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Delhi District Court

State vs . (1) Harshit Prabhakar on 23 March, 2013

 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II 
          (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 145/2011
Unique Case ID No.: 02404R0043732010

State                       Vs.                (1)      Harshit Prabhakar
                                                        S/o Shailash Prabhakar
                                                        R/o A­32, Subhadra Colony, 
                                                        Sarai Rohilla, Delhi
                                                        (Convicted)

                                               (2)      Vikas Aggarwal 
                                                        S/o Amrit Lal Aggarwal
                                                        R/o C­5/6, Mahalaxmi Society,
                                                        Rama Vihar, Delhi
                                                        (Convicted)

                                               (3)      Parveen Goel
                                                        S/o Shiv Kumar
                                                        R/o WZ­30, Hari Singh Park,
                                                        Multan Nagar, Delhi
                                                        (Convicted)

                                               (4)      Jitesh Gogia @ Jeetu
                                                        S/o Ram Swaroop Gori
                                                        R/o B­129 Subhadra Colony,
                                                        Sarai Rohilla, Delhi
                                                        (Convicted)

                                               (5)      Deepak Gogia
                                                        S/o Late Om Prakash
                                                        R/o D­1/3, Rama Vihar, Delhi
                                                        (Proclaimed Offender)

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                          Page No. 1
 FIR No.:                                       528/2009
Police Station:                                Ashok Vihar
Under Sections:                                392/397/411/120­B/34 IPC

Date of committal to Sessions Court: 20.7.2010

Date on which orders were reserved: 20.2.2013

Date on which judgment announced: 12.3.2013


JUDGMENT:

(1) As per the allegations, on or before 16.12.2009 all the accused namely Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel @ Vipin and Jitesh Gogia @ Jeetu along with Deepak Gogia (Proclaimed Offender) hatched a criminal conspiracy to commit robbery on Puran Chand a jeweller by profession with pistol like dead weapon. Further, on 16.12.2009 at about 9:20 AM at Open Road in front of House No. C­2/31, Phase­II, Ashok Vihar, Delhi all the accused in furtherance to common object of criminal conspiracy along with accused Deepak Gogia (Proclaimed Offender) committed robbery of Rs.1,55,00,000/­ (One Crore and fifty five lacs) belonging to Puran Chand Gupta, proprietor of Bansal Jewellers and Hari Ram Puran Chand Jewellers by using a deadly weapon i.e. pistol. It is also alleged that the accused Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel @ Vipin and Jitesh Gogia @ Jeetu were found in possession of stolen / robbed amount with they knowingly and having reasons to believe that the said money was robbed / stolen property.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 2 CASE OF THE PROSECUTION/ BRIEF FACTS (2) The case of the prosecution is that on 16.12.2009 DD No. 10A was received at Police Station Ashok Vihar pursuant to which SI satya Prakash and Ct. Pawan reached at House No. C­2/32, Ashok Vihar, Phase­II, Delhi where Puran Chand Gupta met them who informed the police that he is having his shop of Jewellery at Central Market, Phase­I, Ashok Vihar in the name and style of Bansal Jewellers and also another shop at 12 Tooti, Sadar Bazar in the name of Hari Ram Puran Chand. He further informed the police that on 16.12.2009 at about 9:15 AM he along with his daughter in law Jyoti brought cash from the house for depositing at HDFC Bank, West Patel Nagar and were keeping the same cash in Zen Estilo car bearing No. DL­8CR­1678 when at about 9:20 AM Jyoti brought two bags containing Rs.1,55,00,000/­ and opened the dicky of the car when one black colour motorcycle without number plate came on which three boys were riding and one boy was having pistol in his hand. He further informed the police that the said boy came down and showed the pistol to him and threatened him after which he removed the checkdar bag containing cash from the dicky and handed over to his two associates sitting on the motorcycle whereas he himself picked up another bag of black colour containing cash and ran away towards another motorcycle parked in a start position. Puran Chand Gupta also informed the police that the boys were in the age group of 25­20 years with a height about 6 feet, middle built having fair complexion and having slight beard. He further told the police that both the bags were containing total amount of Rs. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 3 1,55,00,000/­ in the denomination of 500 & 1000 having the stamp of Hari Ram Puran Chand and the bags were also containing RTGS Form and deposit slips. Puran Chand further informed the police that he could identify the assailants if shown to him.

(3) On the basis of the complaint of Puran Chand Gupta the present FIR was got registered and investigations were commenced. During investigations, statements of Smt. Jyoti, Dharmender Kumar and Amit Kumar were recorded and it was confirmed that four persons had come on two bikes at around 8:40 AM near the house of the complainant and two persons got down at Washer­Man Dharmender's ironing table while two kept waiting with their bikes. On the basis of the descriptions given by Jyoti, Amit and Dharmemder the portrait of the assailants got prepared by the Investigating Officer. During investigations the secret informer gave the number of mobile phones of suspected persons pursuant to which the call details of mobile No. 9716451108, 9999337000, 9873222031 and 9873670551 were collected and kept on surveillance. Thereafter on 3.1.2010 first of all the accused Vikas Aggarwal @ Vicky was apprehended at service road, Gal No.5, Multan Nagar, Delhi while he was trying to flee in his car bearing No. DL­4C­ AJ­6389. Vikas Aggarwal @ Vicky disclosed that he was trying to escape from Delhi along with his associate Praveen Goel. The car of Vikas Aggarwal was searched during which Rs.70,00,000/­ were recovered from the bag which the accused disclosed to be the robbed amount of his share as well as the share of Deepak Gogia. From the personal search of accused St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 4 Vikas Aggarwal one mobile phone having SIM No. 9716451108 was recovered. At the instance of Vikas Aggarwal another accused Praveen Goel was apprehended from Multan Nagar along with a bag which was containing Rs.30,00,000/­. In the meanwhile a call was received on the mobile phone of accused Vikas Aggarwal and the caller declared his name as Harshit Prabhakar who was waiting near Liberty Cinema. Thereafter at the instance of accused Vikas Aggarwal the accused Harshit Prabhakar was apprehended near Liberty Cinema where he was standing near his Endeavor car bearing No. DL­4CAF­0113. A blue coloured bag was recovered which was kept near the co­driver sear and on checking it was containing Rs.25,00,000/­. From the possession of the accused Harshit Prabhakar mobile phone No. 9873222031 was recovered. Thereafter all the three accused persons were arrested and at the instance of accused Vikas Aggarwal one black­red colour motorcycle bearing No. DL­45­AQ­0277 was seized which was used in the robbery. Further, at the instance of all the three accused one blue­black coloured Discover motorcycle bearing No. DL­45­BD­5243 was recovered from outside the house of Deepak Gogia at D­13, Rama Vihar, Delhi. (4) On 4.1.2010 on the basis of secret information the accused Jitesh Gogia @ Jitesh was apprehended near Shastri Nagar Metro Station from whose possession Rs.1,00,000/­ were recovered. The accused Jitesh Gogia disclosed that he has given information his Deepak Gogia about a jeweller in Ashok Vihar and Deepak Gogia promised him to give Rs.5,00,000/­ for this information and he had already received Rs.1,50,000/­. Thereafter the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 5 accused Jitesh was arrested.

(5) On 7.1.2010 Test Identification Parade proceedings of the accused Praveen Goel, Vikas Aggarwal and Harshit Prabhakar was conducted but the accused refused to participate in the same. During police custody remand of five days Rs.1,00,000/­ was also recovered at the instance of accused Harshit Prabhakar. After completion of investigations charge sheet was filed against the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia. However, the accused Deepak Gogia could not be apprehended and was declared a Proclaimed Offender.

CHARGES:

(6) Charges under Sections 120­B, 392 r/w 120­B, 397 r/w 120­B and Section 411 Indian Penal Code were settled against the accused persons to which they pleaded not guilty and claimed trial.

EVIDENCE:

(7) In order to prove its case the prosecution has examined as many as Fifteen Witnesses as under:

Public witnesses / victim:

(8) PW3 Sh. Puran Chand is the complainant / victim who has deposed that he is the owner of jewellery shop situated at 12 Tooti, Sadar Bazar, Delhi which shop is being run with the name and style Hari Ram Pooran Chand Sarraf. According to him, there is another shop of jewellery St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 6 situated at Ashok Vihar Central Market with the name and style of Bansal Jewellers where his son Deepak and son­in­law are partners. The witness has further deposed that on 16.12.2010, at about 9:00 or 9:30 AM, he was preparing the packets of currency notes at his house for depositing the same in the bank. He has also deposed that the packets were turned for depositing the same in the bank and were turned into two bags and the total amount was Rs. One Crore Fifty Five Lacs. He has testified that he took a bag and came outside from the house which bag he kept in the diggi of Maruti Zen Estilo bearing no. 1678 full number he does not remember and another bag was brought by his daughter in law Jyoti. According to him, when he alongwith Jyoti put that bag in the diggi at the same time one person pushed him from the shoulder as a result of which he move ahead and the said boy lifted the said bag and ran away on the motorcycle which motorcycle was already in starting position and one person was in driving position. He has testified that meanwhile another motorcycle came on which two persons were sitting and the pillion rider of came down and showed him a pistol whereas the other person was on the driving position. According to him, the person who showed him the pistol lifted the bag and both persons ran away on that motorcycle. He has testified that the motorcycle on which the first person came was of black colour whereas the motorcycle on which the other persons came was of red colour and both motorcycles were not having any number plate. The witness has further deposed that he became nervous and perplexed and immediately went inside his house and rang up police at St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 7 number 100. According to him, all the four persons were of the age of 20 to 25 years having whitish complexion with the height between 5­6 feet and were wearing helmets. He has further deposed that one bag was having black colour and other was of check design. The witness has also deposed that the police of PCR reached at the spot and called the local police there on which he narrated entire incident to the local police. He has proved that the police recorded his statement which is Ex.PW3/A. The witness has explained that bundle of currency notes were in the denominations of currency of 1000 and 500 and the bundles were also having the stamp of HDFC Bank on the slip attached on the bundles which were to be deposited with HDFC Bank, Patel Nagar. According to him, his banker provided him a stamp of the bank for putting on the slips after preparing the bundles of the currency notes which stamp was with him and used on the bundles.

(9) The witness Puran Chand has further deposed that one day police informed him and called him at the police station stating that the recovery had been effected by them on which he He went to Crime Branch Office, Rohini where he was showed the recovered bundles of currency notes and he identified the currency notes bundles as they were having same seal of HDFC Bank. According to the witness, the police recovered an amount of Rs. One Crore Twenty Five Lacs and it was released to him by the court on Superdari on Superdarinama before the Ld. MM's Court. He has testified that the original currency notes were released to him and the police kept photocopies of currency notes from both the sides. According to him, later on he never St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 8 joined any proceedings with the police officials. He does not remember whether police recorded any other statement. The witness has also deposed that at the time of incident he also raised alarm by crying but he does not remember in his first statement Ex.PW3/A how many persons were mentioned by him.

(10) He has identified two bags i.e. the bag with check design which is Ex.P­1; another bag of grey colour which is Ex.P­2; photocopies of currency notes bundles and original receipts on which witness had put stamps of his firm Hari Ram Pooran Chand which receipts 100 in number are collectively Ex.P­3. The witness has clarified that he did not use the HDFC stamp as same was required to be signed in the bank itself before the bank official. He has further identified three torn white clothes in which the currency notes were kept by the police after sealing the same, which torn cloth parcels of white colour are collectively Ex.P­4. He has also identified the photocopies of currency notes of Rs. One Crore twenty five lacs which are collectively Ex.P­5. However, he has not been able to identify the assailants who had robbed his amount because they were wearing the helmets at the time of commission of crime.

(11) The witness was found resiling from his earlier statement and hence he was cross­examined by the Ld. Addl. PP for the State wherein he has admitted that the date of incident was of 16.12.2009 and due to lapse of time he could not tell the exact year in his examination in chief. He has further admitted that the number of his car is DL­8CR­1678. According to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 9 the witness, he did not read over his statement Ex.PW3/A when it was recorded and he signed the same. He has denied that he did not disclose about the helmet in his statement Ex.PW3/A that is why it was not mentioned in that statement and has voluntarily explained that he had told to the police that fact but police did not record the same. He has testified that he did not tell to the police that one of the boy was having light beard. He is unable to tell if police recorded his another statement on 16.12.09 U/s 161 Cr. P.C. The witness has denied that he had told the police in his statements that the boy who was having beard showed him the pistol and has voluntarily explained that one tall boy came to him and showed the pistol but he cannot say whether he was having any beard. According to him, he did not tell to the police in the statement Mark A that he can identify the boys who robbed the bags as he had seen their faces. He has testified that he had pointed out the place of occurrence to the police but he is unable to tell if the police prepared site plan of the spot at his instance nor he is able to tell if he told the police in his statement that washer­man Dharmender and Anil were enquired by the police in his presence. He has admitted that two washer­men were ironing the clothes in front of his house and has voluntarily added that he does not know the name of the washer­men. He has denied that police made enquires from washer­men Dharminder and Anil in his presence. However, the witness has admitted that Dharminder washer­man produced one jeans pant to the police in his presence and told that the jeans pant was given by the robbers to him for ironing and that the robbers were St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 10 watching their house on the pretext of ironing of the pant. The witness has further admitted that the police inquired from him about his bank account, insurance etc. and that the bank statements income tax return and other documents regarding the savings were handed over by his son Deepak to the police. He has further admitted that tax invoice Ex.PW3/B, Ex.PW3/C, Ex.PW3/D and Ex.PW3/E having the same stamp at point A which was affixed on the bundles of the currency notes and that the documents Ex.PW3/C, Ex.PW3/D, Ex.PW3/E related to Hari Ram Pooran Chand Jewellers bear his signatures. He has denied that after incident, he along with the police officials went for preparation of sketch of assailants and sketch was developed which is Mark B and has deposed that the sketch Mark B was shown to him after preparation. He has denied that sketch Mark B was prepared at his instance and that his daughter in law Jyoti was also with him at that time. He has no knowledge whether police published Mark C at his instance and an award for a sum of Rs.50,000/­ was announced. The witness has denied the suggestion that when he came to know about the recovery of his money, police showed him sealed parcels containing his currency or that the currency notes in the bundle were not shown to him and the sealed parcels were shown to him. He has also denied that he had introduced a new story about the helmet worn by the assailants or that he saw the faces of robbers at the time of commission of crime. According to the witness, he came to know in the Court that police did not write the facts regarding the robbers wearing helmets and he was not supplied with the copy St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 11 of the FIR. He has denied the suggestion that he was supplied with the copy of FIR immediately after registration of FIR and he signed the receipt or that after receiving the copy of FIR, he came to know that there was no mention about the helmet and after perusal of FIR he did not make any complaint to any senior police officer as the fact of helmet was not mentioned. The accused Parveen Goyal, Vikas Aggarwal and Harshit were specifically put to the witness in the Court on which the witness replied that he is unable to identify the accused. He has denied the suggestion that he deliberately not identified the accused persons before the Court.

(12) The witness Puran Chand has admitted that on 07.01.2010 he accompanied the police to the jail for identification of the robbers where he he came to know there that the robbers refused to join the TIP proceedings or that he accompanied the police to the jail because he had already told to the police that he can identify them if shown to him. He has admitted that after 07.01.2010 he did not make any complaint to the senior officers of the police to the effect that he was unable to identify the robbers. He has denied the suggestion that he actually saw the faces of the robbers at the time of robbery due to which he accompanied the police to the jail for identification of the accused persons or that due to fear of the accused persons he deliberately not identified them. He has further denied the suggestion that he has been won over by the accused Praveen Goel, Vikas Aggarwal and Harshit Prabhakar due to which he deliberately not identified them before the Court. He has admitted that jeans pant of light blue colour was produced by Dharminder St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 12 washer­man to the police which is Ex.P­6. Witness has also clarified that in his examination in chief due to mistake and a lapse of period about one year, he wrongly stated that the seal of HDFC bank was affixed on the bundles instead of seal of his firm Hari Ram Pooran Chand. He has admitted that when he saw the bundles of currency notes for the first time there was a seal on the slip of his firm Hari Ram Pooran Chand and there was no seal of HDFC Bank. He has denied that he has deposed falsely on the point of identification of the accused persons.

(13) In his cross­examination by the Ld. Defence counsels a specific question was put to the witness that when he had visited the police station on 2.1.2010 at 11:30 AM whether the accused Vikas Aggarwal was present in the police station or not, to which the witness has replied in negative. He has denied the suggestion that the police got his signature taken on blank papers on 02.01.10 at police station and has voluntarily explained that police obtained his signatures on many papers therefore, he could not read them. He has however admitted that those papers were not read over to him. He has testified that he was called by police on 02.01.2010 at about 11.00/11.30 AM by informing that the robbed money had been recovered and the assailants had been apprehended. According to the witness, on that day, he had seen the robbed amount lying in the police station in the same bags and he was also shown four­five boys by telling that these were the boys who robbed his money. The witness has also deposed that he did not enter that room where those boys were sitting and saw those boys from outside by St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 13 peeping inside the room and says that he did not see accused Harshit Prabhakar among those boys. He has further deposed that he made only one seal of his firm Hari Ram Puran Chand and police never saw that seal. (14) PW5 Sh. Deepak Gupta is the son of the complainant / victim who has deposed that he is the authorized signatory in the firm Hari Ram Puran Chand and they deals in the jewelery business at 713, Bara Tooti, Sadar Bazar, Delhi. According to him, he is the partner of Bansal Jewellers, 18, Central Market, Ashok Vihar. He has testified that they used to purchase gold bullions from MMTC at Jhandewalan for both the above said firms and used to sell the same to several customers. The witness has further deposed that they used to deposit the sale money with their Bankers ICICI Ashok Vihar and HDFC Bank, East Patel Nagar. According to the witness, they get profit of Rs.2,000/­ of sale of 1Kg. gold which they used to purchase from MMTC through CCOD account from Union Bank of India, Sadar Bazar Branch. He has also deposed that this account has a limit of 3.25 crores and provides the facility to utilize in a day maximum amount of Rs.3.25 crores. According to the witness, on 16.12.2009 he went to Ahemdabad for purchase of gold where he received a telephonic call from his father Sh. Puran Chand that Rs.1.55 crores have been robbed by five boys who came on two motorcycles and after showing the pistol type weapon to him. He has testified that on the same day i.e. on 16.12.2009 he caught a flight and came to his house at about 4:00 PM where he found media and police officials at his residence and was informed that a dacoity had taken place at his St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 14 residence. According to the witness, police officials made inquiries from him regarding the sources of the amount of Rs.1.55 crores on which he showed them the cash book and ledger and the police officials on seeing the aforesaid documents were satisfied. He has further deposed that the said amount was to be deposited in the account of the firm M/s. Hari Ram Pooran Chand in the HDFC Bank, East Patel Nagar and he also showed the documents pertaining to account which was earlier maintained at ICICI Bank Ashok Vihar Branch and Union Bank of India, Sadar Bazar Branch but the transaction was not being maintained at ICICI Bank. He has proved that the said documents were taken by the police into possession vide memos Ex.PW5/C and Ex.PW5/D. He has also proved the Form DVAT which are Ex.PW5/A & Ex.PW5/B; copy of Income Tax Return which is Ex.PW5/E which is in the name of his father Sh. Pooran Chand Gupta; copy of Income Tax Return Ex.PW5/F which is in his name; certificate from Union Bank of India, Sadar Bazar which is Ex.PW5/G; Tax Invoice of MMTC which is in the name of their firm which is Ex.PW3/B; ledger Accounts (sales/ cash books) which are Ex.PW3/C, PW3/D and Ex.PW3/E; copy of the statement of HDFC Bank Account which is Ex.PW5/H; copy of the statement of ICICI Bank Account which is Ex.PW5/I; another copy of the statement of ICICI Bank Account showing the statement from 1.7.2009 to 30.9.2009 which is Ex.PW5/J; copy of the statement of HDFC Bank Account which is Ex.PW5/K. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 15 (15) In his cross examination by the Ld. Defence Counsels the witness has deposed that he received information about the incident at about 9:45 AM while he was going to Ahmedabad in the train but he does not remember the name of the train. He does not remember the time when he boarded the flight from Ahmedabad nor does he remember if he handed over the train ticket and air ticket to the Investigating Officer. According to him, he had not visited the police station on 16.12.2009. He has testified that when he came at his house at 4 PM, 20 to 25 people had collected but he has no knowledge if police recorded the statement of any person collected. He does not recollect the date on which his statement was recorded by the police. He has testified that he visited Police Station Ashok Vihar on 16.12.2009 at about 7­8 PM but he does not remember whether his statement was recorded by the IO at that time. According to the witness, he had attended the office of AATS thrice but he does not remember the dates of his visits there. He has also deposed that he had signed his statement which was recorded by IO Rajiv Ranjan however on seeing the judicial file the witness has admitted that it does not bear his signatures. He has denied the suggestion that his statement Ex.PW5/DX1 and Ex.PW5/DX2 are not the same statements which he had made to the Investigating Officer or that the Investigating Officer never recorded his statement in this case. He has testified that his accounts were maintained by a Chartered Accountant and has admitted that the ledger account running into three pages are not duly stamped or signed by his CA. The witness has denied the suggestion that the ledger account was a St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 16 fabricated document. He has further deposed that he had handed over the said documents to the police on 16.12.2009 but he does not remember on how much documents the police obtained his signatures. He is also not aware the procedure of the police therefore he is unable to tell as to what documents were prepared regarding seizing the document and wherever he was asked by the police to sign, he signed the document. He is not aware whether any seizure memo was prepared regarding seizing of the documents on 16.12.2009 and states that he had supplied the entire documents to the police at the same time and one sitting. He has denied the suggestion that he had not received any information from his father.

(16) PW6 Ms. Jyoti Gupta is the wife of Deepak Gupta (PW5) and daughter in law of Puran Chand Gupta (PW3). She is an eye witness to the incident who has deposed that on 15.12.2009 her husband Sh. Deepak Gupta had gone to Ahmedabad. She has further deposed that they are having jewellery business and having a shop in the name of Hari Ram Puran Chand at Baratoti, Sadar Bazar, Delhi and in the name of Bansal Jewellers at Ashok Vihar. According to her, on 16.12.2009 she was present in her house along with her in laws in the morning hours when her father in law asked her to accompany her at HDFC Bank Patel Nagar Branch as they had to deposit Rs. 1.55 crore there and since her father in law was not knowing driving and therefore she had to go with him to drive the car. She has further deposed that they took Rs.1.55 crores in two bags which currency notes were having the stamp of their firm and they had to go in a Estilo bearing no. DL8CR St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 17 1678 which was parked just in front of her house. The witness has further testified that she and her father in law were putting the bags containing the aforesaid amount in the dicky of the aforesaid car and she put one bag in the dicky and her father in law was standing while she went inside the house to take another bag and came out of the house near the car with the other bag. According to her, she found that one person was showing revolver to her father in law Sh. Puran Chand and the said person asked her to go inside the house and showed the pistol to her. The witness has also deposed that thereafter she went inside the house and within a minute her father in law had come inside the house after which a call was made on 100 number and before arrival of PCR they went to police station Ashok Vihar. According to the witness, she heard the voice of throwing the bag while she was inside the house but just near the gate of the house. She has further deposed that she could not see any one from the accused persons.

(17) With the permission of the Court, since the witness was not giving the complete facts, the Ld. Addl. PP for the State cross examined the witness wherein she has deposed that the police officials came at the spot alongwith them and then they were interrogated by the police officials and her statement was recorded by the police. A specific question was put to the witness whether the boy who had shown her the katta was of fair complexion to which the witness has replied in affirmative and explained that when he had shown her the katta she had seen his hand. She has testified that she had stated to the Investigating Officer in her statement the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 18 fact that she heard the voice of throwing the bag, but she had not stated in her statement that the person was having the beard and she was of about 6 ft. height. According to her, she had not stated in her statement to the police that another boy came to the spot who lifted the bag containing the aforesaid cash and at the same time one bike of black colour came there on which the other boy ran away. She had also not stated to the police in her statement that the first boy who had shown the revolver to her father in law and her, also lifted the other bag and ran away on the red coloured bike and she had seen both the boys in a close distance and she could identify them. The witness has confronted with her statement under Section 161 Cr.P.C. which is Ex.PW6/DX1 where the aforesaid facts were found so mentioned, but she has denied having told these facts to the police. She does not remember if one Dharmender and Amit were also present in the front of her house. According to her, she was interrogated many times by the police but she does not remember the exact date of her examination. The statement Ex.PW6/DX2 was read over to the witness who has denied having made any such statement to the police. She has denied that the police officials had brought three accused in front of her house and while they were preparing the documents she had identified all the accused persons by height and by faces; that she had given the role of each accused person in her statement Ex.PW6/DX2; that when they were interrogated by the Investigating Officer in her presence, their names were known as Harshit Prabhakar, Praveen Goel and Vikas Agarwal and she had duly identified them as the same persons St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 19 involving in showing the revolver to her father in law or to her and in lifting the bags containing the aforesaid amount on 16.12.2009 at about 9:15 AM. She has also denied the suggestion that the statement Ex.PW6/DX2 is the same statement which she had given on 11.1.2010 and she has not given the facts mentioned in this statement deliberately in order to save the accused persons. The witness was duly advised by the court to state true facts and has been duly explained the consequences of not speaking the truth. She has denied that she had been won over by the accused persons. The accused Parveen Goyel, Harshit Prabhakar and Vikas Aggarwal were specifically put to the witness in the Court but she is unable to identify anyone of them. She has also denied that she has not identified the accused persons deliberately despite the fact that she had mentioned in her statement that she could identify the accused persons if shown to her. This witness has not been cross­examined by the Ld. Defence Counsels despite opportunity in this regard.

