Mohd Saleem vs State Nct Of Delhi

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.10.2026
Date of Decision: 16.10.2026
Uploaded on: 16.10.2016
# CNR No. DLHC010789392024
+ CRL.A. 1042/2024
MOHD SALEEM .....Appellant
Through: Mr. Chetan Lokur, Adv. ( through VC )
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Raghuvinder Verma, APP
# CNR No. DLHC010817812024
+ CRL.A. 1077/2024 & CRL.M.(BAIL) 917/2026
ARSHAD .....Appellant
Through: Mr. Amitej Kumar Nagar, Adv.
( through VC )
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Raghuvinder Verma, APP
# CNR No. DLHC010885952024
+ CRL.A. 1136/2024
ASMAT ALI .....Appellant
Through: Mr. Arman Roop Sharma, Adv.
(DHCLSC- Pro Bono ), Mr. Aman
Khan Afghani & Ms. Priya Pachouri,
Advs.
versus
STATE (GNCT OF DELHI) .....Respondent
Through: Mr. Raghuvinder Verma, APP
Signature Not Verified
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Signed By:BHARTI
Signing Date:16.10.2026
18:47:26

CORAM:
HON’BLE MS. JUSTICE MADHU JAIN
JUDGMENT
MADHU JAIN, J.
1. The present appeals have been filed challenging the common judgment
dated 23.07.2024 and the consequential order on sentence dated 07.09.2024
passed by the learned Principal District and Sessions Judge in Sessions Case
No. 381/2016, arising out of FIR No. 108/2012 , registered at Police Station
Pandav Nagar, for offences punishable under Sections 395/412/34 of the Indian
Penal Code, 1860 (hereinafter referred to as the ‘IPC’).
FACTUAL MATRIX
2. The prosecution's case is that on 11.04.2012, upon receipt of DD No.
21A, SI Sudhir (PW-9), accompanied by Ct. Surender (PW-1), reached Gali
No. 3, F Block, Samaspur, Pandav Nagar, Delhi, where Ct. Digpal (PW-5), HC
Kanwarpal (PW-6), the complainant Ram Yadav (PW-2), and the three
accused, namely, Mohd. Saleem, Arshad and Asmat Ali, were present. Mohd.
Saleem and Arshad, who had allegedly been beaten by members of the public,
were taken to LBS Hospital for medical examination.
3. During the search of accused Asmat Ali, seven purple-coloured boxes
were recovered, which the complainant identified as the boxes used by the
accused persons to offer rewards. The complainant's statement regarding the
incident of robbery was recorded, and FIR No. 108/2012 was registered. During
the investigation, ₹19,000/- belonging to the complainant and one MTS mobile
phone were recovered from accused Mohd. Saleem, while a black Samsung
mobile phone was recovered from accused Arshad. One mobile phone and
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certain documents were also recovered from accused Asmat Ali. The remaining
₹11,000/- allegedly robbed from the complainant could not be recovered, as
accused Arshad had allegedly handed it over to his associate Raju, who could
not be apprehended. The prosecution alleged that five persons, including the
three accused and their associates Raju and Ali, had participated in the
commission of the offence.
4. Upon completion of the investigation, the chargesheet was filed against
the three accused for offences punishable under Sections 395/412/34 of the
Indian Penal Code, 1860. After compliance with Section 207 Cr.P.C., the
matter was committed to the Court of Sessions. A charge under Section 395
IPC was framed against all three accused, while a separate charge under Section
412 IPC was framed against accused Mohd. Saleem. All the accused pleaded
not guilty and claimed trial.
5. The prosecution examined nine witnesses in support of its case.
“(i) PW-1 Ct. Surender had accompanied the
Investigating Officer, SI Sudhir Kumar (PW-9), and
participated in the investigation. On 10.04.2012,
when he reached the spot along with SI Sudhir, Ct.
