMFC, to be
released as compensation to the victim/complainant,
Sunil Kumar, in terms of the provisions under Section
5 of the Probation of Offenders Act.
45. Needless to mention that since the appellant has now
been dealt under Section 4 of Probation of Offenders Act, he shall
not suffer any disqualification attached with conviction, in terms
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of Section 12 of the said enactment19. At request, the bonds and
sureties as well as the fine, as aforenoted, be filed/deposited by the
appellant before the Ld. Trial Court/Ld. JMFC/Ld. Duty JMFC
within a period of 15 (fifteen) days from the date of this judgment,
as per law and rules.
46. The present appeal is accordingly disposed off in
above terms. Needless to further mention that though this Court
holds highest regard for the decisions relied upon by the Ld.
Counsel for the appellant in support of appellant’s case, however,
the same would not come to the aid of the appellant, in the manner
as proposed, as the facts and circumstances of the present case are
clearly distinguishable.
47. Trial Court Record be sent back along with a copy of
this judgment for necessary action. Copy of this judgment be also
given dasti to the appellant. Further, compliance of the decision of
the Hon’ble Supreme Court in Suhas Chakma v. Union of India,
(2024) 16 SCC 1 has been carried out.
48. Appeal file be consigned to record room after due
compliance.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.18
16:42:54
+0530
Announced in the open Court (Abhishek Goyal)
on 18.02.2026. ASJ-03, Central District,
Tis Hazari Courts, Delhi
19
Radhey Shyma And Another v. State of U.P. & Anr., Crl. Rev. No. 436 of 2014, dated 20.09.2023 (Honble
Allahabad HC).
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