Azad V NCT of Delhi

Neutral Citation Number: 2023:DHC:2166
$~1, 2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 03rd February, 2023
Decided on: 23rd March, 2023
+ CRL.A. 593/2022 & CRL.M. 1420/2022
AZAD @ GOURAV ..... APPELLANT
Through: Mr. Vibhor Garg & Mr. Pallav

Awasthi, Advocates.
STATE OF GNCT OF
DELHI & ANOTHER ..... RESPONDENTS
Through: Mr. Hitesh Vali, APP for the State

with ASI Mukesh, PS Subzi Mandi
+ CRL.A. 354/2022 & CRL.M. 924/2022
JITENDER @ JITU ..... APPELLANT
Through: Mr. Vivek Chaudhary,

Mr. Baldrishan Sharma,
Mr. Dheeraj Kumar & Mr. Rishav,
Advocates.
V
THE STATE OF N.C.T. OF DELHI ..... RESPONDENT

with ASI Mukesh, PS Subzi Mandi
CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 1

Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:27.03.2023
14:59:09
+ CRL.A. 367/2022 & CRL.M. 939/2022
BHARAT KUMAR GOSWAMI ..... APPELLANT
Through: Mr. Omkar Sharma,

Advocate.
THE STATE OF DELHI ..... RESPONDENT

with ASI Mukesh, PS Subzi Mandi.
CORAM
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. This common judgment shall decide three Criminal Appeals bearing no.
593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @
Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to
impugn the judgment dated 16.03.2022 (hereinafter referred to as “the
impugned judgment”) passed by the court of Ms. Charu Aggarwal, ASJ
Central District, Tis Hazari Court, Delhi (hereinafter referred to as “the
convicting court”) whereby the appellants along with the accused Kanhaie
Jha were convicted for the offence under section 395 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”) and the appellant Bharat
Kumar Goswami was acquitted for offence under section 397 IPC after
being given the benefit of doubt; and the order on sentence dated 04.06.2022

Digitally Signed
By:JITENDRA
14:59:09
passed by the court of Mr. Dheeraj Mor, ASJ Central District, Tis Hazari
Court, Delhi (hereinafter referred to as “the sentencing court”) whereby the
appellants along with convict Kanhaie Jha @ Kishan were sentenced to
rigorous imprisonment for five years for the offence punishable under
section 395 IPC and were also directed to pay a fine of Rs.25,000/-
individually for the offence punishable under Section 395 IPC and in default
to undergo further simple imprisonment of two months. It was further
directed to pay Rs.90,000/- to the complainant as per section 357 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”)
towards the loss suffered by him and remaining Rs.10,000/- was ordered to
be paid to the State towards the expenses incurred in the prosecution of the
case. Fine was not paid.
2. Section 391 IPC defines dacoity. It reads as under:-
391. Dacoity.—When five or more persons conjointly commit or

attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a robbery,
and persons present and aiding such commission or attempt,
amount to five or more, every person so committing, attempting
or aiding, is said to commit dacoity.
Dacoity is commission of robbery by five or more persons otherwise
there is no difference between dacoity and robbery. The essential ingredients
of Section 391 are:

Digitally Signed
By:JITENDRA
14:59:09
i. Five or more persons must act in association,

ii. Such act must be robbery or attempt to commit robbery,
iii. The five persons must consist of those who themselves commit
or attempt to commit robbery or those who are present and aid
the principal actors in the commission or attempt of such robbery.
The commission of robbery in association by five or more persons is an
essential ingredient of the offence under Section 391 IPC. The gravity of the
offence consists in the terror it causes by the presence of a number of
offenders. Abettors who are present and aiding when the crime is committed
are counted in the number. For the application of Section 391 IPC it is
necessary that all the persons should share the common intention of
committing robbery. The accused must be shown to have committed robbery
or aided in the commission of it and they must be among the body of
persons who extorted money or aided them in extorting money. Section 395
IPC provides punishment for committing dacoity. It reads as under:-
395. Punishment for dacoity.—Whoever commits dacoity shall

be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and
shall also be liable to fine.
3. The relevant facts as mentioned in the impugned judgment are reproduced
as under:-
1. The prosecution, in this case, has filed the chargesheet against

four accused persons alleging commission of offence U/s

Digitally Signed
By:JITENDRA
14:59:09
395/398/464/471 IPC. As per the chargesheet, total five accused

were involved in the alleged incident but one of the accused
Sanjeet during investigation was declared Proclaimed Offender
and has not been arrested till now.
2. The case of the prosecution summed up in the chargesheet is

that the only victim of the incident namely Manish Aggarwal is
doing the business of mattresses in the name of “Mahal
International” at Village Hiran Kudna, Delhi. On 30.06.2017, he
came to Chandni Chowk at “Jayanti Parveen Firm”, at 320,
Kucha Ghansi Ram, Chandni Chowk, Delhi, to collect payment.
On that day, at about 05:30 PM, he after collecting the payment of
Rs.2,64,000/- kept by him in his bag, left Chandni Chowk in a
rickshaw for Tis Hazari Metro Station. At about 05:50 PM, he
reached at Tis Hazari Metro Station and while he was going at
Footover Bridge, two boys followed him on Footover bridge out of
whom one snatched his bag having cash and other documents.
Thereafter, they both ran away from there. He (victim) chased
those boys and saw that two more boys were already standing on
two different bikes on the road and the boys who came on
Footover Bridge sat on those bikes and ran away from the spot.
The victim in his initial statement said that he can identify those
boys if shown to him. On this statement of the victim, on the same
day of incident, the FIR of this case was registered and
investigation was carried out.
On the next day of the incident i.e. 01.07.2017, the complainant

gave his supplementary statement in which he stated that one of
the snatcher was also having pistol with him at the time of
incident which he (victim) could not disclose on 30.06.2017, due to
fear. He further said in his supplementary statement that in the
bag snatched by the wrong doers, one cheque book of Syndicate
Bank of his firm “Morph Industries” having account no.
91711010000032, one cheque book of State Bank of India of
account no. 32015241943, two stamps of “Morph Industry” &
“Mahal International” and certain photocopies of the documents,
were also there. The denomination of Rs.2,64,000/- was given by
him as 132 currency notes of Rs of Rs.2000/- each.

Digitally Signed
By:JITENDRA
14:59:09
3. On 04.07.2017, accused Bharat Goswami, Kanhaie Jha and

Azad @ Gaurav were arrested in FIR No. 104/17 u/s 25/54/59
Arms Act police station Crime Branch, in which they disclosed
their involvement in the incident of this case. On 05.07.2017, DD
No. 48 B was registered regarding the arrest of these accused
persons in FIR No. 104/17 and their disclosure regarding this case.
On 07.07.2017, Sub Inspector, Crime Branch, produced these
accused persons in the court of Ld.!CMM, Central, in muffled
face, where, IO of this case moved an application for interrogation
of these accused persons and after interrogation, all these three
accused were arrested in the present case. IO moved an
application for Test Identification Parade before the court but all
these three accused refused to participate in the Test
Identification Parade on the ground that they have been shown to
various people and their photographs have been clicked. IO took
three days Police Remand of these accused from the concerned
court. Disclosure statements of these accused persons were
recorded by the IO in which they alongwith accused Sanjeet
(Proclaimed Offender) and Jitender @ Jitu disclosed their
involvement in the incident of this case that they all in connivance
with each other committed the offence of this case. As per the
disclosure statements of accused Bharat Kumar, Kanhaie Jah and
Azad @ Gaurav, it was accused Jitender @ Jim who used to
provide information to them about the businessmen who collect
payment from the area of Chandni Chowk and on receipt of the
information, these three accused persons alongwith co-accused
Sanjeet (PO) used to commit theft/robbery/decoity with the
businessmen and in this case also, on receipt of information from
accused Jitender @ Jitu regarding receiving of payment by victim
of the crime, they all four, Bharat Kumar Goswami, Kanhaie Jha,
Azad @ Gaurav and Sanjeet, (PO) committed robbery with him.
As per the discloser statements of the accused persons, accused
Kanhaie Jha and Bharat Kumar Goswami chased the victim at
Footover Bridge. Accused Kanhaie Jha snatched the bag, accused
Bharat Kumar Goswami showed him pistol and accused Azad &
Sanjeet kept waiting for them on the bikes standing on the road.
On the basis of disclosure statements of these accused persons,

Digitally Signed
By:JITENDRA
14:59:09
accused Jitdender @ Jitu was arrested but despite efforts, the

police could not arrest accused Sanjeet, therefore, he was declared
Proclaimed Offender.
4. During investigation, in pursuant to the disclosure statement of

the accused persons, the following recoveries were effected from
them:-
(i) Bharat Kumar Goswami:-
At the time of his arrest on 05.07.2017 in FIR No. 104/2017, PS
Crime Branch, Rs.20, 000/- were recovered from him. As per the
disclosure statement of this accused out of the robbed amount of
Rs.2,64,000/-, Rs.52,000/- came to his part out of which
Rs.20,000/- has been seized in the FIR no. 104/2017, U/s 25/54/59
Arms Act, PS Crime Branch.
(ii) Kanhaie Jha:-

Crime Branch, cash of Rs.1,12,000/- was recovered from him. As
per the disclosure statement of this accused, out of the robbed
amount of Rs.2,64,000/-, Rs.56,000/- came to his part which were
seized in the FIR No. 104/17. On 08.07.2017, accused got
recovered from his house one cheque book of the complainant of
account no. 32015241943;-
(iii) Azad @ Gaurav:-