(18) PW7 Amit has deposed that he is residing at Wazirpur Village in a tenanted house along with his brother Raj Kumar and father Nembu Lal. According to him, he is doing the work of ironing the clothes in front of House No. C2/31, Ashok Vihar Phase­II and one Manoj and Shailesh used to work with him at the aforesaid place / thaiya. He has testified that it was 16th day, month he does not remember, in the year 2009, he came at his thaiya at about 8:30 AM along with Dharmender and after cleaning the thaiya he went to take the woolen clothes from the customers. He has further deposed that St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 20 when he was going to take the clothes he found two bike­walas aged about 25­26 years in front of house no. 26 who were talking each other. The witness has also deposed that when he came back at his work place he found the police team in front of house no. 26 and he came to know that robbery had taken place at house No. C31. He has further deposed that his brother Dharmender informed him that one person had come to the thaiya and asked him to iron a pant. Further, the witness has deposed that he had not stated anything to the police nor is he able to identify the persons standing with motorcycles in front of C26. He has however stated that the colour of one motorcycle which he found in front of C26 was black and another was of red colour. He has testified that thereafter the police officials had brought three persons in the police station and shown them to him but he did not identity any of them as the person involved in that case.

(19) Leading question was put to the witness regarding identity of the accused persons wherein the witness has deposed that he had not seen the faces of those persons standing near the motorcycles in front of C26, Ashok Vihar.

(20) Thereafter the witness was cross­examined by the Ld. Addl. PP for the State wherein the witness has deposed that he had not stated in his statement Ex.PW7/A that he could identify the person standing near the motorcycles as he had seen them in close distance in front of C26, Ashok Vihar. However, when confronted with his statement Ex.PW7/A the aforesaid fact was found so mentioned bur the witness has denied having St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 21 made the same before the police. He has denied that he had stated in his statement Ex.PW7/A to the police that Dharmender had informed him that two associates of the persons standing near motorcycles came to him and one of them got the pant ironed which fact he was concealing deliberately in order to save the accused. According to the witness, he had not stated to the police in his subsequent statement that he had identified one of three accused persons Vikash Agarwal as the same person who was sitting on the red coloured motorcycle. The witness was confronted with his statement Ex.PW7/B wherein the said fact was found so mentioned but he has denied having made any such statement to the police. He has denied that he had identified one of three boys who was smallest in height and was wearing spects on the day of incident and was talking while sitting on the motorcycle; that the other boy who was sitting in the black motorcycle and was of strong built and he had identified the person sitting on the red colour motorcycle as his name was known to him as Vikas Agarwal and thereafter he had given his name in his statement Ex.PW7/B. He has denied the suggestion that he has not identified the accused Vikas Agarwal deliberately in order to save him or that he was won over by the accused persons. The witness has further denied that he was under pressure from the side of the accused persons therefore he has not deposed correctly and not identified them in the court. This witness has not been cross­examined by the Ld. Defence Counsels. (21) PW10 Dharmender a press­wala with his table / thaioya in the area is stated to be an eye witness to the incident. He has deposed that St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 22 previously, he was residing at Wazir Pur on rent at WP­319, Wazir Pur Village, Delhi and was working as painter and Manoj and Pradeep are his brother who are residing at Wazir Pur with him. According to the witness, he and Manoj were working ironing on clothes at C­2/31, Phase­2, Ashok Vihar, Delhi. Witness has further deposed that prior to the present incident about 18/20 days back his brother Manoj went to village at U.P. that is why he left his work of painting and started working ironing the clothes at Ashok Vihar. According to him on 16.12.2009 he came to the ironing shop at about 8.00 AM and on that day, Amit the son of his uncle was also with him. He has testified that he sent Amit to collect the clothes from the adjoining houses and at about 8.30/8.45AM two boys looking like the age of 25­28 years, came at his ironing shop wearing helmet and one of them, asked him for ironing the jeans pant and handed over the jeans pant to him. According to the witness, one of the said boys was tall whereas the other was short in height but he could not notice their complexion. The witness has testified that asked both the boys that after heating the iron, he would iron his clothes and told them that it would take about 30 minutes on which both the boys left his iron shop and started burning the coal/ koyla for the press. He has also deposed that both the boys went towards house No. C­2/26, Ashok Vihar side and when both the boys came to his iron shop on foot and he was busy in his work. Witness has also deposed that a dacoity took place in front of house No. C­2/31, Ashok Vihar from a car belonging to the house No. C­2/31 owned by one Guptaji whose name he is not aware. According to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 23 him in the mean time, his brother also came at the iron shop along with clothes and Auntiji of the house No. C­2/31 started shouting and public persons gathered there. Witness has further deposed that she was making alarm "chori ho gai­ chori ho gai." He has testified that he remained at his shop and after some time, police reached there and came to his iron shop and asked him about the incident. The witness has further deposed that both the boys did not come back to collect their jeans pant and therefore he handed over the jeans pant to the police. According to him, he was called at police station and inquiries were made from him when police recorded his statement. Witness has further deposed that whatever he saw he told to the police and police did not prepare anything at his instance. (22) He has testified that one day (date, month and year he does not remember) police came to his iron shop and brought three boys since he could not see the faces of the those two boys who came on his shop for ironing the jeans pant that is why he could not identify them and police did not record his statement on that day. He does not remember if police told the names of those boys on that day. He is also unable to identify the jeans pant because he did not see it carefully when it was given to him but states that it was of blue colour. According to him, none of the boys who came to his shop for ironing and none of those three boys who were brought at his ironing shop were present in the court.

(23) The witness has declared hostile and in his cross­examination by the Ld. Addl. PP for the State he has admitted that his brother Manoj went to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 24 the village on 29.11.2009 but has denied the suggestion that he told to the police in his statement that he sent Amit to Pragati Market for bringing the match box; that he told to the police in his statement that both the boys were of fair complexion. However, when confronted with his statement Ex.PW10/A the said facts were found so mentioned. He has further denied the suggestion that he introduced a new story about wearing of helmet by both the boys deliberately. Witness has admitted that the tall boy was reading the newspaper while sitting at his shop. He does not remember if jeans pant was given by the small boy to him. He has denied the suggestion that he told to the police in his statement that small boy had given jeans pant to him for ironing whereas the tall boy left his shop; that both the boys went towards the house of Puran Chand; that the tall boy reached near the car of Puran Chand and subsequently, the other boy also reached there. However, when confronted with his statement Ex.PW10/A the said facts were found so recorded. He is not aware the name of the person namely Puran Chand. Witness has admitted that one bike of black and red colour came to the house of Puran Chand and two boys having two bags went away on that bikes. He has again deposed that he is not aware the name of Puran Chand and states that he knew him as Guptaji. Witness has denied the suggestion that he told to the police in his statement that two boys having the bags were the same who came to his shop for ironing the jeans pant; that he got prepared sketch of the tall boy. However, when confronted with his statement Ex.PW10/A where it was found so recorded. He has denied the suggestion St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 25 that the sketch Mark B of the tall boy was got prepared by him as per his memory from the police; that on 11.01.2010 police brought three boys at his iron shop; that he identified two boys one was tall and other was some short height before the police who came at his shop on 16.12.2009 and gave the jeans pant for ironing; that on his identification police told him the name of the tall boy as Praveen and the short height boy as Harshit whereas he told to the police about the third boy who was wearing spects which was not seen by him on that day. When confronted with his statement under Section 161 Cr.P.C. Ex.PW10/B the said facts were found so recorded. (24) The accused Praveen Goel was specifically put to the witness in the Court and it was suggested by the Ld. Addl. PP for the State that he was the same tall boy who came at his shop with a short height boy and thereafter, went towards the car of Puran Chand and he got prepared the sketch of the accused Praveen before the police and also identified him on 11.01.2010 before the police at his iron shop. However, the witness was unable to identify the accused Praveen in Court. Further, the accused Harshit Prabhakar was specifically put to the witness and it was suggested that he was the same boy who accompanied with tall boy accused Praveen and had given jeans pant to him (witness) on 16.12.2009 and subsequently they both went towards the car of Puran Chand and subsequently ran away with the bags on motorcycle and thereafter, he on 11.01.2010 identified both the accused before the police. The witness was unable to identify the accused Harshit in the Court. the accused Vikas Aggarwal was also put to the witness St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 26 and it was suggested that he was the same who had been brought by the police on 11.01.2010 alongwith accused Praveen and Harshit to whom he (witness) did not identify before the police but according to the witness he has not seen the accused Vikas.

(25) Further, one blue colour jeans pant was put to the witness as the same jeans pant which was given by accused Harshit for ironing in presence of accused Praveen and the same was handed over to the police by him (witness) to which the witness has deposed that it may be possible that it was the same jeans pant which is Ex.P6.

(26) The witness has further deposed that he came before the court for deposing as the summons were received at his iron shop as he came from the Gujrat on 27.02.2012 since his brother Manoj called him regarding the deposition about the incident. According to the witness on 28.02.2012 he met with Bhaiyaji R/o C­2/31, Ashok Vihar, Phase­II, Delhi and some formal talks were took place. The witness has further deposed that he earned Rs. 3000­4000/­ per month in Gujrat and is working as labour in a glass factory at Gujrat. He has also deposed that he spent Rs. 1500/­ 1800/­ per month for his living in Gujrat and send remaining amount to his parents at District Devariya, U.P. Witness has denied the suggestion that he has been won over by the accused who paid him a hefty amount on account of which he has traveled from Ahmedabad Gujrat after making prior reservation or that he was tutored prior to and that is why he planned to travel Delhi prior to receiving the summons; that due to fear of the accused persons he has St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 27 deliberately not identified the accused before the court. He has also denied the suggestion that he prepared a false story regarding wearing of helmet of accused Praveen and Harshit when they came at his shop or that he himself got prepared the portrait of accused Praveen on 16.12.2009 itself on the date of incident and which is similar to the face of the accused Praveen. (27) In his cross examination by Ld. Defence counsels, witness has admitted that that his statement was not read out to him by the police and hence he is not aware what was recorded by the police. Witness has admitted that he is unable to tell the colour of the motorcycle because he has not seen the motorcycle. The witness has admitted that he cannot identify jeans pant Ex.P6 specifically.

(28) On a specific Court Question the witness has admitted that he had told the Public Prosecutor in his examination in chief of having seen the red and black motorcycle. Witness has also admitted that he has stated in his cross examination that he had not seen the motorcycle that is why he cannot tell the colour of the motorcycle. According to him the statement he has now made in the cross examination that he has not seen the motorcycle is correct. He has denied the suggestion that he has been won over by the accused and it is for this reason that he is supporting the defence version rather than what he had earlier told the the prosecution.

(29) PW11 Harish is the maternal uncle (Mama) of the accused Harshit Prabhakar who deals in denting business. He has deposed that he does not remember the date, month but perhaps in December 2010 he had St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 28 gone to A­32, Subhdra Colony, Sarai Rohilla in the house of his sister. According to him, on that day police official reached there along with accused Harshit and police made inquiries from him. Witness has further deposed that thereafter, police prepared some documents and obtained his signature which was not read over to him. He has testified that police did not conduct any other investigation there and nothing was recovered in his presence. He has identified his signature at point A on document Ex.PW11/A. According to him, whatever he told in the court was recorded by the police in his statement and thereafter police left the spot along with accused Harshit itself.

(30) The witness was cross­examined by the Ld. Addl. PP for the State wherein he has admitted that police along with accused Harshit came at A­32, Subhdra Colony, Sarai Rohilla on 12.01.2010 and that police asked the neighbourer to join the investigation but none of them agreed to join the investigation. Witness has also admitted that police asked him to join the investigation on which he agreed but has denied the suggestion that accused Harshit led them in bed room at second floor and lifted a polythene from the bed box and told that it contained Rs.1,00,000/­(one lac) which money he hide for his personal use. He has also denied the suggestion that police checked the polythene and it found to contain two packets of currency notes with the denomination of Rs.500/­ and on counting they were of Rs. One lac; that police kept both the packets of currency in the same polythene and same were turned into cloth parcel and sealed with the seal of RS. However, when St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 29 confronted with his statement Ex.PW11/B where the aforesaid facts were found so recorded. He has further denied the suggestion that police seized the said parcel vide Ex.PW11/A in his presence and after going through the contents of seizure memo he signed the same.

(31) The case property i.e. one polythene was put to the witness and it was suggested that it was the same polythene which was got recovered by the accused Harshit from his bed box in the bed room at Second floor at house No. A­32, Subhadra Colony, Sarai Rohilla. However, the witness has stated that no money was recovered in the polythene in his presence, the said polythene bag is Mark PW11/1. Further, the case property i.e. cloth of parcel and photocopies of the currency notes were also put to the witness, but he has not been able to identify the same and has stated that no parcel was prepared in his presence and nothing was recovered.

(32) He has testified that Harshit is his bhanja i.e. son of his sister Chanderkanta. The witness has denied the suggestion that since the accused Harshit is his closed relative that is why he has denied the facts about the recovery of Rs. One lac at his instance from the house of his sister. He has denied the suggestion that Mark PW11/1 was recovered alongwith Rs. One lac from the bed box of the bed room of accused Harshit and it was turned into a cloth parcel by the Investigating Officer and sealed with the seal of RS subsequently Investigating Officer prepared seizure memo Ex.PW11/A and he has gone through the contents of the seizure memo then he signed. The witness has also denied the suggestion that he has been won over by the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 30 accused persons due to close relation that is why he has deposed falsely and deliberately not identified the case property. This witness has not been cross­ examined by the Ld. Defence Counsels.

(33) PW12 Supriya wife of the accused Jitesh Gogia has deposed that presently, she is working as Assistant Manager in the Company namely EXL Services, Sector­58, Noida and prior to this job she was posted as Team Developer in Bank of America from October 2009 to December 2011, prior to this she was working as Banking Officer in ICICI Bank, Ashok Vihar, Phase­II, Delhi where she worked from 30 June 2008 to 30 September, 2009. According to her, since she got the job in Bank of America therefore she left the job of ICICI Bank. She has deposed that at that time she was having mobile No. 9911998444 and was the user of that phone. Witness has also deposed that this phone was in the name of Jitesh Gogia who was her Fiancée (Mangetar) at that time and now he is her husband. According to the witness in ICICI Bank she was handling the job of customer quarries and during office hours nobody was allowed to meet her. She has also deposed that she never met anybody till she posted there and Jitesh Gogia or his associates never made transaction through ICICI Bank, Ashok Vihar. The witness has testified that Jitesh Gogia never inquired her about any customer of the ICICI Bank and she never told accused Jitesh Gogia regarding any customer of the ICICI Bank. According to her, the exact date she does not remember but it was in the month of January, 2010 police called her on which she along with her parents went to Ashok Vihar in a office, she is not aware whether it was a St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 31 police station or not. The witness has also deposed that police made inquiries from her and whatever she stated was recorded by them. She does not remember if she told any other facts to the police due to lapse of time of about two years nor does she remember if she told to the police any fact in respect of accused Jitesh Gogia.

(34) Since the witness was residing from her previous statement therefore she was cross­examined by the Ld. Addl. PP for the State, wherein he has admitted that she told to the police in her statement that accused Jitesh Gogia was studying with her in the college but she did not tell to the police that accused Jitesh Gogia was her friend. However, when confronted with her statement Ex.PW12/A the said facts was found so recorded on which the witness has voluntarily explained that she told to the police that talks of their marriage were going on and roka ceremonies had been performed. Witness has denied the suggestion that she told to the police in her statement that she also dealt in the cash counter of ICICI Bank. When confronted with statement Ex.PW12/A the said fact was found so recorded. She has denied the suggestion that she had told to the police in her statement that accused Jitesh Gogia used to visit her with his friend Harshit in the Bank and used to make transaction through ICICI Bank on many times. When confronted with her statement Ex.PW12/A the said fact was found so mentioned. Witness has further deposed that she is not known to accused Harshit nor she can identify him. She has denied the suggestion that she told the police in her statement that in the month of August­September 2009 when accused Jitesh St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 32 Gogia and accused Harshit came to her Bank at that time, their bank customer namely Deepak Gupta was depositing heavy cash in the Bank; that during talks with Jitesh he asked about that customer and she told him that he is a premium customer of their bank and used to deposit heavy cash in the bank; that she did not tell the address of that customer to the Jitesh and Harshit because she was not aware about it; that due to innocence information given to the Jitesh Gogia, they committed robbery. However, when confronted with her statement Ex.PW12/A the said facts where found so recorded.

(35) Initially her examination in chief was deferred on 29.2.2012. On 15.3.2012 when she appeared when it was observed by this Court that she had come in the court and after about 15 to 20 minutes left the court room with the counsel for the accused and again appeared in the court to depose along with the counsel for the accused namely Jitesh Gogia. (Note: this demeanor of the witness being important has been specifically recorded). (36) In her further cross­examination by the Ld. Addl. PP for the State the witness has deposed that the mobile number of Jitesh Gogia is 8010070058 and prior to this number he was having mobile number 9911992444 and so far as her knowledge is concern accused Jitesh Gogia was not having account in ICICI Bank. She has admitted that if any person is having an account in ICICI Bank of any branch, he can operate his account from any branch of ICICI Bank situated anywhere. Witness has denied the suggestion that she had been dealing with cash for a few months and this St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 33 fact is reflected in the reply filed by his office to the query put by the Investigating Officer U/s 91 Cr.P.C. which reply is Ex.PW12/PX­1 (running into three pages) and has further voluntarily explained that she sometime used to deal with small amount of cash at a different counter whereas the main cash counter was responsibility of other official. She has admitted that she was in continuous touch with accused Jitesh Gogia during the period 12.01.2009 till the date of offence and has voluntarily explained that because he was her Fiancee. She does not recollect the date but she was engaged in the month of January 2007 again said 2008 and was married with Jitesh Gogia on 14.4.2011 but she cannot produce any documentary record of the engagement. Witness has denied the suggestion that she is giving the wrong date of engagement only to justify the frequent call details as reflected in the CDR Ex.PW12/PX­2 (running into six pages) or that she used to pass the information regarding the bank transaction to Jitesh Gogia and his friend Harshit. She has admitted that she had spoken to accused Jitesh Gogia on 14.12.2009 and 15.12.2009 on his mobile phone which entries are reflected in the CDR Ex.PW12/PX­2 at various points bracketed as A. Witness has denied the suggestion that being a friend she furnished the information to Jitesh Gogia and his friends so that she would enjoy her life lavishly with accused Jitesh Gogia after marriage. According to her, she has only one brother and her father is a businessman who is a contractor and she has no idea about the earning of her father. She St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 34 has testified that her mother is a housewife and her brother and she herself are twins and her brother is working at Adobe but she has no idea about his post. She has also deposed that her husband accused Jitesh are four brother and sisters and Jitesh is youngest in his family and is having his own house and his parents also having their own house. The witness has admitted that her lifestyle and of accused Jitesh Gogia is very well and that whatever they are earning they spent and has voluntarily explained that they also make some savings. She has denied the suggestion that on account of their lavish lifestyle they could not meet their day to day expenses and it is for this reason she passed the information regarding bank transactions to Jitesh Gogia and his friend or that Jitesh Gogia and his friends used to visit in her ICICI Bank branch and also made transactions from there. She has further denied the suggestion that friends of Jitesh Gogia were also having lavish life and always in need of money for their expenditures or that since prior to the occurrence she and Jitesh Gogia were in need of money to spend on each other therefore she passed the information in respect of Guptaji. (37) In her cross examination by Ld. Defence counsel, the witness has deposed that she knew Jitesh Gogia since the year 2004 when she met him in college and since then she is in regular touch with him out of love and affection.

(38) The witness Ms. Supriya has been recalled for additional cross­ examination by Addl. PP for State wherein the witness has denied the suggestion that she has been won over by the accused persons, due to which St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 35 she has deposing falsely. She has also denied the suggestion that she made her actual statement to the police.

Witnesses proving electronic record:

(39) PW2 Sh. Anuj Bhatia Nodal Officer from Vodafone has produced the record in respect of prepaid mobile no. 9873222031 which is in the name of Mahesh Kumar S/o Sh. Satya Vir, H. No. B­25, Harkesh Nagar, New Delhi. He has placed on record the photocopy of the application form dated 28.08.2008 which is Ex.PW2/A; photocopy of the election identity card which is Ex.PW2/B and application form for declaration for outstation customers which is Ex.PW2/C. He has also placed on record the application form of mobile no. 9873670551 issued in the name of Vishal Goyal R/o D­16/222, Sector - 3, Rohini, Delhi. He has proved the photo copy of the application form which is Ex.PW2/D; photo copy of the driving license as identity proof which is Ex.PW2/E and photocopy of the declaration form which is Ex.PW2/F. (40) The witness has also brought the application form of postpaid mobile no. 9999337000 which is a corporate connection issued in the name of Deepak Gogia S/o Sh. Om Prakash Gogia R/o D­1/3, Rama Vihar, Near Indane Gas Godown, Budh Vihar, New Delhi. He has placed on record the photocopy of the application form date 18.09.2007 which is Ex.PW2/G;

photocopy of the plan of the said mobile number which is Ex.PW2/H; St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 36 photocopy of appointment letter of applicant Deepak Gogia with Life Insurance of Kotak which is Ex.PW2/I; photocopy of the declaration letter which is Ex.PW2/J; photocopy of the salary package which is Ex.PW2/K which is in continuation of Ex.PW2/I; photocopy of the election identity card in two pages which is Ex.PW2/L and Ex.PW2/L­1. He has also proved the attested copy of call details of mobile no. 9873222031 for the period of 01.12.2009 to 02.01.2010 running in 35 pages which are collectively Ex.PW2/M, certificate under Section 65­B of Evidence Act in respect of the same which is Ex.PW2/M1; call details of mobile no. 9873670551 for the period 01.12.2009 to 02.01.2010 running in 20 pages which are collectively Ex.PW2/N, certificate under Section 65­B regarding the correctness of the above call details which is Ex.PW2/N­1; call details for mobile number 9999337000 for the period 20.12.2009 to 31.12.2009 running in six pages which are collectively Ex.PW2/O and certificate regarding the correctness of the call details under Section 65­B Evidence Act which is Ex.PW2/O­1. According to the witness, at the time of investigation the above call details were provided to the Investigating Officer through E Mail. (41) In his cross examination by the Ld. Defence Counsels, the witness has deposed that in order to get the call details and CDR, he operated his own PC and download the same. According to the witness, the proforma of the certificate under Section 65­B was fed in his PC and he took the print out of the present case after inserting the concerned number therein which St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 37 practice he has also adopted in the present case. The witness has further deposed that the Mobile Switching Centre of their company was also situated in Okhla itself and the work of the MSC was to switch call from one tower to another for the calls to mature. According to him, on that day in Delhi, there are 21 MSC working for Vodaphone and there are approximately 5000 towers working for Vodaphone. He has explained that when a call was made, then digital signature of the call was recorded in the server. The witness has further deposed that they had only one server for the CDR but he never worked on the server and he has no physical accessibility to the server and MSC and has voluntarily explained that the network engineers used to work with the server as well as MSC. According to the witness, if a call was made to a particular number and the concerned tower was congested or busy the said call would be routed through the other nearest tower and in the CDR the tower through which the call was routed, has been reflected. He has further testified that the coverage of a tower in residential area is .5 to 2.5 km approximately.

