Afzal v. State (NCT of Delhi)

1. By way of present appeal, the appellant challenges the impugned judgment of conviction dated 23.04.2024 and order on sentence dated 28.08.2024 passed by the learned Additional Sessions Judge-05, East, Karkardooma Courts, Delhi in Sessions Case No. 625/2023 arising out of FIR No.390/2023 registered under Sections 392/397/411/34 at P.S. Patparganj Industrial Area. The appellant was convicted for the offences punishable under Sections 392/397/411 IPC and sentenced as under: “(a) Convict Afzal is sentenced to undergo rigorous imprisonment for seven years offence punishable 392 IPC and to pay fine of Rs.1000/-. In default of payment of fine, convict shall undergo simple imprisonment for one month. (b) Convict Afzal is sentenced to undergo rigorous imprisonment for seven years for the offence punishable 397 IPC.

(c) Convict Afzal is sentenced to undergo rigorous imprisonment for one year for the offence punishable 411 IPC and to pay fine of N ANSARI Rs.500/-. In default of payment of fine, convict shall undergo SI for 1 month.

(d) Sentences and default sentences to run concurrently.

2. The facts in a nutshell, as per the case of the prosecution, are that on 27.06.2023 at about 6:30 AM, the complainant came from his native place in Uttarakhand and reached Anand Vihar bus stand to catch a bus to his place of work located in Kalkaji, Delhi. While he was waiting for the bus near EDM Mall, two boys approached him and asked him to lend his phone to make a call, stating that their phone was broken. On that pretext, they took him aside, and the appellant put a knife to his neck and took his mobile phone, while the other accused took out his wallet containing Rs.7,000/-, his ATM Card, and his Aadhar Card, and some other documents from his pocket. While they were attempting to flee, the complainant shouted “Chor Chor”, upon which Ct. Tej Pal, who was on patrolling duty, came to the spot and apprehended the appellant, from whose possession a knife and a blue-coloured Lava mobile phone were seized. The other accused managed to escape and could not be arrested. The charges came to be framed under Sections 392/397/411/34 IPC, to which the appellant pleaded not guilty and claimed trial.

3. Learned counsel for the appellant has assailed the impugned judgment by contending that though the incident occurred on a busy street, neither CCTV Footage was recovered nor was any public person examined. Further, the FIR shows that it was registered at 8:48 AM, whereas the appellant was arrested at 7:30 AM.

4. The prosecution examined 4 witnesses in support of its case. The material witness, being the complainant/Darshan Bhatt, was examined as N ANSARI PW-1. His examination was conducted on 27.10.2023. He deposed that he was working as a labourer at Bikaner Sweets, Kalkaji. On the day of the incident, he was returning from his hometown in Uttarakhand and, while waiting near EDM mall to catch a bus for Kalkaji, two boys approached him and asked to lend his phone. He identified the appellant as the person who pointed a knife at his neck and threatened to cut him if he raised an alarm. In the meantime, the other accused took out his purse from the back pocket of his pants, which contained Rs.10,000/-, his Aadhar Card, ATM card, and other documents. He further stated that the appellant had taken out his mobile phone from the right pocket of his pants. When the accused tried to run away, he raised an alarm, upon which a policeman nearby apprehended the appellant, and the knife and mobile phone were recovered from his possession. He identified the mobile phone and his signatures on the seizure memos of the mobile and knife. In cross-examination, the complainant was confronted with his statement recorded in the complaint, i.e., Ex. PW-1/A, wherein he had not mentioned that his purse contained Rs.10,000/-. A suggestion was put to him regarding the installation of CCTV cameras near EDM Mall, to which he claimed ignorance. He stated that he had not provided the bus ticket or the bill of the mobile phone as the same were never asked for by the police officials. After the incident, he went with two police officials in a police vehicle along with the accused to the police station. He further stated that the police had remained at the spot for about five minutes. He denied the suggestion that the appellant was already in the custody of the police, that he had falsely identified him, or that no incident had taken place with him.

5. Ct. Tej Pal, who was on patrolling duty near EDM mall on the day of N ANSARI the incident and apprehended the appellant, was examined as PW-3. He deposed that at about 6:30 AM, he saw two boys running from EDM Mall towards Maharajpur check post, followed by another boy shouting “chor chor”. While one of the two boys was caught, the other managed to escape. The complainant informed him that his mobile phone and purse had been robbed at a knife point. The witness asked passersby to join the proceedings, however everyone refused. On search of the appellant, a blue-coloured Lava mobile phone was recovered from his right pocket and a knife from his left pocket. He, along with the complainant, went to the police station and handed over the accused as well as the case property to SI Sunil. The Trial Court has noted that the identification of the mobile phone is not in dispute, and the witness identified the knife as Ex. P-2. In cross-examination, he stated that EDM Mall was about 200 meters away from the police station. He interacted with 2/3 public persons, but did not write down their names. He stated that there is no CCTV camera installed near the place of incident. He denied the suggestions that the appellant was neither present nor apprehended by him, and further denied the suggestion that nothing was recovered by him from the appellant.

6. SI Sunil, the I.O. of the case, was examined as PW-4. He deposed that Ct. Tej Pal had brought the appellant and the complainant to the police station at about 7:00 AM, and also handed over one knife and one mobile phone which he statedly recovered from the possession of the appellant. The witness clarified that the FIR was registered at about 8:48 AM and that the timing of 7:30 AM mentioned on the arrest memo is a clerical mistake.

7. This Court is of the considered view that the chain of events brought N ANSARI out by the witnesses and the chronology of events appears plausible and does not reflect any ante-timing or fabrication. Nothing has been elicited in cross-examination to cast doubt on the genuineness of the investigation, the credibility of the witnesses, or the authenticity of the documents prepared.

8. The learned counsel for the appellant pointed out that, while in his initial statement the complainant had mentioned the amount in his pocket as Rs.7,000/-, in his testimony he stated it to be Rs.10,000/-. However, this inconsistency in the stated amount does not, in itself, affect the substratum of the prosecution case. The allegation of robbery at knife point, the immediate apprehension of the appellant, and the recovery of the complainant’s mobile phone and the knife from his possession stand firmly established.

9. With regard to the contention that the occurrence took place on a busy street yet no public witness was examined, PW-3 has deposed that he did attempt to secure the presence of passers-by, but they declined to join. His testimony on this point was not shaken in cross-examination. Reference may be made to the decision of the Supreme Court in Gian Chand Vs. State of Haryana, reported as (2013) 14 SCC 420, wherein it was held as under:- “35. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere nonjoining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. PW-1 and PW-3 have given corroborative versions of the appellant’s apprehension and the recovery of the mobile phone and knife, and nothing on record credibly suggests false implication. The absence of CCTV footage N ANSARI also cannot be held to be fatal to the prosecution case.

10. On an appraisal of the record, it is found that the contentions raised by the appellant have been adequately answered by the witnesses in their testimony. The appellant was caught at the spot with the complainant’s mobile phone and a knife. There is no ambiguity with respect to the aforesaid facts. No credible evidence has been led to substantiate the allegation of false implication, particularly when, in the present circumstances, such a false implication would necessarily presuppose a conspiracy between the police officials and the complainant. In this view of the matter, this Court finds no ground to interfere with the impugned judgment. The impugned judgment as well as order on sentence are upheld, and the present appeal is accordingly dismissed.

11. A copy of this judgment be communicated to the Trial Court.

MANOJ KUMAR OHRI (JUDGE) SEPTEMEBER 26, 2025 N ANSARI