Delhi District Court
(Judgment) State vs . Virender Gupta & Ors. on 11 May, 2018
(Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12
PS: SUBHASH PLACE
U/S 420/328/34 IPC
IN THE COURT OF SHRI PANKAJ GUPTA:ADDL. SESSIONS JUDGE, FTC,
(NORTH-WEST): ROHINI COURTS: DELHI
Sessions Case No.52463/16
Unique Case ID: DLNW01-001408-2014
State
Vs
1. Virender S/o Late Sh. Nannu Mal Gupta,
R/o B-599, Itwar Bazar, Chaman Vihar, Loni,
Ghaziabad, UP.
2. Sandeep S/o Sh. Harpal Singh
R/o Q-59, Bhagat Enclave, Uttam Nagar, Delhi.
3. Devender @ Babloo S/o Late Sh. Ant Ram,
R/o V-43, Sector-A, Bhagwati Vihar,
Uttam Nagar, Delhi. ........................ACCUSED
FIR No. 445/2012
Police Station : Subhash Place
Under Section : 420/328/34 IPC
Date of committal to Sessions Court : 13.08.2014
Date on which judgment reserved : 11.05.2018
Date on which judgment pronounced : 11.05.2018
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(Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12
PS: SUBHASH PLACE
U/S 420/328/34 IPC
JUDGMENT
1. This is a case under sections 328/420/34 of Indian Penal Code, 1860 (IPC).
CASE OF THE PROSECUTION
2. On 20.11.2012, all the accused in furtherence of their common intention adminis- tered intoxicating drug in a cold drink given to complainant Surender Mohan Kumar and thereafter, cheated him of Rs.27 lakhs.
CHARGE
3. Charges under sections 328/420/34 IPC were settled against all the accused. All the accused pleaded not guilty and claimed trial.
EVIDENCE
4. In order to discharge the onus, the prosecution has examined 18 witnesses.
PUBLIC WITNESSES Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC
5. PW3 Surender Mohan (the complainant/victim) deposed that on 20.11.2012 be- tween 12.00-1.30 pm, he was going towards Sector-7, Dry Cleaning Shop and when he reached at Hanuman Chowk, the accused no. 2 came on a bicycle and asked him "ex- hibition kaha lagti hai" but he remained silent. In the meantime, the accused no. 3 came there on another bicycle and the accused no. 2 and 3 restrained his way and the accused no. 3 told that "exhibition ya to Japani Park mein lagti hai ya ramlila ground mein lagti hai". That time also, he remained silent. The accused no. 3 asked the ac- cused no. 2 as to what was his business, on which the accused no. 2 replied that he used to sell lotteries and wanted to go to exhibition ground to sell lotteries. The ac- cused no. 3 asked the accused no. 2 as to what was the prize of lottery and the accused no. 2 replied that lottery was of Rs. 1. The accused no. 3 asked the accused no. 2 to give one lottery but the accused no. 2 refused to give lottery on the pretext that he had to sell the lottery in exhibition ground as per the directions of the company. The ac- cused no. 3 told that no one would know so the accused no. 2 should give one lottery and he would tell that he had purchased lottery from the exhibition ground. Then, the accused no. 3 asked him (PW3) "uncle ji isske thele mein se ek ticket mere liye nikal do" and he took out a lottery from the bag of the accused no. 2. The said ticket was in two cover and cover was having cellophin paper and after opening the lottery, one stamp of Rs. 200/- was found on white paper and the accused no.3 became happy as he got prize of Rs. 200/-. The accused no. 3 again asked for one more ticket and the ac- cused no. 2 again took out one more ticket from his bag and such ticket was also hav- ing the same paper and it was also opened and found having stamp of Rs. 100/- on white paper and the accused no. 2 handed over Rs. 300 (new currency notes) to the ac- cused no.3.
6. PW3 also deposed that he became greedy as price of the lottery was Rs. 1 and he asked the accused no. 2 to give him one ticket. It was in the same paper and was Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC opened and white paper was found blank and the accused no. 2 told him that in case, two tickets were found blank then the company used to give prize. Accordingly, one ticket was again taken out from the bag of the accused no. 2 and such ticket was also found blank. In the meantime, the accused no. 1 also came there on another bicycle and the accused no. 3 again asked the accused no. 2 to take out two tickets for him. Af- ter opening the same, both the tickets were found blank and the accused no. 2 told that "jitne bhi paise lagaoge, hum uska double denge". The accused no. 3 told that he was having money and he should go to his house and would show Fixed Deposit Receipt (FDR) of Rs. 5 lacs and whatever money was available in his house and he should be given the double amount of the same.
