Shadab @ Salman v. State (NCT of Delhi)

1. The present appeal has been instituted under Section 415(2) read with Section 528 BNSS seeking setting aside of the impugned judgment dated 31.05.2024 and order on sentence dated 04.09.2024 rendered by the learned Special Judge, NDPS-01 (Central), Tis Hazari Courts, Delhi in SC NO. 105/2019 arising out of FIR No. 300/2018 registered under Sections 392/397/34 IPC at P.S. Kashmere Gate.

2. The investigation commenced on 23.09.2018 when DD No. 14A was recorded at P.S. Kashmere Gate at about 08:25 AM, reporting that four persons, at gun point, had committed robbery of a gold kara, a chain, and a ring. The statement of Ankush Goel, the complainant, was recorded, wherein he stated that he, along with his cousin Achint Goel, had boarded an autorickshaw from the Paharganj side of the New Delhi Railway Station to go to ISBT, and when the auto-rickshaw reached near a red light, two boys on a motorcycle approached them. One of the persons came towards him, while the other went towards his cousin, who was shown a pistol like weapon and asked to hand over all valuables. At the same time, another two persons arrived on a separate motorcycle. The complainant handed over his gold kara, whereas his cousin handed over his gold chain and ring. All four accused persons then fled on their motorcycles.

3. With these allegations, the FIR came to be registered under Sections 392/397/34 IPC. The appellant was subsequently arrested on 17.10.2018 in connection to FIR No. 286 of 2018 registered at P.S. Hazrat Nizamuddin under provisions of the Arms Act, whereafter he disclosed about commission of the offence in the present case. The appellant was arrested in connection to the present case on 29.10.2018. On completion of investigation, charges were framed against the appellant under Sections 392/34 and 397 IPC. The other accused persons could not be arrested.

4. Learned counsel for the appellant has assailed the impugned judgment by contending that neither was the identity of the appellant established nor the factum of him showing the gun. In the TIP proceedings, neither the complainant nor his cousin, who were robbed of their articles, identified the appellant. Their subsequent identification before the Trial Court is of no relevance. It is apparent that the appellant was either shown to them or identified at the instance of the I.O. Though the auto-rickshaw driver identified the appellant in TIP proceedings, the benefit of doubt must go to the appellant. Insofar as the appellant’s act of showing the gun is concerned, it is contended that the same is also unbelievable. Though PW-3 stated that it was the appellant who had shown the gun, his cousin PW-4, to whom the gun was shown, stated that he was not sure whether it was the appellant who had done so. Learned counsel for the appellant has further contended that neither was any recovery of the robbed articles effected, nor was any public witness examined, despite the incident having taken place during daytime, which further weakens the case of the prosecution.

5. The contentions are repelled by the learned APP for the State, who submits that the complainant has stated that he could not identify the appellant during TIP proceedings as he was nervous. At the same time, the auto-rickshaw driver identified the appellant in TIP proceedings, as well as before the Court.

6. In view of the categorical non-identification of the appellant by the complainant and his cousin, who had a much better opportunity to look at the appellant, having been shown the pistol, the identification by the autorickshaw driver is not of much consequence. A relevant reference may be made to a decision of the Supreme Court in Hare Krishna Singh & Ors. Vs. State of Bihar, reported as (1988) 2 SCC 95, wherein it was held that evidence regarding identification of the accused in Court by a witness is useless when the witness has failed to identify the accused in judicial TIP. The identification of the appellant itself being in doubt, the benefit of doubt must go to him.

7. In reaching this conclusion, this Court also draws strength from the fact that the incident is said to have been committed at a red light near New Delhi Railway Station. It has come in the testimony of PW-2 that some vehicles were passing by near the spot. Achint Goel admitted in his crossexamination that 8 to 10 public persons had gathered at the spot. The nonexamination of public persons by the I.O. also lends support to the conclusion arrived at hereinabove. While it is true that non-joining of public witnesses by itself is not fatal to the prosecution case, that is only in cases where the other evidence put forth by the prosecution is cogent, credible and reliable. A gainful reference in this regard may be made to the decision of Supreme Court in Hem Raj & Ors. Vs. State of Haryana, reported as (2005) 10 SCC 614, wherein it was held that unexplained omission to examine independent witnesses assumes significance when the evidence of eyewitnesses stands to raise serious doubts about the presence of accused persons at the time of occurrence.

8. In view of the foregoing discussion, the present appeal is allowed and the appellant is acquitted. He shall be released from jail forthwith if not required in connection to any other case.

9. The present appeal is disposed of in the above terms.

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

11. A copy of this judgment be communicated to the concerned Jail Superintendent for information and necessary compliance.

MANOJ KUMAR OHRI (JUDGE) SEPTEMBER 18, 2025