(42) PW4 Sh. Shishir Malhotra Nodal Officer from Aircel Limited has brought original customer information form of mobile no. 9716451108 which was issued in the name of Deepak Gogia S/o Om Prakash Gogia R/o D­1/3, Rama Vihar, Block D, Mohd. Pur, Maajri, Delhi - 110039. He has placed on record the photocopy of application form having the photograph duly certified which is Ex.PW4/A; attested photocopy of the PAN Card and photocopy of the RC of the vehicle no. DL 8C J4276 which is Ex.PW4/B; St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 38 call details of the mobile no. 9716451108 for the period 13.12.09 to 18.12.09 running in four pages which are collectively Ex.PW4/C; certificate under Section 65­B Evidence Act which is Ex.PW4/D and complete covering letter which is Ex.PW4/E. He has also proved the attested copy of the cell ID Location Chart for the mobile number 919716451108 is Ex.PW4/F attested by him with seal impression. He has testified that the first two digits of mobile number i.e. 91 is the code of India and remaining is the mobile number and the during the investigation the call details and location chart have been provided to the Investigating Officer by the then Nodal Officer Mr. Gulshan Arora. He has not been cross­examined by the Ld. Defence Counsels despite opportunity in this regard and his testimony has gone uncontroverted. Police witnesses:

(43) PW1 ASI Prem Chand has deposed that on 16.12.09, he was working as Duty Officer from 08.00 AM to 04.00 PM and on that day at about 11.35 AM, he received ruqqa from Ct. Pawan sent by SI Satya Prakash for registration of FIR. According to him, he got recorded the FIR through computer operator and has proved the copy of FIR which is Ex.PW1/A and his endorsement on ruqqa which is Ex.PW1/B. He has further deposed that after registration of FIR, he had given original ruqqa and copy of FIR to Ct.

Pawan for handing over the same to SI Satya Prakash. He has not been cross­ examined by the Ld. Defence Counsels despite opportunity and his testimony has gone uncontroverted.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 39 (44) PW8 Ct. Pawan has deposed that on 16.12.2009 he was posted at Police Station Ashok Vihar and on that day on the receipt of DD No.10­A he along with Investigating Officer SI Satya Prakash reached at C2/31, Ashok Vihar, Phase­II where father of Deepak Gupta met them and had given his statement on the basis of which SI Satya Prakash prepared the rukka. According to the witness, he took the same to the police station for registration of the FIR and after getting the case registered, he came back at the spot with copy of FIR and original rukka and handed over to the same to the Investigating Officer. He has proved that SI Satya Prakash took one pant from press­wala into possession vide seizure memo Ex.PW8/A. He has identified the said pant which is Ex.P6. This witness has not been cross­ examined by the Ld. Defence Counsels despite opportunity in this regard and his testimony has gone uncontroverted.

(45) PW9 HC Banar Singh is the MHCM who has deposed that on 16.12.2009 SI Satya Prakash deposited one pant which he took vide entry no. 4458 of register no. 19 copy of which is Ex.PW9/A. He has also deposed that on 3.1.2010 SI Rajiv Ranjan had deposited one car bearing No. DL 4C AJ 6389, another car bearing No. DL 4 SA F0113, one motorcycle bearing no. DL 4S BD 5343, another motorcycle bearing no. DL 4S AG­0277, another parcel duly sealed with the seal of RS containing Rs.40 lacs, another pullanda duly sealed with the seal of RS containing Rs. 25 lacs, another parcel duly sealed with the seal of RS containing Rs. 30 lacs, one mobile phone duly sealed with the seal of RS bearing mobile phone number St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 40 9873670551 having two SIMS, another parcel containing NOKIA mobile having number 9873222031, another mobile NOKIA E­90 having mobile number 9716451108 with the same seal and all the aforesaid parcels were received by him vide entry no. 3202 of register no. 19 copy of which is Ex.PW9/B. The witness has also testified that on the same day he also received the articles recovered from the possession of the accused Vikas Agarwal, Parveen Goel and Harshit Prabhakar vide same entry. He has further deposed that on 4.1.2010 SI Rajiv Ranjan deposited one sealed parcel containing Rs.1 lac duly sealed with the same seal, another parcel sealed with the same seal containing one check shirt, one jeans pant, one towel of small size, one handkerchief of cream colour, one under wear of black colour make Joky, articles recovered from the personal search of accused Jitesh Gogia which he had taken into possession vide entry no. 3203 of register no. 19 copy of which is Ex.PW9/C. According to the witness, on 12.1.2010 SI Rajiv Ranjan had deposited one parcel duly sealed with the seal of RS containing Rs. One lac which he received vide entry no. 3211 of register no. 19 copy of which is Ex.PW9/D. (46) In his cross­examination the witness has admitted that he had not mentioned any time of deposition of the articles vide entry no. 3202, 3203, 3211 and 4458 nor can he tell the same. He has admitted that the contents of the seizure memo had been mentioned in the register. He has denied the suggestion that the entries had been ante­timed and ante­dated by him in connivance with the Investigating Officer only for purposes of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 41 ensuring penal consequences to the accused and that the articles / pullandas remain always available with the Investigating Officer and were not physically deposited in the malkhana.

(47) PW13 Insp. Satya Prakash has deposed that on 16.12.2009 he was posted at police station Ashok Vihar and on that day he received DD No. 10A attested copy of the same is Ex.PW13/A regarding daicoity was committed at phase II, house No. C­2/31 on which he along with Ct. Pawan reached the spot. According to him, complainant Puran Chand Gupta met him there and recorded his statement which is Ex.PW3/A and prepared rukka Ex.PW13/B and handed over to Ct. Pawan for registration of the FIR and Ct. Pawan left the spot. The witness has deposed that he recorded the statement of Jyoti and prepared the site plan of the spot at the instance of Puran Chand which is Ex.PW13/C and in the meantime Ct. Pawan returned to the spot and handed over copy of FIR and original rukka to him. Witness has also deposed that he joined public witness Dharmender and Amit who were running a thaiya for ironing the clothes near the place of occurrence and witness Dharmender produced one jeans pant before him and told that the tall boy having slight beard, handed over the same for ironing and also standing there for some time and thereafter he left the thaiya without taking his pant and seized that blue jeans pant vide Ex.PW8/A. He has testified that he recorded statement of witness Dharmender and Amit and subsequently he also recorded supplementary statement of Puran Chand Gupta. The witness has proved that he also got prepared a portrait at the instance of Jyoti and St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 42 Amit through HC Mahender on the same day which portrait is Ex.PW13/D and recorded statement of Ct. Pawan. He has further deposed that he tried to search the accused persons but they were not traceable. According to him the investigations remained with him upto 24.12.2009 and thereafter he proceeded on leave on which he deposited the case file with MHC(R). He has identified the blue jeans pant as the same as produced by Dharmender, which is Ex.P6.

(48) In his cross examination by the Ld. Defence counsel, the witness has admitted that there are residential houses on the both sides of the house of complainant and has voluntarily explained that there is a park in front of the house of complainant. According to him the road outside the house of complainant is a thoroughfare and used by the public. He has testified that he made inquiries from the occupants of adjoining houses of the complainant but they did not tell anything about the incident. He does not remember the name of those occupants of the adjoining houses. Witness has further deposed that no public person was found present on the spot when he reached there, except the thaiya of Dharmender and Amit. According to him, there were three employees of the complainant in the house who made inquiries from the complainant family about any maid / servant of their house but they informed that they had not kept any maid or servant. Witness has also deposed that he did not made any inquiry in respect of their cook from the complainant and after reaching the spot he did not make any inquiry as to who was the informant of DD No.10A and explained that Pooran Chand St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 43 informed him that some family member had informed the police. According to the witness, he did not inquire as to from which phone number the DD No. 10A was recorded and he did not inquire as to who was the subscriber of the phone number mentioned in DD No.10A. He has further deposed that he received the DD No.10A when he was present in the police station Ashok Vihar, when he recorded the statement of Jyoti and prepared the site plan, he had not mentioned the FIR details on those documents however sections were mentioned therein and clarified that after arrival of Ct. Pawan he mentioned the FIR details on the documents. Witness has denied the suggestion that no rukka was sent through Ct. Pawan or that the proceedings regarding registration of FIR including the preparation of rukka were conducted in the police station only. Witness has admitted that he has not marked any place of the position of any culprit, complainant and witnesses in site plan Ex.PW13/C. He has admitted that in the said site plan, no place of thaiya of Dharmender and Amit has been marked and that in the site plan he has not marked any place as to where the vehicle of the complainant was parked or that he has not shown / marked any spot as to where the alleged robbery taken place. The witness has further admitted that he has not marked any place in the site plan as to where the alleged motorcycles were parked or that he has not shown the direction from where the motorcycle had come and the direction in which it had gone. He has further deposed that he left the spot at about 2.30PM alongwith Ct. Pawan and thereafter no other police official remained there. According to the witness, SHO also visited the spot during St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 44 his stay there and reached the spot at about 10.00AM and left the spot at about 11.00AM but no other senior officer visited there. He has denied the various suggestions put by the Ld. Defence counsels.

(49) PW14 Insp. Rajeev Shah has deposed that on 03.01.2010 he was posted as SI at Special Staff, North West and on that day he joined the investigations of this case when HC Naresh informed to the ACP who constituted two teams one headed by SI Rajeev Ranjan and the other team was headed by him (witness) and he was instructed to deploy the team at Multan Nagar. According to the witness, Ct. Sohan Lal was with them and had already identified the house of accused Parveen Goyal and he along with his team consisting of Ct. Sohan Lal, Ct. Baljeet, Ct. Anand and ASI Suresh left the office of Special Staff and went to Multan Nagar. He has also deposed that in the way he was in the contact of SI Rajeev Ranjan who headed the other team and he (witness) deployed his staff at gate No.5, Multan Nagar, Hari Singh park. According to him, SI Rajeev Ranjan informed him that his team was following the i­10 vehicle of white color bearing No. DL­4CAJ­6389 which was moving towards Multan Nagar side and also instructed him to keep a watch on the vehicle on which he accordingly instructed his staff. Witness has further deposed that at around 3:00 PM the said white color i­10 car bearing the same number came to gate No.5 Multan Nagar and took a left turn on the service road on which he immediately blocked the way of i­10 car by putting his car in front of it and HC Naresh who was following the said car put his car behind the i­10 car. He St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 45 has testified that he along with HC Naresh apprehended the boy who was driving the i­10 car and in the meantime SI Rajiv Ranjan also reached there and the said boy disclosed his name as Vikas Aggarwal @ Vicky also disclosed about his involvement in the robbery of this case. According to the witness, Vikas Aggarwal @ Vicky informed them that he tried to run away with the money outside the Delhi and his associate Deepak Gogia had already gone to Bombay whereas Parveen would arrive shortly with the money. He has testified that subsequently accused Praveen Goel was arrested near Gate No.5, Multan Nagar who also confessed about his crime about the robbery at Ashok Vihar and thereafter the i­10 car bearing No. DL­4CAJ­6389 was searched and it found to contain one black color bag in the diggi which was containing bundles of currency notes totaling Rs. 70,00,000/­ (Seventy Lacs) which the accused disclosed as the looted amount from the Ashok Vihar robbery and containing his share as well as that of Deepak Gogia. The witness has further deposed that each packet of currency note was having a slip having a stamp of Hari Ram Puran Chand proprietor and on the back side the mark of ICICI Bank was affixed. He has proved that all the currency notes were turned into a cloth parcel in the same bag and sealed with the seal of RS after which it was taken into possession vide memo Ex.PW14/A and thereafter the accused Vikas Aggarwal was arrested vide memo Ex.PW14/B and his personal search was conducted vide Ex.PW14/C. Witness has also deposed that the mobile phone of Vikas @ Vicky was taken into possession in running condition. According to the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 46 witness, on searching the bag of the accused Parveen Goyal it found to contain packets of the currency notes totaling Rs.25,00,000/­ (Twenty Five Lacs) and the packets were containing slips having written Hari Ram Puran Chand proprietor and the other side was having mark of ICICI Bank. He has proved that the recovered cash was again turned into a cloth parcel in the same bag and sealed with the seal of RS after which it was taken into possession vide memo Ex.PW14/D and accused Parveen Goyal was arrested vide memo Ex.PW14/E and his personal search was conducted vide memo Ex.PW14/F. Witness has further deposed that the mobile of the Parveen Goyal was also taken into possession in running condition but he does not remember the number of the said mobile. According to him the accused Parveen Goyal disclosed that the said mobile was used by him during the robbery committed at Ashok Vihar on 16.12.2009 and in the meantime on the mobile phone of Vikas Aggarwal one call was received and Vikas told that it was the phone of Harshit Prabhakar. Thereafter at the instance of accused Vikas Aggarwal, the accused Harshit Prabhakar was located at Liberty Cinema and was apprehended by him (witness), HC Naresh and SI Rajeev Ranjan which he was standing near his ford Endeavor car bearing No. DL­4C­AF­0113. The witness has testified that the said car was checked and it found to contain one blue color bag lying under the dash board near the adjacent seat of the driving seat and it found to contain packets of currency notes totalling Rs.25,00,000/­ (Twenty Five lacs) and each packet was having a slip having written Hari Ram Puran Chand proprietor and on the other side St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 47 marka of ICICI bank. He has proved that the said currency notes were sealed and seized vide memo Ex.PW14/G after which the accused Harshit was arrested vide memo Ex.PW14/H, his personal search was conducted vide memo Ex.PW14/I and the car bearing No. DL­4CA­F0113 was taken into possession vide memo Ex.PW14/J. He has also proved that when the accused Vikas was arrested his car Hundai i­10 No. DL­4CAJ­6389 was also seized vide memo Ex.PW14/K. Witness has further deposed that the mobile of the accused Harshit Prabhakar was also taken into possession after which they returned to their office. He has proved that the mobile of accused Parveen Goyal make NOKIA E­90 bearing mobile No. 9716451108 and IMEI No. 353660010946147 was taken into possession vide memo Ex.PW14/L, mobile of accused Vikas make SPICE M4580 having number 9873670551 with dual SIM having number 931171120 also having IMEI No. 863263008371460 and IMEI No. 86326300837478 was taken into possession vide Ex.PW14/M and the mobile of accused Harshit make NOKIA having number 9873222031 bearing IMEI No. 358249039815800 was taken into possession vide Ex.PW14/N. The witness has further proved that all the three accused persons were thoroughly interrogated and they made their disclosure statements regarding the incident and about the involvement of the co­accused persons, the disclosure statement of accused Harshit Prabhakar is Ex.PW14/O, disclosure statement of accused Vikas is Ex.PW14/P and disclosure statement of accused Parveen Goyal is Ex.PW14/Q. Witness has St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 48 further testified that in pursuance of their disclosure statement accused Vikas led them to house No. C­5/6, Mahalaxmi Society, Rama Vihar from where he got recovered Caliber motorcycle bearing No. DL­4SAQ­0277 of Red Color which was used by him in the robbery at Ashok Vihar, which motorcycle was seized vide Ex.PW14/R and in pursuance of their disclosure statements accused Vikas, Parveen and Harshit led them to house No. D1/3, Rama Vihar near Gas godown and pointed out towards a motorcycle of blue black color make Bajaj Discover bearing No. DL­4SBD­5343 belonging to Deepak Gogia, which was taken into possession vide memo Ex.PW14/R1. (50) The witness has further deposed that on 04.01.2010 all the three accused persons were produced before the Ld. Area Magistrate and sent in Judicial Custody after which he along with HC Naresh, SI Rajeev Ranjan reached at Sarai Rohilla, Subhadara colony in search of Jitesh Gogia and Deepak Gogia where one secret informer informed to the Investigating Officer that Jitesh Gogia and Deepak Gogia are cousin brothers and Jitesh Gogia would come in the night itself and further informed that Deepak Gogia was away in Bombay whereas Jitesh Gogia would go to Mumbai in the night and he would reach railway station through metro. According to the witness at about 7:00 PM at the instance of secret informer the accused Jitesh Gogia was apprehended near the stairs which leads to the metro station Shastri Nagar from Subhadara colony side. He has also deposed that the plastic bag which the accused was carrying was checked and it found to contain some clothes and two packets of currency notes totalling Rs. One lacs. According St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 49 to the witness, the accused disclosed that the said amount was given to him by Deepak Gogia for providing information about Guptaji (victim) of depositing the cash in ICICI Bank and Deepak had given him Rs.1,50,000/­ out of which Rs.50,000/­ has been spent by him and remaining amount would be given to him by Deepak Gogia after his return from Mumbai. He has proved that the parcel of the currency notes and of the bag with clothes were prepared after which the currency notes were seized vide memo Ex.PW14/R2 and bag with the clothes was seized vide memo Ex.PW14/R3. The witness has also proved that accused Jitesh Gogia was arrested vide memo Ex.PW14/R4, his personal search was conducted vide memo Ex.PW14/R5 and the disclosure statement of the accused was recorded which is Ex.PW14/R6. The witness has testified that on 10.01.2010 he again joined the investigations of the present case when the accused Harshit Prabhakar, Parveen Goyal and Vikas Aggarwal were interrogated and their supplementary disclosure statement were recorded which are Ex.PW14/S, Ex.PW14/S1 & Ex.PW14/S2. According to the witness, on 12.01.2010 he again joined the investigations of this case and on that day accused Harshit pointed out his house at A­32, Subhadra Colony, Sarai Rohilla where one relative of Harshit Prabhakar namely Harish was joined to which he agreed. He has proved that the accused Harshit led them at his bed room situated at second floor and lifted a polythene bag from the bed box which was containing Rs. One lacs as part of robbed amount. The witness has further proved that the currency notes were thereafter sealed and seized vide memo St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 50 Ex.PW11/A. (51) He has correctly identified the accused persons in the Court and also identified the case property i.e. car bearing No. DL­4CAF­0113 Ford Endeavor which is Ex.PXX; car bearing No. DL­4CAJ­6389 make i­10 of white color which is Ex.PYY; motorcycle bearing No. DL­4SAQ­0277 of Bajaj Caliber of red color recovered at the instance of accused Vikas which motorcycle is Ex.PZZ; motorcycle bearing No. DL­4SBD­5343 of Bajaj Discover of blue black color which was recovered at the instance of accused Vikas, Parveen and Harshit which motorcycle is Ex.PXZ; one black jacket, one checkdar shirt, one blue jeans, one towel, one handkerchief and one underwear in a plastic bag as the articles recovered with the bag from Jitesh Gogia which are collectively Ex.P7 including the plastic bag; one black color bag with lines and checks of stitching & photocopies of the currency notes in denomination of Rs 1000/­ and Rs 500/­ which were recovered from the accused Vikas Aggarwal which bag is Ex.P1; another grey color bag and photocopies of the currency notes which bag is Ex.P2; another blue color bag and photocopies of the currency notes which bag is Ex.P8; photocopies of currency notes totaling Rs.1 crore 25 lacs which are collectively Ex.P5; one mobile phone make SPICE M­4580 bearing IMEI No. 863263008371460 and 86326300837478 with two SIM and battery recovered from the possession of the accused Vikas Aggarwal which is Ex.P9; one mobile phone make NOKIA E­90 bearing IMEI No. 353660010946147 with one SIM and St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 51 battery recovered from the possession of the accused Parveen Goyal which is Ex.P10; mobile phone make NOKIA bearing IMEI No. 358249039815800 with one SIM and battery recovered from the possession of the accused Harshit Prabhakar which is Ex.P11.

(52) The witness has been cross­examined by the Ld. Defence Counsel at length wherein he has deposed that the Investigating Officer did not join any public witness at the time of recording to the disclosure statements which were recorded in the AATS Office in late night hours at about 10:00 PM. According to him the, the accused Jitesh Gogia was apprehended at around 7 PM but the Investigating Officer did not join any public person, metro staff, private security, CISF staff at the time of apprehension and arrest of accused Jitesh Gogia and also at the time of seizure of currency notes and bag. He is not aware if the Investigating Officer had taken the footage of the CCTV of the spot where the accused Jitesh was apprehended. Witness has admitted that there was no seal of ICICI bank on the currency notes seized from the possession of accused Jitesh. (53) According to the witness, on 03.01.2010 he had joined the investigations on the directions of the ACP Operation who first briefed him and thereafter by SI Rajiv Ranjan. He has further deposed that it was around 1:00 PM when he was present in the office that he was told about the secret information by SI Rajiv Ranjan. He has testified that they were briefed about the details of the accused Parveen resident of Multan Nagar, of accused Vikas Aggarwal resident of Begampur, of accused Deepak Gogia resident of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 52 Begampur and of accused Harshit Prabhakar resident of Subhadra colony and they were also told about the telephone numbers being used by the said persons and it was around 1­1:30 PM when they got this briefing. He has further deposed that for the first time they spotted the i­10 car was at Multan Nagar, service lane at around 3:00 PM and it was SI Rajiv Ranjan who informed him on telephone that Vikas was driving the i­10 car. According to him, none of the members of the police party in his car could identify Vikas and has voluntarily explained that HC Naresh was the only one who could identify him, who was in the other car with SI Rajeev Ranjan. Witness has further deposed that as soon as they stopped the i­10 car by obstructing it with their vehicle, it hardly took a minute for the other police party headed by SI Rajeev Ranjan to reach the spot and by that time he and HC Naresh who was in the other car had already apprehended Vikas. On a specific court question the witness has clarified that there were three cars, one in which he was present along with his team, second in which HC Naresh was present along with one constable and in the third SI Rajeev Ranjan was with his team. He has further deposed that a mechanics of the surrounding shops had come near the car but when they showed their I­Card, they went away. Witness has further deposed that in his presence Investigating Officer did not call any person from the residential area to join the proceedings. He has testified that when they searched the i­10 car they did not find any document in the car relating to Vikas Aggarwal or confirming his identity or the ownership of the car. According to him after the arrest of accused Vikas the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 53 information was given to his family but he is unable to tell the name of the person to whom the information was given and by which mode and what time. Witness has further deposed that Parveen Goyal came to the spot after about 10­15 minutes of apprehension of accused Vikas and when Parveen Goyal had reached the spot, the amount recovered from Vikas had been kept in the dikki of the same i­10 car. He has testified that before the apprehension of Parveen Goyal, formally no documents of recovery / seizure pertaining to Vikas Aggarwal were prepared due to lack of time, since the accused had informed them that Parveen Goyal was also going to come hence documentations were kept pending. Witness has admitted that formally the arrest memo of accused Vikas was not prepared nor any document of personal search or disclosure was prepared. Witness has admitted that at that time before Parveen Goyal was apprehended he was not know the details regarding the denominations and number of currency notes recovered and has voluntarily explained that he came to know of it later after Parveen Goyal was apprehended. According to him, no public person was joined at the time when the seizure memos of the recovered currency notes from Vikas Aggarwal and Parveen Goyal were prepared. He has further deposed that all the documents were prepared together at around 5:00 PM on the spot itself and no photographs / video graphs of bags recovered at the spot were taken. He does not recollect the time when the alleged call of Harshit had come on the telephone of Vikas Aggarwal and is not aware if the call detail records of the mobile phone of Harshit and Vikas Aggarwal were being collected by the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 54 Investigating Officer. Witness has further deposed that at the time when this call had come, the mobile phone of Vikas was in the possession of the Investigating officer and he was at the spot when the call had come. He has further testified that they left the spot at around 5:30 PM and reached Liberty Cinema at about 6 PM where the accused Harshit had been pointed out by Vikas at the distance of hardly ten to fifteen meters. According to the witness they were all in civil dress and the accused did not try to run away on seeing them but offered a little resistance. He has admitted that on one side of the road, there are residential houses and on the other side there are commercial establishments including a cinema hall and a petrol pump with large number of public persons available. According to him, in his presence Investigating Officer did not join any public person in the proceedings of apprehension, search and seizure memo nor he called any person from the petrol pump or cinema hall to join the proceedings. He has further deposed that the proceedings lasted for about one and a half hours and nobody asked them to remove their vehicles from the spot at that time nor any public person came to see what was happening. Witness has further deposed that during the proceedings he along with SI Rajeev Ranjan, HC Naresh and the accused Harshit were present inside the Ford Endeavor but the accused Vikas and Parveen remained inside the other vehicle with other police party. He has also deposed that at that time no joint interrogations was made. According to him, the seal of RS was handed over to HC Naresh and the seal had been taken by the Investigating Officer from HC Naresh as it was in his possession St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 55 after the sealing of the currency notes at Multan Nagar and after sealing the recovered notes from Harshit the seal was again handed back to HC Naresh. He has further deposed that they had not taken any photographs / video recordings of the recovered bag or of the Endeavor vehicle from which it was recovered. According to the witness, Investigating Officer did not made any site plan of the alleged spot of recovery from Harshit. He does not recollect if there was a memory card in the mobile phone recovered from the possession of accused Harshit. He has testified that Investigating Officer did not put any identification mark on the currency notes so recovered from the possession of Vikas, Parveen and Harshit before sealing the same. The witness has further deposed that prior to 12.01.2010 he had never gone to the house of Harshit in connection with the investigations. According to him no neighbours were joined during the search proceedings conducted at his house and has voluntarily explained that neighbours were requested to join but they refused. He is unable to tell the names or details of the address of the neighbours who refused to join the proceedings nor is he aware if the Investigating Officer had told the complainant to join the investigations dated 12.01.2010. He does not recollect if Investigating Officer had taken the signatures of Harish on any of the documents prepared at the spot or recorded his statement. The witness also does not recollect if at the time when Vikas was apprehended his hand was already injured. Witness has denied the various suggestion put to him by the Ld. Defence Counsels. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 56 (54) PW15 SI Rajiv Ranjan is the Investigating Officer of the present case who has deposed that on 02.01.2010 he was posted at ATS, North West District, Delhi and on that day investigations of this case was handed over to him. According to him, on that day their secret informer gave four mobile numbers 9716451108, 999937000, 9873222031 and 9873670551 of four suspected persons who committed the incident of this case and CDRs of these mobile phone were collected by them and after scrutiny it was found that the location of these mobile phone shows that user of mobile phone was present at the place of incident on the day of incident. He has deposed that the CDR Ex.PW15/A (running into six pages) shows the location of mobile no. 9873222031 on 16.12.2009 at Ashok Vihar Central Market and Phase II at point X on page no.2 & 3; the CDR of mobile No. 9716451108 which are Ex.PW15/B (running into two pages) shows the location of this mobile phone on 16.12.2009 at Central Market, Ashok Vihar at point X on page 1; CDR of mobile no. 9873670551 which is Ex.PW15/C (running into two pages) shows the location of this mobile phone on 16.12.2009 at Ashok Vihar Phase­II and Ashok Vihar Central market at point X on page no.1; the CDR of mobile no. 9999337000 which is Ex.PW15/D (running into four pages) shows the location of the mobile phone at Ashok Vihar Phase­II and Ashok Vihar Central Market at point X on page no.3. The witness has testified that on verification they came to know about the ownership of these mobile phones and on his directions one constable made calls to the mobile phone number 9716451108 and made inquiries from him during which the user told St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 57 him name as Parveen Goel, R/o WZ­30, Hari Singh Park, Multan Nagar, Delhi. According to him, on the same day i.e. 02.01.2010 in the evening time secret informer informed him that one of the suspect was coming to Deep Hyundai, Ashok Vihar Industrial Area for service of his i­10 car bearing number DL4C AJ 6389 on which he (witness) immediately gave this information to his senior officers and on their directions he along with his staff went to Deep Hyundai, Ashok Vihar Industrial Area where he came to know that the above said car was being used by Vishal Aggarwal who was using mobile number bearing no. 9873670551. Witness has further deposed that at about 5.00PM one person came there to receive the aforesaid car after which they followed him and finally the car was stopped at C­5/6, Mahalaxmi Society, Rama Vihar, Delhi. The witness has testified that he immediately informed his Senior Officers and they directed the deployment of two teams one at Multan Nagar and second was deployed at Mahalaxmi Society of Rama Vihar.