7. PW3 also deposed that then, they all started proceeding towards Sector-6 and the accused no. 2 started saying that he would not go at the house of the accused no. 3 as he had no instruction to go to the house of anyone. Thereafter, the accused no. 2 sat on the patri of Jain Vidhya Mandir School and the accused no. 3 had proceeded at some distance and came back and gave Rs. 100 to the accused no. 1 and asked him to bring cold drink for him (PW3), The accused no. 1 went away on the bicycle to bring Campa and the accused no. 3 also went away from there towards his house. In the meanwhile, the accused no. 1 came with a Fanta bottle and gave him (PW3) half glass of Fanta but he refused to drink the same. Then, the accused no. 1 insisted him to drink Fanta, therefore, he consumed the same sip-by-sip. The accused no. 1 also left the spot by saying that he had not obtained the remaining change from the shopkeeper.
8. PW3 also deposed that after some time, the accused no. 1 came back at the spot. In the meantime, the accused no. 3 also came back at the spot from his house and told that FDRR was not available at his house and he had sent his brother to take out the Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC same from the locker of the bank and told that he had brought the currency notes of Rs. 50,000/- and had shown the bundle of notes of Rs. 50,000/- tied with the rubber- band and again kept the same in his pocket. The accused no. 3 asked him (PW3) as to whether he had any FDR in his name and if so, then he should bring the FDR. He told the accused no. 3 that he was having FDR of Rs. 27,50,000/- of Yes Bank.
9. PW3 also deposed that thereafter, he had taken the rickshaw and firstly, reached the shop of dry-cleaner and handed over the suits . Thereafter, he reached his house and took out FDR of Yes Bank and its cheque book; and passbook of PNB and its cheque-book from the almirah and after telling his wife that he was taking the FDR of Yes Bank, he left the house and reached the spot where all the accused were present. He had shown his FDR to the accused no. 2 and after seeing the same, the accused no. 2 had talked with some senior of the company and asked him as to whether the com- pany would be able to pay the double of the amount of the FDR and the company offi- cial denied by saying "agar ye saving bank mein FDR tudwa kar dikha de to hum paisa de denge". He asked the accused no. 2 as to what would be the fate of his due interest on FDR. The accused no. 2 again made a call to his company and talked with a Madam and she told that to compensate him (PW3), they would pay double of the 10 % interest i.e. to 20%.
10. PW3 also deposed that he told that his bank was in Prashant Vihar. The accused no. 3 told that even his HDFC Bank was in Prashant Vihar and he would also take his FDR from that bank. He took the rickshaw and reached his bank at Prashant Vihar. All the accused also followed him on the bicycles and stopped 10 steps before the bank and asked him to go inside the bank to encash the FDR. He met the manager of the bank and asked him to encash the FDRs of Rs. 10 lacs, Rs. 10 lacs, Rs. 5 lacs, Rs.
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FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC 2 lacs and Rs. 50,000/- and handed over the FDRs to the bank manager who told him that FDRs were in the joint name, therefore, signature of his (PW3) wife were also re- quired. He asked the manager as to whether any person was available in the bank to go his house to obtain the signatures of his wife. Bank Manager told him that Rahul was available and sent him to his house. He also informed his wife on telephone to sign the FDRs as one Rahul was coming from Yes Bank. When Rahul did not come after about 15 minutes, he made a call to his wife and asked her whether Rahul reached the house and she told him she had signed the FDRs and Rahul had left from there five minutes ago. In the meanwhile, he asked the Bank Manager for calculation of the amount and Manager calculated the amount and told him that it was Rs. 27,66,391.47 and handed over him the statement of account.
11. PW3 deposed that in the meanwhile, Rahul came there with FDRs and handed over the same to Bank Manager. After obtaining the statement, he came outside the bank where all the accused were standing and he asked the accused no. 2 to fulfill his promise. The accused no. 2 asked him (PW-3) to first show him the cash after with- drawing the same. He again went inside the bank and asked the Manager to withdraw the amount. Manager told him that by that time only Rs. 5-10 lacs were available in the bank and advised him to go to Netaji Subhash Place of Yes Bank and he would talk there for cash. He thought that he had done so much so he should show the cash to all the accused. Bank Manager made a phone call to one Jeet at Yes Bank, Netaji Subhash Place and asked him as to whether such amount was available and then Bank Manager asked him to reach Yes Bank Branch of Netaji Subhash Place. He took the cycle rick- shaw for Netaji Subhash Place and all the accused followed him. The accused no. 1 handed over him a red color bag and asked him to bring the cash in that bag. All the accused stayed at Sandesh Vihar, District Park and he asked them to come with him but they denied. Thereafter, he reached Yes Bank Branch, Netaji Subash Place and Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC handed over cheque of Rs. 27 lacs to Jeet who handed him over cash of Rs. 27 lacs. From there, he had withdrawn cash of Rs. 27 lacs from his account No. 0231937001601 on the basis of self cheque no. 608720. He proved the attested copy of his statement of account and copy of cheque as Ex. PW4/A and Ex. PW4/B.
