Delhi District Court
Nitin vs State Of Nct Of Delhi on 23 February, 2026
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-003081-2024
CRIMINAL APPEAL No.: 106/2024
NITIN @ NIKKA,
S/o. Shri. Naresh Kumar,
R/o. Vagabond, Footpath,
Gole Chakkar, Roshnara Road,
Delhi. ... APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI)
Through SHO,
PS. Sarai Rohilla. ... RESPONDENT
Date of e-filing : 27.02.2024
Date of institution : 20.03.2024
Date when judgment was reserved : 11.02.2026
Date when judgment is pronounced : 23.02.2026
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 07.08.2023 (hereinafter referred to as ‘impugned
judgment’), passed by learned Metropolitan Magistrate-04/Ld.
MM-04, Central, Tis Hazari Court, Delhi (hereinafter referred to
as the ‘Ld. Trial Court/Ld. MM’) in case bearing; ‘State v. Nitin
@ Nikka, Case No. 13876/2022’, arising out of FIR No. 546/2022,
PS. Sarai Rohilla, under Sections 394/411 of the Indian Penal
Code, 1860 (hereinafter referred to as ‘IPC‘), convicting the
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2026.02.23
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appellant, namely, Nitin @ Nikka (hereinafter referred to as the
‘appellant’) of the offence under Section 394/411 IPC and the
consequent order of sentence dated 14.10.2023 (hereinafter
referred to as ‘impugned order’), passed by the Ld. Trial Court,
sentencing the appellant with simple imprisonment for a period of
03 (three) years for the said offences. Further, the appellant was
directed to be entitled to the benefit of the provisions under Section
428 Cr.P.C. (hereinafter the impugned judgment and impugned
order are collectively referred to as the ‘impugned judgment and
order’).
2. Pithily put, the case of the prosecution is that on
22.08.2022, on receipt of PCR Call vide DD No. 22A, the
concerned police official(s) proceeded to metro pillar no. 185,
Veer Banda Bairagi Marg, towards Shastri Nagar, Sarai Rohilla,
Delhi (hereinafter referred to as the ‘spot’), where it was
determined that the injured had been taken to Hospital.
Consequently, the concerned police official, proceeded to Hindu
Rao Hospital, where the victim/complainant, namely, Vicky Singh
(hereinafter referred to as the ‘complainant/victim’) was found
admitted vide MLC No. 5563/22. Pertinently, under the
complainant’s MLC, it was inter alia noted, “…A/H/O Physical
Assault at around 7:30 AM on 22.08.22…”, “…L/E:- swelling +nt
over (R) side of neck…”, “…difficulty in talking, throat pain,
patient is drowsy…”, nature of injury was recorded to be under
observation at that point of time. Significantly, the complainant
was determined not to be in a position to tender his statement at
that point in time. However, subsequently, the complainant
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reached at the police station and tendered his
statement/complaint inter alia asserting that on 22.08.2022, he left
his home for his work in the factory at around 07:00 a.m., on foot.
At around 07:15 a.m., as per the complainant, when he was
proceeding from Veer Bairagi Marg, Shastri Nagar, towards
Inderlok and had reached near metro pillar 185, one person
approached him/the complainant from behind (समय करीब 7:15 AM
पर जब मै पैदल ही वीर बंदा बैरागी मार्ग पर shastri nagar side से इन्द्र लोक की
तरफ जा रहा था और जब मैं metro पिलर no. 185 के सामने पंहु चा). Suddenly,
as per the complainant the said person, choked his/complainant’s
neck and while squeezing his neck, asked him to hand over
whatever he was carrying (फं दा कस दिया और मेरी गर्दन को दबाते हु ए बोला
की मेरे पास जो कु छ है निकल कर दे दे।). It was further proclaimed by the
complainant under his complaint that the said person had
grabbed/squeezed his neck extremely firmly to the extent that
he/the complainant found difficulty in breathing (उस लड़के ने बहु त
जोर से कसके मेरी गर्दन को दबाया था। मेरा सास लेना भी मुश्किल हो गया।). The
complainant’s complaint further chronicles that he/the
complainant made endeavour to free himself from the grip of the
said person, and succeeded for a while, however, the said person
grabbed/choked his/complainant’s neck even firmer (फिर भी मैं ने उस
लड़के से अपने को छु ड़ाने के लिए संघर्ष किया और मैं ने अपनी गर्दन एक बार उससे
छु ड़ा भी ली लेकिन उस लड़के ने पहली बार से भी ज्यादा जोर से मेरी गर्दन पर फं दा
कस दिया।).
2.1. As per the complainant, he had properly seen the
said person, in the process, however, the said person forcefully
took out his/complainant’s mobile phone of Oppo make, silver in
colour, bearing mobile no. 8882057244 as well as a sum of Rs.
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700/- (Rupees Seven Hundred only), from his pocket (अपने को
छु ड़ाने की कोशिश करने के दौरान मैं ने उस लड़के को अच्छे से देखा है। उस लड़के
ने मेरी जेब में रखा हु आ मेरा mobile फोन make oppo silver colour जिसमे मेरा
mobile no. 8882057244 था को जबरदस्ती मेरी जेब से निकाल लिया । मेरे
mobile फोन के इलावा मेरी pent की जेब में रखे हु ए 700 रूपये भी उस लड़के ने
लिए ।). It was further asserted by the complainant that the said
person had grabbed his neck with such force that he felt dizzy and
got unconscious, whilst someone is asserted to have informed the
police officials and he/the complainant was shifted to the Hospital
(उस लड़के ने इतनी जोर से मेरी गर्दन पर अपने हाथों का फं दा कसा की मेरे को
चक्कर आ गये और मैं बेहोश हो गया। मैं सामने आने पर उस लड़के को पहचान सकता
है। किसी ने पुलिस को कॉल किया और पुलिस मुझे हिन्दू राव हॉस्पिटल ले गयी जहा
पर मेरा इलाज हु आ।).
2.2. Markedly, under said facts and circumstances, the
instant FIR came to be registered, and investigation ensued.
Notably, during the course of ensuing investigation, the site plan
was prepared and the CCTV footage of the surrounding area was
obtained. Correspondingly, on the basis of information from secret
informer, the appellant was apprehended, who is asserted to have
confessed to have commission of the instant offence. Further,
during the course of investigation, the appellant got recovered, one
mobile phone, avowed to be the one which was robbed from the
complainant. Noticeably, upon the inspection of the said mobile
phone, same was found to bear IMEI No. 867912055078073,
867912055078065, corresponding with the IMEI No. of the
robbed mobile phone. Congruently, the concerned police
official(s) moved an application for conducting the Test
Identification Parade/TIP proceedings of the appellant, however,
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GOYAL Date: 2026.02.23
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the appellant is stated to have refused to participate in the same
(दौराने तफ्तीश मुलजिम नितिन उर्फ निक्का के TIP Proceeding के बाबत एक
Application माननीय अदालत में पेश किया गया जो मुलजिम नितिन उर्फ निक्का ने
अपनी TIP कराने से मना कर दिया). Correspondingly, the IO is avowed
to have recorded the statements of various witnesses and on
completion of investigation, chargesheet came to be filed before
the concerned court.