Crime Branch, cash of Rs.1,89,000/- was recovered from him. As
per his disclosure statement, out of the robbed amount of
Rs.2,64,000/-, Rs.52,000/- came to his part. On 08.07.2017,
accused got recovered from his house two stamps of the
complainant's firm and photocopy of one Aadhar Card of his
wife;
(iv) Jitender @ Jitu:-

On 08.07.2017, accused Jitender @ Jitu was arrested in the
present case from whose possession scooty bearing no. DL-6
SAH-9023, which he used in the crime by chasing the victim
from Chandni Chowk to Metro Station Tis Hazari, cash of

Digitally Signed
By:JITENDRA
14:59:09
Rs.2,90,000/- out of which Rs.52,000/- is shown as case property

of this case AND one cheque book of account no.
91711010000032, were recovered.
5. During the course of investigation, the IO collected the Call

Detail Record (CDR) of all the accused persons and the victim and
on analyzing all the CDRs, it was found that on the day and time
of the incident, all accused were in constant touch with each other
and at the time of incident, their location is also changing with the
location of the victim and they were found to be present at the
spot on the date and time of the incident.
6. After completion of investigation, chargesheet was filed in the

court of concerned Ld. Metropolitan Magistrate (MM), who after
compliance of Section 207 IPC, committed the case to Session.
Vide order dated 19.01.2018, charge u/s 395 IPC against

accused Bharat Kumar Goswami, Kanhaie Jha, Azad @ Gaurav
and Jitender @ Jitu, charge U/s 397 IPC upon accused Bharat
Kumar Goswami and charge U/s 392 IPC upon accused Kanhaie
Jha, Azad @ Gaurav and Jitender @ Jittu was framed. However,
accused Jitender @ Jitu was discharged for the offence U/s
468/471 IPC observing that the material on record is not sufficient
to frame charge under these provisions. Thereafter, matter was
fixed for Prosecution Evidence.
4. The prosecution in support of its case examined 23 witnesses including
the complainant Manish Aggarwal as PW1 who appears to be supporting the
case of prosecution, police officials who remained connected with the
investigation including the Investigating Officer SI Sanjay Gupta and Nodal
Officers from different telecommunication companies to establish locations
of the complainant Manish Aggarwal and the convicts including the

Digitally Signed
By:JITENDRA
14:59:09
appellants and convict Kanhaie Jha.
5. The statements of the appellants and convict Kanhaie Jha were recorded
under section 313 of the Code in which they pleaded false implication and
stated that false recoveries have been planted upon them. They also stated
that they refused to participate in Test Identification Parade (TIP)
proceedings since they were already shown to the complainant and other
public persons. They were taken to the Crime Branch Office during the
investigation where they were shown to many public persons including the
complainant.
6. The convicting court while convicting appellants and convict Kanhaie
Jha, primarily relied on testimonies of the complainant Manish Aggarwal
PW1, Nodal Officers from different telecommunication companies and
recoveries affected from the appellants and convict Kanhaie Jha in
pursuance of their disclosure statements. The relevant portion of impugned
judgment is reproduced as under:-
37. The prosecution in order to prove its case has to establish the
occurrence of incident and identity of the accused persons facing
trial before the court beyond reasonable doubt. In the case in
hand, PW-1 Manish Aggarwal, the only victim and eye witness of
the crime, is the prime witness of the prosecution around whom
the entire case is revolving, who saw the assailants while
committing the robbery with him.

Digitally Signed
By:JITENDRA
14:59:09
38. The testimony of PW-1 on the incident is consistent that on

30.06.2017, at about 04:30 PM, he after collecting the payment of
Rs.2,64,000/-, kept by him in a bag left Chandni Chowk in a
rickshaw for Tis Hazari Metro Station where two boys stalked
him, out of whom one was armed with the pistol and at the point
of pistol those boys snatched his bag containing cash of
Rs.2,64,000/- and certain other documents, thereafter, both the
said boys ran towards the road side where two other boys were
already standing on two different motorcycles and the former sat
on those motorcycles and ran away from the spot. The testimony
of PW-1 regarding collection of money from the area of Chandni
Chowk is supported with the testimony of PW-18 Kamlesh Kumar
from whose shop the said amount was collected by PW-1. Even,
the Call Detail Record (Ex. PW-2/A) proved by the prosecution
from the testimony of PW-2, Sh. Pawan Kumar, Nodal Officer,
Vodafone, the location of PW-1, on the date and time of the
incident was found to be of the spot i.e. Tis Hazari Metro Station.
Nothing has come in the cross examination of PW-1 which may
cast doubt on his testimony on the occurrence and may lead the
case of the prosecution under the shadow of clouds.
39. As discussed hereinabove, the Prosecution has succeeded in

proving occurrence of incident with PW-1. Now, the court has to
evaluate whether the accused persons facing trail before the court
has committed the offence as alleged against them, whether their
identity is proved by the Prosecution beyond reasonable doubt
and whether the material on record is sufficient to record their
conviction for the incident occurred with PW-1.
40. First, I will deal with the identity of the accused persons which
in a criminal case plays vital role to connect the accused with the
incident, when the accused are unknown to the victim. In this
case, the accused persons were unknown to the victim (PW1),
therefore, their identity by PW1 assumes importance. Here, the
incident is of 30.06.2017. On 04.07.2017, accused Bharat Kumar
Goswami, Kanhaie Jha and Azad @ Gaurav were arrested in FIR
No. 104/2017, u/s 25/54/59 Arms Act PS Crime Branch, in which
their disclosure statements were recorded wherein they disclosed

Digitally Signed
By:JITENDRA
14:59:09
their involvement in the present case alongwith accused Jitender

@ Jitu and accused Sanjit (PO). The accused persons facing trial
before the court were arrested in the present case on 07.07.2017.
On the same day, IO moved application for their TIP but they
refused to participate in Test Identification Parade on the pretext
that their photographs have been clicked by the IO and they have
been shown to the victim (PW-1) in the police station. The stand of
accused persons that they refused to participate in the TIP
proceedings since their photographs were clicked and shown to
PW-1 in the police station has no merit since PW-1, during his
evidence, has stated that accused persons were shown to him in
the police station of Crime Branch and Subzi Mandi on 10.07.2017
i.e. after TIP proceedings, which took place on 07.07.2017. Even,
accused persons during their statements recorded U/s 313 Cr.PC
have stated that during their police remand, they were taken to
the Office of PS Crime Branch and were shown to PW-1 further
supports the statement of PW-1 that accused persons were shown
to him post TIP proceedings but not prior to that, therefore, the
refusal of accused persons to participate in TIP proceedings, is
without any reason, hence, the adverse inference can be drawn
against them.
41. Now, comes the testimony of PW-1, on the identification of

accused persons, who in his initial statement Ex. PW1/A said that
he can identify the assailants of the crime. At this stage, the role
attributed to each accused in the crime is relevant to be
mentioned. As per the Prosecution, accused Bharat Kumar
Goswami and Kanhaie Jha went at the Footover Bridge and
looted the bag of PW-1. Accused Bharat Kumar Goswami is
alleged to have shown pistol to PW-1. Accused Azad @ Gaurav
and Sanjit (PO) are alleged to be standing on the road on two
different motorcycles. PW-1 during his evidence correctly
identified accused Bharat Kumar Goswami as one of the robber
who came at the Footover Bridge and snatched his bag. But,
during chief examination PW-1 identified accused Azad @
Gaurav as assailant who was accompanying accused Bharat
Kumar Goswami on the Footover Bridge. However, when he was
cross examined by Ld. APP on the same day, on the identification

Digitally Signed
By:JITENDRA
14:59:09
of accused Kanhaie Jha as one of the robber who came at the

Footover Bridge alongwith accused Bharat Kumar Goswami, he
(PW-1) correctly identified accused Kanhaie Jha as one of the
wrong doer who came to Footover Bridge to rob his bag. The
deposition of PW1 on the identification of accused Bharat Kumar
Goswami is unblemished. There is some discrepancy in the
identification of accused Kanhaie Jha by PW1 and this Court is
conscious of the well settled law that the identification of the
accused first time in the Court by the victim is weak kind of
evidence unless corroborated with other relevant material. In the
case in hand, apart from the identification of accused Bharat
Kumar Goswami and Kanhaie Jha by PW1 in the Court, the Call
detail record(Ex.PW17/E) of mobile bearing No. 9599541224,
registered in the name of accused Kanhaie Jha as per CAF (Ex.
PW17/D) is also duly proved by the prosecution, showing his
presence at the spot on the date and time of the incident and the
recovery of complainant’s cheque book from his possession in
pursuance to his disclosure statement is strong corroborative
evidence against accused Kanhaie Jha. The minor discrepancy in
the identification of accused Kanhaie Jha by PW-1in the Court
becomes inconsequential in view of the other supporting evidence
in favour of prosecution and against accused Kanhaie Jha. The
accused Kanhaie Jha was unknown to PW1 whose evidence was
recorded in the Court after 10 months of the incident, therefore,
the Court cannot rule out the possibility that due to lapse of time
PW-1 might have got confused in the identity of accused Kanhaie
Jha with accused Azad but when Ld. APP specifically pointed out
towards accused Kanhaie Jha, he (PW-1) recollected that it was
Kanhaie Jha who was accompanying accused Bharat Kumar
Goswami at the time of snatching his bag. The truthfulness and
trustworthiness of PW-1 can be gathered from his further
deposition that when Ld. APP specifically pointed out towards
accused Azad and Jitender for their identification by PW1, he
categorically denied to identify them saying that he did not see
these two accused persons on the day of incident. No previous
enmity between Bharat Kumar Goswami & Kanhaie Jha and
victim (PW1) has come on record due to which the later would
have falsely implicate them. From the deposition of PW-1, the