(55) This witness has corroborated the testimony of PW14 Inspector Rajiv Shah in toto in respect of investigations dated 3.10.2010, 4.10.2010, 10.1.2010 and 12.1.2010. He has proved the following documents:

1. Arrest memo of accused Vikas Aggarwal which is Ex.PW14/B.

2. Personal search memo of accused Vikas Aggarwal which is Ex.PW14/C.

3. Seizure memo of the currency notes and slips along with bag, recovered from accused Vikas Aggarwal which is Ex.PW14/A. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 58

4. Disclosure statement of accused Vikas Agarawal which is Ex.PW14/P.

5. Arrest memo of accused Praveen Goyel which is Ex.PW14/E.

6. Personal search memo of accused Praveen Goel vide memo Ex.PW14/F.

7. Seizure memo of currency notes with slips along with the bag recovered from the accused Praveen Goel which is Ex.PW14/D.

8. Disclosure statement of accused Praveen Goel which is Ex.PW14/Q.

9. Seizure of i­10 car bearing no. DL 4C AJ 6389 vide memo Ex.PW14/K.

10. Arrest memo of accused Harshit Prabhakar which is Ex.PW14/H.

11. Personal search of accused accused Harshit Prabhakar which is Ex.PW14/I.

12. Seizure memo of currency notes with slips in the bag recovered from the possession of accused Harshit Prabhakar which is Ex.PW14/G.

13. Disclosure statement of accused Harshit Prabhakar which is Ex.PW14/O.

14. Seizure of Endeavor car of Harshit Prabhakar vide memo Ex.PW14/J. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 59

15. Seizure memo of mobile phone recovered from the accused Praveen Goel whichis Ex.PW14/L.

16. Seizure memo of mobile phone recovered from the accused Vikas Aggarwal which is Ex.PW14/M.

17. Seizure memo of the mobile phone recovered from the accused Harshit Prabhakar which is Ex.PW14/N.

18. Seizure memo of motorcycle Bajaj Caliber of red colour bearing no. DL 4S AQ 0277 which is Ex.PW14/R.

19. Seizure of motorcycle bearing no. DL 4S B D 5343 make discover of blue - black colour vide seized memo Ex.PW14/R­1.

20. Arrest memo of accused Jitesh Gogia which is Ex.PW14/R­4.

21. Personal search of accused Jitesh Gogia which is Ex.PW14/R­5.

22. Disclosure statement of accused Jitesh Gogia which is Ex.PW14/R­6.

23. Seizure memo of currency of Rs.1,00,000/­ recovered from the possession of Jitesh Gogia from the inside of a jeans in a bag which is Ex.PW14/R­2.

24. Seizure memo of the clothes found in the bag i.e. a jacket, a shirt, jeans, a towel, a handkerchief and one underwear vide Ex.PW14/R­3.

25. Disclosure statements of Praveen Goel, Vikas Aggarwal and Harshit Prabhakar dated 8.1.2010 which are Ex.PW14/S, St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 60 Ex.PW14/S­1 and Ex.PW14/S­2.

(56) Apart from the above, the witness SI Rajeev Ranjan has proved that on 04.01.2010 he moved an application Ex.PX­2 for TIP of the accused persons which was fixed for 07.01.2010. He has testified that during the Police Custody Remand on 11.01.2010 accused Vikas, Praveen and Harshit pointed out the place of incident vide Ex.PW15/A. He has further deposed that on 06.01.2010 he examined Supriya Kalaniya, employee of ICICI Bank and recorded her statement. The witness has also deposed that on 07.01.2010 accused Vikas, Praveen and Harshit Prabhakar refused to take part in the TIP proceedings and he obtained the copy of TIP proceedings vide his application Ex.PX­6. He has further proved that on 12.01.2010 at the instance of accused Harshit Prabhakar Rs.1,00,000/­ were recovered from the second floor of his house in the presence of Harish and HC Naresh which was seized vide memo Ex.PW11/A. According to the witness, on 12.01.2010 the complainant Deepak Gupta handed over bank statements of ICICI bank and HDFC Bank and loan documents of Union Bank of India to him which was seized by him vide seizure memo Ex.PW5/D. He has testified that on 18.01.2010 Deepak Gupta also produced some documents of income tax and banks which he seized vide memo Ex.PW5/C. He has proved that during his investigations he recorded statements of witnesses and collected certified copies of call details and customer application forms from the service providers in respect of the abovesaid mobile phones. According to him on completion of investigation he submitted the charge sheet against accused Harshit, Vikas, St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 61 Praveen and Jitesh Gogia and during the investigation Deepak Gogia could not be arrested and hence he was declared Proclaimed Offender by the court. (57) He has correctly identified the accused persons in the Court and also identified the case property i.e. car bearing No. DL­4CAF­0113 Ford Endeavor which is Ex.PXX; car bearing No. DL­4CAJ­6389 make i­10 of white color which is Ex.PYY; motorcycle bearing No. DL­4SAQ­0277 of Bajaj Caliber of red color recovered at the instance of accused Vikas which motorcycle is Ex.PZZ; motorcycle bearing No. DL­4SBD­5343 of Bajaj Discover of blue black color which was recovered at the instance of accused Vikas, Parveen and Harshit which motorcycle is Ex.PXZ; one black jacket, one checkdar shirt, one blue jeans, one towel, one handkerchief and one underwear in a plastic bag as the articles recovered with the bag from Jitesh Gogia which are collectively Ex.P7 including the plastic bag; one black color bag with lines and checks of stitching & photocopies of the currency notes in denomination of Rs 1000/­ and Rs 500/­ which were recovered from the accused Vikas Aggarwal which bag is Ex.P1; another grey color bag and photocopies of the currency notes which bag is Ex.P2; another blue color bag and photocopies of the currency notes which bag is Ex.P8; photocopies of currency notes totaling Rs.1 crore 25 lacs which are collectively Ex.P5; one mobile phone make SPICE M­4580 bearing IMEI No. 863263008371460 and 86326300837478 with two SIM and battery recovered from the possession of the accused Vikas Aggarwal which is Ex.P9; one mobile phone make NOKIA E­90 bearing IMEI No. 353660010946147 with one SIM and battery St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 62 recovered from the possession of the accused Parveen Goyal which is Ex.P10; mobile phone make NOKIA bearing IMEI No. 358249039815800 with one SIM and battery recovered from the possession of the accused Harshit Prabhakar which is Ex.P11.

(58) In his cross examination by Ld. Defence counsels, witness has deposed that the secret informer gave him the information with regard to the suspect on 02.01.2010 in the morning hours and secret informer told him the mobile phone number, however he was not aware about the particulars of the suspect. According to him on 02.01.2010 itself, he got the ownership and about the subscriber of all the phone numbers and inspite of having the details of the ownership and subscription of the above mentioned phone numbers neither he issued any notice to the subscribers of those numbers nor he send any police officials to their respective residence in order to join them in the investigations or to verify about their phone numbers. Witness has admitted that near the house of the complainant there is a huge commercial market i.e. Deep Market situated. He has testified that the same informer informed him in afternoon hours that one of the suspect would be coming to Deep Hundai, Ashok Vihar and he came to know by way of verification on 02.01.2010 itself that the vehicle No. DL­4C­AJ­6389 belongs to one Vishal Aggarwal. He has admitted that no entry in the rojnamcha with regard to the information given by secret informer, above said four mobile phones and i­10 car was made. He does not remember the phone number which he was using during that period and also as to which phone number was being used by St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 63 Insp. Rajeev Shah nor is he able to tell the above said phone numbers even if time is given to him to check the same. The witness has testified that he for the first time spotted the said car on 03.01.2010 at about 2:00 PM near sector 20/22 Rohini and at that time Insp. Rajiv Shah had already taken his position at Multan Nagar, Metro Station along with his team in his car. According to the witness he started chasing the said i­10 car from sector 20/22 Rohini in private car along with SI Surender, Ct. Kulbhushan, Ct. Mahesh, Ct. Jai Bhagwan whereas Insp. Rajeev Shah had already reached to Multan Nagar directly in his private vehicle with Ct. Sohan Lal, Ct. Anand, HC Baljeet, ASI Suresh. Witness has admitted that the spot i.e. gate No. 5 Multan Nagar is a densely populated area and there are shops on the road. He has further deposed that no public person came there after seeing them and no vehicle stopped there as to inquire as to what had happened. The witness has testified that there was no need for anybody to come there to inquire as they had not got occupant / driver of the i­10 car down and kept him inside the i­10 car itself, so the public person did not see anything. According to him they did not ask any residential public person or shop keepers to join the proceedings at the time of apprehension and arrest of Vikas Aggarwal and the information with regard to the arrest of Vikas Aggarwal was not given to anybody at that time and has voluntarily explained that it was given in the evening time, after coming to the special staff office to his father. This witness has been cross­examined on similar lines as that of witness PW14­ Inspector Rajiv Shah and nothing much has come out of the same. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 64 STATEMENT OF ACCUSED / DEFENCE EVIDENCE:

(59) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all incriminating material was put to them which they have denied. (60) The accused Harshit Prabhakar has stated that he was lifted fro his house i.e. A­32 Subhadra Colony at 10:30 AM on 3.1.2010 and was taken to the office of ATS and subsequently he was falsely implicated in this case after planting the case property on him. According to the accused, nothing was recovered from his possession and he did not make any disclosure statement. He has alleged that his signatures were forcibly obtained by the police which papers were subsequently fabricated by the Investigating Officer in order to create false evidence against him. He has denied that the mobile phone 9873222031 belong to him which according to him has been planted upon him. He has further stated that he was taken to the ATS Office by the police officials along with his car on which his father had made a PCR call. He has admitted having refused to participate in TIP since during Police Custody he was shown to various public persons / witnesses and his photographs were also taken by the police officials and even his face was not muffled. According to the accused, he is innocent and has been falsely implicated in the present case. He has also stated that he has nothing to do with the alleged incident.

(61) The accused Praveen Goel has similarly stated that he was not arrested by the police from the place as alleged by the prosecution and St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 65 nothing was recovered from him. According to the accused, he was lifted from his house on 3.1.2010 at 1:00 PM and implicated in this case. He has further stated that no disclosure statement was made by him nor any mobile phone was recovered from him nor he used any mobile phone. According to him, the mobile phone No. 9873670551 and 9311711120 does not belong to him. He has also stated that he never visited the spot of incident and his face was not muffled and he was shown to number of persons and even his photographs were taken by the police during Police Custody due to which reason he refused to participate in TIP. He has denied having made any disclosure statement before the police. According to the accused, he is innocent and has nothing to do with the present case. He has further stated that nothing was recovered from his possession or at his instance and the recoveries were planted upon him in order to let off the real culprits. (62) The accused Jitesh Gogia has also stated that the police lifted him from his residence at B­129, Subhadra Colony, Sarai Rohilla on 4.1.2010 at 8:30 AM when they came to his house to inquire about his cousin Deepak Gogia but since Deepak was not traceable hence they lifted him. He has denied having given any information to anybody as alleged. He has stated that nothing was recovered from his possession and the police planted the money upon him to falsely implicate him in this case. According to the accused, he knew Supriya since 2004 when they were studying together in the same college and was in regular touch with her since 2004 out of love and affection. He has further stated that thereafter he got married to Supriya on St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 66 14.4.2011 and the mobile No. 8010070058 was procured by him in the month of February­March, 2010 i.e. after the alleged incident and hence there is no question of his using the said number during the relevant period of alleged incident. According to him, the CRD have been manipulated and fabricated at the instance of the Investigating Officer. He has further deposed that none of the witnesses including the public witnesses and complainant have deposed anything against him whereas the police officials have deposed falsely against him at the instance of the Investigating Officer. The accused has also deposed that he is innocent and has been falsely implicated and has nothing to do with the alleged incident.

(63) The accused Vikas Aggarwal has stated that the i­10 car bearing No. DL­4C­AJ­6389 belongs to his brother which was lifted by the police from his house to falsely implicate him in the present case. According to him, he was lifted from his house by the police and he did not disclose anything as alleged. He has further stated that nothing was recovered from his possession and the currency notes have been planted by the police upon him to falsely implicate him. He has denied having made any disclosure statement to the police and has alleged that his signatures were obtained forcibly on blank papers which were later on converted into various memos including the disclosure statement. According to the accused, no mobile phone was recovered from his possession and the said mobile phone has been planted upon him. He has admitted having refused to participate in Judicial TIP since he was shown to various persons including the witnesses in this St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 67 case and even his photographs were taken and videography was done. He has further stated that he is innocent and has nothing to do with the alleged incident. According to the accused, nothing was recovered from his possession or at his instance and the case property has been planted upon only to falsely implicate him in the present case. He has stated that he is running a restaurant in the partnership at Ashok Vihar where the local police used to come and ask for money / monthly and also used to have food without making the payment. The accused has further stated that even at the relevant period when the alleged incident had taken place the wrist of his right hand was fractured and he was not in a position to move freely. (64) The accused have examined four witnesses in their defence. DW1 Shiv Kumar Goel is the father of accused Praveen Goel who has deposed that on 03.01.2010 four­five persons came at his house at about 12:45 PM and asked about his son Parveen. According to the witness, he opened the door and they came inside when his son was present at home at that time. The witness has further deposed that he also came out from his room and in the meantime, son of his brother namely Gaurav and son of Jai Kumar Goel also came there. According to him, the said four­five persons disclosed that they were from Special Staff, Sector­16, Rohini and on enquiry they disclosed that they want to make enquiry from Parveen in regard to some case and were taking him at special staff office at Sector­16, Rohini and after enquiry they would release Parveen at evening time. He has also deposed that thereafter they took Parveen with them at about 1:00 PM on which his nephew Gaurav St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 68 made a telephone call from his mobile number 9212227092 at 100 number to the police at about 1:30 PM. The witness has further deposed that at about 8 PM he himself, his nephew and two three neighbours reached at Special Staff Office, Sector­16, Rohini and made request to the officers present there to release his son but the officials present there disclosed that they would release Parveen in morning next day because investigation was going on. He has further deposed that on 04.01.2010 at 10:00 AM he along with his neighbours visited at Special Staff Office but they refused to release his son and disclosed that they arrested Parveen. According to the witness, his son was lifted from his house on 03.01.2010 at about 1:00 PM by the special staff officials and falsely implicated in this case.

(65) In his cross­examination by the Ld. Addl. PP for the State the witness has deposed that he did not make any complaint against the police of special staff about the picking of his son from his house nor he made any complaint to any court of law in this regard. He has denied the suggestion that the police of the special staff had not lifted his son from his house. (66) The accused Parveen Goel @ Vipin has examined himself as DW2 wherein he has deposed that he received a reply in respect of his application under RTI Act from the Public Information Officer cum Addl. DCP of Police Control Room, Delhi in respect of call made at 100 number on 03.01.2010 from mobile No. 9212227092 which reply of the Addl. DCP is Ex.DW2/A. In his cross­examination by the Ld. Addl. PP for the State the witness has admitted that Ex.DW2/A does not show the time when the call St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 69 was made.

(67) DW3 Smt. Rozy Thakur is the neighbour of accused Vikas Aggarwal. According to the witness Vikas Aggarwal is her neighbourer and was residing with his full family. According to her, the accused was doing work in a restaurant at Ashok Vihar and on 03.01.2010 at about 9­10 AM two private cars came with 8­9 persons in civil clothes came and lifted Vikas Aggarwal who was already at home since 20­22 days because his right hand was fractured. He has testified that due to this reason he could not join his job. According to her, police officials told that they were taking Vikas for enquiry and on the next day she along with the neighbours went to office of Crime Branch at Prashant Vihar and police informed that the Vikas have been arrested in a case.

(68) In his cross­examination by the Ld. Addl. PP for the State the witness has deposed that on 03.01.2010 she did not inform any higher police officials by telegram that accused Vikas had been lifted from his house nor did she inform any higher police officials even on the next day after they came to know that accused Vikas have been arrested by the police. She has further deposed that she also did not make any complaint to any court of law in this regard. She is not aware about the exact allegations against the accused, however, she came to know later on that he has been arrested in a robbery case but she is not aware how much money have been recovered from accused Vikas. She has also deposed that Vishal Aggarwal is the brother of accused Vikas who used to drive one i­10 car of white colour. She St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 70 is not aware whether the accused Vikas Aggarwal was misapprehended by the police at about 3:10 PM with his i­10 car at gate No. 5, Hari Singh Park, Multan Nagar, Delhi. She has denied the suggestion that the accused has not been lifted from his house on 03.01.2010 between 9 to 10 AM. (69) DW4 Pradeep Goswami is a neighbour of the accused Harshit Prabhakar who has deposed that on 03.12.2009 at about 10:30 AM he was present at Krishna Medical Store in the gali at Subhadara Colony, Delhi­35. According to the witness, he saw that four­five police personnels took the accused Harshit Prabhakar in a car and thereafter, he is not aware where he has been taken. He has deposed that his father also informed him that police lifted his son from his house.

(70) In his cross­examination by the Ld. Addl. PP for the State the witness has deposed that he has not informed any higher police officials that accused Harshit Prabhaker has been lifted from his house on 03.12.2009. He is not aware whether father of Harshit Prabhaker informed any higher police officials about lifting of the accused Harshit Prabhaker on 03.12.2009. He also does not aware whether father of Harshit Parabhaker made any complaint in any court of law nor is he aware when accused Harshit Prabhaker was arrested by police in this case or that allegations against the accused Harshit. He has admitted that the accused Harshit Prabhaker is a resident of his colony and he had come before this Hon'ble Court at the instance of father of accused Harshit Prabhaker. He has denied the suggestion that he has deposed falsely in favour of accused Harshit Prabhaker St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 71 being resident of his colony.

FINDINGS:

(71) I have heard the arguments advanced before me by the Ld. Addl.

PP for the State and the Ld. Defence Counsels. I have also gone through the evidence on record and the written memorandum of arguments filed by the parties. My findings are as under:

Ocular Evidence:

(72) Ocular evidence/ eye witness count is the best evidence in any case. According to the prosecution case there are four eye witnesses to the incident i.e. the complainant / victim Puran Chand Gupta (PW4), his daughter in law Jyoti Gupta (PW6), Amit (PW7) and Dharmender (PW10). It is the case of the prosecution that one press­wala / washer­man i.e. Amit (PW7) who used to sit outside the house of the victim and had also seen two boys who were keeping a watch / recee over the premises of the victim since morning hours and had given him a blue jeans pant to iron on which pretext they kept a watch. It is further the case of the prosecution that after the incident the victims and the eye witnesses assisted the police in giving the description of the alleged assailants / accused and also in preparation of portrait.

(73) Ld. Defence Counsels on the other hand has vehemently argued that in the Court none of the victims or eye witnesses have been able to identify the accused. It is submitted that the accused have been falsely St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 72 implicated only to work out the present case and in this regard reliance is placed on the testimonies of the various eye witnesses to have claimed that the assailants were all in helmets and they were not in a position to identify them.

(74) I have considered the rival contentions and also the evidence which has come on record. In so far as the incident is concerned all the eye witnesses i.e. Puran Chand Gupta, Jyoti Gupta, Amit and Dharmender have supported the incident but in so far as the identity of the accused is concerned they have turned hostile. For the first time in the Court they have claimed that the assailants who had come on motorcycles were wearing helmets and hence they were not in a position to identify them which fact was not disclosed earlier to the police by the said witnesses. Further the portrait of the the assailants had been got prepared at the instance of Jyoti Gupta and Amit which portrait is Ex.PW13/D on the basis of which even a reward of Rs.50,000/­ is also reported to have been announced which details are mentioned in the portrait. Had the accused been in helmets it is not possible that the witnesses would have assisted the police in preparation of the portrait. PW7 Amit had earlier identified the accused Vikas Aggarwal after the refusal of accused Vikas Aggarwal to participate in TIP proceedings but before the Court he has denied having identified the accused Vikas Aggarwal, which apparently he has done either out of fear or having been won over by the accused persons or else there was no reason why he could get the portrait of the assailant prepared. Dharmender (PW10) in his St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 73 testimony has admitted that two boys who had kept a watch / conducted recce over the house of the victim, had come to his Thaiya on the pretext of ironing the blue jeans pant on which he told the said boys that it would take half an hour after which one of the boys sat at this thaiya and started reading the newspaper. He has proved that two boys had gone to C­2/31, after which there was an alarm of the theft / robbery having being committed. He has refused to identify the accused in the Court apparently either out of fear or being won over.

(75) This being the background I hereby hold that the eye witnesses have specifically proved the incident of armed robbery. It also stands established that after the incident portrait of the suspect was prepared at the instance of Jyoti, Amit and Dharmender which portrait is Ex.PW13/D. I have seen the portrait which apparently matches with the accused Praveen Goel and a reward of Rs.50,000/­ was announced (copy of the said announcement printed on the sketch of the suspect so got prepared is present on record). Had the sketch / portrait not been prepared, a fact which finds mentioned in the statements of these witnesses under Section 161 Cr.P.C.

there was no way that a public notice / reward would have been announced. Hence, I hereby hold that the same is incriminating qua the accused Praveen Goel and connects him to the incident of robbery.