2.3. Remarkably, upon such chargesheet being filed, Ld.
Trial Court took cognizance of the offences, specified under the
chargesheet and subsequently, on compliance of the provisions
under Section 207 Cr.P.C. qua the accused as well as upon
arguments on charge, having been addressed by/on behalf of the
accused and State, charges under Section 394/411 IPC, were
directed to be framed against the accused by the Ld. Trial Court
vide order dated 18.11.2022, inter alia under the following
observations;
“…No ground for discharge is made out. Prima
facie offence u/s. 394/411 IPC is made out against the
accused. Charge framed accordingly u/s. 394/411 IPC
against the accused to which he pleaded not guilty and
claimed trial.
Put up for PE on …”
(Emphasis supplied)
2.4. Pertinent to reproduce the charges framed against
the appellant on 18.11.2022, as under;
“…I, ***, MM-04/Central, Delhi do hereby
charge you accused Nitin @ Nikka S/o. Naresh
Kumar, as under:-
That on 22.08.2022 at about 07:15 am in front of
pillar no. 185, Veer Banda Veragi Marg, towards
Shastri Nagar Metro Station, Sarai Rohilla, Delhi
within jurisdiction of PS Sarai Rohilla you
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committed robbery by snatching the mobile phone
make OPPO Silver colour and cash Rs. 700/- from the
pant of the complainant Vicky Singh in order to
commit the said theft you voluntarily caused simple
hurt to the complainant and thereby you committed an
offence punishable under Section 394 IPC and
within my cognizance.
Secondly, on 23.08.2022 at unknown time at
divider of Roshnara Road, you were found in
possession of above said mobile phone which you had
retained/received the same with knowledge or reason
to believe that same was a stolen property and
accordingly, you committed the offence punishable
u/s 411 IPC and within the cognizance of this court.
And, I hereby direct that you be tried by Court
for the said offence…”
(Emphasis supplied)
2.5. Relevantly, during the course of trial, prosecution
examined 09 (nine) witnesses/prosecution witnesses, who deposed
in their respective testimonies, regarding the following;
Prosecution Particulars of Description
witness no. the witness
PW-1 Vicky Singh Complainant/victim, who inter alia
deposed of the incident as well as
identified the accused before the Ld.
Trial Court.
PW-2 Pradeep Singh Father of the complainant. Deposed
that his son/complainant, informed
him of the incident.
PW-3 Vikas Gupta Deposed inter alia regarding finding
the complainant in unconscious state
and of him/PW-3's making a call to
100 number.
PW-4 Ct. Deepak Deposed of him accompanying SI
Vinod to the spot along with SI Vinod
and subsequently proceeding for
Hindu Rao Hospital, where the MLC
of the complainant was obtained.
PW-5 ASI Sanjay Deposed regarding him taking the
Tyagi appellant to Tis Hazari Court for his
TIP proceedings and of appellant's
consequent refusal to participate in
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ABHISHEK GOYAL
GOYAL Date: 2026.02.23
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the same.
PW-6 ASI Birender Deposed of him being posted at PCR
Singh Sugar-33 and on him reaching a spot,
as well as of shifting the complainant
to Hindu Rao Hospital.
PW-7 W/Ct. Rekha The witness inter alia produced and
proved the e-form of PCR vide event
ID No. 5648952, dt. 22.08.2022.
PW-8 SI Vinod Nain Investigating Officer of the present
case who inter alia deposed of him
having conducted the investigation in
the present case, inter alia pertaining
to the arrest of the accused, etc.
PW-9 HC Sandeep Deposed of him having joined the
investigation, inter alia pertaining to
the arrest of the accused, search for
CCTV footage, etc.
2.6. Pertinent to note here that the aforenoted
witnesses/prosecution witnesses further exhibited/proved the
following documents/material objects, during the course of their
respective evidence;
Exhibit Description of Exhibit Proved
no./Material by/Attested by
objects
Ex. PW1/A Statement/complaint of the PW-1/Vicky
complainant/victim. Singh
Ex. PW1/B Site plan of the incident spot PW-1/Vicky
Singh
Ex. P1 Robbed mobile phone of Oppo PW-1/Vicky
make, silver colour (with Singh
damaged speaker).
Ex. PW5/A TIP proceedings records of the PW-5/ASI Sanjay
(Colly.) appellant. Tyagi
Ex. PW6/A PCR form. PW-6/ASI
Birender Singh
Ex. PW7/A E-form of PCR vide event ID No. PW-7/W/Ct.
5648952, dated 22.08.2022 Rekha
Ex. PW8/A Endorsement on rukka. PW-8/SI Vinod
Nain
Ex. PW8/B Arrest memo on the accused. PW-8/SI Vinod
Nain
Ex. PW8/C Personal search memo of the PW-8/SI Vinod
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GOYAL Date:
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accused. Nain
Ex. PW8/D Disclosure statement of the PW-8/SI Vinod
accused. Nain
Ex. PW8/E Pointing out of the spot, at the PW-8/SI Vinod
instance of the accused. Nain
Ex. PW8/F Site plan of the spot, at the PW-8/SI Vinod
instance of the accused. Nain
Ex. PW8/G Seizure memo of the seized PW-8/SI Vinod
mobile phone. Nain
Ex. PW8/H Site plan where the camera was PW-8/SI Vinod
installed. Nain
Ex. P9 CD of the CCTV footage. PW-8/SI Vinod
Nain
Ex. P10 Photographs of the CCTV PW-9/HC
footage in the CD Sandeep
2.7. Relevantly, during the course of trial, the appellant
admitted the genuineness of instant FIR (Ex. P2); certificate under
Section 65B of the Indian Evidence Act, 1872/Evidence Act ( Ex.
P3); DD no. 22A, dated 22.07.2022 (Ex. P4); DD No. 8A, dated
23.08.2022 (Ex. P5); MLC of the complainant/Vicky (Ex. P6); TIP
proceedings (Ex. P7); and CAF of mobile no. 8882057244 ( Ex.
P8), in term of the provisions under Section 294 Cr.P.C., on
08.02.2023. Consequently, the Ld. Trial Court, deleted/dispensed
the corresponding witness, i.e., PW Duty Officer SI Narender; Ms.
Aarushi, Ld. MM; Dr. Ankush; Dr. Md. Irfan; and Nodal Officer
Jio from the list of prosecution witnesses, in view of such
admission. Markedly, subsequently, to the conclusion of
prosecution evidence, statements of the appellant, in terms of the
provisions under Section 313 Cr.P.C. was recorded on 27.07.2023,
wherein the appellant submitted that he did not desire to lead any
evidence/witness in his defence. Consequently, on conclusion of
arguments by/on behalf of the State and the appellant, the Ld. Trial
Court vide impugned judgment and order, while holding the
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ABHISHEK GOYAL
Date:
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appellant guilty of the offence punishable under Sections 394/411
IPC, sentenced him in the manner, as noted hereinabove.
3. Ld. Chief Legal Aid Defence 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. As
per the Ld. Counsel, the Ld. Trial Court, 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 erroneously reaching a finding of appellant’s
guilt. As per the Ld. Counsel, the Ld. Trial Court failed to
appreciate that there were material contradictions in the deposition
of the witnesses which puts a serious doubt on the case of the
prosecution against the appellant. In this regard, it was argued by
the Ld. Counsel that though, the complainant/PW-1/Vicky initially
asserted that he was choked from behind, however, it is only first
time, during his deposition before the Ld. Trial Court that the
complainant proclaimed that at the time of alleged occurrence, two
other persons, were sitting on the bike at the some distance ahead,
contrary to his initial deposition/assertion. Ld. Counsel for the
appellant further submitted that PW-2/Pradeep Singh admitted in
his cross-examination that he was not present at the time of the
alleged incident and that he had not witnessed the same.