12. PW3 also deposed that he put the currency notes in said red bag and when he came outside the bank, the security guard stopped him and told him that currency notes were visible from the bag so he covered the currency notes with the newspaper. After covering the currency notes with the newspaper, he took the cycle rickshaw and reached District Park, Sandesh Vihar but all the accused did not meet him. That time, he was thinking of returning his home. In the meantime, the accused no. 1 came there on the bicycle and told him that they were searching for him. The accused no. 2 also came there. Then the accused no. 1 and 2 took him (PW3) inside the park and sat on a bench and he hanged the bag having currency notes in his left hand and told the ac- cused no. 1 and 2 "ab hisab karo" and told that the accused no. 3 had gone to HDFC Bank and had taken a token and would be reaching there in a short while, so they would settle the account together. The accused no. 1 told him that he had not taken meal so he must be tired and offered him Fanta in a glass. Since he was thirsty, he had the Fanta. Again, he asked the accused no. 1 and 2 to settle his account as it was not known when the accused no. 3 would come. Then, the accused no. 1 told him that the accused no. 3 was just coming and the accused no. 2 took his bag and told that he was not feeling well so the accused no. 1 and 2 would take him to the hospital and left from there. In the meantime, the accused no. 3 also reached there. He started feeling drowsiness. Only for one minute, he regained his consciousness and saw that some school children were playing in the park and asked from two children about the ac- cused and the said children told that they did not know anything and also asked him to sit on the bench as he was stumbling and thereafter he became unconscious.
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FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC
13. PW4 Rakesh Aggarwal deposed that on 20.11.2012, PW3 had withdrawn cash of Rs. 27 lacs from his account No. 0231937001601 on the basis of self cheque no. 608720. He proved the attested copy of statement of account of PW3 and copy of cheque as Ex. PW4/A and Ex. PW4/B. PW4 also deposed that he handed over the CCTV footage dated 20.11.12 from 2.30 pm to 5.00 pm in a pen drive to IO vide his letter Ex. PW4/C.
14. PW10 Mehar Chand Khanna deposed that he was running pharmacy/chemist shop under the name of "Manoj Medicos" and the accused no. 1 had come to his shop one or two times and had purchased one medicine Ativan from his shop after showing the prescription.
15. PW5 Munna identified three bicycles Ex. PX1, Ex. PX2 & Ex. PX3 which ac- cording to the prosecution, were used by the accused persons at the time of incident.
16. PW6 Dheeraj Mittal deposed that he was having a built up house of 25 square yards at C1/112, Sanjay Enclave, Uttam Nagar, Delhi and had entered into an agree- ment to sell the aforesaid property with the wife of the accused no. 3 for sale consider- ation of Rs. 24.22 lacs. The accused no. 3 had paid Rs. 19 lacs but the deal could not be materialized as the entire sale consideration was not paid to him. He proved GPA, agreement to sell, SPA, affidavit, possession letter, receipt of Rs. 10 lacs and Will Ex. PW6/A. Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC
17. PW8 Harpal deposed that on 07.03.2013, he along with the accused no. 3 had purchased a plot of 50 square yards at Khasra No. 374, Village-Banthala, in the abadi of Suraj Kunj, Loni, Ghaziabad for a sum of Rs. 6 lacs by one Prakashi and proved the documents Ex. PW8/A (total 11 pages).
POLICE WITNESSES
18. PW12 HC Ram Avtar deposed that on 22.11.2012, he recorded DD no. 29 that brother in law of caller had withdrawn Rs. 27 lacs from Yes Bank and had been found admitted at Max Hospital in unconscious condition and marked it to PW11 SI Radhey Shyam for investigation. He proved copy of DD 29B Ex. PW12/A.
19. PW11 SI Radhey Shyam (1st Investigating Officer) deposed that on receipt of DD no. 29B, he along with PW13 reached at Max Hospital, NSP, Delhi and found PW3 admitted but he was unfit to make statement. On 21.11.2012, he again reached at Max Hospital and obtained MLC of PW3 but PW3 was still unfit to make statement. Doctor handed over him one cloth bag containing passbooks, cheque books and ATM card which were taken into possession vide seizure memo Ex. PW11/A. He relied upon the said cheque books and passbooks Ex. PW3/1 to Ex. PW3/5. He proved the passbook of Yes Bank Ex. PW11/B. He also deposed that the doctor handed over wear- ing clothes of PW3 which he seized vide seizure memo Ex. PW11/C. He also seized two sealed pullanda vide memo Ex. PW11/D. He came back to the police station and made endorsement on DD No. 29B and prepared rukka Ex. PW11/E and handed over the same to PW2 ASI Jai Singh for registration of case.
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FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC
20. PW11 also deposed that on 22.11.2012, he again went to Max Hospital and recorded statement of PW3. On the basis of information of PW3, he got prepared the portraits of alleged offenders from the expert and were flashed. On 01.12.2012, he reached at the spot with PW3 and prepared site plan of the place of incident Ex. PW11/F. At the instance PW3, he reached at D-Mall Yes Bank, NSP and inspected the spot and prepared site plan Ex. PW11/G. He had also seized Black Berry phone, currency notes and dry cleaner slip belonging to PW3 which the doctor had handed over to him vide seizure memo Ex. PW11/H.