Digpal and HC Kanwarpal met them at the spot with
three accused persons, namely, Mohd. Saleem,
Arshad and Asmat Ali. The complainant was also
present there. Accused Saleem had injuries on his
person, and accused Arshad was also complaining
of pain in his hand. On the directions of the
Investigating Officer, he, along with HC
Kanwarpal, took accused Saleem and Arshad to
LBS Hospital, got them medically examined there
and thereafter returned to the spot. The
Investigating Officer recorded the statement of the
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complainant, prepared the rukka and handed it over
to him. He went to the police station and got the case
registered. Thereafter, he returned to the spot and
handed over the original rukka and copy of the FIR
to the Investigating Officer. The Investigating
Officer arrested the three accused persons. Accused
Asmat was arrested vide arrest memo Ex. PW-1/A,
and his personal search was conducted vide Ex.
PW-1/B. His disclosure statement was recorded
vide memo Ex. PW-1/C.
(ii) PW-2 Shri Ram Yadav was the complainant and
victim of the crime. He testified that on 10.04.2012,
he had boarded a bus going towards Jaitpur from
Laxmi Nagar at about 2:00 p.m. Some persons
boarded the bus, selling lottery tickets and charging
₹50/- while offering a reward of ₹250/-. The said
persons were five in number, and three of them
approached him and asked him to participate in the
lottery, but he refused. He was carrying ₹11,000/-
in his pant pocket and another sum of ₹19,000/- in
a separate pocket of his shirt. He specifically stated
that accused Saleem had taken ₹11,000/- from his
pant pocket and accused Arshad had taken
₹19,000/- from his shirt pocket. He further stated
that accused Asmat was selling the lottery tickets
(dibbis). When the bus crossed the Laxmi Nagar
Flyover, accused Asmat gave a whistle, following
which three persons got down from the front gate of
the bus and two persons alighted from the rear gate.
He also got down from the bus and chased the
robbers. He stated that he apprehended accused
Saleem and raised an alarm of “Chor, Chor”,
following which members of the public beat accused
Saleem. Accused Arshad was also apprehended and
beaten by members of the public. Accused Asmat
himself came to the spot with the money.
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He gave his statement Ex. PW-2/A to the police and
pointed out the place of occurrence. All three
accused persons, namely, Saleem, Arshad and
Asmat, were arrested vide memos Ex. PW-2/B, Ex.
PW-2/C and Ex. PW-1/A, respectively, and their
personal searches were conducted vide Ex. PW-2/D,
Ex. PW-2/E and Ex. PW-1/E, respectively. Accused
Asmat was found in possession of seven blue-
coloured dibbis (Ex. P-1 collectively), which were
seized vide memo Ex. PW-2/F. He also identified
photocopies of 38 currency notes of ₹500/-
denomination as Ex. P-2 (collectively).
6. This witness was cross-examined by the learned
Additional Public Prosecutor, during which he
stated that he had boarded bus route No. 473. He
stated that two persons had approached him and
asked why he was not buying the dibbis for a
reward. They intimidated him, causing him to
become frightened. One of those persons took
₹11,000/- from him, which he had wrapped in a blue
handkerchief, while another person took ₹19,000/-
from his shirt pocket. The currency notes were in the
denomination of ₹500/- each. He stated that the
person who had robbed him of ₹11,000/- had passed
the money to his associate, and they got down from
the bus and ran towards Samaspur Village, Pandav
Nagar. He stated that he apprehended the person
who had snatched ₹19,000/- from him with the
assistance of members of the public. He further
stated that two policemen on a motorcycle, who
were patrolling the area, had apprehended accused
Arshad and Asmat Ali. He identified accused Saleem
as the person who had taken ₹19,000/- from him and
whom he had apprehended at the spot with the
money. He identified accused Arshad as the person
who had taken ₹11,000/- from him and passed it on
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to his associate. He also identified accused Asmat
Ali as the person who was selling the dibbis in the
bus. He stated that the currency notes were seized
by the police vide seizure memo Ex. PW-2/F1. He
had moved an application Ex. PW-2/G for the
release of the currency notes on superdari and
executed the superdarinama Ex. PW-2/H.