Correspondingly, PW-3/Vikas Gupta admitted that he was not a
witness to the said incident. However, despite the same, as per the
Ld. Counsel for the appellant, Ld. Trial Court erroneously placed
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GOYAL
GOYAL Date: 2026.02.23
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reliance on the deposition of the said witnesses, while reaching a
finding of appellant’s guilt.
3.1. Ld. Chief Legal Aid Defence Counsel for the
appellant further submitted that even the formal witnesses,
adduced by the prosecution did not support the case of the
prosecution in as much as, as per the Ld. Counsel, there are
material variations/contradictions in the deposition of the said
witnesses, sufficient enough to cast a significant dent in the
prosecution’s story. Correspondingly, Ld. Counsel for the
appellant further strenuously argued that the complainant lodged a
false case/FIR, while acting in collusion with the concerned police
officials, thereby, converting his personal enmity into a criminal
offence as well as by and falsely implicating the appellant in the
present case. 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.
3.2. Ld. Chief Legal Aid Defence Counsel for the
appellant further submitted 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. Further, as per the Ld.
Counsel, the Ld. Trial Court decided the matter in a mechanical
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GOYAL Date:
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manner and in an utter haste, without appreciating the
evidence/material brough forth on record. 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 possible, one
favouring an accused and other against him, the one favouring an
accused should always be accepted. Simultaneously, it was argued
by the Ld. Counsel, considering the material and cavernous
lacunae in the investigation, the benefit of the same, must
necessarily enure in favour of the appellant. Further, it was
submitted by the Ld. Counsel that the Ld. Trial Court erred/failed
in not appreciating that the prosecution has failed to prove the
presence of the appellant at the spot of the alleged incident.
Correspondingly, it was argued that the concerned police
officials/IO, admittedly, failed to get any CCTV footage vis-à-vis
the presence of the appellant at the spot of the alleged incident. In
this regard, it was further argued by the Ld. Counsel that the
concerned police officials collected the CCTV footages of camera
bearing no. 194103, installed at H. No. F-182, Shastri Nagar, Delhi
and of camera no. 194116, installed at H. No. E-137, Shastri
Nagar, Delhi. Correspondingly, as per Ld. Counsel for the
appellant that though, it is the case of the prosecution that the
appellant was seen in the electronic recording of said cameras that
the appellant was seen talking a stroll on the way, however, neither
of the said recordings show that the appellant, choked the
complainant or robbed him of his mobile phone. In fact, it was
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of the alleged incident, despite the fact that the place was
surrounded/under the surveillance of several CCTV cameras.
3.3. Further, as per the Ld. Counsel even the CDRs of the
complainant or that of the appellant were not obtained by the
concerned IO, to corroborate the version put forth against the
appellant. Congruently, it was asserted that considering the
material variations in the deposition of various witnesses, Ld. Trial
Court also erred in not considering that the police official(s)/IO,
failed to join any independent/public witnesses, creating serious
doubts on the fairness of the investigation. In this regard, it was
further argued by the Ld. Counsel that admittedly the incident took
place at a public place, however, no endeavour was made to join
in any independent person in the present case, proving fatal to the
case put forth against the appellant. Ld. Chief Legal Aid Defence
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 reiterated that even
the investigation in the instant case was not fairly conducted and
the police officials.
3.4. It was further submitted by Ld. Chief Legal Aid
Defence Counsel for the appellant that the Ld. Trial Court
recorded the appellant’s statement under Section 313 Cr.P.C. in a
casual and mechanical manner, in as much as, several facts and
circumstances, were bundled in a single question. Ld. Counsel for
the appellant further argued that even the alleged recovery was notC.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 12 of 52
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proved from the testimony of any independent witnesses. Ergo,
Ld. Counsel reiterated that the impugned judgment was passed by
the Ld. Trial Court in a casual manner, without application of
judicial mind to the testimonies of the witnesses, brought on
record. 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 aside. In support of the
said contentions, reliance was placed upon the decisions in; State
of U.P. v. Anil Singh (1988) Supp SCC 686; Jai Prakash Tiwari v.
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State of M.P., (2024) 15 SCC 424; Zindar Ali SK v. State of West
Bengal, 2009 III AD (SC) 7; Gulam Mahmood A. Malek v. State
of Gujarat, 1980 Supp SCC 684; Puran v. State of Punjab AIR
1953 SC 459; Rammi Rameshwar v. State of Madhva Pradesh
(1999) 8 SCC 649; Sathya Narayanan v. State, (2012) 12 SCC
627; Ashish v. State of NCT of Delhi, Crl. Appeal No. 15/2006,
dated 16.02.2010 (DHC); and Sonu v. State (Govt. of NCT), Crl.
A. No. 633/2020, dated 06.09.2021 (DHC).
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
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. Accordingly, Ld. Addl. PP for the State
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submitted that the present appeal deserves to be dismissed at the
outset, as grossly malicious and devoid of merits.
5. The arguments of Ld. Chief Legal Aid Defence
Counsel for the appellant as well as that of Ld. Addl. PP for the
State have been heard and the records, 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 pertinent to
observe that against the impugned judgment dated 07.08.2023 and
order on sentence dated 14.10.2023, the instant appeal has been
preferred by the appellant only on 27.02.2024, with a delay of 104
(one hundred and four) days. Notably, under the application for
condonation of delay, accompanying the instant appeal, the
reasons for such delay are specified as occasioned due to
appellant’s inability to engage a private counsel due to his
incarceration and poverty. In this regard, Ld. Chief Legal Aid
Defence Counsel fervently argued that the appellant belongs to a
poor strata of society and was suffering incarceration in another
case. As per the Ld. Chief Legal Aid Defence Counsel, the
appellant could approach DLSA only on 12.01.2024, whereupon
necessary formalities were undertaken and subsequently, the
instant appeal came to be drafted and filed by/on behalf of the
appellant before this Court, leading to delay. Correspondingly, as
per Ld. Chief Legal Aid Defence Counsel, the delay in preferring
the present appeal was neither deliberate nor intentional, rather,
attributed to reasons beyond the control of the appellant and it was
further argued that in case the delay in preferring the present
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appeal is not condoned, grave and irreparable loss would accrue to
the appellant, whist, no loss/damage would be caused to the
respondent/State, in case the prayer, as sought for is acceded to.
Needless to mention here, Ld. Addl. PP for the State/respondent
vehemently objected to the said prayer for condonation on the
ground that considering the period of delay in filing the said
appeal, no relaxation/indulgence may be granted in favour of the
appellant, herein.
7. Apropos the present discussion and before delving
into the arguments addressed before this Court on the aspect of
delay, it would be relevant to make a reference to Article 115 of
the Limitation Act, 1963 (hereinafter referred to as the ‘Limitation
Act‘), which provides for a period of 30 (thirty) days from the
order of sentence or order, as the period/prescribed period of
limitation in preferring appeal against any order or sentence, not
being an order of acquittal. Correspondingly, reference is made to
Section 5 the Limitation Act, which provides for condonation of
delay in certain cases on demonstration of ‘sufficient cause’.
Needless to mention here that the words, ‘sufficient cause’ have
been repeated asserted by superior courts to be quite elastic and
necessitating liberal construction, in the interest of justice. In fact,
in this regard, this Court deems it pertinent to make a reference to
the decision of the Hon’ble Supreme Court in Esha Bhattacharjee
v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, wherein the
Hon’ble Court, while meticulously collating the guiding
principles, governing the exercise of court’s power to condone
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delay as well as the meaning of the said words, ‘sufficient cause’,
enunciated as under;
“21. From the aforesaid authorities the principles
that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic,
justice-oriented, non-pedantic approach while dealing
with an application for condonation of delay, for the
courts are not supposed to legalise injustice but are
obliged to remove injustice.