Digitally Signed
By:JITENDRA
14:59:09
prosecution has duly proved the identity of accused Bharat

Kumar Goswami and Kanhaie Jha that on the day of incident,
they went on the Footover Bridge of Tis Hazari Metro Station and
robbed the bag of PW- 1.
42. Next, is the identity of accused Azad @ Gaurav and Jitender

@ Jitu. So far as, the accused Azad is concerned, as per
Prosecution he was standing on the motorcycle on the road. He
was identified by PW-1 in the court as one of the wrong doer who
came over the Footover Bridge but when Ld. APP pointed out
towards accused Kanhaie Jha, PW-1 identified accused Kanhaie
Jha as a robber who came over the Footover Bridge. The
identification of accused Azad by PW-1 was not required in view
of the role attributed to him in the incident as since beginning it is
the case of the prosecution that PW-1 actually saw only two
accused who came over Footover Bridge and only observed that
those two robbers sat on the motorcycle of other two persons
standing on the road and out of those two persons standing on the
road, one is alleged to be accused Azad. The case against him has
to be proved by the prosecution from the circumstances and other
connecting evidence on record against him. As per the Customer
application form (Ex. PW-17/A) of mobile bearing no. 9958081077
is in the name of accused Azad @ Gaurav and as the CDR (Ex.
PW-17/B) of this number, on the date and time of the incident, he
was present at the spot. In pursuant to disclosure statement of
accused Azad, apart from the cash of Rs.52,000/- of this case, two
stamps of complainant's firm and photocopy of one Aadhar Card
of complainant's wife were also recovered from his possession
which further corroborates the case of the prosecution that
accused Azad was involved in the incident happened with PW-1
and assisted other co-accused persons in committing the robbery.
43. Insofar as, the identity of accus4ed Jitender @ Jitu. Even, his
identification by PW-1 was not required since as per own case of
the prosecution, he was not seen by PW-1. The role assigned to
him in the crime is that he used to provide information to the
accused persons about the businessmen who used to collect
payment from the area of Chandi Chowk. He is alleged that on the

Digitally Signed
By:JITENDRA
14:59:09
day of incident, he was chasing PW-1 from Chandni Chowk to Tis

Hazari Metro Station. The prosecution has to prove the case
against him from the circumstances and the other evidence on
record. As per the Prosecution, one sim bearing no. 8510967074,
was recovered from the possession of this accused during his
personal search which was found in the name of one Swati Gupta.
During investigation, police recorded the statement of father of
Swati Gupta who said that the said sim bearing no. 8510967074,
was never in the name of his daughter and the photographs on the
Customer Application Form (CAF) is also not of his daughter.
The prosecution has established that the sim of the above mobile
number was recovered from the possession of accused Jitender @
Jitu and he has failed to explain as to how the said sim came in his
possession and the CDR placed on record by the prosecution is
inconsonance with the case of prosecution that the user of said sim
was chasing PW-1 from Chandni Chowk to Tis Hazari Metro
Station and was in continuously in touch with other accused
persons and on the date and time of incident he was present at the
spot. In pursuance to the disclosure statement of this case, even
the recovery of case property i.e. cheque book and cash of PW-1
was also effected from this accused.
44. The other connecting evidence against the accused persons are
the recoveries effected from them in pursuant to their disclosure
statements. As already noted in para no. 4 of this order, that part
of robbed cash amount, both cheque books, two stamps of
complainant’s firm and one photocopy of Aadhar Card of his wife
were recovered from the possession of the accused persons. The
accused have failed to explain as to how the stamps, cheque books
and photocopy of Aadhar Card of complainant’s wife came into
their possession which are his (PW-1) personal/private property
over which no one else can have access. Not even a suggestion has
been put to the witnesses to confront the recoveries effected from
the accused persons. The cash recovered from the accused persons
have already been released on superdari in favour of PW1 vide
order dated 17.07.2017 passed by Ld.MM. The argument of
defence counsels that no independent witness has joined the
proceedings is without any force as these days no public person

Digitally Signed
By:JITENDRA
14:59:09
wants to join the police or court proceedings may be due to

apprehension that they themselves might not get entangled in any
criminal case in future.
45. The Call detail records of accused Kanhaie Jha, Jitender @

Jitu and Azad @ Gaurav proved by the prosecution are also
evident to hold that on the day and time of the incident, accused
persons were present near or at the spot arid were continuously in
touch with each other.
46. This court also does not agree with the argument of
Ld.Defence Counsel that the essential ingredient of Section 395
IPC are missing in the case in hand since only four accused have
faced trial and no fifth accused has ever been brought by the
prosecution before the court. As per the case of the prosecution as
deposed by PW-1, four persons were present at the spot at the
time his bag was robbed. Out of those four persons, two had come
over the Footover Bridge, two were standing on motorcycles on
the road with whom the earlier two ran away and the role of fifth
accused Jitender @ Jitu surfaced during the investigation that he
used to provide information of the businessman who collect
payment from the area of Chandni Chowk to other four accused
persons. The prosecution has duly proved the involvement of five
accused in the crime. It is settled law that in a case of decoity if
one or some of the accused are proclaimed offender or have been
acquitted the benefit would not go to the other accused persons.
The prosecution in order to prove its case for the offence of
decoity is required only to prove that five or more persons were
involved in the robbery. In the case in hand, there is
overwhelming evidence to record that five accused persons went
at the spot out of whom accused Bharat Kumar Goswami and
Kanhaie Jha robbed the bag of PW-1, accused Azad @ Gaurav
and Sanjeet (P.O.) assisted the first two accused in committing
robbery and similarly the fifth accused Jitender @ Jitu was also
present at the spot and assisted other four accused persons in
committing robbery. Non-arrest of accused Sanjit cannot benefit
the other four accused facing trial before the court. In view of the

Digitally Signed
By:JITENDRA
14:59:09
aforesaid discussion, the prosecution has duly proved its case

against the four accused facing trial before the court U/s 395 IPC.
47. Accused Bharat Kumar Goswami is also charged for the

offence U/s 397 IPC on the allegations that he at the time of
robbery shown pistol to PW-1. During examination in chief, PW-1
correctly identified accused Bharat Kumar Goswami who shown
him the pistol. During cross examination of this PW conducted by
Ld. APP, he said that accused Kanhaie Jha was wearing helmet at
the time of incident which was without glass. During cross
examination of PW-1conducted by counsel of accused Bharat
Kumar Goswami, he said that the person who aimed gun on him
was wearing a helmet. The statement of PW-1 that at the time of
incident, accused Kanhaie Jha was wearing the helmet and he
shown him the pistol entitles the accused Bharat Kumar Goswami
for benefit of doubt for the offence U/s 397 IPC.
48. In view of aforesaid discussion, the material on record is

sufficient to record conviction of all 4 accused persons namely
Bharat Kumar Goswami, Kanhaie Jha, Azad @ Gaurav and
Jitender @ Jeetu for the offence U/s 395 IPC, accordingly, they
are convicted under the said provision. However, accused Bharat
Kumar Goswami is given benefit of doubt for the offence U/s 397
IPC. Accordingly, accused Bharat Kumar Goswami is acquitted
for the offence U/s 397 IPC. Conviction of the accused persons
have been recorded for the offence u/s 395 IPC, therefore, there is
no need to record their separate conviction for the offence u/s 392
IPC charged against them.
7. The appellants, being aggrieved by the impugned judgment and order on
sentence dated 04.06.2022 passed by the sentencing court, filed the present
appeals. The appellant Azad @ Gaurav challenged the impugned judgment
primarily on the grounds that the impugned judgment is wrong, erroneous
and was passed without application of judicial mind and in violation of

Digitally Signed
By:JITENDRA
14:59:09
settled principles of law. The convicting court has erred in holding that the
prosecution has successfully established the guilt for the offence punishable
under section 395 IPC. The impugned judgment is based on assumptions,
presumptions, conjectures and surmises. The appellant has been falsely
implicated in the present case. The supplementary statement dated
01.07.2017 made by the complainant was an afterthought. The alleged
recoveries at instance of the appellant in pursuance of disclosure statement
cast doubt on the investigation and prosecution case as the alleged
recoveries were planted on the appellant. The complainant wrongly
identified the appellant who came on the foot-over bridge and snatched the
bag from him, whereas as per the prosecution the appellant was waiting
under the foot-over bridge on bike. The convicting court did not record the
statement under section 313 of the Code properly which violates the
fundamental principles of natural justice. The convicting court has
committed a grave error in drawing adverse inference against the appellant
due to refusal to participate in TIP as the appellant was shown to public
persons while in police custody in FIR bearing no. 104/2017. The trial court
has committed a grave error in relying on CDRs.
7.1 The appellant Jitender @ Jitu challenged the impugned judgment

Digitally Signed
By:JITENDRA
14:59:09
primarily on the grounds that the impugned judgment is based on
conjectures and surmises and is as such not sustainable under law. The
prosecution has failed to prove its case beyond reasonable doubt. The
complainant Manish Aggarwal PW1 got registered an unnamed FIR and in
his testimony, the complainant didn’t identify the appellant as one of the
accused in the present case. The appellant was arrested on basis of
disclosure statements made by the other co-accused. The prosecution has
failed to prove guilt of the appellant beyond reasonable doubt.
7.2 The appellant Bharat Kumar Goswami challenged the impugned
judgment on the grounds that the convicting court committed a grave error
on law and facts while passing the impugned judgment. There is no suitable
evidence that PW18 delivered a parcel containing Rs. 2,64,000/- in 132
currency notes in denomination of Rs. 2,000/-. The testimony of the
complainant Manish Aggarwal PW1 was not consistent qua the involvement
of the appellant. The complainant has not deposed that the appellant had
snatched his bag and as such no offence is made out against the appellant.
The complainant Manish Aggarwal has improved his statement by adding
that the appellant was having pistol with him and said pistol/gun was never
recovered by the Investigating Officer. The Investigating Officer did not