(iii) PW-3 ASI Tejbir Singh was working as Duty
Officer at Police Station Pandav Nagar on
10.04.2012. He deposed that, upon receipt of the
rukka from Ct. Surender, sent by IO/SI Sudhir
Kumar, he registered the FIR through the computer
operator. He proved the copy of the FIR as Ex. PW-
3/A.
(iv) PW-4 SI Manu Kumar stated that on
03.12.2014, further investigation of the case was
assigned to him. After completion of the
investigation, the challan was prepared and filed
before the Court.
(v) PW-5 ASI Digpal stated that on 10.04.2012, he,
along with HC Kanwar Pal, was patrolling on a
private motorcycle. During patrolling, when they
reached near the bus stand of Route No. 473 at
about 2:00 p.m., a bus stopped there and five boys
got down and ran towards a village. Another person
also got down from the bus and shouted that his
money had been taken by those five boys. They
chased the five boys, and the complainant
apprehended accused Mohd. Saleem. They also
chased and apprehended accused Asmat Ali, while
accused Arshad was apprehended by HC Kanwar
Pal. Information regarding the incident was given
to the police station.
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Signing Date:16.10.2026
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SI Sudhir and Ct. Surender reached the spot from
the police station. On searching accused Saleem,
₹19,000/- belonging to the complainant was
recovered. Accused Saleem and Arshad had injuries
on their persons, allegedly sustained when they
were beaten by members of the public, and were
taken to the hospital by HC Kanwar Pal and Ct.
Surender. On searching accused Asmat Ali, seven
purple-coloured dibbis were recovered from his
possession. The currency notes were seized vide
memo Ex. PW-2/F1, and the seven dibbis were
seized vide memo Ex. PW-2/F. Thereafter, accused
Saleem and Arshad were brought back to the spot
from the hospital. The Investigating Officer
prepared the rukka and sent Ct. Surender to the
police station for registration of the FIR. The
Investigating Officer also prepared the site plan.
Accused Saleem was arrested vide memo Ex. PW-
2/B, his personal search was conducted vide Ex.
PW-2/D, and his disclosure statement was recorded
vide Ex. PW-5/A.
(vi) PW-6 ASI Kanwar Pal deposed on the same
lines as PW-5 ASI Digpal.
(vii) PW-7 Dr. Onkar Singh Tomar deposed that on
10.04.2012, he medically examined accused Mohd.
Saleem and observed a lacerated wound measuring
5 cm × 0.5 cm on the centre of the top of his head,
an abrasion measuring 2 cm × 0.5 cm on his nose,
traumatic swelling over the nose with clotted blood
present on both nostrils, and a reddish contusion
measuring 12 cm × 4 cm on the top of his left
shoulder. He prepared the MLC Ex. PW-7/A and
referred the patient to the Surgery Department for
an X-ray of the nasal bone. He further stated that on
the same day, he examined accused Arshad vide
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MLC Ex. PW-7/B, but no fresh injury was found on
his person.
(viii) PW-8 HC Hari Ram was working as MHC(M)
at Police Station Pandav Nagar on 10.04.2012. He
stated that SI Sudhir Kumar had deposited one
pulanda containing case property, and an entry was
made at Serial No. 109 of Register No. 19, exhibited
as Ex. PW-8/A. He further stated that on
11.04.2012, SI Sudhir Kumar deposited another
pulanda containing case property, and an entry was
made at Serial No. 114 of Register No. 19, exhibited
as Ex. PW-8/B.
(ix) PW-9 Inspector Sudhir Kumar was the
Investigating Officer of the case. He deposed that on
10.04.2012, at about 2:25 p.m., upon receipt of DD
No. 21A, Ex. PW-9/A, he, along with Ct. Surender
(PW-1), reached the spot, where Ct. Digpal, HC
Kanwar Pal and the complainant, Shri Ram Yadav,
met him. The three accused persons, namely,
Saleem, Asmat and Arshad, were handed over to
him. The complainant disclosed that the accused
persons had taken ₹30,000/- from him, out of which
₹19,000/- had already been recovered from accused
Saleem. He was informed that the remaining
₹11,000/- had been taken away by two other
associates of the accused persons who had fled.