21.2. (ii) The terms “sufficient cause” should be
understood in their proper spirit, philosophy and
purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and
pivotal the technical considerations should not be
given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to
deliberate causation of delay but, gross negligence
on the part of the counsel or litigant is to be taken note
of.
21.5. (v) Lack of bona fides imputable to a party
seeking condonation of delay is a significant and
relevant fact.
21.6. (vi) It is to be kept in mind that adherence
to strict proof should not affect public justice and
cause public mischief because the courts are required
to be vigilant so that in the ultimate eventuate there
is no real failure of justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between
inordinate delay and a delay of short duration or few
days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted.
That apart, the first one warrants strict approach
whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a
party relating to its inaction or negligence are relevant
factors to be taken into consideration. It is so as the
fundamental principle is that the courts are required to
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weigh the scale of balance of justice in respect of both
parties and the said principle cannot be given a total
go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted
or the grounds urged in the application are fanciful,
the courts should be vigilant not to expose the other
side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets
away with fraud, misrepresentation or interpolation
by taking recourse to the technicalities of law of
limitation.
21.12. (xii) The entire gamut of facts are to be
carefully scrutinised and the approach should be
based on the paradigm of judicial discretion which is
founded on objective reasoning and not on individual
perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
22. To the aforesaid principles we may add some
more guidelines taking note of the present day
scenario. They are:
22.1. (a) An application for condonation of delay
should be drafted with careful concern and not in a
haphazard manner harbouring the notion that the
courts are required to condone delay on the bedrock of
the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
22.2. (b) An application for condonation of delay
should not be dealt with in a routine manner on the
base of individual philosophy which is basically
subjective.
22.3. (c) Though no precise formula can be laid
down regard being had to the concept of judicial
discretion, yet a conscious effort for achieving
consistency and collegiality of the adjudicatory
system should be made as that is the ultimate
institutional motto.
22.4. (d) The increasing tendency to perceive
delay as a non-serious matter and, hence,
lackadaisical propensity can be exhibited in a
nonchalant manner requires to be curbed, of course,
within legal parameters…”
(Emphasis supplied)
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8. Unmistakably, the rules of limitation, which are
premised on the principles enshrined in Latin maxim, ‘interest
reipublicae up sit finis litium1’, are designed, not to destroy the
legal rights of parties, rather, to ensure that the parties do not resort
to dilatory tactics. Ergo, considering the objective of the law and
further being wary of the fact that there is no presumption under
law that the delay in approaching courts was deliberate, courts 2
have repetitively professed for adopting a pragmatic, justice-
oriented approach, in variance to, technical interpretation, while
determining ‘sufficient cause’ in a case. Needless to mention that
it is equally a settled law3, “decisive factor for condonation of
delay is not length of delay but sufficiency and satisfactory
explanation.” Apposite in regard the foregoing to make a reference
to the decision of the Hon’ble Supreme Court in State of U.P. v.
Satish Chand Shivhare & Brothers, 2022 SCC Online SC 2151 ,
wherein the Hon’ble Court, while professing for the adoption of a
balanced as well as liberal approach in the determination of a
prayer for limitation/condonation of delay, asserted as under;
“22. When consideration of an appeal on merits
is pitted against the rejection of a meritorious claim on
the technical ground of the bar of limitation, the
Courts lean towards consideration on merits by
adopting a liberal approach towards ‘sufficient
cause’ to condone the delay. The Court considering an
application under Section 5 of the Limitation Act may
also look into the prima facie merits of an appeal.
However, in this case, the Petitioners failed to make
out a strong prima facie case for appeal.
Furthermore, a liberal approach, may adopted when1
It is for the general welfare that a period be put to litigation.
2
J.M. Ramachandra & Sons v. Customs Excise & Gold (Control) Appellate Tribunal, 2001 SCC Online Del 1082.
3
Dineshbhai Rameshbhai Minama v. State of Gujarat, 2018 SCC Online Guj 2610.
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some plausible cause for delay is shown. Liberal
approach does not mean that an appeal should be
allowed even if the cause for delay shown is flimsy.
The Court should not waive limitation for all practical
purposes by condoning inordinate delay caused by a
tardy lackadaisical negligent manner of functioning.”
(Emphasis supplied)
9. Remarkably, reference in respect of the foregoing is
further made to the recent decision of the Hon’ble Supreme
Court in Inder Singh v. State of M.P., 2025 SCC Online SC 600 ,
wherein the Hon’ble Court, noted in an akin context, as under;
“14. There can be no quarrel on the settled
principle of law that delay cannot be condoned
without sufficient cause, but a major aspect which has
to be kept in mind is that, if in a particular case, the
merits have to be examined, it should not be scuttled
merely on the basis of limitation.”
(Emphasis supplied)
10. Consequently, in light of the aforenoted judicial
dictates/principles governing limitation; arguments addressed by
the Ld. Chief Legal Aid Defence Counsel for the appellant and
that of Ld. Addl. PP for the State; as well as upon appreciation of
the facts and circumstances brought forth, this Court is of the
considered opinion that the appellant’s prayer for condonation of
delay in filing the instant appeal, deserves to be allowed. As
aforenoted, the reasons for delay in preferring the instant appeal
are stated to have been attributed to the factum of appellant’s
incarceration and poverty, besides his inability to timely seek legal
aid. Needless to reiterate that the instant appeal has been preferred
by the appellant with the assistance of Ld. Chief Legal Aid
Defence Counsel, besides the reasons for delay in preferring the
present appeal have clearly been enunciated under the application
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preferred by/on behalf of the appellant, under Section 5 of the
Limitation Act, as annexed/appended along with the instant
appeal. Clearly, in light of the foregoing, the reasons for delay in
preferring the present appeal on behalf of the appellant have not
only been properly explained/forthcoming in the instant
application as well as the arguments addressed by the Ld. Chief
Legal Aid Defence Counsel for the appellant, rather, the same, in
the considered opinion of this Court, cannot be treated to be
malicious and/or dilatory in any manner. Needless to mention that
the appellant approached DLSA to assist him in preferring the
present appeal and it was only to the entire process, delay
occasioned. Consequently, in light of the foregoing, this Court
unswervingly observes that the prayer for condonation of delay in
filing the instant appeal deserves to be allowed and the period of
104 (one hundred and four) days delay in preferring the present
appeal merits, to be condoned. Consequently, for the foregoing
reasons, this Court allows the appellant’s prayer for condonation
of delay in preferring the present appeal and the period of delay in
filing/preferring the present appeal is, hereby, condoned.
11. Proceeding further, this Court now 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
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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 be
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)
12. 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)
13. 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
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conclusion of guilt or innocence of an accused. In fact, it is trite
law4 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,
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.
14. Ergo, 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;
“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 of4
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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instant death or of instant hurt, or of instant wrongful
restraint.
When extortion is robbery-Extortion is “robbery”
if the offender, at the time of committing the
extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in
fear of instant death, of instant hurt, or of instant
wrongful restraint to that person, or to some other
person, and, by so putting in fear, induces the person
so put in fear then and there to deliver up the thing
extorted.