Digitally Signed
By:JITENDRA
14:59:09
collect the CCTV footage from cameras installed near place of occurrence
which happened to be a crowded place and no public person was included in
the investigation. The appellant was not in continuous touch with other co-
accused as reflected from the CDR and as such the appellant was not
involved in the crime. The convicting court committed a grave error while
observing that the stand of accused that they refused to participate in the TIP
proceeding since their photographs were clicked and shown to the
complainant Manish Aggarwal PWl in the police station has no merits. The
convicting Court has failed to appreciate that there was no credible evidence
against the appellant to connect him with the alleged offence and the
appellant, in statement under section 313 of the Code, has denied the
allegations leveled by the prosecution. The impugned judgment was passed
in a mechanical manner by ignoring relevant material enough for the
acquittal of the appellant. The impugned judgment is based on conjectures
and surmises and passed without application of the judicial mind in a proper
manner. The appellants also raised other grounds to challenge the impugned
judgment and prayed that impugned judgment and order on sentence dated
04.06.2022 be set aside.
8. In the adversarial system, every person accused of an offence is always

Digitally Signed
By:JITENDRA
14:59:09
presumed to be innocent so that burden lies upon the prosecution to establish
guilt of the accused beyond reasonable doubt and all ingredients of the
offence with which the accused is charged. The accused enjoys the right to
silence. The doubts to be raised by the accused must be of a reasonable man
and must be actual and substantial doubts as to the guilt of accused arising
from the evidence or lack of it, as opposed to mere apprehensions. The
Supreme Court in Shivani V State of Maharashtra, AIR 1973 SC 2662
emphasized that our jurisprudential enthusiasm for presumed innocent must
be moderated by the pragmatic need to make criminal justice potent and
realistic. The Supreme Court in State of U.P V Shankar, AIR 1981 SC 897
observed that it is the function of the court to separate the grain from the
chaff and accept what appears to be true and reject the rest. In Krishna
Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is a
sharp decline in ethical values in public life and in present days when crime
is looming large and humanity is suffering and society is so much affected,
thereby duties and responsibilities of the courts have become much more. It
was observed as under:-
Now the maxim “let hundred guilty persons be acquitted, but not
a single innocent be convicted” is, in practice changing world over
and courts have been compelled to accept that “society suffers by
wrong convictions and it equally suffers by wrong acquittals”.

Digitally Signed
By:JITENDRA
14:59:09
8.1 The Supreme Court in Sujit Biswas V State of Assam, (2013) 12 SCC
406 held that suspicion, however grave, cannot take the place of proof and
the prosecution cannot afford to rest its case in the realm of "may be" true
but has to upgrade it in the domain of "must be" true in order to steer clear
of any possible surmise or conjecture. In Jose V Sub Inspector of Police,
Koyilandy and others, (2016) 10 SCC 519, the Supreme Court held as
under:-
In a criminal prosecution, the court has a duty to ensure that mere

conjectures or suspicion do not take the place of legal proof and in
a situation where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent miscarriage of
justice, benefit of doubt is to be extended to the accused. Such a
doubt essentially has to be reasonable and not imaginary, fanciful,
intangible or nonexistent but as entertainable by an impartial
prudent and analytical mind, judged on the touch stone of reason
and common sense. It is also a primary postulation in criminal
jurisprudence that if two views are possible on the evidence
available, one pointing to the guilt of the accused and the other to
his innocence, the one favourable to the accused ought to be
adopted.
9. The perusal of the impugned judgment reflects that the convicting court
primarily relied on the testimony of the complainant Manish Aggarwal PW1
who supported case of the prosecution. It is the salutary duty of every
witness who has the knowledge of the commission of the crime, to assist the

Digitally Signed
By:JITENDRA
14:59:09
State in giving evidence. The role of a witness is paramount in the Criminal
Justice System of any country. A witness, by giving evidence relating to the
commission of an offence, performs a sacred duty of assisting the court to
discover the truth. The witnesses play an integral role in the dispensation of
justice.
9.1 The complainant Manish Aggarwal PW1 mainly deposed that he on 30th
June, 2017 collected payment of Rs.2,64,000/- from Jayanti Praveen situated
at Kucha Ghasi, Chandni Chowk against supply of mattresses which was
kept in a handbag and said fact is supported by the testimony of PW18
Kamlesh Kumar. The complainant Manish Aggarwal PW1 thereafter
proceeded towards Tis Hazari metro station in a battery rickshaw and at
about 6 pm, he alighted from battery rickshaw near the foot over bridge of
Tis Hazari Metro Station and started climbing the foot over bridge.
Suddenly two boys came and out of them one pointed a katta (small pistol)
and snatched the bag which was containing 132 currency notes in
denomination of Rs.2,000/- amounting to Rs.2,64,000/-, cheque book issued
in favour of Mehal International, cheque book issued in favour of the
complainant Manish Aggarwal PW1 by State Bank of India, Rohini and two
rubber stamps in name of Mehal International and Morph Industries. The

Digitally Signed
By:JITENDRA
14:59:09
complainant Manish Aggarwal PW1 further deposed that those two boys ran
away downstairs and sat on two separate motor bikes which were already in
starting position and two other boys were already sitting on those two motor
bikes. The complainant Manish Aggarwal PW1 chased those four boys and
saw them at the spot. The police came at spot and statement Ex. PW1/A of
the complainant Manish Aggarwal PW1 was recorded. The complainant
Manish Aggarwal PW1 further deposed that subsequently Rs.1,80,000/-
were recovered from the offenders. The complainant Manish Aggarwal PW1
identified stamps and cheque books as Ex. PW1/B to Ex. PW1/D. The
complainant Manish Aggarwal PW1 identified the appellant Bharat Kumar
Goswami who pointed a gun at him and appellant Azad @ Gaurav who was
accompanied the appellant Bharat Kumar Goswami but he could not identify
who snatched the bag from him.
9.2 The complainant Manish Aggarwal PW1 during cross examination
conducted by the Additional Public Prosecutor identified convict Kanhaie
Jha who snatched the bag from him and was standing along with the
appellant Bharat Kumar Goswami. The complainant Manish Aggarwal PW1
could not identify the appellant Azad @ Gaurav who was sitting on a motor
bike which was standing downstairs of foot over bridge and was in starting

Digitally Signed
By:JITENDRA
14:59:09
position and on pillion seat of which the appellant Bharat Kumar Goswami
sat after the incident. The complainant Manish Aggarwal PW1 also could
not identify the appellant Jitender @ Jitu as the person who chased him after
collecting money from Kucha Ghansi Ram.
9.3 It is worth mentioning here that the complainant Manish Aggarwal PW1
in statement Ex. PW1/A, did not mention about pointing of gun at him by
one of the offenders and that the bag was containing two stamps and two
cheque books. The complainant Manish Aggarwal PW1, in supplementary
statement recorded on 01.07.2017, mentioned that one of the offenders out
of two was having a katta (pistol) and the bag was so containing cheque
book issued by Syndicate Bank in favour of his firm Morph Industries
having account no. 91711010000032, cheque book issued by State Bank of
India having account no. 32015241943, two stamps of “Morph Industry” &
“Mehal International” and certain photocopies of the documents and 132
currency notes in the denomination of Rs.2,000/- amounting to
Rs.2,64,000/-.
10. The prosecution to prove the arrest of the appellants Azad @ Gaurav
and Bharat Kumar Goswami and the convict Kanhaie Jha on 04.07.2017 in
FIR bearing no. 104/2017 under section 25 of the Arms Act, 1959 by Crime

Digitally Signed
By:JITENDRA
14:59:09
Branch and recoveries affected from them in pursuance of their disclosure
statements examined PW8 HC Neeraj, PW9 HC Ajay, PW10 ASI Jaswinder
and PW12 ASI Parmod who deposed that on 04.07.2017 they arrested the
appellants Azad @ Gaurav and Bharat Kumar Goswami and convict
Kanhaie Jha and their disclosure statements Ex. PW8/A, Ex. PW9/A and Ex.
PW10/A respectively were recorded. PW12 ASI Parmod deposed that Rs.
20,000/- were recovered from the appellant Bharat Kumar Goswami, Rs.
1,89,000/- were recovered from the appellant Azad @ Gaurav and Rs.
1,12,000/- were recovered from the convict Kanhaie Jha. The Investigating
Officer SI Sanjay Kumar Gupta PW23 arrested appellants Azad @ Gaurav
and Bharat Kumar Goswami and convict Kanhaie Jha in the present case
vide arrest memos Ex. PW20/ A, Ex. PW20/G and Ex. PW20/D respectively
and also recorded their disclosure statements. SI Sanjay Kumar Gupta PW23
at their instance, also recovered and seized scooty bearing registration no.
DL 6SAH 9023 stated to be used by the appellant Jitender @ Jitu while
chasing the complainant Manish Aggarwal PW1 and also arrested the
appellant Jitender @ Jitu vide arrest memo Ex. PW14/A. SI Sanjay Kumar
Gupta PW23 also recorded disclosure statement Ex. PW14/C of the
appellant Jitender @ Jitu and in pursuance of which recovered Rs.