He sent accused Saleem and Arshad to LBS Hospital
through HC Kanwar Pal and Ct. Surender. He
further deposed that seven small dibbis were
recovered from accused Asmat. He recorded the
complainant's statement, Ex. PW-2/A, prepared the
rukka, Ex. PW-9/B, and sent Ct. Surender to the
police station for registration of the FIR. He
prepared the site plan, Ex. PW-2/DA, at the instance
of the complainant. He seized the recovered
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currency notes amounting to ₹19,000/- and the
seven dibbis, arrested the accused persons and
conducted their personal searches. He also
recorded their disclosure statements. Despite
efforts, the two other associates of the accused
persons could not be arrested. The departure entries
concerning the patrolling duty of HC Kanwar Pal
and Ct. Digpal on 10.04.2012 were proved as Ex.
PW-9/C and Ex. PW-9/D, respectively.”
6. Statements of accused persons under Section 313 Cr.P.C. were recorded.
They all denied the case of the prosecution in entirety. They stated that they are
innocent and have been falsely implicated in this case and nothing was
recovered from them. However, they did not opt to lead evidence in their
defence.
7. Upon consideration of the evidence adduced on record, the learned Trial
Court passed the impugned judgment dated 23.07.2024, convicting the
appellants for the offences in question. The relevant portion of the impugned
judgment is reproduced hereinbelow:
“38. Therefore, in view of the above discussion, I
am of the opinion that the prosecution has proved
its case against all the accused persons beyond
reasonable doubt, in view of the testimony of PW-2,
coupled with the testimony of other police officials
and the cross-examination of PW-9 Inspector
Sudhir Kumar conducted on behalf of the accused
persons.
39. In view of the foregoing discussion, I am of the
opinion that the prosecution has been able to prove
its case against all the accused persons under
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Section 395 IPC beyond reasonable doubt. Since the
recovery of ₹19,000/- has been effected only from
accused Mohd. Saleem, the prosecution has also
proved its case against him under Section 412 IPC.
Accordingly, all the accused persons, namely,
Mohd. Saleem, Arshad and Asmat Ali, are hereby
held guilty and convicted under Section 395 IPC.
Accused Mohd. Saleem is also held guilty and
convicted for the offence punishable under Section
412 IPC.”
8. Vide the consequential order on sentence dated 07.09.2024, the learned
Trial Court sentenced the appellants as follows:
“6. In view of the facts and circumstances, all the
convicts, namely, Mohd. Saleem, Arshad and Asmat
Ali, are sentenced as under:
(i) For the offence under Section 395 IPC, all the
convicts, namely, Mohd. Saleem, Arshad and Asmat
Ali, are sentenced to rigorous imprisonment for a
period of ten years, with a fine of ₹10,000/- each. In
default of payment of fine, they shall undergo simple
imprisonment for a period of four months each.
(ii) Convict Mohd. Saleem is also sentenced to
rigorous imprisonment for a period of five years,
with a fine of ₹10,000/-, for the offence under
Section 412 IPC. In default of payment of fine,
convict Mohd. Saleem shall undergo simple
imprisonment for a period of four months.
7. Benefit of Section 468 BNSS (Section 428
Cr.P.C., as applicable earlier) is extended to the
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convicts. All the sentences awarded to the convicts
shall run concurrently.”
SUBMISSIONS ON BEHALF OF APPELLANTS
9. Learned counsel for the appellants submits that the impugned judgment
of conviction and the consequential order on sentence suffer from material
errors of law and appreciation of evidence. It is contended that the learned Trial
Court has selectively considered the prosecution evidence while disregarding
material contradictions elicited during the cross-examination of prosecution
witnesses, thereby rendering the findings against the appellants perverse and
unsustainable in law.
10. It is further submitted that the prosecution has failed to establish the
essential ingredients of the offence of dacoity punishable under Section 395
IPC, particularly the involvement of five or more persons in the commission of
the alleged offence. It is contended that, although two other persons, namely,
Ali and Raju, were allegedly involved in the incident, they were neither charge-
sheeted nor brought before the Court for trial, and the prosecution failed to
establish their involvement or the alleged concerted action of all five persons.