Explanation-The offender is said to be present if
he is sufficiently near to put the other person in fear of
instant death, of instant hurt, or of instant wrongful
restraint.
*** *** ***
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)
15. Conspicuously, from a conscientious perusal of the
above, it is outrightly observed that in order to attract culpability
under Section 390 IPC, it is required of the prosecution to inter
alia prove that while commission of theft or extortion, as the case
may be, the offender 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. In this
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regard, this Court deems it pertinent to further 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 remarked, 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
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
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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)
16. 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
hurt5. 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 by6, “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
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
5
Dudhnath v. State of Maharashtra, 2011 SCC Online Bom 1390.
6
Arab SK. v. State of W.B., 2015 SCC OnLine Cal 1435.
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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)
17. 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
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)
18. 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
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maintained simultaneously7 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.”
(Emphasis supplied)
19. 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
7
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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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)
20. 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-1/Vicky Singh,
who inter alia deposed regarding the incident in question as well
as the role of the appellant. In this regard, it is apposite to note that
the complainant/PW-1 inter alia avowed in his deposition that on
22.08.2022, when he was proceeding from his house at Shastri
Nagar, Sarai Rohilla, Delhi, to his factory, it was around 07:00
a.m. The complainant further proclaimed that he was on foot and
at around 07:15 a.m., when he reached at Banda Bairagi Marg,
Shastri Nagar, near Metro Pillar no. 185, one person suddenly
came from behind and caught of his/PW-1’s neck as well as
choked him. As per PW-1, due to said choking, it became difficult
for him/PW-1 to breath. However, as per PW-1, he was somehow,
able to save himself, however, the said person again caught
him/PW-1 from his neck and applied a tighter choke. Thereafter,
as per PW-1, the said person, snatched his/PW-1’s mobile phone
make of Oppo make, silver in colour and cash amount of Rs. 700/-
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(Rupees Seven Hundred only). Congruently, PW-1 asserted that
due to the said tight choke, he got unconscious and fell down.
Further, as per PW-1, somebody made a call at 100 number.
Thereafter, when he regained consciousness, PW-1 asserted that
he was in Hindu Rao Hospital. Needless to mention that PW-1
proved his statement Ex. PW1/A as well as correctly identified the
aforesaid perpetrator as the appellant herein, before the Ld. Trial
Court. It was further proclaimed by the complainant/PW-1 that
after recording his statement, he/PW-1 along with the IO, visited
the place on incident and the IO prepared the site plan (Ex.
PW1/B) at his/PW-1’s instance. Correspondingly, as per PW-1,
after the incident, the accused had fled from the spot, however,
during the investigation, when he/PW-1 visited the police station,
he/PW-1 found the appellant/accused present there. Ergo, as per
PW-1, he informed the concerned police official(s) of appellant’s
identity and his/PW-1’s statement was recoded to the said effect.
Needless to mention that PW-1 also identified the case property ,
i.e., mobile phone of Oppo make, silver colour (with damaged
speaker) before the Ld. Trial Court, as Ex. P1.
21. Relevantly, upon being cross-examined by/on behalf
of the appellant, the complainant/PW-1, asserted as under;
“XXXXXX Sh. ***, Ld. Counsel …
At the time of incident, accused came from back
side on foot. Two other persons were sitting on the
bike at the some distance ahead, however they did not
came at the spot. During scuffle, I had seen the face of
the accused. The face of accused while following me
can be seen in the CCTV footage. In my presence, no
public persons were examined by the police. After the
incident, I became unconscious and 1 do not know
who had made the PCR call. It is wrong to suggest that
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I had not seen the face of accused at the time of
accident, as he came from my back side. It is wrong to
suggest that I identified the accused today in the court
as he was shown to me in the PS by police. It is correct
that the recovery of mobile phone did not took place
in my presence. It is wrong to suggest that the accused
has been falsely implicated in the present case. It is
wrong to suggest that I am deposing falsely.”
(Emphasis supplied)
22. Here, it is further pertinent to refer to the testimony
of PW-3/Vikas Gupta, who deposed before the Ld. Trial Court that
at the relevant point in time, he was a resident of Shastri Nagar,
Delhi and that on 22.08.2022, he had gone to drop his children to
School on main road Bir Banda Bairagi Marg. Correspondingly,
as per PW-3, at around, 07:15 a.m., when he was present near
metro pillar no. 185, he/PW-3 saw one boy in unconscious
condition. Consequently, as per PW-3, he moved towards the said
boy to provide aid. Further, as per PW-3, when the said boy
regained consciousness and informed the number of his/victim’s
father. Thereafter, as per PW-3, he/PW-3 made a call at 100
number, while someone made a call to the victim’s father. It was
further avowed by PW-3 that the victim informed his name as
Vicky. Further, it was proclaimed by PW-3 that after some time,
victim’s father reached at the spot and when police reached at the
spot, he/PW-3 left from there. However, the police had recorded
his/PW-3’s statement. Markedly, during the course of his cross-
examination, PW-3 affirmed he was not an eyewitness to the
incident.
23. Correspondingly, reference is here made to the
testimony of PW-2/Pradeep Singh, father of the
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complainant/victim, who deposed that on 22.08.2022, in the early
morning hours, an incident of robbery took place with his/PW-2’s
son near pillar no. 185, Shastri Nagar, Delhi. After the incident, as
per PW-2, some public persons made a phone call to him/PW-2,
whereupon, he/PW-2 visited the spot and there his/PW-2’s son
was found unconscious. After some time, as per PW-2, police
came at the spot as some public person had made a PCR call,
whereupon, PW-1/victim was taken to Hindu Rao Hospital. After
medical treatment of PW-1, as per PW-2, he/PW-2 along with
PW-1, visited PS. Sarai Rohilla on 23.08.2022 and PW-1’s
statement was recorded and the instant FIR registered. Relevantly,
during the course of his cross-examination by/at the behest of the
appellant, PW-2, proclaimed as under;
“XXXXXX by ***, Ld. Counsel …
It is correct that I was not present at the spot when
incident took place. It is correct that I had not seen any
person committing robbery f alleged mobile phone
and cash from the pocket of pant of my son.”
(Emphasis supplied)
24. Germane for the purpose(s) of the present discourse
to further refer to the deposition of PW-4/Ct. Deepak, who inter
alia avowed before the Ld. Trial Court that on 22.08.2022, he was
posted as Constable at PS. Sarai Rohilla and on the said day, SI
Vinod received DD No. 22A. Thereafter, as per PW-4, he/PW-4
along with SI Vinod went to the spot, i.e., near Metro pillar no.
185, Bir Banda Bairagi Marg, Shastri Nagar, Sarai Rohilla, Delhi,
where it was determined that the injured had been taken to Hindu
Rao Hospital by PCR. Consequently, they went to Hindu Rao
Hospital, where the MLC of the victim was obtained, however, the
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victim was determined, not to be in a position to give the statement
at that time. Thereafter, as per PW-4, he and SI Vinod returned to
the police station and the IO recorded his/PW-4’s statement.