Electronic Evidence:

(76) The entire case of the prosecution is based upon the electronic record. Anuj Bhatia (PW2) Nodal Officer from Vodafone has proved the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 74 electronic record in respect of mobile No. 9873222031 in the name of Mahesh Kumar S/o Sh. Satya Vir, H. No. B­25, Harkesh Nagar, New Delhi which mobile number at the time of incident was being used by the accused Harshit Prabhakar; mobile No. 9873670551 issued in the name of Vishal Goyal R/o D­16/222, Sector - 3, Rohini, Delhi (real brother of accused Vikas Aggarwal) which mobile phone was allegedly used by the accused Vikas Aggarwal; mobile no. 9999337000 issued in the name of Deepak Gogia S/o Sh. Om Prakash Gogia R/o D­1/3, Rama Vihar, Near Indane Gas Godown, Budh Vihar, New Delhi. He has also proved the call detail record of mobile no. 9873222031 for the period of 01.12.2009 to 02.01.2010 which are Ex.PW2/M; call details record of mobile no. 9873670551 for the period 01.12.2009 to 02.01.2010 which are Ex.PW2/N and call details record of mobile number 9999337000 for the period 20.12.2009 to 31.12.2009 which are Ex.PW2/O and the respective certificates under Section 65­B Evidence Act. Sh. Shishir Malhotra (PW4) Nodal Officer from Aircel Limited has proved that the mobile no. 9716451108 was issued in the name of Deepak Gogia S/o Om Prakash Gogia R/o D­1/3, Rama Vihar, Block D, Mohd. Pur, Maajri, Delhi - 110039 and the call details of the said mobile no. 9716451108 for the period 13.12.09 to 18.12.09 which are Ex.PW4/C and certificate under Section 65­B Evidence Act which is Ex.PW4/D. (77) The case of the prosecution is that at the time of his arrest the accused Praveen Goel was found in possession of mobile phone make St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 75 NOKIA E­90 having IMEI No. 353660010946147 and SIM No. 9716451108 which is in the name of Deepak Gogia (Proclaimed Offender), which phone was seized vide memo Ex.PW14/L. Further, the accused Vikas Aggarwasl was found in possession of mobile phone make SPICE M4580 having dual SIM with IMEI No. 863263008371460 and IMEI No. 86326300837478 and two SIMs bearing No. 9873670551 (issued in the name of his brother Vishal Goyal) & 9311711120, which phone was seized vide memo Ex.PW14/M. Also, the accused Harshit Prabhakar was found in possession of mobile phone make NOKIA having IMEI No. 358249039815800 with SIM No. 9873222031 (issued in the name of Mahesh Kumar) which phone was seized vide memo Ex.PW14/N. It is also the case of the prosecution that the Call Details Record not only show their complicity in the crime but also prove that all the accused were together on the date of the incident and were in touch with each other. Further the said Call Detail Record also reflect that even a couple of days prior to the date of incident they had visited the area and conducted recce of the area where the incident / crime had taken place.

(78) I have examined the Call Details Record of the various mobile phones and it is evident that all the accused including the accused Deepak Gogia (Proclaimed Offender) were regularly in touch with each other. I now proceed to analyze the call details record of each of the accused individually. (79) Coming first to the accused Praveen Goel who was using the mobile No. 9716451108 which is in the name of Deepak Gogia (Proclaimed Offender) which mobile set was recovered from his possession at the time of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 76 his arrest, the relevant entries are as under:

 Sr.      Called No.            Date           Time       Seconds Type of           Location 
 No.                                                                call

1.       919999337000  14/12/2009 08:57:55 24                      MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

2.       919999337000  14/12/2009 09:12:54 52                      MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

3.       919999337000  14/12/2009 09:17:55 38                      MOC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

4.       919999337000  14/12/2009 09:36:23 6                       MOC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

5.       919999337000  15/12/2009 20:26:54 27                      MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

6.       919999337000  15/12/2009 20:31:01 45                      MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

7.       919873222031  15/12/2009 20:44:46 244                     MTC        Central Market Ashok 
         (Harshit)                                                            Vihar (Area where the 
                                                                              incident took place)

8.       919999337000  15/12/2009 20:56:52 39                      MOC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

9.       919999337000  15/12/2009 21:04:58 77                      MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)

10. 919999337000  15/12/2009 21:07:19 19                           MTC        Central Market Ashok 
         (Deepak)                                                             Vihar (Area where the 
                                                                              incident took place)




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                               Page No. 77
 11. 919999337000  15/12/2009 21:10:21 15                         MOC    Central Market Ashok 
          (Deepak)                                                      Vihar (Area where the 
                                                                        incident took place)

12. 919999337000  16/12/2009 08:06:13 16                         MOC    New Multan Nagar 
          (Deepak)                                                      (where accused 
                                                                        Praveen is residing)

13. 919999337000  16/12/2009 08:30:53 68                         MTC    Central Market Ashok 
          (Deepak)                                                      Vihar (Area where the 
                                                                        incident took place)

14. 919999337000  16/12/2009 08:46:52 97                         MTC    Central Market Ashok 
          (Deepak)                                                      Vihar (Area where the 
                                                                        incident took place)

15. 919873222031  16/12/2009 09:34:06 18                         MTC    Pitampura
          (Harshit)

16. 919999337000  16/12/2009 11:47:09 1                          SMMT Paschim Vihar Extn.
          (Deepak)

17. 919999337000  16/12/2009 11:48:15 35                         MOC    Paschim Vihar Extn.
          (Deepak)

18. 919873222031  16/12/2009 12:15:04 8                          MTC    New Multan Nagar
          (Harshit)

19. 919873222031  16/12/2009 12:23:00 42                         MTC    New Multan Nagar
          (Harshit)
     

(80)                  The   aforesaid   call   details   record   of   the   mobile   phone   No. 

9716451108 which was in the name of Deepak Gogia but actually used by the accused Praveen Goel, conclusively establishes that he was in regular touch with the accused Harshit and Deepak Gogia (Proclaimed Offender) throughout the date of incident and couple of days earlier. The following facts emerge from the analysis of the same:

➢ On 14.12.2009 the accused Praveen Goel was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 78 place where the ICICI Bank is situated and also the house of the victim is situated where he remained from around 8:57:55 onwards till around 9:36:23.

➢ Again on 15.12.2009 the accused Praveen Goel was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from around 8:38:41 onwards till around 8:55:20 in the morning hours and thereafter in the night from 20:26:54 (8:26 PM) till 21:10:21 (9:10 PM) and matches with Call Detail Records of other accused.

➢ On 16.12.2009 i.e. the date of incident the accused the accused Praveen Goel was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from around 8:30:53 onwards till around 8:46:52 in the morning hours (matches with the other accused).

➢ Thereafter the location of accused Praveen Kumar is shown at Pitampura at 09:34:06 which is on the route taken by the accused to reach to house of Deepak Gogia at Rama Vihar where the looted property was divided between them (matches with that of other accused) his house at Multan Nagar.

(81) Coming next to the accused Vikas Aggarwal who was using the mobile No. 9873670551 which was issued in the name of his brother Vishal St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 79 Goyal, which mobile set was recovered from his possession at the time of his arrest. The relevant entries are as under:

 Sr.   Called No.             Date          Time       Seconds Type of            Location
 No.                                                             call

1.      9999337000  14/12/2009 93817                  9          INC       Ashok Vihar Phase­II 
        (Deepak)                                                           (Area where the 
                                                                           incident took place)

2.      9999337000  14/12/2009 94135                  23         OUT       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

3.      9999337000  14/12/2009 94421                  15         INC       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

4.      9999337000  14/12/2009 94610                  13         INC       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

5.      9873222031  15/12/2009 203935 1                          SMSO      Ashok Vihar Central 
        (Harshit)                                                          Market (Area where the 
                                                                           incident took place)

6.      9999337000  15/12/2009 204956 46                         INC       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

7.      9999337000  15/12/2009 205555 13                         OUT       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

8.      9999337000  15/12/2009 205832 6                          OUT       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

9.      9999337000  15/12/2009 211257 14                         INC       Ashok Vihar Central 
        (Deepak)                                                           Market (Area where the 
                                                                           incident took place)

10. 9873222031  15/12/2009 212504 1                              SMSO      Ashok Vihar Phase­II 
        (Harshit)                                                          (Area where the 
                                                                           incident took place)


St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                               Page No. 80
 11. 9999337000  16/12/2009 85440                      8          INC   Ashok Vihar Phase­11 
        (Deepak)                                                       (Area where the 
                                                                       incident took place)

12. 9999337000  16/12/2009 90343                      119        OUT   Ashok Vihar Phase­II 
        (Deepak)                                                       (Area where the 
                                                                       incident took place)

13. 9999337000  16/12/2009 91831                      6          INC   Ashok Vihar Central 
        (Deepak)                                                       Market (Area where the 
                                                                       incident took place)

14. 9999337000  16/12/2009 94550                      27         INC   Rama Vihar (residence of 
        (Deepak)                                                       accused Vikas)



(82)               The   aforesaid   call   details   record   of   the   mobile   phone   No. 

9873670551 which was in the name of Vishal Goyal the brother of accused Vikas Aggarwal but actually used by the accused Vikas Aggarwal and was recovered from his possession, conclusively establishes that he was in regular touch with the accused Harshit, Praveen and Deepak Gogia (Proclaimed Offender) throughout the date of incident and even couple of days earlier.

From the analysis of the same the following facts emerge:

➢ On 14.12.2009 the accused Vikas Aggarwal was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from around 9:38:17 onwards till around 10:01:22 (matches with that of other accused).

➢ Again on 15.12.2009 the accused Vikas Aggarwal was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 81 victim is situated where he remained from around 20:39:35 (8:39 PM) onwards till around 21:25:04 (9:25 PM) in late night hours (matching with that of the other accused).

➢ On 16.12.2009 i.e. the date of incident the accused the accused Vikas Aggarwal was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from around 8:54:40 onwards till around 9:18:31 in the morning hours i.e. the time when the incident had taken place.

➢ Thereafter the location of accused Vikas Aggarwal is shown in the area of Rama Vihar where the accused Deepak Gogia resides at 09:45:50 (where the looted cash was distributed - matches with that of other accused).

(83) Coming next to the accused Harshit Prabhakar who was using the mobile No. 9873222031 which was issued in the name one Mahesh Kumar C/o Satya Vir, R/o House No. B­25, Harkesh Nagar, New Delhi which mobile set was recovered from his possession at the time of his arrest. The relevant entries are as under:

 Sr.      Called No.           Date          Time      Seconds    Type             Location
 No.                                                             of call

1.       9716451108  15/12/2009 83720                  4         OUT       Ashok Vihar Central 
         (Praveen)                                                         Market (Area where the 
                                                                           incident took place)



St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                                Page No. 82
 2.      9999337000  15/12/2009 83817                   18        OUT   Ashok Vihar Central 
        (Deepak)                                                       Market (Area where the 
                                                                       incident took place)

3.      9716451108  15/12/2009 84025                   29        OUT   Ashok Vihar Central 
        (Praveen)                                                      Market (Area where the 
                                                                       incident took place)

4.      9716451108  15/12/2009 85400                   17        OUT   Ashok Vihar Central 
        (Praveen)                                                      Market (Area where the 
                                                                       incident took place)

5.      9999337000  16/12/2009 81555                   8         OUT   Ashok Vihar Central 
        (Deepak)                                                       Market (Area where the 
                                                                       incident took place)

6.      9999337000  16/12/2009 83214                   17        OUT   Ashok Vihar Phase­II 
        (Deepak)                                                       (Area where the incident 
                                                                       took place)

7.      9999337000  16/12/2009 85503                   13        OUT   Ashok Vihar Phase­II 
        (Deepak)                                                       (Area where the incident 
                                                                       took place)

8.      9999337000  16/12/2009 92111                   18        OUT   Ashok Vihar Central 
        (Deepak)                                                       Market (Area where the 
                                                                       incident took place)

9.      9716451108  16/12/2009 93245                   18        OUT   Rohini Sec. 5 
        (Praveen)

.     9716451108  16/12/2009 121341 10                         OUT   Subhadra Colony 
        (Praveen)                                                      (residence of accused 
                                                                       Harshit Prabhakar)
  

(84)               The   aforesaid   call   details   record   of   the   mobile   phone   No. 

9873222031 which was in the name of one Mahesh Kumar but actually used by the accused Harshit Prabhakar, conclusively establishes that he was in regular touch with the accused Praveen, Jitesh, Vikas and Deepak Gogia (Proclaimed Offender) throughout the date of incident and couple of days St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 83 earlier. The following facts also stands established:

➢ On 14.12.2009 the accused Harshit Prabhakar was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where his presence is shown at 14:40:59 (2:40 PM). ➢ Again on 15.12.2009 the accused Harshit Prabhakar was present in the area covered by the tower installed at Central Market Ashok Vihar i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from 8:37:20 onwards till 8:54:00 in the morning hours.

➢ On 16.12.2009 i.e. the date of incident the accused Harshit Prabhakar was present in the area covered by the tower installed at Central Market Ashok Vihar and Ashok Vihar Phase­II i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from 8:15:55 onwards till 9:21:11 in the morning hours i.e. the time when the incident had taken place (matches with that of other accused).

➢ Thereafter at about 9:32:45 the location of accused Harshit Prabhakar is shown in the area of Rohini Sector­5 which is on the way to the house of Deepak Gogia at Rama Vihar (where the alleged looted amount was distributed).

(85) Coming now to the accused Deepak Gogia who has been declared a Proclaimed Offender, I may mention that his call details record are St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 84 required to be analyzed so as to connect all the accused with each other, more so because the accused i.e. Praveen Goel was using the mobile number of Deepak Gogia. The relevant entries are as under:

  Sr.         Called No.             Date            Time        Duration          Location
  No.

1.         9873222031            14/12/2009        84309         1          Ashok Vihar Central 
           (Harshit)                                                        Market (Area where the 
                                                                            incident took place)

2.         9716451108            14/12/2009        85636         24         Ashok Vihar Phase­II 
           (Praveen)                                                        (Area where the 
                                                                            incident took place)

3.         9716451108            14/12/2009        91135         52         Ashok Vihar Central 
           (Praveen)                                                        Market (Area where the 
                                                                            incident took place)

4.         9716451108            14/12/2009        91635         38         Ashok Vihar Phase­II 
           (Praveen)                                                        (Area where the 
                                                                            incident took place)

5.         9716451108            14/12/2009        93503         6          Ashok Vihar Central 
           (Praveen)                                                        Market (Area where the 
                                                                            incident took place)

6.         9873670551            14/12/2009        93817         9          Ashok Vihar Phase­II 
           (Vikas)                                                          (Area where the 
                                                                            incident took place)

7.         9873670551            14/12/2009        94135         23         Ashok Vihar Phase­II 
           (Vikas)                                                          (Area where the 
                                                                            incident took place)

8.         9873670551            14/12/2009        94421         14         Ashok Vihar Phase­II 
           (Vikas)                                                          (Area where the 
                                                                            incident took place)

9.         9873670551            14/12/2009        94610         13         Ashok Vihar Central 
           (Vikas)                                                          Market (Area where the 
                                                                            incident took place)




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                                Page No. 85
 10.        9873670551            14/12/2009        100122        73   Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)

11.        9873670551            14/12/2009        103208        37   Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)

12.        9873670551            14/12/2009        103608        12   Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)

13.        9873222031            15/12/2009        184008        1    Ashok Vihar Central 
           (Harshit)                                                  Market (Area where the 
                                                                      incident took place)

14.        9873222031            15/12/2009        184448        1    Ashok Vihar Central 
           (Harshit)                                                  Market (Area where the 
                                                                      incident took place)

15.        9873222031            15/12/2009        184459        1    Ashok Vihar Central 
           (Harshit)                                                  Market (Area where the 
                                                                      incident took place)

16.        9716451108            15/12/2009        202533        27   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

17.        9716451108            15/12/2009        202940        45   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

18.        9873670551            15/12/2009        204956        46   Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)

19.        9716451108            15/12/2009        205530        39   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

20.        9873670551            15/12/2009        205555        13   Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                         Page No. 86
 21.        9873670551            15/12/2009        205832        6    Ashok Vihar Central 
           (Vikas)                                                    Market (Area where the 
                                                                      incident took place)

22.        9716451108            15/12/2009        210337        76   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

23.        9716451108            15/12/2009        210558        19   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

24.        9873222031            15/12/2009        210706        3    Ashok Vihar Phase­II 
           (Harshit)                                                  (Area where the 
                                                                      incident took place)

25.        9873222031            15/12/2009        210736        14   Ashok Vihar Phase­II 
           (Harshit)                                                  (Area where the 
                                                                      incident took place)


26.        9716451108            15/12/2009        210859        15   Ashok Vihar Central 
           (Praveen)                                                  Market (Area where the 
                                                                      incident took place)

27.        9873222031            15/12/2009        210950        1    Ashok Vihar Central 
           (Harshit)                                                  Market (Area where the 
                                                                      incident took place)

28.        9873670551            15/12/2009        211257        13   Ashok Vihar Phase­II 
           (Vikas)                                                    (Area where the 
                                                                      incident took place)

29.        9873222031            15/12/2009        211308        73   Ashok Vihar Phase­II 
           (Harshit)                                                  (Area where the 
                                                                      incident took place)

30.        9873222031            15/12/2009        211503        85   Ashok Vihar Phase­II 
           (Harshit)                                                  (Area where the 
                                                                      incident took place)

31.        9873222031            15/12/2009        212703        32   Ashok Vihar Phase­II 
           (Harshit)                                                  (Area where the 
                                                                      incident took place)




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                          Page No. 87
 32.        9873222031            15/12/2009        212843        33    Ashok Vihar Phase­II 
           (Harshit)                                                   (Area where the 
                                                                       incident took place)

33.        9873222031            15/12/2009        213409        134   Ashok Vihar Phase­II 
           (Harshit)                                                   (Area where the 
                                                                       incident took place)

34.        9716451108            16/12/2009        82932         68    Ashok Vihar Phase­II 
           (Praveen)                                                   (Area where the 
                                                                       incident took place)

35.        9873222031            16/12/2009        83214         17    Ashok Vihar Central 
           (Harshit)                                                   Market (Area where the 
                                                                       incident took place)

36.        9716451108            16/12/2009        84531         97    Ashok Vihar Phase­II 
           (Praveen)                                                   (Area where the 
                                                                       incident took place)


37.        9873670551            16/12/2009        85440         8     Ashok Vihar Phase­II 
           (Vikas)                                                     (Area where the 
                                                                       incident took place)

38.        9873222031            16/12/2009        85503         13    Ashok Vihar Phase­II 
           (Harshit)                                                   (Area where the 
                                                                       incident took place)

39.        9873670551            16/12/2009        90342         119   Ashok Vihar Phase­II 
           (Vikas)                                                     (Area where the 
                                                                       incident took place)

40.        9873670551            16/12/2009        91831         6     Ashok Vihar Phase­II 
           (Vikas)                                                     (Area where the 
                                                                       incident took place)

41.        9873222031            16/12/2009        92111         18    Ashok Vihar Phase­II 
           (Harshit)                                                   (Area where the 
                                                                       incident took place)

42.        9873670551            16/12/2009        94550         27    Karala (area of Rama 
           (Vikas)                                                     Vihar where the 
                                                                       accused Deepak Gogia 
                                                                       was residing)


St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                           Page No. 88
 43.        9873222031            16/12/2009        182456        1    Ashok Vihar Central 
           (Harshit)                                                  Market 

44.        9873222031            16/12/2009        182517        1    Shiv Market Ashok Vihar 
           (Harshit)

45.        9873222031            16/12/2009        182609        1    Shiv Market Ashok Vihar 
           (Harshit)

46.        9873222031            16/12/2009        182629        1    Shiv Market Ashok Vihar 
           (Harshit)

47.        9873222031            16/12/2009        182657        56   Shiv Market Ashok Vihar 
           (Harshit)



(86)               The   aforesaid   call   details   record   of   the   mobile   phone   No. 

9999337000 which is in the name of accused Deepak Gogia (Proclaimed Offender) shows that he was in regular touch with the co­accused Praveen, Jitesh, Vikas and Harshit Prabhakar throughout the date of incident and couple of days earlier. The call details record of the said mobile number indicate the following facts:

➢ On 14.12.2009 the accused Deepak Gogia (Proclaimed Offender) was present in the area covered by the tower installed at Central Market Ashok Vihar and Ashok Vihar Phase ­II i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from 8:56:35 onwards till 10:36:08 (matches with location of accused Praveen Goel).

➢ Again on 15.12.2009 the accused Deepak Gogia (Proclaimed Offender) was present in the area covered by the tower installed at Central Market Ashok Vihar and Ashok Vihar Phase­II i.e. the place where the ICICI Bank is situated and also the house of the victim is St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 89 situated where he remained from 18:40:08 (6:40 PM) onwards till 21:34:09 (9:34 PM) in the late night hours (matches with other accused).

➢ On 16.12.2009 i.e. the date of incident the accused Deepak Gogia (Proclaimed Offender) was present in the area covered by the tower installed at Central Market Ashok Vihar and Ashok Vihar Phase­II i.e. the place where the ICICI Bank is situated and also the house of the victim is situated where he remained from 8:29:32 onwards till 9:21:11 in the morning hours i.e. the time when the incident had taken place (matches with other accused).

➢ Thereafter at 9:45:50 the location of accused Deepak Gogia is shown in the area of Karala where he was residing at the relevant time (the area of Rama Vihar being close to Karala and where the looted property was distributed).

(87) Coming now to the accused Jitesh Gogia, I may observe that at the relevant period of time he was using the mobile No. 9911992444 an aspect which has been admitted by Ms. Supriya (PW12) whereas she herself was using mobile No. 9911998444. As per the allegations of the prosecution it was the accused Jitesh Gogia who had passed on the information about the huge amount of transaction being conducted by the victim which information had been given to her by Supriya (PW12) who was working in ICICI Bank at the relevant point of time. The call details record of mobile No. 9911992444 St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 90 which are Ex.PW12/PX­2 conclusively proves that the accused Jitesh Gogia was in regular touch with the accused Harshit and Deepak Gogia (Proclaimed Offender) who is his cousin brother. The relevant entries of the call details are as under:

Sr. Date & Time Type Duration Calling No. Called No. Location No. of Call

1. 15­12­2009 'SO '0 919911992444 919873222031 Kashmere 02:00:32 PM (Jitesh) (Harshit) Gate

2. 15­12­2009 'ST '0 919873222031 919911992444 Kashmere 02:01:37 PM (Harshit) (Jitesh) Gate

3. 16­12­2009 'SO '0 919911992444 919873222031 #N/A 02:10:30 PM (Jitesh) (Harshit)

4. 16­12­2009 'MO '45 919911992444 919873222031 #N/A 02:10:46 PM (Jitesh) (Harshit)

5. 16­12­2009 'ST '0 919873222031 919911992444 #N/A 02:29:37 PM (Harshit) (Jitesh)

6. 16­12­2009 'MO '84 919911992444 919873222031 Mori Gate 02:30:27 PM (Jitesh) (Harshit)

7. 16­12­2009 'SO '0 919911992444 919873222031 Kashmere 07:49:43 PM (Jitesh) (Harshit) Gate

8. 16­12­2009 'ST '0 919873222031 919911992444 Kashmere 07:57:41 PM (Harshit) (Jitesh) Gate

9. 16­12­2009 'SO '0 919911992444 919873222031 Mori Gate 07:59:18 PM (Jitesh) (Harshit)

10. 16­12­2009 'MO '92 919911992444 9999337000 Kashmere 08:17:03 PM (Jitesh) (Deepak) Gate

11. 16­12­2009 'ST '0 919873222031 919911992444 Mori Gate 08:44:45 PM (Harshit) (Jitesh)

12. 16­12­2009 'SO '0 919911992444 919873222031 Mori Gate 08:46:19 PM (Jitesh) (Harshit) St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 91

13. 16­12­2009 'ST '0 919873222031 919911992444 Kashmere 08:46:58 PM (Harshit) (Jitesh) Gate

14. 16­12­2009 'SO '0 919911992444 919873222031 Kashmere 08:58:33 PM (Jitesh) (Harshit) Gate (88) Further, the call details record of mobile No. 9911992444 shows that she was in regular contact with Supriya (PW12), some of the entries are as under:

Sr. Date & Time Type Duration Calling No. Called No. Location No. of Call

1. 15­12­2009 'MO '27 9911992444 9911998444 Gurgaon 02:23:26 AM (Jitesh) (Supriya)

2. 15­12­2009 'MO '43 9911992444 9911998444 Gurgaon 02:26:06 PM (Jitesh) (Supriya)

3. 15­12­2009 'ST '0 9911998444 919911992444 #N/A 03:37:16 PM (Supriya) (Jitesh)

4. 15­12­2009 'MO '158 9911998444 919911992444 Kashmere 03:37:51 PM (Supriya) (Jitesh) Gate

5. 15­12­2009 'ST '0 9911998444 919911992444 #N/A 04:03:46 PM (Supriya) (Jitesh)

6. 15­12­2009 'MO '53 919911992444 9911998444 #NA 04:04:02 PM (Jitesh) (Supriya)

7. 15­12­2009 'SO '0 919911992444 9911998444 Shastri 09:46:06 PM (Jitesh) (Supriya) Nagar

8. 16­12­2009 'MO '723 919911992444 9911998444 Shastri 04:13:26 AM (Jitesh) (Supriya) Nagar (89) A dispute has been raised by the Ld. Defence Counsels on the aspect of user of mobile phone by the accused Harshit Prabhakar and Vikas Aggarwal. It is submitted that the mobile phone bearing No. 9873222031 St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 92 does not belong to the accused Harshit Prbhakar and has been planted upon him only to work out the present case.