11. Learned counsel further submits that the prosecution has failed to
establish the commission of robbery in accordance with law, as no weapon was
recovered from the appellants and the evidence on record allegedly does not
establish that the appellants caused or attempted to cause death, hurt or
wrongful restraint in the course of the alleged incident.
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12. It is also contended that the testimony of the complainant, Ram Yadav
(PW-2), suffers from material contradictions concerning the amounts allegedly
stolen by the accused persons, the recovery and seizure of the currency notes,
the purpose for which the money was obtained, and the preparation of the site
plan. It is argued that the complainant's testimony regarding the recovery of the
alleged stolen amount is inconsistent with the seizure memo bearing his
signature and that the failure to record the serial numbers of the currency notes
further casts doubt on the alleged recovery.
13. Learned counsel additionally submits that the medical evidence does not
corroborate the prosecution's version regarding the alleged apprehension and
beating of the appellants by members of the public, as the MLC of the appellant
concerned records no fresh injury. It is further argued that the complainant
having turned hostile, the learned Trial Court erred in relying upon his
testimony without adequately considering the material inconsistencies therein.
14. It is further contended that the prosecution failed to establish any reliable
evidentiary link between the appellants and the alleged absconding associates,
Ali and Raju, and did not examine independent witnesses despite the alleged
presence of several persons at the spot. Reliance is placed on the cross-
examination of ASI Digpal (PW-5), wherein a suggestion was put that the
appellant had been picked up from his residence and beaten by police officials
rather than by members of the public.
15. Lastly, learned counsel submits that the investigation suffers from
procedural infirmities, including the alleged recording of General Diary
proceedings on plain paper, contrary to the applicable police regulations. On
these grounds, it is urged that the impugned judgment of conviction and order
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on sentence are unsustainable and that the appeals deserve to be allowed.
SUBMISSIONS ON BEHALF OF STATE
16. Learned Additional Public Prosecutor for the State submits that the
prosecution has successfully established its case against the appellants beyond
reasonable doubt through the consistent testimony of the complainant, Ram
Yadav (PW-2), read with the testimonies of ASI Digpal (PW-5) and ASI
Kanwar Pal (PW-6). It is submitted that PW-5 and PW-6, who were on
patrolling duty in the area, witnessed the complainant alighting from the bus
and chasing the accused persons while raising an alarm of “chor-chor”. The
complainant apprehended accused Mohd. Saleem, while the remaining accused
persons were apprehended with the assistance of the police officials.
17. It is further submitted that the recovery of ₹19,000/- from accused Mohd.
Saleem and seven dibbis from accused Asmat Ali has been duly established
through the prosecution evidence and the relevant seizure memos. The
prosecution has also established that the remaining amount of ₹11,000/- was
taken away by accused Arshad and handed over to his associate, who managed
to escape. The mere fact that the other two associates could not be apprehended
does not, by itself, negate the prosecution's case regarding their participation in
the incident.
18. Learned Additional Public Prosecutor further submits that the
discrepancies highlighted by learned counsel for the appellants are minor
variations and do not discredit the prosecution case in its entirety. The
testimony of the complainant must be read as a whole and in conjunction with
the corroborative evidence of the police witnesses and the recovery of the case
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property. It is contended that the absence of recovery of the remaining amount
or the non-examination of independent public witnesses is not, by itself,
sufficient to discard otherwise reliable evidence.
19. It is accordingly submitted that the learned Trial Court has duly
considered the evidence on record and rightly convicted the appellants for the
offences charged. The impugned judgment of conviction and order on sentence
are, therefore, sought to be sustained, and the appeals are liable to be dismissed.
FINDINGS AND ANALYSIS
20. This Court has heard the submissions advanced by learned counsel for
the parties and has perused the material available on record.
Dacoity Not Made Out
21. At the outset, this Court considers it appropriate to examine the essential
ingredients of dacoity as defined under Section 391 of the Indian Penal Code,
1860. The relevant portion of Section 391 of the Indian Penal Code, 1860, is
reproduced hereinbelow:
“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”.”