Digitally Signed
By:JITENDRA
14:59:09
2,90,000/- which were seized vide seizure memo Ex. PW11/A. During
further investigation, SI Sanjay Kumar Gupta PW23 also recovered cheque
book Ex. PW1/D issued by Syndicate Bank at the instance of the appellant
Jitender @ Jitu which was seized vide seizure memo Ex. PW20/K, cheque
book Ex.PW1/C at the instance of convict Kanhaie Jha which was seized
vide seizure memo Ex. PW20/L, two stamps Ex. PW1/D at the instance of
the appellant Azad @ Gaurav which were seized vide seizure memo Ex.
PW20/M.
10.1 It is worth mentioning that as per prosecution, the robbed amount was
Rs.2,64,000/-. The appellant Bharat Kumar Goswami received Rs.52,000/-
and out of which Rs.20,000/- has been recovered and seized in the FIR no.
104/2017. The convict Kanhaie Jha got recovered Rs.1,12,000/- during
investigation of FIR bearing no. 104/2017 which included Rs.56,000/-
which came to his share out of the robbed amount and on 08.07.2017 also
got recovered one cheque book of account no. 32015241943 belonged to the
complainant Manish Aggarwal PW1. The appellant Azad @ Gaurav got
recovered Rs. 1,89,000/- during the investigation of FIR 104/2017 which
included Rs. 52,000/- out of the robbed amount and on 08.07.2017 also got
recovered two stamps of the complainant Manish Aggarwal PW1 and

Digitally Signed
By:JITENDRA
14:59:09
photocopy of one Aadhar Card of his wife. The appellant Jitender @ Jitu on
08.07.2017 got recovered Rs.2,90,000/- which included Rs.52,000/- out of
robbed amount and one cheque book of account no. 91711010000032.
11. The prosecution to establish location of the complainant Manish
Aggarwal PW1 and offenders examined different Nodal Officers from
various telecommunication companies.
11.1 The prosecution to prove location of the complainant Manish Aggarwal
PW1 near place of occurrence examined PW2 Pawan Kumar, Nodal Officer,
Vodafone and PW7 Rajeev Ranjan, Nodal Officer, Reliance Jio. PW2
Pawan Kumar, Nodal Officer, Vodafone proved the CDR of SIM no
8860449949 for period with effect from 01.6.2017 to 02.07.2017 as Ex.
PW2/C and said mobile number as per CAF Ex. PW 2/A was in the name of
the complainant Manish Aggarwal PW1. PW7 Rajeev Ranjan, Nodal
Officer, Tata Tele Services proved CDR of SIM no 9212649949 for period
with effect from 01.6.2017 to 02.07.2017 as Ex. PW7/B and location chart
as Ex. PW7/C and said SIM as per CAF EX. PW3/A was in the name of
the complainant Manish Aggarwal PW1.
11.2 PW3 Yatin Chawla, Nodal Officer, Reliance Jio proved CDR of SIM
no 7678626077 for the period with effect from 01.6.2017 to 02.07.2017 as

Digitally Signed
By:JITENDRA
14:59:09
Ex. PW3/B which as per CAF Ex. PW3/A was in the name of Suraj
Kumar. As per prosecution, convict Kanhaie Jha was using SIM no
7678626077.
11.2.1 PW16 Pawan Kumar, Alternate Nodal Officer, Vodafone Idea Ltd.
had brought record of SIM No. 8506066815 and 851096707. PW16 proved
the CDR of SIM no 8510967074 as Ex.PW16/B which as per CAF Ex.
PW16/A was in the name of Swati Gupta. PW16 also proved CDR of SIM
no 8506066815 as Ex. PW16/C. As per prosecution, the appellant Jitender
@ Jitu got issued said SIM no. on the basis of forged documents and was
using said SIM no.
11.2.2 PW-17 Rajeev Vashisht, Nodal Officer, Bharti Airtel has brought the
record of SIM no 9958081077, 9599541224 and 99111082067. SIM no
9958081077 as per CAF Ex. PW17/A was in the name of Gaurav and
proved the CDR of SIM no 9958081077 as Ex. PW17/B. SIM no
9599541224 as per CAF Ex. PW17/D was in the name of Kanhaie Jha and
proved the CDR of SIM no.9599541224 as Ex. PW17/E. SIM no
99111082067 as per CAF Ex. PW17/F was in the name of Sandeep and
proved CDR of the SIM no 99111082067 as Ex. PW17/G.

Digitally Signed
By:JITENDRA
14:59:09
12. The prosecution from the quality and quantity of evidence led by it
established following facts:-
i. The complainant Manish Aggarwal PW1 on 30th June,

2017collected payment of Rs.2,64,000/- from Kucha Ghasi,
Chandni Chowk against supply of mattress and kept said amount
in a handbag.
ii. The complainant Manish Aggarwal PW1 proceeded towards
Tis Hazari metro station and at about 6 pm alighted from battery
rickshaw near the foot over bridge of Tis Hazari Metro Station
and started climbing the foot over bridge.
iii. The appellant Bharat Kumar Goswami came at foot over
bridge and pointed a small gun on the complainant Manish
Aggarwal PWI. The appellant Azad@ Gaurav was accompanying
the appellant Bharat Kumar Goswami. The complainant Manish
Aggarwal PW1 in cross examination conducted by Additional
Public Prosecutor identified the convict Kanhaie Jha who
snatched bag from him and was standing along with the appellant
Bharat Kumar Goswami.
iv. The boys ran away downstairs and sat on two separate motor
bikes which were already started and two other boys were already
sitting on those two motor bikes.
v. PW5 ASI Anand Pal recorded statement Ex. PW1/A of the
complainant Manish Aggarwal PW1.
vi. The appellants Azad @ Gaurav and Bharat Kumar Goswami
and convict Kanhaie Jha were arrested on 04.07.2017 in FIR
bearing no 104/2017 under section 25 of the Arms Act, 1959 by
Crime Branch.
vii. During investigation of FIR bearing no 104/2017, out of
robbed amount of Rs. 2,64,000/-, Rs. 20,000/- were recovered
from the appellant Bharat Kumar Goswami, Rs. 52,000/- were
recovered from the appellant Azad @ Gaurav and Rs. 56,000/-
were recovered from the convict Kanhaie Jha
viii. The appellants Azad @ Gaurav, Bharat Kumar Goswami and
convict Kanhaie Jha were arrested were formally on 07.07.2017 in
present FIR by the investigating officer SI Sanjay Kumar Gupta
PW23 and during investigation their respective statements Ex.

Digitally Signed
By:JITENDRA
14:59:09
PW20/C, Ex. PW20/J and Ex. PW20/F were also recorded. The
appellant Jitender @ Jeetu was also arrested and his disclosure
statement Ex. PW14/C was recorded and during investigation he
got recovered Rs. 2,90,000/- including Rs. 52,000/- out of robbed
amount.
ix. The appellant Jitender @ Jeetu during further investigation
also got recovered one cheque book of Syndicate Bank Ex. PW1/D
which was seized vide seizure memo Ex. PW20/K. The convict
Kanhaie Jha also got recovered cheque book Ex. PW1/C which
was seized vide seizure memo Ex. PW20/L. The appellant Azad @
Gaurav also got recovered two seals Ex.PW1/B which were seized
vide seizure memo Ex.PW20/M.
x. As per CDR, the location of the appellants and the convict
Kanhaie Jha were traced near place of occurrence.
13. The perusal of the impugned judgment reflects that the convicting court
to establish presence of the complainant Manish Aggarwal PW1 at the place
of occurrence and incident relied on testimonies of the complainant Manish
Aggarwal PW1 and PW2 Pawan Kumar, Nodal Officer, Vodafone. The
combined testimonies of the complainant Manish Aggarwal and PW2 Pawan
Kumar clearly proved the presence of the complainant Manish Aggarwal
PW1 at the place of occurrence at the time of the incident.
13.1 The appellants Azad @ Gaurav and Bharat Kumar Goswami and the
convict Kanhaie Jha were arrested in the present case on 07.07.2017 and
they had refused to participate in TIP on the grounds that they have been
shown to the complainant Manish Aggarwal PW1 in police station and their
photographs were also clicked. The convicting court observed that as per the

Digitally Signed
By:JITENDRA
14:59:09
testimony of the complainant Manish Aggarwal PW1, the appellants Azad
@ Gaurav and Bharat Kumar Goswami and the convict Kanhaie Jha were
shown to him in police station on 10.07.2017 i.e. post TIP proceedings and
the convicting court due to this did not accept reasons for refusal to
participate in TIP by the appellants Azad @ Gaurav and Bharat Kumar
Goswami and the convict Kanhaie Jha and drew adverse inference against
them.
13.2 The convicting court also believed the testimony of the complainant
Manish Aggarwal PW1 including cross examination conducted by
Additional Public Prosecutor regarding the participation of the appellant
Bharat Kumar Goswami as person who pointed pistol at the complainant
Manish Aggarwal PW1 and convict Kanhaie Jha as person who snatched
bag from the complainant Manish Aggarwal PW1 irrespective of a
discrepancy in the testimony of the complainant Manish Aggarwal PW1
regarding identification of the convict Kanhaie Jha. The convicting court, to
establish identity of the convict Kanhaie Jha, also drew support from CDR
Ex. PW17/E in respect of SIM no 9599541224 which as per CAF Ex.
PW17/D was registered in name of the convict Kanhaie Jha and recovery of
cheque book belonged to the complainant Manish Aggarwal PW1 at the