(90) I have considered the rival contentions and I may observe that a joint reading / analysis of the aforesaid call details of the various mobile phone numbers show that the entries of mobile phone numbers of other accused persons have come on the call details record. Further, it has also come on record that Vishal Goel (in whose name mobile No. 9873670551 has been issued) is the brother of accused Vikas Aggarwal and explains the user of mobile phone by him. When the aforesaid material was put to the accused under Section 313 Cr.P.C. they have simply denied the same. In case if the mobile phone was not recovered from the possession of the accused then it became all the more necessary for the accused to explain how the number of the other accused persons find reflected in the same particularly those whose Customer Application Form has been confirmed. There is also no reason why Ms. Supriya (PW12) would tell a lie when she stated that the accused Jitesh Gogia (to whom she has now married) was using mobile No. 9911992444. Further the analysis of the location chart of the various mobile phones allegedly recovered from the possession of the various accused establish their location during the night and early morning hours at the same places where they reside establishing the user of the said phones by them. (91) It stands established from the electronic evidence on record that all the accused namely Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender) were in constant St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 93 touch with each other. Further, it stands established that the location of the various accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) are in the area where the incident took place, not only during during the time of incident but also even a couple of days earlier and even during night time, thereby proving that prior to committing the incident the accused conducted a recce over the area. (92) In view of the above I hereby hold that the electronic evidence independently corroborates and connects the accused with the offence and is also compatible with the time which the accused Harshit, Vikas, Praveen and Deepak could have taken in first reaching to the house of Deepak Gogia at Rama Vihar (from the spot of occurrence at Phase­II Ashok Vihar) where distribution of the looted cash was done and thereafter in reaching to their respective houses. Vikas Aggarwal and Deepak Gogia had come to Rama Vihar / Karala where they reside after committing the incident at Ashok Vihar. Praveen Goel and Harshit Prabhakar too after the incident went first to Rama Vihar via Pitampura, Rohini Sector­5 and then returned to their respective houses at Multan Nagar via Paschim Vihar (Praveen Goel) and Subhadra Colony (Harshit Prabhakar) as indicated in the Call Detail Records of the said accused. The defence has not been able to successfully demolish the case put forth by the prosecution as aforesaid.

Motive / Criminal Conspiracy:

(93) The case of the prosecution is that the motive of the crime was to commit robbery on the victim so as to secure huge monetary gain to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 94 themselves. Pursuant to the same the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender) hatched a criminal conspiracy to rob the victim Puran Chand who is a Jeweller by profession. It is also the case of the prosecution that Ms. Supriya (PW12) was initially working at ICICI Bank Ashok Vihar Branch and was handling Customer Queries and also dealing at Cash Counter.

During the course of her official duties it came to her knowledge that huge money transaction are being done by a Jeweller Deepak Gupta who had an account in their bank, she passed on the said information to accused Jitesh Gogia whom she later married in the year 2011.

(94) According to the prosecution case all the accused are young boys belonging to good families and are having a lavish life­style on account of which they require money from time to time and hence Jitesh Gogia passed on this information to his cousin brother Deepak Gogia for which information he was to be given his share and this accused Deepak Gogia in turn shared this information with his friends Vikas Aggarwal, Praveen Goel and Harshit Prabhakar after which they all hatched a criminal conspiracy to commit an armed robbery on the complainant who used to regularly deposit / withdraw huge amount of cash at his bank i.e. ICICI Bank Ashok Vihar and HDFC Bank Patel Nagar. It is alleged that prior to the date of the incident the accused conducted a recee at the house of the victims and studied their movements. Thereafter on the date of incident i.e. 16.12.2009 first two accused had come on a motorcycle and conducted a recee and kept a watch at St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 95 the house of victim at C­2/31, Ashok Vihar. At about 9:15 AM while the victim Puran Chand and his daughter in law Jyoti were loading two bags containing the cash amount totalling Rs.1,55,00,000/­ (Rs. One Crore Fifty Five Lacs) into the vehicle as Jyoti has to drive away Puran Chand to the bank since Sh. Deepak Gupta (son of Sh. Puran Chand) was away to Ahmedabad. First two boys came on a Black coloured motorcycle and pushed Puran Chand as a result of which he moved ahead and when the said boys picked up a bag and in the meantime another motorcycle came on a Red coloured motorcycle and the boy riding on the pillion seat showed a pistol to Puran Chand and picked up another bag and thereafter all the boys escaped on the bikes. Both the bikes were not having number plates. According to the victim, the assailants were of 5­6 feet in height and were in the age group of 25­26 years. One of the bag was of black colour and another bag was having a check design and the bundles of currency notes were having the stamp of their firm (i.e. Hari Ram Puran Chand). The case of the prosecution is that the conspiracy which was hatched by the accused can be proved not only by the manner in which the incident has been executed reflecting a detailed deliberations and planning and also from the Call Details Record of the accused persons which show that all the accused were in constant touch with each other not only on the date of incident as well as a couple of days prior to the incident and conducted a recee / observation at the house of the victim.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 96 (95) In so far as the aspect of Motive is concerned I may observe that motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

(96) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

(97) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 97 consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].

(98) Further, in so far as the issue of Criminal Conspiracy is concerned, I may observe that since conspiracy is the primary charge against the accused, we first advert to the law of conspiracy - its definition, essential features and proof.

(99) Section 120­A IPC defines "criminal conspiracy" as under:­ "Definition of criminal conspiracy­ When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Explanation: ­ It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." (100) It is clear from the above noted definition of "criminal conspiracy" that the three essential elements of offence of conspiracy are (a) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished; (b) a plan or scheme embodying means to accomplish that object; (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 98 the accomplishment of the object by the means embodied in the agreement, or by any effectual means. Thus, the gist of offence of criminal conspiracy is an agreement to break the law.

(101) Sections 120­A and 120­B were brought on the statute book by way of Criminal Law Amendment Act, 1913. Earlier to the introduction of Sections 120A and 120B, conspiracy per se was not an offence under the Indian Penal Code except in respect of the offence mentioned in Section 121A. In the Objects and Reasons to the Amendment Bill, it was explicitly stated that the new provisions (120­A & B) were "designed to assimilate the provisions of the Indian Penal Code to those of the English Law...." Thus, Sections 120A & 120B made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. (102) Proof of a criminal conspiracy by direct evidence is not easy to get and probably for this reason Section 10 of the Indian Evidence Act was enacted. It reads as under:­ "10. Things said or done by conspirator in reference to common design:­Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 99

(103) Thus, the substantive section of the IPC i.e. Section 120­A adumbrated thereon Section 10 of the Indian Evidence Act give us the legislative provisions applicable to conspiracy and its proof. (104) After survey of the case law on the point, following legal principles pertaining to the law of conspiracy can be conveniently culled out:­ (A) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. (State v Nalini (1999) 5 SCC 253) (B) The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co­participators in the main object of the conspiracy. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 100 division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. (Yash Pal Mittal v State of Punjab AIR 1977 SC 2433 and State v Nalini (1999) 5 SCC 253) (C) It is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the graham of the crime of conspiracy.

(D) The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 101 declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. Since a conspiracy is generally hatched in secrecy, it would quite often happen that there is no evidence of any express agreement between the conspirators to do cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy. (Shivnarayan Laxminarayan Joshi v State of Maharashtra AIR 1980 SC 439, Mohammad Usman Mohammad Hussain Maniyar v State of Maharashtra AIR 1981 SC 1062 and Kehar Singh v State AIR 1988 SC 1883) (E) A conspiracy is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 102 agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalized or done, attempted or even frustrated and vice versa.

(F) Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co­conspirators. In short, the section can be analysed as follows: (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co­conspirator and not in his favour. (See the decision of Supreme Court reported as Sardar Sardul Singh v State of Maharashtra AIR 1957 SC 747).

(105) As discussed in the foregoing paras, more often than not, the prosecution would adduce circumstantial evidence to prove the charge of conspiracy. The question which arises is that what should be the nature of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 103 circumstantial evidence in a case of conspiracy to bring home the guilt of the accused persons.

(106) Applying the settled principles of law to the facts of the present case it is writ large that the manner in which the whole incident had been executed, Robbery was the Sole Motive and the whole incident was premeditated and pre­planned and in order to execute the same the accused persons have hatched a criminal conspiracy which stands established from the Call Details Record.

(107) The witnesses Amit (PW7) and Dharmender (PW10) were having a thaiya of ironing the clothes outside the house of the victim. In fact Dharmender (PW10) has also proved that one of the boy had brought a blue jeans pant (Ex.P­6) for ironing but since it was early morning and he told the said boy that it would take thirty minutes on which the said boy sat on his shop & started reading the newspaper. He has further proved that it was these boys who had committed the incident after which they ran away after leaving the jeans pant behind which he handed over to police. Puran Chand (PW3) has proved that the said pant (Ex.P­6) which was seized by the police in his presence which pant he has duly identified in the Court. Further, the Call Details Record of all the accused conclusively establish that two days prior to the incident i.e. on 14.12.2009 & 15.12.2009 the accused Harshit Prabhkar, Praveen Goel, Vikas Aggarwal and Deepak Gogia (Proclaimed Offender) were present in the area covered by tower installed at Central Market Ashok Vihar where the property of victim is situated. When the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 104 incriminating material was put to the accused under Section 313 Cr.P.C. they have not been able to satisfactorily explain their presence in the area. The presence of the accused Harshit Prabhakar, Praveen Goel, Vikas Aggarwal and Deepak Gogia (Proclaimed Offender) on 15.12.2009 in the area of Central Market Ashok Vihar between 6:00 PM to 9:00 PM (as reflected from Call Details Records) stands established. It is a settled law that there cannot be a direct evidence to conspiracy. It stands established that Ms. Supriya (PW12) who was earlier working with ICICI Bank was in constant touch with the accused Jitesh Gogia and had initially disclosed to the police that she was also dealing with the Cash Counter and had innocently passed on the information regarding the victim Puran Chand jelweller to Jitesh Gogia though in the Court she has turned hostile on this aspect. (108) The record reveals that the accused Jitesh Gogia who is the cousin brother of Deepak Gogia (Proclaimed Offender) had been apprehended along with cash amount of Rs.1,00,000/­ (Rs. One lacs) and he had then disclosed that it was the same amount which was robbed from the victim and fell into his share for passing on the information to Deepak Gogia. Ms. Supriya (PW12) to my mind should have been made an accused but it is surprising that the Investigating Agency has instead for reasons best known to them chosen to make her a witness. Her conduct and demeanor while deposing before this Court is also dubious and as observed and noted by this Court has been constantly under the influence of the defence counsel (naturally so the accused Jitesh Gogia being her husband whom she had St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 105 married after the incident). Supriya has in her testimony has admitted having maintained a mobile No. 9911998444 and used to communicate to the accused Jitesh Gogia on his mobile No. 8010070058 and prior to that Jitesh Gogia was also maintaining a mobile No. 9911992444. Ms. Supriya (PW12) in her statement before this Court has concealed the date of her engagement to Jitesh Gogia. She has tried to justify the frequent calls between her and Jitesh Gogia on the ground that she at that time was engaged to accused Jitesh Gogia and her roka ceremony was performed but when asked to give the date of the said engagement or proof of said engagement, she is unable to produce the same (no documentary record of the roka ceremony has been placed before this Court). She has further falsely deposed that she had never dealt with the Cash Counters and when confronted with the reply of her office to the query put by the Investigating Officer under Section 91 Cr.P.C. which is Ex.PW12/PX­1 wherein her office had confirmed that she had dealt with Cash Counter, she desperately tried to explain by stating that off and on she dealt with the Cash Counter but with the very small cash payment. Apparently she is an interested witness being the wife of one of the accused. It is from her that the information regarding the victim and the fact that they were indulging into transaction of huge amount, was passed on to the other accused or else there was no other way how they could have an access to such details. Supriya was working in the ICICI Bank Ashok Vihar and admits that even a couple of days earlier to the date of incident i.e. on 14.12.2009 and 15.12.2009 she had spoken to accused Jitesh Gogia on a number of occasions St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 106 which entries are reflected in the CDR Ex.PW12/PX­2 and has justified that Jitesh was an old friend and during the said period her roka ceremony was to be solemnized (which fact she has not been able to prove). She is an important link in the conspiracy who passed on the information to her friend Jitesh Gogia (accused before this Court) the brother of Deepak Gogia. The Call Detail Records of the accused Harshit Prabhakar, Praveen Goel and Deepak and the location chart of the mobile phones used by the said accused prove that the accused were very much present in the area even on 14.12.2009 and 15.12.2009 i.e. a couple of days prior to the incident where ICICI Bank Ashok Vihar Branch where Supriya previously worked and where victims had their account and also where their house is situated where the incident took place. The pattern of calls details as deciphered from the data, the frequency of calls, the location of the user / accused at various times together in the area where the incident took place, leads me to conclude that the prosecution has been able to successfully establish a high degree of probability of existing of prior meeting of mind, premeditation leading to concerted action directed towards common object leading to commission of robbery on victims.

(109) In view of the above I hereby hold that the prosecution has been able to successfully establish the motive of the crime was to commit robbery upon victims which was pursuant to a criminal conspiracy hatched by the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender).

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 107 Portrait of the suspect / accused Praveen prepared at the instance of eye witnesses:

(110) The case of the prosecution is that after the incident the witnesses were subjected to sustained interrogation who disclosed that four persons were involved in the incident. Though initially the complainant / victim Puran Chand had stated that three persons were involved in the incident, which can be attributed to sudden state of shock to the memory since the victim Puran Chand on account of the incident of armed robbery who has also explained that he was absolutely disturbed and nervous and probably could not inform the police the correct and complete details of the boys but the same shall not be fatal to the case of the prosecution. All the eye witnesses have disclosed that the assailants were young boys in the age group of 25­26 years. In the Court they have turned hostile on the aspect of identity of the accused and also on the aspect of the description of the accused by giving them to the police. Initially to the police they had disclosed that one of the boys was tall whereas another was short in height and the third was wearing spects and also on the basis of the description given by the witnesses Amit, Dharmender and Jyoti the portrait of the accused was prepared which is Ex.PW13/D. Incidentally though the complainant Puran Chand has denied the preparation of the portrait (on the basis of which even an award of Rs.

50,000/­ was announced) yet he admits in the Court that during the initial investigations a portrait had been shown to him by the police after preparation. Hence, under the given circumstances the preparation of sketch which has been duly proved by SI Satya Prakash Prakash (PW13) at the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 108 instance of eye witnesses Jyoti and Amit through HC Mahender cannot be doubted and I may observe that the fact that portrait Ex.PW13/D matches with the accused Praveen Goel (whose presence is independently established at the spot of the incident from his Call Details Record) is an aspect which is incriminating qua him and is a strong pointer towards his guilt. Huge recovery of cash of Rs.1,27,00,000/­ from the possession of the accused persons:

(111) The case of the prosecution is that soon after the incident the portrait of the accused were prepared on the basis of the description given by the eye witnesses. Further, the secret informer provided details of mobile phones of suspected persons pursuant to which the call details of mobile numbers 9716451108, 9999337000, 9873222031 and 9873670551 were collected and kept on surveillance. On the basis of the same the Police first reached to accused Vikas Aggarwal on 3.1.2010 and he was apprehended at service road, Gal No.5, Multan Nagar, Delhi while he was trying to flee in his car bearing No. DL­4C­AJ­6389. During the search of his car a bag was recovered which was found to contain Rs.70,00,000/­ (Rs. Seventy Lacs) which the accused disclosed to be the robbed amount of his share as well as the share of Deepak Gogia. From the personal search of accused Vikas Aggarwal one mobile phone having SIM No. 9716451108 (in the name of his brother Vishal Goel) was recovered. The accused Vikas Aggarwal further disclosed that he along with his associate Praveen Goel were about to escape from Delhi and Praveen Goel would be coming at Multan Nagar. Pursuant to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 109 the disclosure statement of accused Vikas Aggarwal, the accused Praveen Goel was apprehended from gate No.5, Multan Nagar (when Praveen Goel was to meet Vikas) along with a bag containing Rs.30,00,000/­ (Rs. Thirty Lacs). The accused Praveen Goel was also found in possession of one mobile phone bearing No. 9716451108 (which was in the name of Deepak Gogia).

The cash amount so recovered from the accused Vikas Aggarwal and Praveen Goel was in the from of bundles of currency notes in the denomination of 500 and 1000 and the bundles were having slips with the stamp of Hari Ram Puran Chand and printed slip of ICICI Bank. The aforesaid amount was thereafter sealed and seized. In the meanwhile a call was received on the mobile phone of accused Vikas Aggarwal which call was heard by the police team on loudspeaker of the mobile and the caller was Harshit Prabhakar who was waiting near Liberty Cinema for the accused Vikas. Thereafter at the instance of accused Vikas Aggarwal the accused Harshit Prabhakar was apprehended near Liberty Cinema where he was standing near his Endeavor car bearing No. DL­4CAF­0113 and a blue coloured bag was recovered which was kept near the co­driver sear and on checking it was containing Rs. 25,00,000/­ (Rs. Twenty Five Lacs) and from the possession of the accused Harshit Prabhakar mobile phone No. 9873222031 (in the name of Mahesh Sharma) was recovered. All the three accused persons were thereafter arrested and pursuant to their disclosure statements at the instance of accused Vikas Aggarwal one black­red colour motorcycle bearing No. DL­45­ St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 110 AQ­0277 was seized which the accused Vikas Aggarwal got recovered from C­5/6, Mahalaxmi Society, Rama Vihar which was used in the robbery. Further, at the instance of all the three accused one blue­black coloured Discover motorcycle bearing No. DL­45­BD­5243 was got recovered by them from outside the house of Deepak Gogia at D­13, Rama Vihar, Delhi. On the next date i.e. 4.1.2010 on the basis of secret information the accused Jitesh Gogia @ Jitesh was apprehended near Shastri Nagar Metro Station from whose possession Rs.1,00,000/­ were recovered. The accused Jitesh Gogia disclosed that he had given information to his brother Deepak Gogia about a jeweller in Ashok Vihar and Deepak Gogia promised him to give Rs. 5,00,000/­ for this information and he had already received Rs.1,50,000/­. (112) The Ld. Defence Counsels for the accused persons have vehemently argued that the disclosure statement of the accused are inadmissible in evidence being hit by the provisions of Section 27 of Evidence Act. On the other hand the Ld. Addl. PP for the State has argued that the disclosure statements of the accused are admissible in evidence since it led to discovery of relevant fact.

(113) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 111 or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer. (114) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious.

(115) It further provides five illustrations as to what would constitute a fact which are as under:

(a) That there are certain objects arranged in a certain order in a certain place, is a fact

(b) That a man heard or saw something, is a fact.

         (c)       That a man said certain words, is a fact.
         (d)       That a man holds a certain opinion, has a certain intention,  

acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

         (e)       That a man has a certain reputation, is a fact.
 

(116)                A co­joint reading of  Section 3  and  Section 27  of Evidence 

Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 112 but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (117) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 113 confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 114 relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(118) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 115 urged that in a case where the offence consists of possession even the words "where he had hidden them"

would be inadmissible as they would amount to an admission by the accused that he was in possession.

There are in our opinion two answers to this argument.

In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

(119) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 116 upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(120) In the said case the Hon'ble Supreme Court further went to explain that:

"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 117 you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

(121) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (122) Applying the settled principles of law to the facts of the present case, it is evident that the fact that more than four persons were involved in the conspiracy to commit robbery was in the knowledge of the accused and St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 118 none else. I may further observe that Firstly neither the make nor the number of the motorcycles used in the armed robbery, were in the knowledge of the Investigating Agency except for the fact that one of the motorcycle was of red colour and another was of black and according to the eye witnesses both had no number plates. It was pursuant to the disclosure statement of the accused that first the accused Vikas Aggarwal got the recovery of the motorcycle of Red Colour bearing No. DL­45­AQ­0277 affected from C­5/6, Mahalaxmi Society, Rama Vihar and thereafter the accused Harshit Prabhakar, Praveen Goel and Vikas Aggarwal led them to the house of Deepak Gogia at D­13, Rama Vihar, Delhi from where a blue­black coloured Discover motorcycle bearing No. DL­45­BD­5243 was recovered. (123) Secondly at the time of the arrest of the accused Harshit Prabhakar, Praveen Goel and Vikas Aggarwal they were found to be in possession of currency notes totalling Rs.1,25,00,000/­ (Rs. One Crore Twenty Five lacs) which were bearing the stamp of Hari Ram Puran Chand on the slips of ICICI Bank (i.e. ribbon slips normally kept in the bank for purposes of advertisement which customers sometimes use for bundling the currency notes) and were identified by the complainant as the looted amount. The manner in which the looted amount was distributed i.e. how much amount went to share of which accused was not in the knowledge of the police. This fact for the first time came to the knowledge of the police only when it was so disclosed to the police and pursuant to the same (i.e. disclosure statement) the accused Harshit Prabhakar got recovered Rs. One St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 119 lacs from his house on 12.1.2010 (seizure memo of which also bears the signatures of his maternal uncle / mama namely Harish who has admitted his signatures on the said memo though has turned hostile on recovery and understandably so on account of the relationship). The said currency notes which were bundled with the advertising ribbon material of ICICI bank with the stamp of Hari Ram Puran Chand affixed on the back side, have been duly identified by the victim. The amount of recovery of Rs.One crore twenty seven lacs is huge and it is difficult to believe that the same could not have been planted on the accused. The onus of justifying and explaining the possession of this huge amount so recovered from their possession shifted on the accused and I may observe that not even a single accused had placed on record any documentary proof in the form of Bank Account etc. to explain the same.

(124) Thirdly the fact that after the incident of robbery all the four accused i.e. Vikas Aggarwal, Praveen Goel, Harshit Prabhakar and Deepak Gogia then went to the house of Deepak Gogia where they distributed the looted amount between themselves and also separately kept share of Jitesh (cousin of Deepak) who had furnished them the information regarding the victims, was not within the knowledge of the police and it is only on their disclosure that this fact came to be discovered. This is admissible in evidence because the Call Detail Records of all the accused match and tally with this information so disclosed by the accused to the police (when the accused Jitesh Gogia was arrested he was found in possession of Rs. One lacs and he St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 120 had explained that for giving the information to Deepak Gogia it was agreed that he would be paid Rs.5 lacs of which Rs.1,50,000/­ were already paid to him out of which he had already spent Rs.50,000/­ and the remaining amount was yet to be paid). The accused Jitesh has not been able to successfully explain the possession of the amount found in his possession. I hereby hold that this disclosure of fact regarding involvement of Jitesh was not within the knowledge of police and came to be known only on the basis of disclosure of accused leading to recovery of part of the robbed amount from his possession. His Call Detail records independently connect him with accused Harshit Prabhakar and Deepak with whom he was maintaining regular contacts and also with Supriya an employee of ICICI Bank, Ashok Vihar where Deepak Gupta had his account. This is compatible to their locations at various points of time i.e. after the incident or robbery, followed by distribution of cash at Rama Vihar in the house of Deepak Gogia and then return of the accused to their respective houses and explains the route taken by them. This is disclosure of fact as contemplated under Section 27 of Evidence Act and is not hit by the same.

(125) Fourthly the route taken by the accused after committing the robbery was not within the knowledge of the police and came to be known only when disclosed by accused to the police and is admissible because it tallies with the Call Detail Records of the mobile phones used by the accused [in this regard reference is being made to the case of State (NCT of Delhi) Vs. Navjot Sandhu (Supra)].