21. PW2 ASI Jai Singh proved the copy of FIR Ex. PW2/A and endorsement Ex. PW2/B.
22. PW16 HC Raj Kumar proved copy of relevant entry in the register no. 19 Ex. PW16/A.
23. PW17 Insp. Rajeev Ranjan (2nd Investigating Officer) deposed that on 26.04.2013, further investigation was marked to him. On 13.12.2013, the accused no. 1 and 2 were apprehended by the police on the basis of secret information from Ser- vice Road opposite Shiva Market Pitam Pura. They made the disclosure statement. They were arrested vide arrest memo Ex. PW17/A and Ex. PW17/B. He proved their personal search memo Ex. PW17/C and Ex. PW17/D and their disclosure statements Mark PW17/E & Mark PW17/F. He prepared the pointing out memo Ex. PW17/G at their instance. They led the police to Yes Bank Prashant Vihar and he prepared point- ing out memo Ex. PW17/H. They thereafter led the police to Yes Bank, NSP from where PW3 had withdrawn Rs. 27 lacs and prepared pointing out memo Ex. PW17/J. They led the police to Safeda Park, NSP where they all had left PW3 in unconscious Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC state and he prepared pointing out memo Ex. PW17/K. He produced them in the court in muffled face on 14.12.2013 and moved application for their TIP. On 14.12.2013, they were produced in muffled faces in the Court of Ms. Shefali Barnala Tandon, learned MM (Mahila Court-I) but they both refused to join the TIP proceedings. He re- lied upon the TIP proceedings Ex. PW14/A and Ex. PW14/B.
24. PW17 also deposed that on 15.12.2013, the accused no. 3 was arrested from his house situated at Uttam Nagar vide arrest memo Ex. PW17/L. His personal search was conducted vide memo Ex. PW17/L1 and his disclosure statement is Mark PW17/M. The accused no. 3 was kept in muffled face during the investigation and he led the po- lice to the place of incident and at his instance, he prepared pointing out memo Ex. PW17/N1. The accused no. 3 also led the police to Yes Bank Prashant Vihar and he prepared pointing out memo Ex. PW17/N2. Thereafter, the accused no. 3 led the police to Yes Bank, NSP from where PW3 had withdrawn Rs. 27 lacs and he prepared point- ing out memo Ex. PW17/N3. Thereafter, the accused no. 3 took the police to Safeda Park, NSP where they all had left PW3 in unconscious state and he prepared pointing out memo Ex. PW17/N4. The accused no. 3 was produced in the Court in muffled face on 16.12.2013 and he moved application for his TIP but he refused to participate in TIP vide his statement Ex. PW15/A. TIP proceedings are Ex. PW15/B. He proved the application for holding of TIP Ex. PW15/C; and application for supplying of copy of TIP proceedings Ex. PW15/D.
25. PW17 also deposed that on 17.12.2013, all the accused were remanded to police custody for four days and were brought to the office of Special Staff where PW3 had reached to inquire about the progress of the case and identified all the accused as the Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC persons who had cheated him Rs. 27 lacs. He recorded supplementary statements of all the accused Ex. PW17/P1, Ex. PW17/P2 & Ex. PW17/P3.
26. PW17 also deposed that on 20.12.2013, all the accused led police to the parking of Railway Station Shakur Basti and got recovered three bicycles which were used by them in commission of offence. Said bicycles were seized vide seizure memo Ex. PW5/A. He identified the bicycles Ex. PX-1, Ex. PX2 & Ex. PX-3.
27. PW17 also deposed that thereafter, the accused no. 3 led the police to his house situated in Bhagat Enclave, Uttam Nagar and took out one file cover kept in iron almi- rah in inner room of his house and the said file was containing one GPA in the name of his wife Suman regarding purchase of house C1/112, Sanjay Enclave, Uttam Nagar, Delhi which he seized vide seizure memo Ex. PW17/Q. He deposed that the said plot was purchased from the amount cheated from various persons during the period Sep- tember 2013 to December 2013. GPA, Will, agreement to sell and other chain of docu- ments in respect of aforesaid built up property/house are Ex. PW17/Q1.
28. PW17 also deposed that same day, the accused no. 2 led the police to his house i.e. house no. Q59, Bhagat Nagar, Uttam Nagar, Delhi and took out a polythene bag containing Rs. 2 lacs (two hundred currency notes in the denomination of rupee one thousand) from an iron almirah of inside room of his house and he seized them vide seizure memo Ex. PW17/R. The accused no. 2 also took out one file cover containing property documents of one property bearing Khasra no. 374, Village Banthala, Loni, UP from said almirah which he seized vide seizure memo Ex. PW17/R1. He deposed that that the said property was purchased by the accused no. 2 in the names of his par-
Page no.26 /26(Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC ents from the cheated amount from PW3. He relied upon the documents are Ex. PW8/A.