Digitally Signed
By:JITENDRA
14:59:09
instance of the convict Kanhaie Jha in pursuance of his disclosure statement.
13.3 The convicting court, to connect the appellant Azad @ Gaurav with
incident and to establish his presence at the spot at time of occurrence, relied
on circumstantial evidence i.e. CDR Ex. PW17/B in respect of SIM no
9958081077 which as per CAF Ex. PW17/A was registered in name of the
appellant Azad @ Gaurav and recovery of Rs. 52,000/- out of robbed
amount of Rs. 2,64,000/- and two stamps belonged to the complainant
Manish Aggarwal PW1 and photocopy of Aadhar Card of his wife.
13.4 The convicting court in respect of the appellant Jitender @ Jitu
observed that he was not required to be identified by the complainant
Manish Aggarwal PW1 as the complainant Manish Aggarwal PW1 did not
see the appellant Jitender @ Jitu. The convicting court to connect the
appellant Jitender @ Jitu with the offence relied on CDR Ex.PW16/B of
SIM no 8510967074 which as per CAF Ex. PW16/A was in the name of
Swati Gupta but was recovered from the possession of the appellant Jitender
@ Jitu and recovery of part robbed amount and cheque book belonged to the
complainant Manish Aggarwal PW1.
13.5 The impugned judgment reflects that the convicting court, to connect
the appellants and convict Kanhaie Jha relied on CDR and the recoveries

Digitally Signed
By:JITENDRA
14:59:09
effected from them during the investigation. The convicting court also did
not accept the plea that no offence punishable under section 395 IPC is made
out. The convicting court observed that as per testimony of the complainant
Manish Aggarwal PW1, four persons were present at the spot at the time of
incident out of which two were present on foot over bridge while two were
sitting on motor bikes on road and further role of the appellant Jitender @
Jitu surfaced during the investigation. The convicting court held that offence
was committed by five person and non arrest of accused Sanjeet who was
declared PO did not extend any benefit to the appellants and convict
Kanhaie Jha.
14. The respective counsels for the appellants and the Additional Public
Prosecutor for the respondent/State advanced arguments. Relevant record
perused.
14.1 The counsel for the appellant Bharat Kumar Goswami advanced oral
arguments and also submitted written arguments. The counsel for the
appellant Bharat Kumar Goswami argued that the prosecution could not
prove that the complainant Manish Aggarwal PW1 had received 132
currency notes of denomination of Rs. 2000/- each total amounting to Rs.
2,64,000/- and the testimony of PW18 is not sufficient to prove this fact.

Digitally Signed
By:JITENDRA
14:59:09
The testimony of the complainant Manish Aggarwal PW1 is not consistent
regarding the alleged involvement of the appellant Bharat Kumar Goswami.
The appellant Bharat Kumar Goswami was acquitted for the offence
punishable under section 397 IPC by the convicting court. The investigating
officer neither included any public person in investigation nor seized CCTV
footage from cameras stated to be installed near place of occurrence. The
appellant Bharat Kumar Goswami refused to participate in Test
Identification Parade (TIP) for justified reasons. The impugned judgment is
liable to be set aside.
14.2 The counsel for the appellant Jitender @ Jitu advanced oral arguments
and also submitted written arguments. The counsel for the appellant Jitender
@ Jitu argued that the impugned judgment is not sustainable in law and is
based on conjectures and surmises. The prosecution has failed to prove its
case beyond the reasonable doubts. The complainant Manish Aggarwal
didn't identify the appellant Jitender @ Jitu as one of the accused in the
present case and only deposed that when he started from Kucha Ghasi Ram
after collecting money then he suspected that one person was chasing him
from the said place and chased him up to the place from where he hired a
rickshaw but he cannot say whether the appellant Jitender @ Jitu had chased

Digitally Signed
By:JITENDRA
14:59:09
him. The appellant Jitender @ Jitu arrested only on the basis of the
disclosure statement made by the co-accused during the police interrogation.
The alleged recovery from the appellant Jitender @ Jitu cannot be believed
under given facts and circumstances. The appellant is the sole bread earner
of his family comprising of wife and two minor children. The counsel for
the appellant Jitender @ Jitu argued that appeal be allowed and conviction
be set aside.
14.3 The counsel for the appellant Azad @ Gaurav argued that impugned
judgment was passed without proper appreciation of material brought on
record. The testimony of the complainant Manish Aggarwal PW1 is self
contradictory in material aspects and cannot be relied upon and did not
support the case of the prosecution. The complainant Manish Aggarwal
PW1 failed to identify the appellant Azad @ Gaurav as the person who was
present at the spot and as such his testimony has no value. The testimony of
the complainant Manish Aggarwal PW1 is not corroborated by any other
evidence. The alleged recoveries alleged to be made at the instance of the
appellant Azad @ Gaurav are planted and such recoveries are highly
improbable. No public witness was included at time of alleged recovery. The
convicting court committed gross error while placing reliance on CDR and

Digitally Signed
By:JITENDRA
14:59:09
mere alleged presence in the close vicinity of place of occurrence cannot be
a ground of conviction. The counsel for the appellant Azad @ Gaurav
argued that the conviction cannot be sustained.
14.4 The Additional Public Prosecutor for the respondent/State supported
the impugned judgment argued that the prosecution has led sufficient
evidence qualitatively and quantitatively to prove guilt of the appellants as
per law. He referred testimony of the complainant Manish Aggarwal PW1
during arguments and argued that the testimony of the complainant Manish
Aggarwal is trustworthy and can be safely relied on. The Additional Public
Prosecutor also supported arguments by referring recoveries stated to be
affected from the appellants and testimonies of the Nodal Officers.
15. In a criminal trial the evidence is to be weighed not counted and the
court should not adopt a mechanical approach in appreciating evidence of
prosecution. Although criminal jurisprudence requires a high standard of
proof for imposing punishment on an accused, it is equally important that on
hypothetical grounds and surmises, prosecution evidence should not be
brushed aside and disbelieved to give undue benefit of doubt to the accused.
15.1 The prosecution to connect the appellant Bharat Kumar Goswami with
offence, relied on the testimony of the complainant Manish Aggarwal PW1

Digitally Signed
By:JITENDRA
14:59:09
who in his deposition identified as the person who pointed katta (pistol) on
him although the convicting court vide impugned judgment had acquitted
the appellant for offence punishable under section 397 IPC. The testimony
of the complainant Manish Aggarwal PW1proved involvement of the
appellant Bharat Kumar Goswami along with the convict Kanhaie Jha
regarding snatching of the bag from him despite minor discrepancy in
deposition of the complainant Manish Aggarwal PW1. Every contradiction
discrepancy or improvement is not fatal for prosecution. It is only major
contradiction, discrepancy or improvement on material facts shaking the
very genesis of prosecution case which matters for creating doubt on
prosecution case. The Supreme Court in Pawan Kumar @ Monu Mittal V
State of Uttar Pradesh and another, (2015) 7 SCC 48 observed that when
a witness is examined at length it is quite possible for him to make some
discrepancies and no true witness can possibly escape from making some
discrepant details. It was further observed that 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. The testimony of the complainant PW1 can be
safely relied on regarding the involvement of the appellant Bharat Kumar

Digitally Signed
By:JITENDRA
14:59:09
Goswami in commission of offence and his presence at spot at that time.
The convicting court was justified and rightly relied on the testimony of the
complainant Manish Aggarwal PW1 regarding criminality of the appellant
Bharat Kumar Goswami in snatching the bag from the complainant Manish
Aggarwal PW1.
15.1.1 There is no legal force in arguments advanced by the counsel for the
appellant Bharat Kumar Goswami that the prosecution could not prove that
on day of incident, the complainant Manish Aggarwal was carrying Rs.
2,64,000/- . The combined testimony of the complainant Manish Aggarwal
PW1 and PW18 Kamlesh Kumar proved that on day of the incident the
complainant PW1 was carrying Rs.2,64,000/- with him.
15.1.2 The counsel for the appellant Bharat Kumar Goswami also argued
that incident happened at public place but no public person was included in
the investigation and the CCTV footage was also not collected by the
investigating officer. It is correct that the Investigating Officer neither
included any public person in the investigation nor made efforts to collect
CCTV footage from any camera that might be installed on the vicinity of the
incident. It is the quality and not the quantity of evidence which is
necessary for proving or disproving a fact. The legal system has laid

Digitally Signed
By:JITENDRA
14:59:09
emphasis on value, weight and quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. The test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy or otherwise. It was
observed in Kuna @ Sanjaya Behera V State of Odisha, 2017 SCC
Online Supreme Court 1336 that the conviction can be based on the
testimony of single eye witness if he or she passes the test of reliability and
that is not the number of witnesses but the quality of evidence that is
important. The Supreme Court in Veer Singh & others V State of UP,
(2014) 2 SCC 455 observed as under:-
Legal system has laid emphasis on value, weight and quality of

evidence rather than on quantity, multiplicity or plurality of
witnesses. It is not the number of witnesses but quality of their
evidence which is important as there is no requirement under the
Law of Evidence that any particular number of witnesses is to be
examined to prove/disprove a fact. Evidence must be weighed and
not counted. It is quality and not quantity which determines the
adequacy of evidence as has been provided Under Section 134 of
the Evidence Act. As a general rule the Court can and may act on
the testimony of a single witness provided he is wholly reliable.
No public person joined and included in investigation. The conviction
can be based upon the testimonies of eyewitness. The prosecution does not
require a number of eye witnesses to prove its case beyond reasonable
doubt. Even if there is one eye witness and his testimony is up to the mark,
the conviction can be based upon the same. In Namdeo V State of

Digitally Signed
By:JITENDRA
14:59:09
Maharashtra, (2007) 14 SCC 150, the Supreme Court held as under:-
In the leading case of Shivaji Sahebrao Bobade v. State of