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 121 (126) Lastly Deepak Gupta (PW5) has duly proved that they are maintaining two bank accounts one at ICICI Bank Ashok Vihar Branch and another at HDFC Bank Patel Nagar. He has proved that they used to purchase gold from MMTC through CCOD account from Union Bank of India, Sadar Bazar Branch and had a maximum limit of Rs.3.25 crores. He has also proved having handed over the relevant documents to the Police i.e. sales tax return and statements of account of both ICICI Bank and HDFC Bank to show the source of the robbed amount. On the one hand the accused have not been able to explain the source of cash so recovered from their possession whereas on the other hand the complainant has satisfactorily explained the same. Therefore, I hold that the source of robbed amount from the complainant / victim stands established. The victim Puran Chand Gupta has identified the currency notes recovered from the possession of the accused persons i.e. Rs.26 lacs from the accused Harshit Prabhakar; Rs.70 lacs from the accused Vikas Aggarwal; Rs.30 lacs from the accused Praveen Goel and Rs. One Lacs from the accused Jitesh Gogia.

(127) Therefore, I hereby hold that the fact that the accused Harshit Prabhakar, Vikas Aggarwal and Praveen Goel got recovered motorcycles bearing No. DL­45­AQ­0277 and No. DL­45­BD­5243 which were used in the offence of robbery, also disclosed to the police regarding the source of information i.e. from the co­accused Jitesh the brother of Proclaimed Offender Deepak who provided the details of the information regarding the victims. The arrest of the accused Jitesh later confirmed this information so St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 122 given by the accused in their disclosure statement and it is Jitesh who then disclosed how he had received this information from his friend Supriya (whom he married in the year 2011 after the incident) who was employed in ICICI Bank Ashok Vihar Branch where the victims had their bank account. It is this which is a strong pointer towards their guilt and further recovery of the huge amount of robbed money (totaling Rs. One crore twenty six lacs) from the possession of the accused, incriminates all the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia and connects them with the offence of conspiracy and also the robbery (Section 392 r/w 120­B Indian Penal Code). Further, having been found in possession of the robbed amount all the accused are also held guilty of the offence under Section 411 Indian Penal Code.

Discrepancies & contradictions / Defence of the accused:

(128) Ld. Counsels for the accused persons have vehemently argued that there are material contradictions and discrepancies in the testimonies of the witnesses examined by the prosecution benefit of which is required to be given to the accused persons. They have pointed out the following weaknesses, contradictions & discrepancies in the prosecution case:

1. That the victim / eye witnesses have turned hostile on the identity of the accused persons.

2. That Harish (PW11) who is the maternal uncle (mama) of the accused Harshit Prabhakar and is an alleged witness to the recovery of Rs. One St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 123 lacs from the house of the accused, has turned hostile.

3. That Supriya (PW12) has also turned hostile on the aspect that she had ever passed on any information relating to the details of deposits by Puran Chand Jeweller to the accused persons or that the accused Harshit Prabhakar had come to her bank along with Jitesh Gogia prior to the incident.

4. That there is a material contradiction with regard to the number of assailants involved in the incident since in the earlier complaint the victim Puran Chand had stated that there were three assailants whereas in the Court he has claimed that the assailants were found in number.

5. That there is a material contradiction in the testimony of all the eye witnesses since initially they had claimed that they had seen the faces of the assailants whereas in the Court they have deposed that all the assailants were wearing helmets at the time of the incident on account of which they were not in a position to identify them.

6. That initially the complainant had stated that he had put the stamp of HDFC Bank on the bundles of currency notes but later claimed that it was of Hari Ram Puran Chand and not HDFC. In this regard Jyoti the daughter in law of the complainant has explained that the stamps were of Hari Ram Puran Chand. According to the Ld. Defence Counsels the recovered cash amount was not having the slips as aforesaid.

7. That the place from where the accused were apprehended has also not been proved. It is alleged that the accused had been forcibly lifted St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 124 from their house and falsely implicated in the present.

(129) In support of their claims the accused have examined four witnesses. Shiv Kumar Goel (DW1) who is the father of he accused Harshi Prabhakar; Smt. Rozy Thakur (DW3) is the neighbour of accused Vikas Aggarwal and Pradeep Goswami (PW4) is the neighbour of the accused Harshit Prabhakar who have deposed that the accused Harshit Prabhakar and Vikas Aggarwal had been lifted from their house and falsely implicated in the present case. The accused Praveen Goel has examined himself as DW3 has placed on record his application under RTI in respect of call made at 100 number on 03.01.2010 from mobile No. 9212227092 which reply of the Addl. DCP is Ex.DW2/A. (130) I have considered the submissions made before me. Before proceeding to come to the merits of the case, it is necessary to briefly discuss the guiding principles of law as laid down by the various Courts. In the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:­ "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........

.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 125 (131) Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :­ "It is well­established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."

(132) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 126 (133) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non­ discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.

(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 127

(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.

(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­ examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 128 (135) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).

(136) Applying the settled principles of law to the facts and circumstances of the present case, Firstly I may mention that in so far as the eye witnesses of the prosecution having turned hostile is concerned, the circumstances brought on record reflect that the possibility of this being so on account of fear of the accused or even because they have been won over cannot be ruled out. Either ways it will not make much difference to the prosecution case. The aspect that the assailants were in helmets had been disclosed by the said witnesses for the first time in the Court. Puran Chand (PW3) has admitted that even earlier his statement has been recorded on large number of occasions and he had stated whatever had been brought to his notice. However, in none of the statement the fact regarding the assailants wearing helmets have not been mentioned. The complainant and his daughter­in­law Jyoti are educated persons belonging to affluent section of the society and it is impossible that they would have not noticed this fact in their statements recorded by the police or pointed out the same to the police. It is also evident from the record that portrait of the suspect has been duly prepared at the instance of Jyoti, Dharmender and Amit whereas in the Court all the said witnesses have denied the said fact. It is writ large that the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 129 portrait Ex.PW13/D is matching accurately with the accused Praveen Goel which portrait has been duly proved by SI Satya Prakash (PW13)). In his testimony Puran Chand (PW3) has denied that the sketch / portrait was prepared at his instance though he admits that the portrait had been shown to him after preparation. This being so, it stands established that in fact the portrait of one of the suspects was prepared and shown to the complainant on the basis of which even an award of Rs.50,000/­ was being announced and this could not have been done unless the victims and eye witnesses themselves got the same prepared. Incidentally the portrait of the suspect accurately matches with the accused Praveen from whom a huge recovery of Rs.30 lacs was effected which currency notes were having slips of ICICI bank. I have gone through the said slips which are ribbon slips of the bank i.e. an advertisement material kept on the counters of the bank are easily accessible and available in the bank and are normally picked up by customers. In fact the victims had used these slips invertedly (on the blank side) for making the bundles of the currency notes on which they had put the stamps of their firm i.e. Hari Ram Puran Chand which they normally did as a matter of practice.

(137) This Court cannot overlook the possibility that the accused are an organized gang who had committed an armed robbery though it should have been dacoity. However, legally and technically since Jitesh Gogia was not present at the spot hence it is taken as robbery and is not covered under dacoity. This Court also cannot ignore this fact that during the trial one of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 130 the accused i.e. Jitesh Gogia was on bail and his wife Ms. Supriya (PW12) who to my mind should have been made an accused rather than a witness, were free and one of the other accused Deepak Gogia the main brain behind the entire operation is still at large being declared a Proclaimed Offender. In this background the possibility of the victims and eye witnesses being won over by the accused or not having identified the accused on account of dear cannot be ruled out. Even otherwise, the presence of the accused persons being otherwise established from the electronic evidence and other evidence on record, the fact that the eye witnesses have turned hostile on their identity will not be fatal to the case of the prosecution case.

(138) I may further observe that Harish (PW11) is related to the accused Harshit Prabhakar being his maternal uncle (mama) and is an interested witnesses and has turned hostile as such only to secure benefit to his nephew Harshit Prabhakar who is facing trial before this Court. In so far as Ms. Supriya (PW12) is concerned she has arrayed as a prosecution witness though she should have been implicated as an accused being the main person who was the first person in the chain have passed on and leaked the information regard is Deepak Gupta son of the complainant Puran Chand Gupta (who at that time was in Ahmedabad for official work) being the premium customer of the ICICI Bank Ashok Vihar where she was employed and maintaining a regular account where huge money transactions were being conducted regularly, to accused Jitesh Gogia who in turn passed on this information to his cousin Deepak Gogia for a consideration. During the trial St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 131 of the case the demeanor of this witness Supriya has also been noted by this Court when she was present in the company of and also communicating with the Defence Counsels. Hence, being an interested witnesses naturally she has not supported the case of the prosecution. As already observed she has not been able to tell the Court the date of her engagement or roka ceremony and it is impossible that she would have forgotten the same or that she would have no documentary record to prove the same. It is writ large that she has done so only to justify the frequent calls made between her and Jitesh Gogia during the time when the incident took place. I may observe that it is primary requirement of all Banking Institution is maintenance of strict secrecy regarding the details of customers and their accounts. In fact any employee violating the same makes an employee not only for departmental action but also for criminal action. The call details record placed before this Court prove that she was in constant touch with accused Jitesh Gogia throughout the period when the incident took place. Further, though in her testimony before the Court she has denied having stated to the police in her earlier statement under Section 161 Cr.P.C. that she had innocently passed on the information to Jitesh Gogia and the accused who used to visit the bank which probably was the reason why she was cited as prosecution witness rather than being made an accused, yet it is writ large that there was no other way the personal information of the victims could have reached the accused. It is also material that despite the accused Jitesh Gogia being involved in the present case, she married him after about one and a half years and this St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 132 explains why she had turned hostile in the Court. Further, Ms. Supriya (PW12) has stated before this Court that she had never been dealing with the cash counter which is contrary to the response / reply given by her office to the notice of the Investigating Officer under Section 91 Cr.P.C. Despite being confronted with the reply given by her office pursuant to the notice under Section 91 Cr.P.C. which reply is Ex.PW12/PX1 she again denied having worked at cash counters which was found contrary to her office confirming that during the period she had been working on the cash counter. The conduct of Ms. Supriya (PW12) is highly dubious and leads to irresistible conclusion that she was fully aware of what was happening and had passed on the information to Jitesh Gogia. Whether it was done innocently or deliberately now looses its consequence because the prosecution has chosen to cite her as their own witness but she cannot escape the clutches of law for having made a false statement on oath to the extent that she had never handled the cash counter which lie has been nailed from the response of her office which is Ex.PW12/PX1 and the explanation given by her that she had handled small cash amount, does not cut much ice being in the nature of a over­up.

(139) Secondly in so far as the discrepancies in the testimonies of Puran Chand Gupta, Jyoti, Dharmender and Amit are concerned, it is evident that the entire offence of armed robbery took place in quick succession which the victims could not have contemplated and there was an element of surprise which overtook everyone. Hence what could have been observed by Puran St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 133 Chand Gupta, perhaps went unnoticed by Jyoti, Dharmender and Amit and similarly what was probably noticed by Jyoti or Dharmemder or Amit could have not been noticed by Puran Chand Gupta. When the offence has been committed in quick succession the witness could not have anticipated the occurrence which so often has an element of surprise and the mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. It is evident that it is only Puran Chand Gupta has claimed that initially there were three persons whereas all other eye witnesses claimed that there were four persons. Whether there were three persons or more than three or four persons would again loose its significance in view of the statements made by other witnesses after the incident and also in view of the fact that the electronic evidence in the form of Call Detail Records of the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) show that they were together at the same place and there is other circumstantial evident to connect them including the recovery of motorcycles used in the commission of the offence which were recovered at the instance of the accused and the jeans pant which the accused had given to Dharmender for ironing and the recovery of currency notes from their possession much later which connect them to the offence.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 134 (140) Thirdly in so far as the defence of accused that they have been lifted by the police and taken to the Police Station after which they were later on implicated is concerned and the father of accused Praveen Goel having deposed to the effect that a call at 100 number was made at 1:30 PM which was made by his nephew Gaurav made from his mobile number 9212227092 is concerned, I may mention that it has come on record that the police party had kept a surveillance on the suspects and had following the accused Vikas Aggarwal after which he had lead to the accused Praveen Goel. It has come on record in the cross­examination of the police witnesses that due to shortage of time the documents of arrest were formally prepared later. It is also a matter of common knowledge that at the time of apprehension and arrest of the accused persons normally the documents of arrest are prepared much later and in any case as per the existing statutory law of the land accused can always be detained for interrogation and is required to be produced before the Ld. MM within 24 hours. Assuming that the accused Praveen Goel was lifted at 1:00 PM and he was shown to have been arrested at 3:25 PM, it will not make much difference whether the formal arrest was at 1­1:30 PM or after a couple of hours as claimed by the accused. This will not be an illegality but only a procedural irregularity for which benefit cannot be given to the accused (Ref.: Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436).

(141) Lastly I may further observe that making of PCR call has been duly proved by the accused Praveen Goel but the contents of the said call has St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 135 not been proved. The RTI reply Ex.DW2/A only proves the call but not the information so given. As already observed the possibility that the documents relating to arrest of the accused were prepared after the arrest of all the accused persons cannot be ruled out. Even otherwise, Shiv Kumar (DW1) has only deposed to the extent that at 12:45 PM some persons had come and lifted his son on which his nephew Gaurav made a telephone call to the police from his mobile number 9212227092 at 100 number at about 1:30 PM. This person / nephew of Shiv Kumar i.e. Gaurav has not come to the Court to prove the same. Further, the PCR Form containing the information given has not been proved nor the witness from PCR to whom information was given, has been examined. Simply stating that a call had been made at 1:30 PM at 100 number would not assist the accused in any manner. There is no reason to disbelieve the testimonies of the police officers. Here, I may observe that the Hon'ble Supreme Court has time and again frowned upon the idea of disbelieving the police witnesses and in this regard the Hon'ble Supreme Court has observed that no infirmity attaches to the testimony of police officials merely because they belong to the police force (Ref.: Tahir vs. State, (1996) 3 SCC 338), The presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. (Ref.: Aner Raja Khima Vs. The State of Saurashtra, AIR 1956 SC 217). The aforesaid two authorities were also St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 136 relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State, reported in 2010 III AD (Delhi) 133. The testimonies of the police witnesses cannot be rejected merely because they happen to be police officers. Rather, on the contrary the father of the accused is an interested witness whose aim is to save his son involved in a heinous offence from penal consequences and hence his testimony is required to read with due caution. The police officers have no animosity with any of the accused so as to falsely implicate them in this case. In so far as the testimonies of Smt. Rozy Thakur (DW3) and Pradeep Goswami (DW4) are concerned they are interested witnesses who have never complained to any senior police officer or any authority that the accused have been lifted by the police. Rather, Pradeep Goswami (DW4) has given a wrong date and claimed that the accused Harshit Prabhakar was lifted from his house on 3.12.2009 which is even before the incident. This being so I hereby hold that the testimonies of the witnesses examined by the accused does not appear to be credible and cannot be relied upon. (142) Further, as regards the contradictions in the timings, presence of a particular police official at a particular time, etc., I am of the considered that the same are too immaterial and irrelevant as it is the evidence of the prosecution witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted in the present case. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation. All the discrepancies in the timings as pointed out by the counsels for the accused are too immaterial St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 137 which can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution. I do not find any force in the submission of the counsels for throwing out the case of the prosecution merely on the ground of certain discrepancies / contradictions in the deposition of various prosecution witnesses. I am of the considered view that such discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution.

FINAL CONCLUSIONS:

(143) In the case of Sharad Birdhichand Sarda ­vs­ State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 138

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(144) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following facts stand established:

➢ That the complainant / victim Puran Chand is residing at C­2/32, Ashok Vihar, Phase­II, Delhi and is the owner of jewellery shop situated at 12 Tooti, Sadar Bazar, Delhi under the name and style Hari Ram Pooran Chand Sarraf as well as another shop of jewellery situated at Ashok Vihar Central Market under the name and style of Bansal Jewellers where his son Deepak Gupta and son­ in­law are partners.

➢ That Deepak Gupta son of the complainant used to purchase gold bullions from MMTC at Jhandewalan for both the above said firms and used to sell the same to several customers.

➢ That they used to deposit the sale money with their Bankers ICICI Ashok Vihar and HDFC Bank, East Patel Nagar.

➢ That they get profit of Rs.2,000/­ of sale of 1Kg. gold which they used to purchase from MMTC through CCOD account from Union St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 139 Bank of India, Sadar Bazar Branch which account has a limit of 3.25 crores and provides the facility to utilize in a day maximum amount of Rs.3.25 crores.

➢ That on 16.12.2009 in the morning at about 9:00 AM the complainant Puran Chand prepared the packets of currency notes totalling Rs.1,55,00,000/­ (Rs. One Crore Fifty Five Lacs) in the denomination of 500 and 1000 at his house for depositing the same in the bank which packets were put into two bags i.e. one of black colour and which had a design like check.

➢ That on 16.12.2009 since Deepak was away to Ahmedabad for official work, the daughter in law of the complainant namely Jyoti Gupta had to drive the complainant to the bank.

➢ That at about 9:20 AM while the complainant Puran Chand and his daughter in law Jyoti were putting the bags in the dickey of their Maruti Zen Estilo bearing no. DL­8CR­1678 one person pushed him from the shoulder as a result of which he move ahead and the said boy lifted the said bag and ran away on the black motorcycle which was already in a starting position while one person was in driving position.

➢ That in the meanwhile another motorcycle of red colour came on which two persons were sitting and the pillion rider of came down and showed a pistol to the victims Puran Chand and Jyoti after which he lifted another bag containing the currency notes and ran St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 140 away on the said motorcycle.

➢ That both the motorcycles did not have a number plate. ➢ That a PCR call was made at 100 number pursuant to which the police reached the spot and local police was informed. ➢ That the complainant / victim informed the police that both motorcycles were not having any number plate and all the four assailants were of the age of 20 to 25 years with a height between 5­6 feet.

➢ That on the basis of the complaint of Puran Chand Gupta the present FIR was got registered and during investigations, statements of Smt. Jyoti, Dharmender Kumar and Amit Kumar were recorded.

➢ That it was confirmed that two persons had come on bike at around 8:40 AM near the house of the complainant and got down at Washer­Man / press­wala Dharmender's ironing table and one of them gave a jeans pant to Dharmender for ironing and pretended to wait at his shop while keeping a watch at the house of the victim. ➢ That during investigations the secret informer gave the number of mobile phones of suspected persons pursuant to which the call details of mobile No. 9716451108, 9999337000, 9873222031 and 9873670551 were collected and kept on surveillance.

➢ That on verification the Investigating Agency came to know about the ownership of these mobile phones and a call was made on St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 141 mobile phone number 9716451108 and inquiries were made on which the user told his name as Parveen Goel, R/o WZ­30, Hari Singh Park, Multan Nagar, Delhi.

➢ That on 02.01.2010 the secret informer informed the Investigating Officer that one of the suspect was coming to Deep Hyundai, Ashok Vihar Industrial Area for service of his i­10 car bearing number DL4C AJ 6389 pursuant to which inquires were made from Deep Hyundai, Ashok Vihar Industrial Area where it was came to be known that the said car was being used by Vishal Aggarwal who was using mobile number bearing no. 9873670551. ➢ That on the same day i.e. 2.10.2010 at about 5.00 PM one person came there to receive the aforesaid car after which they followed him and finally the car parked at C­5/6, Mahalaxmi Society, Rama Vihar, Delhi.

➢ That police teams were deployed at Multan Nagar as well as at Mahalaxmi Society of Rama Vihar for keeping a watch on the suspects.

➢ That on 3.10.2010 two police teams were constituted one was headed by SI Rajeev Shah who deployed his staff at Gate No.5, Multan Nagar, Hari Singh Park and another team headed by SI Rajeev Ranjan who along with his team was following the i­10 vehicle of white color bearing No. DL­4CAJ­6389 which was moving towards Multan Nagar side.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 142 ➢ That at around 3:00 PM the said white color i­10 car bearing the same number came to gate No.5 Multan Nagar and took a left turn on the service road on which SI Rajeev Shah blocked the way of i­10 car by putting his car in front of it and HC Naresh who was following the said car put his car behind the i­10 car.

➢ That the boy who was driving the i­10 car was apprehended and in the meantime SI Rajiv Ranjan also reached there.

➢ That the said boy disclosed his name as Vikas Aggarwal @ Vicky and also disclosed about his involvement as well as the involvement of other accused Praveen Goel, Harshit Prabhakar, Jitesh Gogia and Deepak Gogia (proclaimed offender) in the robbery. ➢ That the accused Vikas Aggarwal @ Vicky informed them that he tried to run away with the money outside Delhi and his associate Deepak Gogia had already gone to Bombay whereas Parveen would arrive shortly with the money.

➢ That subsequently accused Vikas Aggarwal was arrested and thereafter the i­10 car bearing No. DL­4CAJ­6389 was searched which found to contain one black color bag in the dickey which was containing bundles of currency notes totaling Rs.70,00,000/­ (Seventy Lacs) which the accused disclosed as the looted amount from the Ashok Vihar robbery and containing his share as well as that of Deepak Gogia.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 143 ➢ That each packet of currency note was bundled with an advertising ribbon of ICICI and on the back side of the same stamp of Hari Ram Puran Chand was affixed.

➢ That the said currency notes were taken into possession and from the personal search of accused Vikas Aggarwal @ Vicky one mobile phone make SPICE M4580 with dual SIM bearing No. 9873670551 & 931171120 having IMEI No. 863263008371460 and IMEI No. 86326300837478 was recovered which was taken into possession.

➢ That accused Vikas Aggarwal was asked to sat in the said i­10 car and SI Rajeev Ranjan, HC Naresh and Ct. Kulbhushan also sat in the same whereas SI Rajiv Shah along with his members of police party reached at Gate No.5 where they took their position. ➢ That after sometime a boy of thin stature was noticed coming on foot with a bag in his hand from the gate No.5 on which he was covered while he was going towards the i­10 car.

➢ That the said boy was apprehended and he disclosed his name as Praveen Goel and also confessed about the robbery at Ashok Vihar.

➢ That the bag of accused Praveen Goel was searched and it was found to contain Rs.30,00,000/­ (Rs. Thirty lacs) and each packet of currency note was bundled with an advertising ribbon of ICICI and on the back side of the same stamp of Hari Ram Puran Chand St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 144 was affixed.

➢ That from the personal search of accused Praveen Goel a mobile phone make NOKIA E­90 bearing No. 9716451108 and IMEI No. 353660010946147 was recovered which was taken into possession. ➢ That in the meantime on the mobile phone of Vikas Aggarwal one call was received which was heard by the police on loudspeaker and the caller disclosed his name as Harshit Prabhakar who was waiting for Vikas Aggarwal at Liberty Cinema.

➢ That thereafter at the instance of accused Vikas Aggarwal, the accused Harshit Prabhakar was located at Liberty Cinema and was apprehended while he was standing near his ford Endeavor car bearing No. DL­4C­AF­0113.

➢ That the said car was checked and it found to contain one blue color bag lying under the dash board near the adjacent seat of the driving seat and it found to contain packets of currency notes totalling Rs.25,00,000/­ (Twenty Five lacs) and each packet was having an advertising ribbon material of ICICI Bank with stamp of Hari Ram Puran Chand proprietor on the back side which currency notes were thereafter seized.

➢ That from the personal search of the accused Harshit Prabhakar one mobile make NOKIA having number 9873222031 bearing IMEI No. 358249039815800 was recovered which was also taken into possession.

St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 145 ➢ That all the three accused persons were thoroughly interrogated and they made their disclosure statements regarding the incident and about the involvement of the co­accused persons Deepak Gogia and his cousin Jitesh Gogia through whom they received information about the complainant and his bank account. ➢ That in pursuance of his disclosure statement the accused Vikas led the police to his house No. C­5/6, Mahalaxmi Society, Rama Vihar from where he got recovered Caliber motorcycle bearing No. DL­4SAQ­0277 of Red Color which was used by him in the robbery at Ashok Vihar, which motorcycle was thereafter seized. ➢ That in pursuance of their disclosure statements accused Vikas, Parveen and Harshit led the police party to house No. D1/3, Rama Vihar near Gas godown and pointed out towards a motorcycle of blue black color make Bajaj Discover bearing No. DL­4SBD­5343 belonging to Deepak Gogia, which was taken into possession. ➢ That on 4.1.2010 on the basis of secret information the accused Jitesh Gogia @ Jitesh was apprehended near Shastri Nagar Metro Station from whose possession Rs.1,00,000/­ were recovered. ➢ That Jitesh Gogia disclosed that his friend Supriya who was working in ICICI Bank Ashok Vihar had informed him that Deepak Gupta (son of the complainant Puran Chand) used to make huge transactions in their bank, which information he had shared with Deepak Gogia and it was agreed that he would be paid Rs.5 St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 146 lacs of which Rs.1,50,000/­ were already paid to him out of which he had already spent Rs.50,000/­ and the remaining amount was yet to be paid.