29. PW17 also deposed that on 20.12.2013, the accused no. 1 led the police to his house situated at Chaman Vihar, Loni, UP and got recovered one bag containing 375 lottery slips; small envelope; and two bundles of white papers of the size of currency notes which were used as a note bundles for the purpose of cheating. All the said arti- cles were seized vide seizure memo Ex. PW17/S. The accused no. 1 also got recovered cash Rs. 1 lac (two bundles of currency notes of five hundred, total two hundred notes of five hundred rupee) from his house which he seized vide seizure memo Ex. PW17/S1.
30. PW17 also deposed that on 13.01.2014, two sealed parcels were marked to PW18 for examination. Parcel no. 1 contained one reddish brown deposit sticking in- side the jar Ex. 1 and parcel no. 2 contained reddish brown deposit sticking inside the jar Ex. 2. On chemical and TLC examination, exhibits 1 & 2 were found to contain Lorazepam (Benzodiazapine group of drug). FSL report is Ex. PW17/U. MEDICAL EVIDENCE
31. PW Dr. Lalit Kumar Mehta, Consultant Medicine, Max Hospital deposed that on 20.11.2012, he examined PW3 in the casualty and gastric lavage was done in the Casualty.
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32. PW1 Dr. Lalit Kumar Mehta deposed that he examined PW3 who was in altered sensorium i.e. drowsy and under confusion. On examination, his pulse was found 116 per minutes, BP was 130/80, temperature was normal, oxygen saturation 97 cm and cardiovascular system normal, respiratory system normal and CLS patient drowsy, confused with GI examination normal. He proved the MLC of PW3 Ex. PW1/A. On 23.11.2012, he opined injuries as simple due to suspected acute poisoning and stroke vide MLC Ex. PW1/A. He proved the copies of treatment papers of PW3 Ex. PW1/B. FORENSIC EVIDENCE
33. PW18 Dr. Kanklata Verma relied upon her report Ex.PW-17/U. STATEMENT OF ACCUSED
34. After completing the prosecution evidence, statement of all the accused was recorded under Section 313 Code of Criminal Procedure, 1973 in which the incrimi- nating evidence/material was put to them to which they have denied. All the accused stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
35. All the accused have not led evidence in their defence despite given opportu- nity.
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36. I have heard the ld. Addl. PP and counsel for the accused and have perused the material available on record.
37. Ld. Addl. PP pleaded that PW3 has identified the accused persons as the cul- prits. Further, all the accused refused to participate in TIP. Hence, an adverse inference may be drawn against them. As such, identity of all the accused stands proved. Recov- ery has been effected from each accused. As such, the prosecution has proved the case beyond reasonable doubt. Hence, all the accused may be held guilty for the offences charged with.
38. On the contrary, counsels for the accused pleaded that the identification of the accused persons by PW3 is not reliable in nature. According to PW10, one photograph was shown to him and he identified the accused no.1 on that basis. Hence, his testi- mony is of no consequence. According to the prosecution, the IO got prepared the sketches of the suspects. However, no such sketch was proved on record. Further, the sketch Ex.PW-3/DA to DF were not shown to PW-3 for the purpose of identification. They also pleaded that according to the prosecution, PW3 identified all the accused in the office of the special staff on 17.12.2013. However, identity of all the accused had already been disclosed to PW3. Hence, the said identification is of no consequence.
39. Counsels for the accused also pleaded that according to MLC Ex.PW-1/A, on 22.11.2012, PW-3 was fit to make a statement. However, IO did not record the state- ment of PW-3 that day. On 23.11.2012, PW-3 was discharged from the hospital. Even that day, statement of PW3 was not recorded by the IO. It is for the first time the state- ment of PW-3 was recorded on 17.12.2013. Prosecution has failed to explain from the date of incident i.e. 20.11.2012 till 17.12.2013 why the statement of the victim / eye Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC witness i.e. PW-3 was not recorded. As such, there had been undue and justified delay in recording the statement of PW3.
40. Counsels for the accused also pleaded that according to the prosecution, relative of PW-3 got lodged the DD no.29B Ex.PW-12/A giving information that PW-3 with- drew Rs.27 lacs and was in unconscious condition in Max Hospital. However, the prosecution has failed to explain if, PW-3 had become unconscious after consuming the cold drink "Fanta", then who had given the information to the relative as to where PW-3 was lying and as to how the said relative came to know that PW-3 had been cheated for Rs.27 lacs. In the MLC Ex.PW-1/A, it was mentioned that PW-3 was brought in the hospital by his relative, however, the name of the relative is not men- tioned in the MLC. Further, the said relative has not been cited as the prosecution wit- ness nor was examined in the present case.
41. Counsels for the accused also pleaded that according to FSL Ex. PW17/U, on chemical and TLC examination, exhibits 1 & 2 were found to contain Lorazepam (Benzodiazapine group of drug). However, the said drug is very commonly used by the patient suffering from high Blood Pressure. As per record, PW-3 was suffering from high blood pressure.