Maharashtra, (1973) 2 SCC 793, this Court held that even where a
case hangs on the evidence of a single eye witness it may be
enough to sustain the conviction given sterling testimony of a
competent, honest man although as a rule of prudence courts call
for corroboration. "It is a platitude to say that witnesses have to
be weighed and not counted since quality matters more than
quantity in human affairs." In Anil Phukan v. State of Assam,
(1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed;
"Indeed, conviction can be based on the testimony of a single eye
witness and there is no rule of law or evidence which says to the
contrary provided the sole witness passes the test of reliability. So
long as the single eyewitness is a wholly reliable witness the courts
have no difficulty in basing conviction on his testimony alone.
However, where the single eye witness is not found to be a wholly
reliable witness, in the sense that there are some circumstances
which may show that he could have an interest in the prosecution,
then the courts generally insist upon some independent
corroboration of his testimony, in material particulars, before
recording conviction. It is only when the courts find that the single
eye witness is a wholly unreliable witness that his testimony is
discarded in toto and no amount of corroboration can cure that
defect.
It is not the quantity but the quality of the evidence which matters in a
criminal trial. The testimony of the complainant Manish Aggarwal PW1 is
trustworthy and is reliable as to the criminality of the appellant Bharat
Kumar Goswami. If the IO did not include any public person in the
investigation, it is not fatal to the case of the prosecution. There is legal
force in the arguments advanced by the Additional Public Prosecutor that the
testimony of the complainant Manish Aggarwal PW1 is sufficient to connect

Digitally Signed
By:JITENDRA
14:59:09
the appellant Bharat Kumar Goswami with offence.
16. The convicting court, to connect the appellant Jitender @ Jitu relied on
CDR Ex. PW16/B in respect of SIM no 8510967074 although said SIM no
as per CAF Ex. PW16/A was issued in name of Swati Gupta but seized from
possession of the appellant Jitender @ Jitu. The convicting court held that
CDR Ex. PW16/B proved that user of SIM no 8510967074 i.e. the appellant
Jitender @ Jitu was chasing the complainant Manish Aggarwal PW1 from
Chandni Chowk to Tis Hazari Metro Station and was in constant touch with
other accused(s). It is pertinent to mention that there is no incriminating
evidence in testimony of the complainant Manish Aggarwal PW1 against the
appellant Jitender @ Jitu. The complainant Manish Aggarwal PW1 did not
identify the appellant Jitender @ Jitu as the person who was chasing him.
16.1 The convicting court also relied on CDR Ex. PW17/B in respect of SIM
no 9958081077 which as per CAF Ex. PW17/A was issued in name of the
appellant Azad @ Gaurav to establish his presence at the spot. The
convicting court also relied on CDR Ex. PW17/E in respect of SIM no
9599541224 which as per CAF Ex. PW17/D was issued in name of convict
Kanhaie Jha to establish his presence at the spot. CDR data may be an
important and effective piece of evidence which may facilitate and assists

Digitally Signed
By:JITENDRA
14:59:09
courts in ascertaining the presence of different participants in commission of
an offence including the complainant and proposed accused at one particular
place or location which may be their presence at or near the place of
occurrence. However, CDR data can only be taken as supporting or
corroborative piece of evidence and conviction cannot be made solely on
basis of CDR data. CDRs proved and relied on by the prosecution only
proved that the appellants Jitender @ Jitu and Azad @ Gaurav, on day of
incident, were present near place of occurrence/incident but it is not proved
that they have actually participated in commission of offence as per
complaint Ex. PW1/A. The respective counsels for the appellants Jitender @
Jitu and Azad @ Gaurav rightly argued that CDR data cannot be safely
relied on to establish their criminality for the offence punishable under
section 395 IPC. The argument advanced by the Additional Public
Prosecutor regarding reliance on CDR data is without much force.
17. The complainant Manish Aggarwal PW1, in complaint Ex. PW1/A and
subsequent supplementary statement recorded on 01.07.2017 gave details of
articles contained in bag stated to be snatched from the complainant Manish
Aggarwal PW1. The bag was stated to be containing 132 currency notes of
denomination of Rs.2,000/- total amounting to Rs. 2,64,000/-, one cheque

Digitally Signed
By:JITENDRA
14:59:09
book of Syndicate Bank issued in favour of Morph Industries in respect of
account no 91711010000032 Ex. PW1/D, one cheque book of State Bank of
India in respect of account no 32015341943 Ex. PW1/C, two stamps of
Morph Industries and Mahal International Ex. PW1/B and photocopies of
certain documents.
17.1 The appellants Azad @ Gaurav, Bharat Kumar Goswami and convict
Kanhaie Jha were arrested on 04.07.2017 in FIR bearing no 104/2017 under
section 25 of the Arms Act, 1959 by Crime Branch. Thereafter out of robbed
amount of Rs. 2,64,000/-, Rs. 20,000/- were recovered from the appellant
Bharat Kumar Goswami, Rs. 52,000/- were recovered from the appellant
Azad @ Gaurav and Rs. 56,000/- were recovered from the convict Kanhaie
Jha.
17.2 The appellants Azad @ Gaurav, Bharat Kumar Goswami and convict
Kanhaie Jha were formally arrested on 07.07.2017 in the present FIR by the
investigating officer SI Sanjay Kumar Gupta PW23 and during the
investigation their respective statements Ex. PW20/C, Ex. PW20/J and Ex.
PW20/F were recorded. The appellant Jitender @ Jitu was also arrested and
his disclosure statement Ex. PW14/C was recorded and during the
investigation Rs. 2,90,000/- got recovered which were seized vide seizure

Digitally Signed
By:JITENDRA
14:59:09
memo Ex. PW11/A. The appellant Jitender @ Jitu, during further
investigation also got recovered one cheque book Syndicate Bank Ex.
PW1/D which was seized vide seizure memo Ex. PW20/K. The convict
Kanhaie Jha also got recovered cheque book Ex. PW1/C which was seized
vide seizure memo Ex. PW20/L. The appellant Azad @ Gaurav also got
recovered two seals Ex.PW1/B which were seized vide seizure memo
Ex.PW20/M.
17.3 The convicting court to establish criminality of the appellants Azad @
Gaurav and Jitender @ Jitu, also relied on recoveries affected at their
instance in pursuance of the disclosure statements. Section 27 of the
Evidence Act, 1872 incorporates the theory of confirmation by subsequent
facts i.e. statements made in police custody are admissible to the extent that
they can be proved by subsequent discovery of facts. The Supreme Court in
Raju Manjhi V State of Bihar, Criminal Appeal No. 1333/2009 decided on
2nd August, 2018 held as under:-
It is true, no confession made by any person while he was in the

custody of police shall be proved against him. But, the Indian
Evidence Act, 1872 provides that even when an accused being in
the custody of police makes a statement that reveals some
information leading to the recovery of incriminating material or
discovery of any fact concerning the alleged offence, such
statement can be proved against him.

Digitally Signed
By:JITENDRA
14:59:09
17.4 The prosecution to prove the factum of recovery from the appellants
examined PW8 HC Neeraj, PW9 HC Ajay, PW10 ASI Jaswinder and PW12
ASI Parmod who arrested the appellants Azad @ Gaurav and Bharat Kumar
Goswami and convict Kanhaie Jha on 04.07.2017 in FIR bearing no
104/2017 under section 25 of the Arms Act, 1959 and affected recoveries
affected from them in pursuance of their disclosure statements. These
prosecution witnesses deposed that on 04.07.2017, they arrested the
Kanhaie Jha and their disclosure statements Ex. PW8/A, Ex. PW9/A and Ex.
PW10/A respectively were recorded. PW12 ASI Parmod deposed that Rs.
20,000/- were recovered from the appellant Bharat Kumar Goswami, Rs.
1,89,000/- were recovered from the appellant Azad @ Gaurav and Rs.
1,12,000/- were recovered from the convict Kanhaie Jha.
17.4.1 The Investigating Officer SI Sanjay Kumar Gupta PW23 arrested
Kanhaie Jha in the present case vide arrest memos Ex. PW20/ A, Ex.
PW20/G and Ex. PW20/D respectively and also recorded their disclosure
statements. SI Sanjay Kumar Gupta PW23 at their instance also recovered
and seized scooty bearing registration no DL 6SAH 9023 stated to be used

Digitally Signed
By:JITENDRA
14:59:09
by the appellant Jitender @ Jitu while chasing the complainant Manish
Aggarwal PW1 and also arrested the appellant Jitender @ Jitu vide arrest
memo Ex. PW14/A. SI Sanjay Kumar Gupta PW23 also recorded disclosure
statement Ex. PW14/C of the appellant Jitender @ Jitu and in pursuance of
which recovered Rs. 2,90,000/- which were seized vide seizure memo Ex.
PW11/A. During further investigation, SI Sanjay Kumar GuptaPW1also
recovered cheque book Ex. PW1/D issued by Syndicate Bank at the instance
of the appellant Jitender @ Jitu which was seized vide seizure memo Ex.
PW20/K, cheque book Ex.PW1/C at the instance of convict Kanhaie Jha
which was seized vide seizure memo Ex. PW20/L, two stamps Ex. PW1/D
at the instance of the appellant Azad @ Gaurav which were seized vide
seizure memo Ex. PW20/M. The recovered amount was also having part of
the robbed amount.
17.5 The recoveries affected from the appellants as detailed hereinabove do
inspire much confidence. There is nothing in the respective testimony of the
police/prosecution witnesses who affected recoveries which can shake
credibility of their testimonies about recoveries. The robbed amount and
other articles stated to be recovered at the instance of the appellants and
convict Kanhaie Jha were also identified by the complainant Manish