Remarkably, in his cross examination, PW-4 avowed that the said
MLC of the victim was collected at around 08:20 a.m. Here, it is
further pertinent to make reference to the deposition of PW-6/ASI
Birender Singh, who deposed in his testimony that in the
intervening night of 21/22.08.2022, he/PW-6 was posted at PCR
Sugar-33. Correspondingly, as per PW-6, on 22.08.2022 at around
07:40 am, he received one PCR call regarding an incident near
metro pillar no. 185, Veer Banda Bairagi Marg. Thereafter,
he/PW-6 along with the accompanying PCR official went to the
spot, where they met injured, Vicky S/o. Pradeep as well as the
PCR caller, namely, Vikas. As per PW-6, the injured was not able
to speak at that time, whereupon, he/victim was shifted to Hindu
Rao Hospital. Further, as per PW-6, the PCR caller had informed
them that the said injured was lying unconscious. Needless to
mention, PW-6 was not cross examined by/on behalf of the
appellant, despite opportunity.
25. Correspondingly, reference is further made here to
the deposition of PW-8/IO/SI Vinod Nain, who testified that on
21/22.08.2022, he was posted at PS Sarai Rohilla as Sub-Inspector
and was on night emergency duty from 08:00 p.m. to 08:00 am. At
about 07:30 am, as per PW-8, he received a call vide DD no. 22A,
whereupon, he/PW-8 along with Ct. Deepak, reached at pillar
no.185, Veer Banda Bairagi Marg way toward Shastri Nagar
Metro Station, where it was determined that the injured had been
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shifted to Hindu Rao Hospital by PCR official. Consequently, they
reached at Hindu Rao Hospital and found that the injured, namely,
Vicky was under treatment, however, not fit for statement. Ergo,
as per PW-8, he collected the MLC of injured and thereafter
returned to the police station, along with Ct. Deepak. Further, as
per PW-8, in the night of 22/23.08.2022, injured Vicky Singh
came to the police station and gave his statement (Ex. PW1/A),
whereupon the instant FIR was registered. PW-8 further avowed
that he prepared the site plan (Ex. PW1/B), at the instance of the
complainant and relived him/the complainant, thereafter. PW-8
also avowed that he searched of the accused, checked the CCTV
cameras of the spot and nearby area, and found movements of the
suspect at the time of alleged incident in a CCTV camera near
the spot. Further, as per PW-8, he collected footage of that
movement of the suspect in his/PW-8’s mobile. Thereafter, in the
intervening night of 23/24.02.2022, at around 11:00 p.m., the
appellant was arrested (Ex. PW8/B) on the pointing of a secret
informer, whereupon, he/the appellant was personally searched
(Ex. PW8/C) as well as his/appellant’s disclosure statement (Ex.
PW8/D) was recorded. As per PW-8, the said accused also got
recovered the robbed mobile phone of Oppo make from
Roshnara gol chakkar, Ghanta Ghar Road, which was seized vide
memo, Ex. PW8/G. As per PW-8, he also checked the IMEI
number of the said mobile phone, which was determined to match
with the IMEI number of the robbed mobile phone of the
complainant. It was further asserted by PW-8 that the appellant
was kept in muffled face during all proceeded and handed over to
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ASI Sanjay Tyagi for his TIP proceedings, however, the
appellant/accused refused to participate in the same. Pertinently,
PW-8 further proved the PCR form (Ex. PW6/A) and ownership
of the mobile number (Ex. P8), determined to be in victim’s
father’s name. PW-8 further asserted that he collected the CCTV
footage through a CD (Ex. P9) and took out print out of the same
(Ex. P10), wherein the appellant was seen visible. PW-8 also
proved the site plan (Ex. PW8/H), where the camera was installed
and also recorded the statements of witnesses, whereupon the
chargesheet was filed before the concerned court. Needless to
mention that PW-8 inter alia further identified the appellant as the
perpetrator of the aforesaid offence, during the course of his
deposition.
26. Significantly, during the course of his cross-
examination, PW-8/IO/SI Vinod Nain, deposed as under;
“XXXXXX by ***, Ld. LAC for accused.
It is correct that I reached at the spot around 08:00
am. There were around 2-3 persons present near the
place of incident. Complainant was not present at that
time. The person who made 100 number call was
present at the spot but I do not remember his name.
Vol. I had recorded his statement. Site plan of the spot
of recovery was not prepared. Vol. Seizure memo was
prepared. It is wrong to suggest that I am deposing
falsely.”
(Emphasis supplied)
27. 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 the State. However, before proceeding further,
this Court deems it pertinent to deal with the contention of Ld.
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Chief Legal Aid Defence 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,
without any corroboration. However, in this regard, this Court
deems it pertinent to outrightly note that the superior courts have
persistently avowed8 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 on
corroboration. It is for the court to act upon the
testimony of witnesses. It is not the number, the
quantity, but the quality that is material. The time-
honoured principle is that evidence has to be
weighed and not counted. On this principle 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)
8
Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680.
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28. Congruently, this Court unambiguous observes that
mere fact that the prosecution, opted not to produce the other
public persons as prosecution witnesses before the Ld. Trial Court,
asserted to be present at the spot of occurrence, cannot, in the
considered opinion of this Court, be read against the prosecution
in light of the decision of the Hon’ble Supreme Court in Rajesh
Yadav v. State of U.P., (2022) 12 SCC 200 , wherein the Hon’ble
Court in a similar situation, held as under;
“34. A mere non-examination of the witness per se
will not vitiate the case of the prosecution. It depends
upon the quality and not the quantity of the witnesses
and its importance. If the court is satisfied with the
explanation given by the prosecution along with the
adequacy of the materials sufficient enough to
proceed with the trial and convict the accused, there
cannot be any prejudice. Similarly, if the court is of
the view that the evidence is not screened and could
well be produced by the other side in support of its
case, no adverse inference can be drawn. Onus is on
the part of the party who alleges that a witness has not
been produced deliberately to prove it.”
(Emphasis supplied)
29. Pertinently, Ld. Chief Legal Aid Defence 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.
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Anthony, (1985) 1 SCC 505, wherein the Hon’ble Court inter
alia observed as under;
“10. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of truth.
Once that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence
given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief. Minor discrepancies on trivial
matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of
context here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the matter
would not ordinarily permit rejection of the evidence
as a whole. If the court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this benefit
will have to attach due weight to the appreciation of
evidence by the trial court and unless there are reasons
weighty and formidable it would not be proper to
reject the evidence on the ground of minor variations
or infirmities in the matter of trivial details. Even
honest and truthful witnesses may differ in some
details unrelated to the main incident because power
of observation, retention and reproduction differ with
individuals. Cross-examination is an unequal duel
between a rustic and refined lawyer. Having examined
the evidence of this witness, a friend and well-wisher
of the family carefully giving due weight to the
comments made by the learned counsel for the
respondent and the reasons assigned to by the High
Court for rejecting his evidence simultaneously
keeping in view the appreciation of the evidence of
this witness by the trial court, we have no hesitation in
holding that the High Court was in error in rejecting
the testimony of witness Nair whose evidence appears
to us trustworthy and credible.”
(Emphasis supplied)
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30. 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
scrutiny.”