22. A bare perusal of the provision reveals that the commission or attempted
commission of robbery conjointly by five or more persons is an essential
ingredient of the offence. The provision also includes persons present and
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aiding the commission or attempted commission of robbery, provided that the
total number of such persons amounts to five or more.
23. In the present case, admittedly, only three persons, namely, Mohd.
Saleem, Arshad and Asmat Ali, were prosecuted and tried. Although the
prosecution has alleged the involvement of two other associates, namely, Ali
and Raju, the mere assertion that five persons were present at the spot or were
involved in the incident is not, by itself, sufficient to establish the offence of
dacoity. The prosecution is required to establish, through cogent and reliable
evidence, that five or more persons conjointly committed or attempted to
commit robbery, or that the total number of persons committing or attempting
to commit robbery, together with those present and aiding its commission or
attempt, was five or more.
24. There must be some corroborative evidence to establish that five persons
were involved in the commission of the offence. This Court cannot be oblivious
to the possibility of false or exaggerated allegations being made to attract graver
offences. A mere assertion regarding the involvement of five persons, without
supporting evidence, cannot and should not be sufficient to attract the offence
of dacoity.
25. In the present case, the involvement of the alleged associates must be
assessed in the light of the evidence actually adduced on record, rather than on
the basis of an unsubstantiated allegation. Further, the presence of five persons,
even if established, would not by itself fulfil the requirements of Section 391
IPC unless the underlying act is proved to constitute robbery within the
meaning of Section 390 IPC. Accordingly, the prosecution must establish both
the requisite number of participants and the commission or attempted
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commission of robbery before the appellants can be held guilty of dacoity under
Section 395 IPC. The relevant portion of the complainant's testimony is
reproduced hereinbelow:
“….. Some persons had boarded the bus and they
were selling lottery. They were charging Rs. 50/-
and giving a reward of Rs. 250/-. There were total
five persons and three persons approached me and
asked me to play lottery. I refused to play lottery.
I was carrying Rs. 11,000/- in my pant pocket and I
was also carrying another sum of Rs. 19,000/- in a
separate pocket of my shirt. The witness has pointed
out towards one person and stated that he had taken
out Rs. 11,000/- from his pant pocket and on being
asked, the accused stated his name as Saleem. The
witness has pointed out towards accused wearing
blue shirt and states that he is the same person who
had taken out Rs. 19,000/- from his inside shirt
pocket. On being asked, the said accused has stated
his name as Arshad….. Three persons got down
from the bus from the front side. Two persons de-
boarded the bus from the back gate. I also got
down from the bus and chased the robbers. The
witness has pointed towards accused Saleem and
stated that accused Saleem was apprehended by
him. I had shouted “chor-chor” and public
persons had beaten Saleem. Accused Arshad was
apprehended by public persons and given
beatings……”
Robbery Not Made Out
26. This Court shall now examine whether the essential ingredients of
robbery, as defined under Section 390 IPC, are established in the present case.
The relevant portion of Section 390 of the Indian Penal Code, 1860, is
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reproduced hereinbelow:
“390. Robbery.—
In all robbery there is either theft or extortion.When
theft is robbery.— Theft is “robbery” if, in order to
the committing of the theft, or in committing the
theft, or in carrying away or attempting to carry
away property obtained by the theft, the offender,
for that end, voluntarily causes or attempts to cause
to any person death or hurt or wrongful restraint, or
fear of instant death or of instant hurt, or of instant
wrongful restraint.”
27. Under the said provision, theft amounts to robbery where, for the
purpose of committing the theft, while committing the theft, or while carrying
away or attempting to carry away the property obtained by theft, the offender
voluntarily causes or attempts to cause death, hurt or wrongful restraint, or fear
of instant death, instant hurt or instant wrongful restraint.