42. Counsels for the accused further pleaded that according to PW4, he provided the CCTV Footage of the bank in Pen Drive to the IO. On the contrary, IO deposed that he was not handed over the CCTV Footage. According to the charge sheet, the doctor had given the cheque book, pass book etc. on 21.11.2012 to the police official. However, PW-3 deposed that it was his who gave the cheque book and pass book to Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC the IO which he was carrying on the said of incident. As such, there exists material contradictions in the statement of the prosecution witnesses.
43. In the present case, PW-3 is the victim and the eye witness to the incident, but not the complainant.
44. It is evident from the testimony of PW4, PW3 had withdrawn cash of Rs. 27 lacs from his account no. 0231937001601 on the basis of self cheque no. 608720 on 20.11.2012 as evident from attested copy of statement of account of PW3 and copy of cheque as Ex. PW4/A and Ex. PW4/B.
45. Testimony of PW-3 reveals that on 20.11.2012, when he was on his way to give the cloths to the dry cleaner, firstly, the accused no.2 met him and asked the way to the exhibition ground. Thereafter, the accused no.3 joined the accused no.2 and bought the lottery ticket from the accused no.2. Lastly, the accused no.1 joined them and it was he who offered the cold drink "Fanta" to him on two occasions. According to PW-3, the accused no.1 had administered some drug in cold drink to him. After consuming the cold drink on second occasion, PW3 felt drowsiness and only for one minute, he re- gained his consciousness and asked two children about the accused persons who replied that they did not know anything and asked him to sit on the bench. Thereafter, he became unconscious and when he regained his consciousness, he found himself ad- mitted in Max Hospital.
46. Now the question arises as to who removed PW-3 to the Max Hospital and gave the information to the police.
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47. Perusal of MLC of PW-3 Ex.PW-1/A reveals that on 20.11.2012 at about 7:05 pm. PW-3 was brought in the Max hospital from District Park, Sandesh Vihar by some relative. However, the name of the said relative is not mentioned in the said MLC.
48. Perusal of DD no.29B dated 20.11.2012 Ex.PW-12/A reveals that it was recorded at 7:32 pm regarding an information "my brother in law had withdrew Rs.27 lacs and was in unconscious condition and was found in Max Hospital". It implies that at the time of recording of DD no.29B, PW-3 was in unconscious condition in Max Hospital and the informant mentioned that PW-3 was his brother in law who was found admitted in the said hospital and had withdrew Rs.27 lacs. Again, the name of the informant is not mentioned. Further, the said informant had not brought PW3 in the said hospital. Now the question arises once PW3 remained unconscious from the stage when he was removed from Sandesh Vihar to the Max Hospital, then as to how the in- formant came to know that PW-3 had withdrew Rs.27 lacs and the prosecution has failed to answer the same. Even IO has not conducted any inquiry nor has brought any witness to show as to who was that person who removed PW-3 from the said park to the said hospital and gave information to the police.
49. It is evident from the testimony of PW-3 that he was carrying the mobile phone at the time of incident. It is also evident from the testimony of PW-11 and PW-13 that the doctor handed over the black berry mobile phone Ex. PX-4 belonging to PW-3 in addition to other articles which PW11 seized vide seizure memo Ex.PW-11/H. PW-3 in his examination deposed that when the bank boy namely Rahul did not return from his house at the bank, he called his wife and asked about that person. It is nowhere the case of PW-3 that thereafter, he made any call from his mobile phone number to any person that day. It implies that PW-3 made the last call to his wife from his mobile Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC phone Ex.PX-4 before he became unconscious and that mobile phone was handed over by the doctor to PW-11. Now the question arises who had given the information to the relative of PW-3 whose identity had also remained undisclosed and how. If, some third person had used the mobile phone of PW-3 to give the information to his near relation, in that situation, as a human psychology, he would have redialed the last called number as he had no occasion to know the relative of PW-3. In the present case, the last call was made by PW-3 to his wife but admittedly, the wife had not removed PW-3 to the hospital that day. IO had not obtained the CDR data of the mobile number of PW-3 also to ascertain those vital facts. Further, as per DD entry Ex.PW-12/A, the informa- tion was forwarded to PW-11. Testimony of PW-11 and PW-13 reveals that when they reached at the hospital on 20.11.2012, they did not find any relative of PW-3 nor they made any effort to make inquiry as to that relative and the information given to the po- lice. As such, the identity of the person who removed PW-3 to the said hospital and as to how the alleged relative reached at the said hospital and got the information about unconscious condition of PW-3 and that he withdrew Rs.27 lacs remained a mystery.
50. Now it is interesting to see as to when the first statement of PW3 as to the inci - dent was recorded and as to how the name of the accused came into picture and PW3 identified them.
51. According to PW-11, on 20.11.2012, he along with PW-13 reached at Max Hos- pital and found PW-3 but the doctor stated that he was unfit to make a statement. The same position existed on 21.11.2012 also. Hence, according to the prosecution, the statement of PW-3 could not be recorded on 20.11.2012 and 21.11.2012 as he was un- fit to make the statement.