(Emphasis supplied)
31. Evidently, from the conspectus of the above, it is
clearly deduced that minor discrepancies, which do not go into the
root of the matter and shake the basic version of the witnesses,
cannot be permitted to be annexed with any undue weight. In fact,
it is trite law9, the discrepancies which do not shake the basic
version of the prosecution and those which emanate due to normal
errors of perception or observation should not be given importance
and must necessarily be discarded. The rationale behind the same
is quite obvious, as elucidated by the Hon’ble Supreme Court in
State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as
under;
“30. In all criminal cases, normal discrepancies are
bound to occur in the depositions of witnesses due to
normal errors of observation, namely, errors of
memory due to lapse of time or due to mental
disposition such as shock and horror at the time of
occurrence. Where the omissions amount to a
9
Appabhai v. State of Gujarat, 1988 Supp SCC 241
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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 of
the statement made by the witness earlier. The
omissions which amount to contradictions in
material particulars i.e. go to the root of the
case/materially affect the trial or core of the
prosecution’s case, render the testimony of the witness
liable to be discredited…”
(Emphasis supplied)
32. 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, being
wary of the foregoing, when the testimonies of prosecution
witnesses in the instant case are analysed, this Court finds itself
difficult to be convinced with the contention of the Ld. Chief Legal
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Aid Defence 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-1/Vicky Singh that he has
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-1 that he deposed before the
Ld. Trial Court that on 22.08.2022, when he was proceeding from
his house at Shastri Nagar to his factory and at around 07:15 a.m.,
when he reached at Banda Bairagi Marg, Shastri Nagar, near
Metro Pillar no. 185, one person, who was identified by the
complainant as the appellant herein, suddenly came from behind
and caught of his/PW-1’s neck as well as choked him, making it
difficult for him/PW-1 to breath. Correspondingly, as per PW-1,
he was somehow, able to save himself, however, the appellant
again caught him/PW-1 from his neck and applied a tighter choke.
Thereafter, as per PW-1, the said person, snatched his/PW-1’s
mobile phone make of Oppo make, silver in colour and cash
amount of Rs. 700/- (Rupees Seven Hundred only). Congruently,
PW-1 asserted that due to the said tight choke, he got unconscious
and fell down. However, as per PW-1, during the scuffle, he was
able to see the face of the perpetrator, who was identified as the
appellant herein before the Ld. Trial Court. Undoubtedly, PW-2
and PW-3 were not the eyewitnesses of the incident, however, this
Court concurs with the finding of the Ld. Trial Court that the
deposition of PW-1, inter alia to the extent of him getting
unconscious and lying at the spot on the date of occurrence, andC.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 41 of 52
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subsequently, being transferred to Hospital, stands
corroborated/supported with the deposition of PW-2 and PW-3.
Needless to further mention that the factum of appellant’s being
hurt owing to the incident stands proved not only from the
deposition of the said witnesses, rather, further stands affirmed
with the MLC of the victim/PW-1 (Ex. P6), wherein it was inter
alia noted, “…swelling +nt over (R) side of neck…”, nature of the
victim’s injury being subsequently, opined to be ‘simple’.
33. Congruently, the depositions of the foregoing
witnesses, further find corroboration from the testimony of
PW-6/ASI Birender Singh, who asserted that when in response to
the PCR Call, received on 22.08.2022, the PCR team reached at
the incident spot, i.e., near metro pillar no. 185, Veer Banda
Bairagi Marg, they met the victim/PW-1 there, who was unable to
speak and was consequently shifted to Hindu Rao Hospital.
Needless to mention that PW-4/Ct. Deepak and PW-8/IO/SI Vinod
further corroborated that when they reached at the aforesaid spot,
while responding to DD No. 22A, it was determined that the victim
had been shifted to Hindu Rao Hospital where his MLC was
collected, however, the said victim/PW-1 was found to be unable
to tender his statement, at that point in time. Apposite to note that
though, the said witnesses were thoroughly cross examined by/on
behalf of the appellant, however, nothing has emerged under their
cross-examination to discredit the version of incident put forth by
the said witnesses. Here, it is further pertinent to note that not only
did the appellant, refused to participate in the TIP proceedings (Ex.
P7) during the course of investigation on 24.08.2022, however,
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ABHISHEK GOYAL
GOYAL Date: 2026.02.23
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during the course of entire trial proceedings, no explanation
regarding the reasons for such refusal was forthcoming on the part
of the appellant. In fact, neither during the course of cross
examination of the complainant/PW-1 or PW-5/ASI Sanjay Tyagi,
who proved the records of TIP proceedings, was any suggestion
put forth to any of the said witnesses to explain such refusal rather,
no reasonable justifiable reason is even forthcoming under the
statement of the appellant dated 27.07.2023, recorded in terms of
the provisions under Section 313 Cr.P.C. Pertinent here to
reproduce the relevant extracts from the appellant’s statement,
recorded under Section 313 Cr.P.C., as under;
“…Q. 2. It is in evidence against you that PW-1
Vicky Singh deposed against you and narrated the
incident of robbery against him which occurred on
22.08.2022 and he had specifically identified you
during his testimony. He also made a complaint Ex.
PW1/A and stated that site plan was prepared at his
instance Ex. PW1/B. He identified his mobile phone
Ex. P1. What do you have to say?
Ans. It is incorrect.
*** *** ***
Q. 6. It is further in the evidence against you that
PW5 ASI Sanjay Tyagi deposed that on 24.08.2022,
he along with IO took accused Nitin @ Nikka at Tis
Hazari Court in muffled face, there IO moved an
application for conducting TIP proceedings Ex.
PW5/A (Colly.), where the accused refused to
participate in TIP proceedings and accused was
remanded to JC. What do you have to say?
Ans. It is matter of record.
*** *** ***
Q. 11. What have PWs deposed against you?
Ans. Police witnesses and other witnesses have
been won over by the complainant to depose falsely
against me…”
(Emphasis supplied)
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ABHISHEK GOYAL
GOYAL Date:
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34. Ergo, in light of the foregoing, it is reiterated that no
reasonable/justifiable reason was tendered by the appellant for his
refusal to participate in the TIP proceedings, besides neither any
suggestion nor any question was posed to any of the prosecution
witnesses, regarding his/appellant’s identification as the
perpetrator of offence before the Ld. Trial Court. Consequently,
under such circumstances, in the considered opinion of this Court,
appellant’s unexplained refusal10 to join the TIP proceedings, is
another factor, sufficient to raise an adverse inference against the
appellant in the instant case. Correspondingly, this Court further
finds itself in consonance with the finding of the Ld. Trial Court
that PW-8/SI Vinod Nain as well as PW-9/HC Sandeep have
proved the factum of recovery of the robbed mobile phone at the
instance/from the possession of the appellant and that there is
nothing in the cross-examination of the said witnesses, to discredit
their testimonies. Consequently, in light of the foregoing facts and
circumstances as well as on the basis of material brought forth, this
Court is in consensus with the finding of the Ld. Trial Court that
the prosecution has been able to prove the commission of incident
of robbery upon the victim/PW-1 by the appellant, wherein inter
alia the victim’s mobile phone was robbed from him, by causing
hurt to the victim/PW-1. 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
10
Firoz Khan v. State (NCT of Delhi), 2014 SCC OnLine Del 6617.
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ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.23
16:13:48
+0530
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.
