Delhi HC Upholds 7-Year Sentence For Phone Robbery On Bus After Witnesses Retract, Citing Corroborated Earlier Testimony

The appellant was convicted by the Sessions Court under Sections 392, 397 and 411 IPC and Sections 25 and 27 of the Arms Act for allegedly stealing a passenger’s mobile phone on a bus, threatening another passenger with a button-operated knife, and possessing the phone and knife.

The complainant and another eyewitness supported the prosecution in examination-in-chief, but later materially departed from that account in cross-examination; the complainant’s re-examination also addressed the alleged change in his evidence.

The Sessions Court relied on their examination-in-chief and corroborative evidence, including testimony from a PCR official and contemporaneous records.

On appeal, the High Court considered the evidentiary effect of the witnesses’ later retractions and the sustainability of the convictions under Sections 411 IPC and 27 of the Arms Act.

Under Sections 3, 137 and 138 of the Evidence Act, testimony is assessed as a whole; a witness’s retraction or the prosecution’s cross-examination of its own witness under Section 154 does not erase the testimony, and the court may rely on portions found credible and corroborated.

A statement under Section 161 CrPC is not substantive evidence, though it may be used for contradiction in accordance with Section 162 CrPC and Section 145 of the Evidence Act; Section 309 CrPC favours proceeding with witness examination from day to day.

Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, Selvamani v. State of T.N., (2024) 19 SCC 112, and Babu Ram v. CBI, 2014 SCC OnLine Del 2838, support evaluating the whole testimony and not discarding reliable, corroborated evidence merely because a witness later resiles.

Section 411 IPC targets receivers of stolen property, not the principal thief or robber (Mir Nagvi Askari v. CBI, (2009) 15 SCC 643).

For Section 27 of the Arms Act, the prosecution must prove contravention of Section 5 or Section 7; breach of a notification under Section 4 alone is insufficient (Surinder Singh v. State (UT of Chandigarh), (2021) 20 SCC 24).

The High Court considered the long intervals between examination-in-chief and cross-examination, the intervening request to seek quashing of the FIR, and the inconsistencies in the later accounts.

It found the earlier testimony of PW-2 and PW-3 sufficiently reliable when read as a whole and corroborated by the PCR official, PW-6, the contemporaneous records, the IO’s evidence and the recoveries; the appellant’s alternative explanation was unsupported.

That evidence established the robbery and use of the knife, supporting the convictions under Sections 392 and 397 IPC.

But because the appellant was found to be the robber, Section 411 could not separately apply to his possession of the same property.

The Arms Act evidence established only breach of the Section 4 notification, not contravention of Section 5 or 7, so Section 27 was not made out.

The convictions and sentences under Sections 392 and 397 IPC and Section 25(1B)(b) of the Arms Act were affirmed; the convictions under Section 411 IPC and Section 27 of the Arms Act, and the sentence under Section 411 IPC, were set aside.

The affirmed substantive sentences were to run concurrently, with set-off under Section 428 CrPC.

The appellant was directed to surrender within two weeks to serve the remainder of his sentence.