28. Upon a careful perusal of the testimony of the complainant, Ram Yadav
(PW-2), this Court finds that, in his examination-in-chief, he did not
specifically state that the accused persons had caused or attempted to cause him
death, hurt or wrongful restraint, or had put him in fear of instant death, instant
hurt or instant wrongful restraint. However, during his cross-examination by
the learned Additional Public Prosecutor, he stated that the persons who stood
beside him and intimidated him, whereupon he became frightened,
apprehending that they might be carrying weapons and could cause him harm
if he objected. Relevant portion of Examination-in-Chief and Cross-
Examination of PW-2 is reproduced hereinbelow:
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Examination-in-Chief Cross-Examination
On 10.04.2012, I used to work as a
welder with Pragati Construction
Company, having its office at Laxmi
Nagar. I had taken a bus at about
2.00 PM to board towards Jaitpur
from Laxmi Nagar. Some persons
had boarded the bus and they were
selling lottery. They were charging
Rs. 50/- and giving a reward of Rs.
250/-. There were total five persons
and three persons approached me
and asked me to play lottery. I
refused to play lottery.
I was carrying Rs. 11,000/- in my
pant pocket and I was also carrying
another sum of Rs. 19,000/- in a
separate pocket of my shirt. The
witness has pointed out towards one
person and stated that he had taken
out Rs. 11,000/- from his pant
pocket and on being asked, the
accused stated his name as Saleem.
The witness has pointed out towards
accused wearing blue shirt and
states that he is the same person
who had taken out Rs. 19,000/- from
his inside shirt pocket. On being
asked, the said accused has stated
his name as Arshad.
When the bus had crossed Laxmi
Nagar flyover, accused Asmat gave
a whistle blow. Three persons got
down from the bus from the front
side. Two persons de-boarded the
The persons who were standing
beside me intimidated me, and I
became frightened that they might be
carrying some weapon and, if I
objected, they could cause harm to
me. One of those persons then took
out Rs. 11,000/- in the denomination
of currency notes of Rs. 100/- each,
which were kept wrapped in a blue
handkerchief, and the other person
had taken out Rs. 19,000/- from the
extra front pocket of the shirt in the
denomination of currency notes of
Rs. 500/- each .
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bus from the back gate. I also got
down from the bus and chased the
robbers. The witness has pointed
towards accused Saleem and stated
that accused Saleem was
apprehended by him. I had shouted
“chor-chor” and public persons
had beaten Saleem. Accused Arshad
was apprehended by public persons
and given beatings.
29. The aforesaid testimony must be assessed in its entirety and in the
context of the statutory requirements of Section 390 IPC. The mere fact that the
complainant became frightened would not, by itself, satisfy the requirements of
the provision unless such fear was of instant death, instant hurt or instant
wrongful restraint and was caused by the offender for a purpose specified
therein. In the present case, the complainant has neither stated in his
examination-in-chief nor in his cross-examination that the appellants
threatened him with instant death, hurt or wrongful restraint. His testimony
merely indicates that the appellants approached him while attempting to sell
lottery tickets and that he became frightened. There is no specific assertion that
the appellants caused or attempted to cause any of the consequences
contemplated under Section 390 IPC, or that the complainant apprehended
instant death, instant hurt or instant wrongful restraint. In the absence of
evidence establishing these essential ingredients, the prosecution has failed to
establish that the alleged theft amounted to robbery within the meaning of
Section 390 IPC.
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30. The Hon’ble Supreme Court, in Mohd. Wajid and Another v. State of
Uttar Pradesh and Others, (2023) 20 SCC 219 ; elucidated the essential
ingredients required to be satisfied before theft can amount to robbery under
Section 390 of the Indian Penal Code, 1860. The Court held that the offender
must voluntarily cause or attempt to cause death, hurt or wrongful restraint, or
fear of instant death, instant hurt or instant wrongful restraint, for one of the
purposes specified in the provision. Mere occurrence of hurt or violence during
the course of the transaction is insufficient unless the requisite nexus with the
commission of theft or the carrying away of the stolen property is established.
The relevant portion of the judgment is reproduced hereinbelow:
“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
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to carry away property obtained by the theft. It is
not sufficient that in the transaction of committing
theft, 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 the offender has been caused in
the course of the same transaction 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, in the following
words: (SCC OnLine Oudh CC para 5)
“5. ... The words ‘for that end’ in Section 390, Penal
Code, clearly mean that the hurt caused by the
offender must be with the express object of
facilitating the committing of the theft, or must be
caused while the offender is committing the theft or
is carrying away or is attempting to carry away the
property obtained by the theft. It does not mean that
the assault or the hurt must be caused in the same
transaction or in the same circumstances.”