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52. According to MLC Ex.PW-1/A, PW-3 was declared fit to make a statement on 22.11.2012. According to PW-11, on 22.11.2012, he recorded the statement of PW3 u/s 161 CrPC and PW-3 signed the same. On the basis of said information, he got pre- pared the portraits of the suspects by the expert which were flashed.
53. To this effect, PW-3 in his examination in chief deposed that on 22.11.2012, the police recorded his statement in the hospital. Cross examination of PW-3 reveals that no such statement of PW-3 was on the court record. That time, Ld. APP stated that it was placed in the case file but it was signed by the witness and counsel for the accused requested for supply of the said copy. As per record, no such copy was tendered in evi- dence. Further, according to PW-11 himself, it was recorded u/s 161 CrPC and signed one, but it is against the section 161 CrPC itself. In the given circumstances, it can be held that the prosecution has failed to prove that on 22.11.2012, PW-3 made any state- ment and the same was recorded.
54. According to PW-11, on 01.12.2012, PW-3 joined the investigation and he pre- pared the site plan of the spot at the instance of PW3 i.e. Ex.PW-11/F and Ex.PW- 11/G. PW-3 also deposed to that effect. However, both the said site plans do not bear the signature of PW-3. This raises a doubt as to whether PW-3 joined the investigation on 01.12.2012.
55. According to PW-11, on the basis of statement dated 22.11.2012, he got pre- pared the portraits of the suspects by the expert and made efforts to nab the accused persons but no clue was found. On 07.04.2013, case file was marked to SI Kalicharan for further investigation. As discussed above, the prosecution has failed to prove the statement of PW-3 recorded on 22.11.2012, hence, the prosecution has failed to prove Page no.26 /26 (Judgment) State Vs. Virender Gupta & ors.
FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC on the basis of which statement PW-11 got prepared the portraits of suspects as al- leged. Further, the prosecution has failed to prove the said portraits. The prosecution has also not examined any witness from whom PW-11 got prepared the alleged por- traits and their numbers.
56. Regarding the sketches of the suspects, PW-3 in his cross examination deposed that on 01.12.2012, the sketches of some suspects were shown to him but he could not tell the number of those sketches. In fact, no sketch was shown to him in his examina- tion in chief. He also deposed that the sketches Ex.PW-3/DA1 to DA5 filed on the record were not those sketches which were shown to him. He also deposed that he had been shown certain photographs on mobile phone before the said sketches. Firstly, as held above, it is doubtful as to whether PW-3 joined the investigation on 01.12.2012. Secondly, the prosecution has failed to prove the sketches and photographs which were shown to him, Thirdly, PW-3 nowhere stated that in his alleged statement dated 22.11.2012, he had given some description of the accused persons and on that basis, PW-11 got prepared the sketches and they were shown to him and on that basis he identified the accused persons.
57. In view of the foregoing discussions, it can be held that from the date of inci- dent i.e. 20.11.2012 till 07.04.2013 when on case file was marked to SI Kalicharan for further investigation, neither PW-3 gave nor PW-11 recorded his statement as to the in- cident. Further, PW-3 had not joined the investigation on 01.12.2012. PW-11 had not got prepared any sketch of the accused persons on the basis of information given by PW-3. Further, the sketches Ex.PW-3/DA1 to DA5 are not that of the accused persons. Not the least, the IO had no clue about the identity of the accused persons till 07.04.2013.
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58. According to PW-17, on 26.04.2013, further investigation of the present case was marked to him. PW-17 in his cross-examination deposed that in April 2013, he met PW3 for the first time but did not ask for the description of the accused. Though, the sketches were already on record but he did not show the same to PW3 nor recorded his statement. It implies that in April 2013, PW17 did not make any enquiry from PW3 as to the identity and description of the accused persons.
59. Testimony of PW17 is completely silent as to whether he made any inquiry from PW3 after April 2013 till 13.12.2013. Hence, it can be held that from April 2013 till 13.12.2013, PW17 had neither recorded the statement of PW3 nor had any clue about the identity of the accused persons.
60. According to PW17, on 13.12.2013, the accused no. 1 and 2 were arrested on secret information. On 15.12.2013, the accused no. 3 was arrested. He applied for TIP of all the accused, however, they refused to participate in TIP proceedings.
61. As evident from the testimony of PW13 and PW17, on 17.12.2013, PW3 came to the office of Special Staff to know about the progress of his case. That time, PW3 identified all the accused who were present there as the person who cheated him for Rs. 27 lacs and he recorded his statement. As held above, till 17.12.2013, neither PW3 made the statement nor the IO recorded his statement. There is nothing on record to suggest that from the date of incident till 17.12.2013, PW3 had ever visited the office of Special Staff to know the progress of his case.