Digitally Signed
By:JITENDRA
14:59:09
Aggarwal PW1. There is nothing in the prosecution evidence which can
make the recoveries improbable. The quantum and quality of evidence led
by the prosecution regarding the recoveries is convincing and can be safely
relied upon. There is no legal and factual force in the arguments advanced
by the respective counsels for the appellants that alleged recoveries are
highly improbable under given facts and circumstances of the case. The
convicting court was justified in believing that the recoveries alleged to have
been made from the appellants and convict Kanhaie Jha. There is legal and
factual force in arguments advanced by the Additional Public Prosecutor
that at the instance of the appellants and convict Kanhaie Jha recoveries
were affected.
17.6 The counsel for the appellant jitender @ jitu relied on the judgment of
Bijender @ Mandar V State of Haryana decided by the Supreme Court in
criminal appeal no.2438 of 2010. It was observed as under:-
19.Unmindful of these age-old parameters, we find that the

Prosecution in the present case has miserably failed to bring home
the guilt of the Appellant and Courts below have been unwittingly
swayed by irrelevant considerations, such as the rise in the
incidents of dacoity. In its desire to hold a heavy hand over such
derelictions, the Trial Court and the High Court have hastened to
shift the burden on-the Appellant to elucidate how he bechanced
to be in possession of the incriminating articles, without primarily
scrutinizing the credibility and admissibility of the recovery as
well as its linkage to the misconduct. We say so for the following

Digitally Signed
By:JITENDRA
14:59:09
reasons:
Firstly, the High Court and the Trial Court failed to take. into
consideration that the testimony of ASI Rajinder Kumar (PW-14)
exhibited no substantial effort made by the police for conducting
the search of the residence of the Appellant in the presence of
local witnesses. The only independent witness to the recovery. was
Raldu (PW-8) who was admittedly a companion of the
Complainant.
Secondly, the Complainant (PW-4) as well as Raldu (PW-8). have

unambiguously refuted that neither the passbook, nor the red
cloth was recovered from the possession of the Appellant, as
claimed in his disclosure statement.
Thirdly, while the Complainant (PW-4) negated his signatures on

the recovery memo (EX. PD/2), on the other hand. Raldu (PW-8)
also neither enumerated the recovery memo (Ex. PD/2) in the
catalogue of exhibited documents, nor did that he affirm to having
his endorsement.
Fourthly. the recovered articles are common place objects such as

money which car be easily transferred from ore hand to another
and the 'red cloth with 'Kamla' embossed on it, as has been
racceded by the Investigating Officer, Rajinder Kumar (PW-14),
can also be easily available in market.
Fifthly, the recovery took place nearly a month after the

commission of the alleged offence. We find it incredulous, that the
Appellant during the entire time period kept both the red cloth
and the passbook in his custody, along with the money he
allegedly robbed off the Complainant.
Sixthly and finally, there is no other evidence on record which

even remotely points towards the iniquity of the Appellant.

Digitally Signed
By:JITENDRA
14:59:09
However, under the facts and circumstances of the case, it does not
provide any help to the defence of the appellant jitender @ jitu.
18. However the convicting court was not justified in convicting the
appellants for the offence punishable under section 395 IPC. The
prosecution could prove that the appellant Bharat Kumar Goswami had
participated in snatching of bag from the complainant Manish Aggarwal
PW1 and subsequently recoveries as detailed herein above were affected at
the instance of the appellants and convict Kanhaie Jha. The impugned
judgment convicting the appellants for the offence punishable under section
395 was passed on factually and legally unsustainable surmises and
assumptions and without adequate support of evidence. It is proved that the
appellant Jitender @ Jitu and Azad @ Gaurav received/retained the stolen
property. The prosecution, from the quality and quantity of evidence, could
only prove guilt of the appellant Bharat Kumar Goswami for offence
punishable under section 379/356/34 IPC and guilt of the appellants Jitender
@ Jitu and Azad @ Gaurav for the offence punishable under section 411
IPC.
19. The Criminal Appeals bearing no 593/2022, 354/2022 and 367/2022
preferred by the appellants Azad @ Gaurav, Jitender @ Jitu and Bharat

Digitally Signed
By:JITENDRA
14:59:09
Kumar Goswami, respectively to challenge the impugned judgment passed
by the convicting court whereby appellants along with the convict Kanhaie
Jha were convicted for the offence under section 395 IPC is partly allowed.
The appellant Bharat Kumar Goswami is convicted for offences punishable
under section 379/356 IPC and the appellants Jitender @ Jitu and Azad @
Gaurav are Convicted for offence punishable under section 411 IPC.
19.1 As a consequence, order on sentence dated 04.06.2022 passed by the
sentencing court is also modified. The appellant Bharat Kumar Goswami is
sentenced to undergo rigorous imprisonment for a period of two years along
with fine of Rs. 2000/- in default of payment of fine to further undergo
simple imprisonment of two months for offence punishable under section
379 IPC and to undergo rigorous imprisonment for a period of six months
along with fine of Rs. 500/- in default of payment of fine to further undergo
simple imprisonment of one month for offence punishable under section 356
IPC. Both the sentences shall run concurrently. The benefit of section 428 of
the Code is extended to the appellant Bharat Kumar Goswami.
19.2 The appellants Jitender @ Jitu and Azad @ Gaurav are individually
sentenced to undergo rigorous imprisonment for a period of two years along
with fine of Rs. 2000/- in default of payment of fine to further undergo

Digitally Signed
By:JITENDRA
14:59:09
simple imprisonment of two months for the offence punishable under
section 411 IPC. The benefit of section 428 of the Code is extended to the
appellants Jitender @ Jitu and Azad @ Gaurav.
20. It is made clear that nothing in this judgment or any observation made in
this judgment regarding convict Kanhaie Jha shall not cause any prejudice to
him in any litigation or legal remedy already initiated or to be initiated by
him.
21. If the appellants or any of them have already completed the period of
incarceration, they will be released forthwith as per the rules.
22. The copy of this judgment be sent to the appellants for information and
to the concerned Jail Superintendents for necessary compliance
immediately. The copy of judgment shall also be sent to the concerned trial
court for information.
23. The pending appeals along with pending applications, if any, stand
disposed of.
(SUDHIR KUMAR JAIN)

JUDGE
MARCH 23, 2023
N/PJ

Digitally Signed
By:JITENDRA
14:59:09

Azad V NCT of Delhi

Uploaded by

Copyright:

Available Formats

Azad V NCT of Delhi

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Azad V NCT of Delhi

Uploaded by

Copyright:

Available Formats

Neutral Citation Number: 2023:DHC:2166

+ CRL.A. 593/2022 & CRL.M. 1420/2022

AZAD @ GOURAV ..... APPELLANT

Through: Mr. Vibhor Garg & Mr. Pallav

Through: Mr. Hitesh Vali, APP for the State

+ CRL.A. 354/2022 & CRL.M. 924/2022

JITENDER @ JITU ..... APPELLANT

Through: Mr. Vivek Chaudhary,

Through: Mr. Hitesh Vali, APP for the State

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 1

+ CRL.A. 367/2022 & CRL.M. 939/2022

BHARAT KUMAR GOSWAMI ..... APPELLANT

Through: Mr. Omkar Sharma,

THE STATE OF DELHI ..... RESPONDENT

Through: Mr. Hitesh Vali, APP for the State

593/2022, 354/2022 and 367/2022 preferred by the appellants Azad @

Gaurav, Jitender @ Jitu and Bharat Kumar Goswami, respectively to

impugn the judgment dated 16.03.2022 (hereinafter referred to as “the

impugned judgment”) passed by the court of Ms. Charu Aggarwal, ASJ

Central District, Tis Hazari Court, Delhi (hereinafter referred to as “the

Code, 1860 (hereinafter referred to as “IPC”) and the appellant Bharat

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 2

Court, Delhi (hereinafter referred to as “the sentencing court”) whereby the

appellants along with convict Kanhaie Jha @ Kishan were sentenced to

to undergo further simple imprisonment of two months. It was further

directed to pay Rs.90,000/- to the complainant as per section 357 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”)

case. Fine was not paid.

2. Section 391 IPC defines dacoity. It reads as under:-

391. Dacoity.—When five or more persons conjointly commit or

there is no difference between dacoity and robbery. The essential ingredients

of Section 391 are:

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 3

i. Five or more persons must act in association,

offence consists in the terror it causes by the presence of a number of

committing robbery. The accused must be shown to have committed robbery

or aided in the commission of it and they must be among the body of

IPC provides punishment for committing dacoity. It reads as under:-

395. Punishment for dacoity.—Whoever commits dacoity shall

3. The relevant facts as mentioned in the impugned judgment are reproduced

1. The prosecution, in this case, has filed the chargesheet against

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 4

395/398/464/471 IPC. As per the chargesheet, total five accused

2. The case of the prosecution summed up in the chargesheet is

On the next day of the incident i.e. 01.07.2017, the complainant

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 5

3. On 04.07.2017, accused Bharat Goswami, Kanhaie Jha and

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 6

accused Jitdender @ Jitu was arrested but despite efforts, the

4. During investigation, in pursuant to the disclosure statement of

(ii) Kanhaie Jha:-

(iii) Azad @ Gaurav:-

(iv) Jitender @ Jitu:-

CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 7

Rs.2,90,000/- out of which Rs.52,000/- is shown as case property

5. During the course of investigation, the IO collected the Call

6. After completion of investigation, chargesheet was filed in the

Vide order dated 19.01.2018, charge u/s 395 IPC against

4. The prosecution in support of its case examined 23 witnesses including

the complainant Manish Aggarwal as PW1 who appears to be supporting the