31. Accordingly, this Court finds it necessary to determine whether the
evidence establishes the commission of robbery within the meaning of Section
390 IPC. Unless the foundational ingredient of robbery is established, the
charge of dacoity under Section 395 IPC cannot be sustained. The prosecution
must also establish that five or more persons conjointly committed or attempted
to commit the robbery, or that the total number of persons jointly committing
or attempting to commit the robbery and those present and aiding its
commission or attempt amounted to five or more, as required under Section
391 IPC.
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32. In view of the foregoing discussion, this Court finds that the prosecution
has failed to establish the commission of dacoity, as defined under Section 391
IPC and punishable under Section 395 IPC. Consequently, the conviction of
appellant Mohd. Saleem under Section 412 IPC cannot be sustained, as an
essential ingredient of the said offence, namely, that the property in question
was stolen in the commission of a dacoity, has not been established by the
prosecution. Accordingly, the conviction of appellant Mohd. Saleem under
Section 412 IPC is also liable to be set aside.
Theft
33. This Court, however, finds no reason to doubt the recovery of ₹19,000/-
from accused Saleem. The evidence on record is sufficient to establish the
offence of theft. Section 378 of the Indian Penal Code, 1860, defines theft as
the dishonest taking of movable property out of the possession of any person,
without that person's consent, by moving such property in order to effect the
taking.
34. In the present case, this Court is satisfied that the ingredients of theft, as
defined under Section 378 IPC, stand established. The relevant provisions of
Sections 378 and 379 of the Indian Penal Code, 1860, are reproduced
hereinbelow:
“378. Theft.—
Whoever, intending to take dishonestly any
moveable 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.
XXX
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379. Punishment for theft.—
Whoever commits theft shall be punished with
imprisonment of either description for a term which
may extend to three years, or with fine, or with
both.”
35. Upon a consideration of the testimony of the complainant, read with the
evidence of the police witnesses and the recovery proceedings, this Court finds
that the recovery of ₹19,000/- from appellant Mohd. Saleem stands established.
The complainant has specifically deposed that the said amount was taken from
his possession without his consent. The evidence, therefore, establishes the
dishonest removal of movable property from the complainant's possession,
thereby satisfying the essential ingredients of theft under Section 378 IPC.
Accordingly, the offence punishable under Section 379 IPC stands established
against appellant Mohd. Saleem.
36. Accordingly, the offence punishable under Section 379 IPC is made out.
Section 379 IPC prescribes punishment with imprisonment of either description
for a term which may extend to three years, or with fine, or with both.
37. Having regard to the facts and circumstances of the present case, and
upon perusal of the nominal rolls of the appellants, this Court notes that the
appellants have already undergone a period of incarceration of nearly two
years. In view of the period of custody already undergone by them, this Court
deems it appropriate to sentence the appellants to the period of imprisonment
already undergone by them.
CONCLUSION
38. In view of the foregoing discussion, the appeals are partly allowed. The
impugned judgment of conviction dated 23.07.2024 and the consequential
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order on sentence dated 07.09.2024 are set aside insofar as they relate to the
conviction of the appellants under Section 395 IPC and the conviction of
appellant Mohd. Saleem under Section 412 IPC. However, the appellants are
held guilty of the offence punishable under Section 379 IPC, in view of the
findings recorded hereinabove, and are sentenced to the period of imprisonment
already undergone by them.
39. The appellants shall be released forthwith, if not required to be detained
in any other case, subject to compliance with the applicable provisions of law.
40. The appeals stand disposed of in the above terms. Pending application(s),
if any, also stand disposed of.
41. A copy of this judgment be transmitted to concerned jail superintendent
for information and necessary compliance.
MADHU JAIN
(JUDGE)
OCTOBER 16, 2026/RM
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Signed By:BHARTI
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