In fact, even the explanation(s) tendered by the appellant in his
statement, recorded in terms of Section 313 Cr.P.C. is quite
uninspiring of confidence, and seemingly specious. Needless to
note that except for the general assertion of Ld. Chief Legal Aid
Defence Counsel for the appellant that the questions put forth to
the appellant while recording his statement, under Section 313
Cr.P.C. were lengthy, nothing is forthcoming to demonstrate
actual prejudice or even averment of prejudice to the appellant
owing to such alleged omission. In fact, the law is trite that any
omission on the part of the court to question the accused on any
incriminating circumstance would not ipso facto vitiate the trial,
unless some material prejudice is shown to have been caused to
the accused. Ergo, under such circumstances, absence of
demonstration of any prejudice to the appellant, owing to such
alleged omission, no fault, in the considered opinion of this Court,
can be attributed to his conviction in the instant case. Pertinent at
this stage, to make a reference to the decision of the Hon’ble
Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC
496, wherein the Hon’ble Court in an akin context, remarked as
under;
“16. Undoubtedly, the importance of a statement
under Section 313 CrPC, insofar as the accused is
concerned, can hardly be minimised. The statutory
provision is based on the rules of natural justice for an
accused, who must be made aware of the
C.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 45 of 52Digitally signed
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ABHISHEK GOYAL
GOYAL Date: 2026.02.23
16:13:52 +0530
circumstances being put against him so that he can
give a proper explanation to meet that case. If an
objection as to Section 313 CrPC statement is taken at
the earliest stage, the court can make good the defect
and record additional statement of the accused as that
would be in the interest of all. When objections as to
defective Section 313 CrPC statement is raised in the
appellate court, then difficulty arises for the
prosecution as well as the accused. When the trial
court is required to act in accordance with the
mandatory provisions of Section 313 CrPC, failure on
the part of the trial court to comply with the mandate
of the law, in our view, cannot automatically enure
to the benefit of the accused. Any omission on the part
of the court to question the accused on any
incriminating circumstance would not ipso facto
vitiate the trial, unless some material prejudice is
shown to have been caused to the accused. Insofar as
non-compliance with mandatory provisions of
Section 313 CrPC is concerned it is an error
essentially committed by the learned Sessions Judge.
Since justice suffers in the hands of the court, the same
has to be corrected or rectified in the appeal.
*** *** ***
20. The question whether a trial is vitiated or not
depends upon the degree of the error and the accused
must show that non-compliance with Section 313
CrPC has materially prejudiced him or is likely to
cause prejudice to him. Merely because of defective
questioning under Section 313 CrPC, it cannot be
inferred that any prejudice had been caused to the
accused, even assuming that some incriminating
circumstances in the prosecution case had been left
out. When prejudice to the accused is alleged, it has to
be shown that the accused has suffered some disability
or detriment in relation to the safeguard given to him
under Section 313 CrPC. Such prejudice should also
demonstrate that it has occasioned failure of justice to
the accused. The burden is upon the accused to prove
that prejudice has been caused to him or in the facts
and circumstances of the case, such prejudice may be
implicit and the Court may draw an inference of such
prejudice. The facts of each case have to be examined
to determine whether actually any prejudice has been
caused to the appellant due to omission of some
incriminating circumstances being put to the
accused.”
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ABHISHEK GOYAL
Date:
GOYAL 2026.02.23
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(Emphasis supplied)
35. In so far as the fulfilment/establishment of
ingredients of offence under Section 394 IPC against the appellant
is concerned, 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,
consistently deposed regarding him being choked by the appellant,
leading to him getting unconscious and in the meanwhile of the
appellant’s removing/taking away his mobile phone of oppo make,
silver in colour as well as sum of Rs. 700/- (Rupees Seven
Hundred only). Needless to reiterate that the factum of
complainant’s sustaining hurt stands further corroborated with the
testimonies of PW-2/Pradeep Singh, PW-3/Vikas Gupta,
PW-4/Ct. Deepak, PW-6/ASI Birender Singh and PW-8/SI Vinod
Nain as well as the victim’s MLC (Ex. P6). Clearly, under the said
facts, there is clear evidence that the appellant, caused hurt to the
victim/complainant/PW-1 and in the said process, he took away
movable property, i.e., mobile phone of oppo make, silver in
colour as well as sum of Rs. 700/- (Rupees Seven Hundred only),
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
stand proved beyond reasonable doubt against the appellant
herein.
36. Conclusively, in conspectus of the above and inter
alia keeping in view consistent testimonies of the
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ABHISHEK GOYAL
GOYAL Date: 2026.02.23
16:14:05 +0530
complainant/PW-1/Vicky Singh and other witnesses, i.e.,
PW-2/Pradeep Singh, PW-3/Vikas Gupta, PW-4/Ct. Deepak,
PW-6/ASI Birender Singh and PW-8/SI Vinod Nain as well as
considering the other material on record, including the 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 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 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.
37. 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
same. Nonetheless, the persistent avowals of the superior courts 11
11
‘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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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)
38. 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 further
offences) and the maintenance of public
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ABHISHEK GOYAL
GOYAL Date:
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confidence…”
(Emphasis supplied)
39. 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.
40. Ergo, in light of the foregoing principles, when the
facts and circumstances of the present case are scrupulously
analyzed in the context of the attendant factors such as the manner
of commission of crime; role of the appellant; and appellant’s
previous conduct and involvement/conviction in another case of
similar kind/nature, as per even the appellant’s recent nominal roll
dated 28/29.01.2026, i.e., FIR No. 521/2022, under Section 392
IPC, PS. Sarai Rohilla (convicted and sentence already
undergone); FIR No. 233/2022, under Section 392 IPC, PS. Gulabi
12
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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Bagh (convicted and presently undergoing sentence); and FIR No.
49/2018, under Section 392/411/34 IPC, PS. Sarai Rohilla (on
trial), this Court unswervingly observes that the Ld. Trial Court
has acted justly and reasonably by awarding sentence/simple
imprisonment for a period of 03 (three) years to the appellant.
Needless to further mention that the appellant has failed to
demonstrate any mitigating factor, convincing this Court to grant
any relaxation in his/appellant’s favour. Clearly, under such
circumstances, this Court is of the considered opinion that no
interference in the quantum of sentence awarded by Ld. Trial
Court is warranted by this Court in so far as it pertains to the
substantive sentence for offence under Section 394 IPC, as the
sentence awarded to the appellant by the Ld. Trial Court not only
corresponds with the crime involved, rather, falls in tandem with
the resolute declarations of the superior courts, as hereinunder
noted.
41. Conclusively, in view of the above discussion, the
present appeal is party allowed in so far as while upholding the
conviction of the appellant under Section 394 IPC, his/appellant’s
conviction under Section 411 IPC is set aside under the judgment
dated 07.08.2023 passed by Ld. MM-04, Central, Tis Hazari
Court, Delhi in case bearing; ‘State v. Nitin @ Nikka, Case No.
13876/2022’, arising out of FIR No. 546/2022, PS. Sarai Rohilla,
under Sections 394/411 IPC. However, the order of sentence dated
14.10.2023 of the Ld. Trial Court is upheld only to the extent that
the appellant would undergo the substantive sentence/simple
imprisonment for a period of 03 (three) years for the offence
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GOYAL
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punishable under Section 394 IPC, nonetheless, be entitled to the
benefit of the provisions under Section 428 Cr.P.C./Section 468 of
the Bharatiya Nagarik Suraksha Sanhita, 2023/BNSS. Pertinently,
the appellant is already in custody and undergoing sentence in case
FIR No. 233/2022, under Section 392 IPC, PS. Gulabi Bagh.
Consequently, the appellant is taken into custody, even in the
present case, to serve the remainder period/serving the said
sentence. Needless to further observe at this stage that though this
Court holds highest regard for the decisions relied upon by the Ld.
Chief Legal Aid Defence 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.
42. Trial Court Record be sent back along with a copy of
this order/judgment. 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.
43. Appeal file be consigned to record room after due
compliance. Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2026.02.23
16:14:26
+0530Announced in the open Court (Abhishek Goyal)
on 23.02.2026. ASJ-03, Central District,
Tis Hazari Courts, DelhiC.A. No. 106/2024 Nitin @ Nikka v. State (NCT of Delhi) Page 52 of 52