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61. PW3 in his cross-examination deposed that on 17.12.2013, he had gone to the office of Special Staff for the first time to know the progress of his case. In reply to a specific question, he admitted that it were the police officials of Special Staff who told him that the persons sitting in the police station were the same persons who had cheated him. It implies that PW3 had identified all the accused not at his own but at the instance of the police officials. Further, it is surprising to note that on the one hand, the IO had not recorded the statement of PW3 till 17.12.2013 but once PW3 allegedly identified all the accused, the IO recorded the statement of PW3 u/s 161 CrPC not only relating to the identity of the accused persons but also about the entire incident. In other words, IO did not have even the version of PW3 as to the actual incident till 17.12.2013 and once the police officials disclosed identity of the accused persons upon PW3, his statement was recorded.
62. According to testimony of PW3, the accused no. 2 met him between 11.00 am and 12.00 noon on 20.11.2012 and he remained in their company till 4.30 pm that day. As such, PW3 had sufficient time to observe the accused persons and their facial de- scriptions. Despite that, the prosecution had failed to prove that PW3 had ever given the description of the accused persons to enable him to draw the portraits of the ac- cused persons.
63. In view of the foregoing discussions, it can be held that there had been inordi- nate delay in recording the statement of PW3 as to the incident and the identification of the accused persons that too without justification. Therefore, the testimony of PW3 as to the identification of the accused persons and the incident does not inspire confi- dence of this court. Once, identity of the accused persons is doubtful, their presence at the spot on the date of incident is also doubtful. Hence, it can be held that the prosecu-
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FIR NO.445/12PS: SUBHASH PLACE U/S 420/328/34 IPC tion has failed to prove the identity of the accused persons and their presence at the scene of crime beyond reasonable doubt.
RECOVERY
64. The prosecution has relied upon the recoveries made from the accused persons to prove their link with the subject incident.
65. PW17 in his cross-examination deposed that the accused no. 3 got recovered the property documents of house C1/112, Sanjay Enclave, Uttam Nagar, Delhi. According to PW17 himself, the said plot was purchased by the accused no. 3 from the amount generated by cheating various persons during the period September 2013 to December 2013. The subject incident is dated 20.11.2012. Hence, it can be held that the said re- covery had no connection with the subject incident.
66. PW17 further deposed that the accused no. 2 got recovered Rs. 2 lacs (two hun- dred currency notes in the denomination of rupee one thousand) from an iron almirah of inside room of his house and the property documents of one property bearing Khasra no. 374, Village Banthala, Loni, UP which he purchased in the names of his parents from the amount cheated from PW3. Prosecution has failed to examine any witness to prove that the said amount was the part of cheated amount. Secondly, except a vague statement as to link of the said property documents with the subject incident, the prosecution has failed to prove the same. Thirdly, identity of the accused no. 2 is it- self doubtful.
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67. According to PW17, on 20.12.2013, the accused no. 1 got recovered one bag containing 375 lottery slips; small envelope; and two bundles of white papers of the size of currency notes which were used as a note bundles for the purpose of cheating. The accused no. 1 also got recovered cash Rs. 1 lac (two bundles of currency notes of five hundred, total two hundred notes of five hundred rupee) from his house. However, he had failed to lead any evidence to prove that the amount recovered was the part of the cheated amount. Further, the prosecution has failed to show the link of 375 lottery slips; small envelope; and two bundles of white papers of the size of currency notes with the subject incident. Even the said recoveries are not sufficient to hold the ac- cused no. 1 guilty for the offences with which he is charged with.
68. PW5 deposed that the accused used to park the bicycle in his parking and police seized three bicycles Ex.PX-1, Ex.PX-2 and Ex.PX-3 which were used by three ac- cused in the subject incident as stated. However, he in his cross-examination deposed that there was no identification mark on the bicycle to link them to accused persons. As such, the said recovery is not sufficient to link the accused with the subject inci- dent.
69. Prosecution also relied upon the testimony of PW10 (the Chemist) to prove that the accused no. 1 used to purchase the medicine ATIVAN from his shop and he identi- fied him. PW10 in his testimony deposed that the police had shown him the photo- graph of one person on the mobile phone and that was the accused no. 1 for the pur- pose of identity. PW17 also deposed that he had shown only one photograph from his mobile to PW10 for identification. Therefore, the identification of accused no. 1 by PW10 is not reliable in nature.
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70. According to FSL Report Ex. PW17/U, on chemical and TLC examination, ex- hibits 1 & 2 were found to contain Lorazepam (Benzodiazapine group of drug). As per record, PW-3 was suffering from high blood pressure. Therefore, the prosecution has failed to prove the essential ingredients of section 328 IPC against the accused per- sons beyond reasonable doubt.
71. In view of the foregoing discussions, it can be held that the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Therefore, the benefit of doubt is to be given to the accused persons.
72. Accordingly, all the accused are acquitted for the offences under sections 328/420/34 IPC.
73. File be consigned to Record Room.
Announced in the open court on this 11th day of May, 2018. (Pankaj Gupta) ASJ (FTC), North-West Rohini: Delhi Page no.26 /26