➢ That during police custody remand of five days on 12.1.2010 Rs.

1,00,000/­ was also got recovered by the accused Harshit Prabhakar from his house which were taken into possession. ➢ That Ms. Supriya friend of accused Jitesh Gogia was employed in ICICI Bank Ashok Vihar who passed on the information to Jitesh Gogia regarding Deepak Gupta son of the complainant Puran Chand Gupta being a premium customer of their bank and about the huge transactions done by them.

➢ That accused Jitesh Gogia passed on this information with his cousin Deepak Gogia who thereafter shared the same with his friends Harshit Prabhakar, Praveen Goel and Vikas Aggarwal who thereafter planned the robbery and executed the same on 16.12.2009.

➢ That the eye witnesses have specifically proved the incident of armed robbery and after the incident portrait of the suspect was by the police which apparently matches with the accused Praveen Goel.

➢ That as per the electronic evidence in the form of Call Details Records all the accused namely Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 147 (Proclaimed Offender) were in constant touch with each other. ➢ That the location of the various accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) are in the area where the incident took place, not only during during the time of incident but also even a couple of days earlier and even during night time, thereby proving that prior to committing the incident the accused conducted a recce / observed the area.

➢ That the electronic evidence independently corroborates and connects the accused with the offence and is also compatible with the time which the accused Harshit, Vikas, Praveen and Deepak could have taken in first reaching to the house of Deepak Gogia at Rama Vihar (from the spot of occurrence at Phase­II Ashok Vihar) where distribution of the looted cash was done and thereafter in reaching to their respective houses.

➢ That the motive of the crime was to commit robbery upon victims which was pursuant to a criminal conspiracy hatched by the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender).

➢ That recovery of the motorcycles and huge amount of robbed money (totaling Rs. One crore twenty six lacs) from the possession of the accused, incriminates all the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia and connects them St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 148 with the offence of conspiracy and also the robbery.

➢ That all the accused Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel and Jitesh Gogia have not been able to explain the source of huge cash amount recovered from their possession which currency notes were bundled with the ribbon of the advertising material of ICICI bearing the stamps of Hari Ram Puran Chand on the back side whereas the victims have been able to explain the source of the robbed amount.

(145) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(146) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 149 prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link.

(147) In view of the above, I hereby hold the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia guilty of having hatched a criminal conspiracy to commit the robbery upon the complainant for which they are held guilty of offence under Section 392 r/w 120­B Indian Penal Code. Further, having been found in possession of the robbed amount all the accused are also held guilty of the offence under Section 411 Indian Penal Code.

(148) However, in so far as the charge under Section 397 Indian Penal Code is concerned, the prosecution has not been able to prove and establish which of the accused had used the pistol and therefore, I acquit the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia for the charge under Section 397 Indian Penal Code. (149) Further, in so far as the witness Ms. Supriya (PW12) is concerned, as per the material collected by the prosecution at the initial stages it had come on record that she was working in ICICI Bank where Deepak Gupta (son of the complainant) was a premium customer and had passed on the said account details to Jitesh Gogia which is not only in violation of the existing banking rules and regulations requiring maintenance of confidentiality of the details of the customer but also entails criminal liability (i.e. breach of trust for disclosing the details of the customers of the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 150 bank to the outsiders). During investigations she claimed that she had innocently passed on this information to Jitesh Gogia with whom she was having an affair and roka ceremony had already been taken place but later on, before the Court when asked to produce the date of roka ceremony, she had concealed the same and could not able to place on record any documentary proof of the same. It is writ large that she has deliberately tried to conceal this fact only to justify her frequent call with accused Jitesh Gogia even a day before the incident and during intervening night and also on the date of the incident. During the course of investigations it was also revealed that she had been working on the cash counter of the bank a fact which was disclosed by the Authorized Signatory of the bank when a specific query under Section 91 Cr.P.C. was made by the Investigating Officer to the bank which reply is Ex.PW12/PX1. Despite the aforesaid she had turned hostile on this aspect (she having stated so in her statement under section 161 Cr.P.C.) and when confronted with the response of her bank which response was given on the basis of the record maintained by the bank she again denied the said response but hopelessly tried to justify her earlier statement by explaining that off and on she dealt with small amount of cash on the counter.

(150) It is writ large that she has made a false statement on oath before the Court in order to assist the accused particularly the accused Jitesh Gogia her husband whom she married after the incident and to save them from penal consequences. Firstly she has turned hostile and did not support her earlier version given to the police (under Section 161 Cr.P.C.) wherein she St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 151 had claimed that she had innocently passed on the information to Jitesh Gogia regarding the huge money transactions being made by Deepak Gupta son of the complainant who was a premium customer of ICICI Bank. Secondly before the Court she had claimed that her engagement / roka ceremony had been conducted with the accused Jitesh Gogia at the time when the incident took place but she is unable to give the date of the same. When specifically asked by the Court she has not been able to produce any photograph or any documentary proof to show the same. She has apparently done so only to conceal the actual date of her engagement / roka ceremony in order to justify her frequent calls with the accused Jitesh Gogia on the date of the incident and even prior to the same. Lastly earlier she had disclosed to the police (in her statement under Section 161 Cr.P.C.) that she was working on the cash counter (at ICICI Bank) but before the Court she totally denied the same which is despite the fact that the Authorized Signatory of ICICI Bank had sent a response which is Ex.PW12/PX­1 pursuant to the query put by the Investigating Officer under Section 91 Cr.P.C. in which the bank had confirmed that she had dealt with the cash counter which response of the Bank she also denied when confronted but at the same time she tried to justify the same by stating that she off and on had dealt with small amount at cash counter.

(151) I may observe that Chapter IX of Indian Penal Code has been incorporated to deal with the offences relating to giving false evidence against public justice. The offence in the Chapter are based upon recognition St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 152 of decline of moral values and erosion of sanctity of oath. The witnesses are eyes and ears of the court and are extremely important subjects of the criminal justice system. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has to some extent resulted in polluting the judicial system. Any attempt by a witness to divert the course of justice, is required to be dealt with sternly. Ms. Supriya was legally bound by an oath to state the truth in the court which she did not do. This being so I am of a considered view that this court cannot allow the witness Ms. Supriya to pollute the stream of justice by making a false statement on Oath for reasons writ large and get away with it. I hereby direct that she be prosecuted and tried for these offences effecting Administration of Justice so that it is deterrence for others attempting to indulge into such adventurism. (152) Therefore, under these circumstances, I am satisfied that primafacie there is sufficient material on record to show that Ms. Supriya committed offence effecting Administration of Justice by giving false evidence on Oath believing the same to be false during the trial of the case despite being legally bound to state truth and for offence against Public Justice (punishable under Chapter X and XI Indian Penal Code ­ Section 191 r/w 193 Indian Penal Code) and it is expedient in the interest of Justice that an inquiry be conducted into the offence as alleged. In this regard, I hereby authorize and direct the Reader of this Court [in terms of provisions of Section 195 (1) (b) (iii) Cr.P.C.] to file a complaint under Section 195 Cr.P.C. along with the relevant documents (i.e. copy of the judgment, copy of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 153 the statement of Supriya u/s. 161 Cr.P.C., copy of the testimony of Supriya before the Court and the copy of the response of the bank) before the Ld. CMM for proceeding against Ms. Supriya in accordance with law. (153) I may also observe that the Hon'ble Apex Court in the case of Pritish Vs. State of Maharastra reported in 2001 (IX) AD (SC) 501 has observed that there is no statutory requirement to offer an opportunity of hearing to the person against whom the court might file a complaint before the Magistrate for initiating prosecution proceedings. The court is under no obligation to offer an opportunity (to the person against whom a complaint would be made) to be heard prior to making a complainant and the principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such a person should be proceeded against or not. Accordingly there is no need to issue any show cause notice to Ms. Supriya.

(154) Case be listed for arguments on sentence on 18.3.2013.

Announced in the open Court                                       (Dr. KAMINI LAU)
Dated: 12.3.2013                                                 ASJ­II(NW)/ ROHINI




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                 Page No. 154

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 145/2011 Unique Case ID No.: 02404R0043732010 State Vs. (1) Harshit Prabhakar S/o Shailash Prabhakar R/o A­32, Subhadra Colony, Sarai Rohilla, Delhi (Convicted) (2) Vikas Aggarwal S/o Amrit Lal Aggarwal R/o C­5/6, Mahalaxmi Society, Rama Vihar, Delhi (Convicted) (3) Parveen Goel S/o Shiv Kumar R/o WZ­30, Hari Singh Park, Multan Nagar, Delhi (Convicted) (4) Jitesh Gogia @ Jeetu S/o Ram Swaroop Gori R/o B­129 Subhadra Colony, Sarai Rohilla, Delhi (Convicted) (5) Deepak Gogia S/o Late Om Prakash R/o D­1/3, Rama Vihar, Delhi (Proclaimed Offender) St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 155 FIR No.: 528/2009 Police Station: Ashok Vihar Under Sections: 392/397/411/120­B/34 IPC Date of conviction: 12.3.2013 arguments concluded on: 22.3.2013 Date of Sentence: 23.3.2013 APPEARANCE:

Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.

Convict Harshit Prabhakar in Judicial Custody with Sh. Pradeep Rana Advocate.

Convict Vikas Aggarwal in Judicial Custody with Sh. A.P. Singh Advocate.

Convict Praveen Goel in Judicial Custody with Sh. L.S. Saini Advocate.

Convict Jitesh Gogia in Judicial Custody with Sh. R.K. Verma Advocate.

ORDER ON SENTENCE:

The present case relates to a robbery committed by the accused persons i.e. Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (proclaimed offender) all of whom belong to good families. They wanted a lavish life­style on account of which they required money due to St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 156 which reason they committed robbery upon the complainant / victim Puran Chand Gupta.

As per the allegations, on or before 16.12.2009 all the accused namely Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel @ Vipin and Jitesh Gogia @ Jeetu along with Deepak Gogia (Proclaimed Offender) hatched a criminal conspiracy to commit robbery on Puran Chand a jeweller by profession with pistol like deadly weapon. One Ms. Supriya was working in ICICI Bank, Phase­II, Ashok Vihar and often handled cash transactions. Deepak Gupta S/o Puran Chand Gupta (complainant / victim) maintained an account in the same bank and being a premium customer he conducted transactions of huge amount almost on daily basis. Ms. Supriya was a friend of accused Jitesh Gogia and disclosed this fact to Jigesh Gogia who passed on this information to his cousin Deepak Gogia for a consideration. In turn Deepak Gogia shared this information regarding Deepak Gupta who was having jewellery business, to his friends namely Harshit Prabhakar, Vikas Aggarwal and Praveen Goel. In pursuance to the said information they all i.e. Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender) hatched a criminal conspiracy to commit robbery upon the said jewller Deepak Gupta. After a detail planning on 16.12.2009 at about 9:20 AM at Open Road in front of House No. C­2/31, Phase­II, Ashok Vihar, Delhi all the accused namely Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) committed robbery upon Puran Chand Gupta and his daughter in law Jyoti St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 157 Gupta who in the morning at about 9:20 AM were putting the cash in their vehicle for depositing the same in the bank. The accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) robbed them of the cash amount to the tune of Rs.1,55,00,000/­ (One Crore and fifty five lacs) bundled into two bags and by showing them a deadly weapon i.e. pistol and escaped on two motorcycles. Later on the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia were found in possession of the stolen cash amount which they knowingly and having reasons to believe that the said money was robbed / stolen property which they had retained.

All the eye witnesses in the present case i.e. complainant / victim Puran Chand Gupta, his daughter­in­law Jyoti Gupta and the washer­man / press­wala Dharmender & Amit have proved the incident of robbery but have turned hostile on the identity of the accused persons. However, on the basis of the electronic evidence in the form of Call Detail Records of the various mobile phones being used by the accused persons at the time of the incident and also on the basis of other circumstantial evidence on record, this Court vide a detail judgment dated 12.3.2013 held all the accused i.e. Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel @ Vipin and Jitesh Gogia @ Jeetu guilty of having committed robbery upon the complainant in pursuance to the criminal conspiracy which they had hatched and also of being found in possession of robbed property i.e. currency notes. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 158

In the detail Judgment this Court has observed that it stood established that the complainant / victim Puran Chand was residing at C­2/32, Ashok Vihar, Phase­II, Delhi and is the owner of jewellery shop situated at 12 Tooti, Sadar Bazar, Delhi under the name and style Hari Ram Pooran Chand Sarraf as well as of another shop of jewellery situated at Ashok Vihar Central Market under the name and style of Bansal Jewellers where his son Deepak Gupta and son­in­law were partners; that Deepak Gupta son of the complainant used to purchase gold bullions from MMTC at Jhandewalan for both the above said firms and used to sell the same to several customers; that they used to deposit the sale money with their Bankers ICICI Ashok Vihar and HDFC Bank, East Patel Nagar; that they get profit of Rs.2,000/­ of sale of 1Kg. gold which they used to purchase from MMTC through CCOD account from Union Bank of India, Sadar Bazar Branch which account has a limit of 3.25 crores and provides the facility to utilize in a day maximum amount of Rs.3.25 crores.

It has been established during the trial that Ms. Supriya was working in the ICICI Bank and often handled cash counters and came to know about the detail dealings of Deepak Gupta who had maintained an account at ICICI Bank Ashok Vihar and passed on the information to Jitesh Gogia whom she alleged was her Fiancée (whom she married later). It also stood established that on receiving the said information Jitesh Gogia then passed on the same to his cousin brother Deepak Gogia (Proclaimed Offender) who in turn shared this information with his friends Harshit St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 159 Prabhakar, Vikas Aggarwal and Praveen Goel.

On the basis of the evidence on record it also stood established that on 16.12.2009 in the morning at about 9:00 AM the complainant Puran Chand prepared the packets of currency notes totalling Rs.1,55,00,000/­ (Rs. One Crore Fifty Five Lacs) in the denominations of 500 and 1000 at his house for depositing the same in the bank which packets were put into two bags i.e. one of black colour and which had a design like check; that on 16.12.2009 since Deepak was away to Ahmedabad for official work, the daughter in law of the complainant namely Jyoti Gupta had to drive the complainant to the bank; that at about 9:20 AM while the complainant Puran Chand and his daughter in law Jyoti were putting the bags in the dickey of their Maruti Zen Estilo bearing no. DL­8CR­1678 one person pushed him at his shoulder as a result of which he move ahead and the said boy lifted the said bag and ran away on the black motorcycle which was already in a starting position while one person was in driving position; that in the meanwhile another motorcycle of red colour came on which two persons were sitting and the pillion rider of came down and showed a pistol to the victims Puran Chand and Jyoti after which he lifted another bag containing the currency notes and ran away on the said motorcycle; that both the motorcycles did not have a number plate; that a PCR call was made at 100 number pursuant to which the police reached the spot and local police was informed; that the complainant / victim informed the police that both motorcycles were not having any number plate and all the four assailants St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 160 were of the age of 20 to 25 years with a height between 5­6 feet.

It has also been established that on the basis of the complaint of Puran Chand Gupta the present FIR was got registered and during investigations, statements of Smt. Jyoti, Dharmender Kumar and Amit Kumar were recorded wherein it was confirmed that two persons had come on bike at around 8:40 AM near the house of the complainant and got down at Washer­Man / press­wala Dharmender's ironing table and one of them gave a jeans pant to Dharmender for ironing and pretended to wait at his shop while keeping a watch at the house of the victim. It also stood established that during investigations the secret informer provided to the police the number of the mobile phones of suspected persons pursuant to which the call details of mobile No. 9716451108, 9999337000, 9873222031 and 9873670551 were collected and kept on surveillance; that on verification the Investigating Agency came to know about the ownership of these mobile phones and a call was made on mobile phone number 9716451108 and inquiries were made on which the user gave his name as Parveen Goel, R/o WZ­30, Hari Singh Park, Multan Nagar, Delhi.

It has further been established that on 02.01.2010 the secret informer informed the Investigating Officer that one of the suspect was coming to Deep Hyundai, Ashok Vihar Industrial Area for service of his i­10 car bearing number DL4C AJ 6389 pursuant to which inquires were made from Deep Hyundai, Ashok Vihar Industrial Area where it was came to be known that the said car was being used by Vishal Aggarwal who was using St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 161 mobile number bearing no. 9873670551; that on the same day i.e. 2.10.2010 at about 5.00 PM one person came there to receive the aforesaid car after which they followed him and finally the car parked at C­5/6, Mahalaxmi Society, Rama Vihar, Delhi; that police teams were deployed at Multan Nagar as well as at Mahalaxmi Society of Rama Vihar for keeping a watch on the suspects.

Further, it has been established that on 3.10.2010 two police teams were constituted one was headed by SI Rajeev Shah who deployed his staff at Gate No.5, Multan Nagar, Hari Singh Park and another team headed by SI Rajeev Ranjan who along with his team was following the i­10 vehicle of white color bearing No. DL­4CAJ­6389 which was moving towards Multan Nagar side; that at around 3:00 PM the said white color i­10 car bearing the same number came to gate No.5 Multan Nagar and took a left turn on the service road on which SI Rajeev Shah blocked the way of i­10 car by putting his car in front of it and HC Naresh who was following the said car put his car behind the i­10 car; that the boy who was driving the i­10 car was apprehended and in the meantime SI Rajiv Ranjan also reached there; that the said boy disclosed his name as Vikas Aggarwal @ Vicky and also disclosed about his involvement as well as the involvement of other accused Praveen Goel, Harshit Prabhakar, Jitesh Gogia and Deepak Gogia (proclaimed offender) in the robbery; that the accused Vikas Aggarwal @ Vicky informed them that he tried to run away with the money outside Delhi and his associate Deepak Gogia had already gone to Bombay whereas Parveen would arrive St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 162 shortly with the money; that subsequently accused Vikas Aggarwal was arrested and thereafter the i­10 car bearing No. DL­4CAJ­6389 was searched which found to contain one black color bag in the dickey which was containing bundles of currency notes totaling Rs.70,00,000/­ (Seventy Lacs) which the accused disclosed as the looted amount from the Ashok Vihar robbery and containing his share as well as that of Deepak Gogia; that each packet of currency note was bundled with an advertising ribbon of ICICI and on the back side of the same stamp of Hari Ram Puran Chand was affixed; that the said currency notes were taken into possession and from the personal search of accused Vikas Aggarwal @ Vicky one mobile phone make SPICE M4580 with dual SIM bearing No. 9873670551 & 931171120 having IMEI No. 863263008371460 and IMEI No. 86326300837478 was recovered which was taken into possession; that accused Vikas Aggarwal was asked to sit in the said i­10 car and SI Rajeev Ranjan, HC Naresh and Ct. Kulbhushan also sat in the same whereas SI Rajiv Shah along with his members of police party reached at Gate No.5 where they took their position; that after sometime a boy of thin stature was noticed coming on foot with a bag in his hand from the gate No.5 on which he was covered while he was going towards the i­10 car; that the said boy was apprehended and he disclosed his name as Praveen Goel and also confessed about the robbery at Ashok Vihar; that the bag of accused Praveen Goel was searched and it was found to contain Rs.30,00,000/­ (Rs. Thirty lacs) and each packet of currency note was bundled with an advertising ribbon of ICICI and on the back side of the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 163 same stamp of Hari Ram Puran Chand was affixed; that from the personal search of accused Praveen Goel a mobile phone make NOKIA E­90 bearing No. 9716451108 and IMEI No. 353660010946147 was recovered which was taken into possession; that in the meantime on the mobile phone of Vikas Aggarwal one call was received which was heard by the police on loudspeaker and the caller disclosed his name as Harshit Prabhakar who was waiting for Vikas Aggarwal at Liberty Cinema; that at the instance of accused Vikas Aggarwal, the accused Harshit Prabhakar was located at Liberty Cinema and was apprehended while he was standing near his ford Endeavor car bearing No. DL­4C­AF­0113; that the said car was checked and it was found to contain one blue color bag lying under the dash board near the adjacent seat of the driving seat and it found to contain packets of currency notes totalling Rs.25,00,000/­ (Twenty Five lacs) and each packet found tied with an advertising ribbon material of ICICI Bank having stamp of Hari Ram Puran Chand proprietor on the back side which currency notes were thereafter seized; that from the personal search of the accused Harshit Prabhakar one mobile make NOKIA having number 9873222031 bearing IMEI No. 358249039815800 was recovered which was also taken into possession; that all the three accused persons were thoroughly interrogated and they made their disclosure statements regarding the incident and about the involvement of the co­accused persons Deepak Gogia and his cousin Jitesh Gogia through whom they received information about the complainant and his bank account; that in pursuance of his disclosure statement the St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 164 accused Vikas led the police to his house No. C­5/6, Mahalaxmi Society, Rama Vihar from where he got recovered Caliber motorcycle bearing No. DL­4SAQ­0277 of Red Color which was used by him in the robbery at Ashok Vihar, which motorcycle was thereafter seized; that in pursuance of their disclosure statements accused Vikas, Parveen and Harshit led the police party to house No. D1/3, Rama Vihar near Gas godown and pointed out towards a motorcycle of blue black color make Bajaj Discover bearing No. DL­4SBD­5343 belonging to Deepak Gogia, which was taken into possession.

It has also been established that on 4.1.2010 on the basis of secret information the accused Jitesh Gogia @ Jitesh was apprehended near Shastri Nagar Metro Station from whose possession Rs.1,00,000/­ were recovered; that Jitesh Gogia disclosed that his friend Supriya who was working in ICICI Bank Ashok Vihar had informed him that Deepak Gupta (son of the complainant Puran Chand) used to make huge transactions in their bank, which information he had shared with Deepak Gogia and it was agreed that he would be paid Rs.5 lacs of which Rs.1,50,000/­ were already paid to him out of which he had already spent Rs.50,000/­ and the remaining amount was yet to be paid; that during police custody remand of five days on 12.1.2010 Rs.1,00,000/­ was also got recovered by the accused Harshit Prabhakar from his house which were taken into possession; that Ms. Supriya friend of accused Jitesh Gogia was employed in ICICI Bank Ashok Vihar who passed on the information to Jitesh Gogia regarding Deepak Gupta son St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 165 of the complainant Puran Chand Gupta being a premium customer of their bank and about the huge transactions done by them; that accused Jitesh Gogia passed on this information with his cousin Deepak Gogia who thereafter shared the same with his friends Harshit Prabhakar, Praveen Goel and Vikas Aggarwal who thereafter planned the robbery and executed the same on 16.12.2009; that the eye witnesses have specifically proved the incident of armed robbery and after the incident portrait of the suspect was by the police which apparently matches with the accused Praveen Goel.

It has further been established that as per the electronic evidence in the form of Call Details Records all the accused namely Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender) were in constant touch with each other; that the location of the various accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Deepak Gogia (Proclaimed Offender) are in the area where the incident took place, not only during during the time of incident but also even a couple of days earlier and even during night time, thereby proving that prior to committing the incident the accused conducted a recce / observed the area; that the electronic evidence independently corroborates and connects the accused with the offence and is also compatible with the time which the accused Harshit, Vikas, Praveen and Deepak could have taken in first reaching to the house of Deepak Gogia at Rama Vihar (from the spot of occurrence at Phase­II Ashok Vihar) where distribution of the looted cash was done and thereafter in reaching to their respective houses; that the motive St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 166 of the crime was to commit robbery upon victims which was pursuant to a criminal conspiracy hatched by the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel, Jitesh Gogia and Deepak Gogia (Proclaimed Offender); that recovery of the motorcycles and huge amount of robbed money (totaling Rs. One crore twenty six lacs) from the possession of the accused, incriminates all the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia and connects them with the offence of conspiracy and also the robbery; that all the accused Harshit Prabhakar, Vikas Aggarwal @ Vicky, Praveen Goel and Jitesh Gogia have not been able to explain the source of huge cash amount recovered from their possession which currency notes were bundled with the ribbon of the advertising material of ICICI bearing the stamps of Hari Ram Puran Chand on the back side whereas the victims have been able to explain the source of the robbed amount.

In view of the above I hereby hold the accused Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia guilty for he offence under Sections 392 r/w 120­B Indian Penal Code and Section 411 Indian Penal Code for which they have been accordingly convicted. However, they have been acquitted of the charge under Section 397 r/w 120­ B Indian Penal Code.

Heard arguments on the point of sentence. The convict Harshit Prabahakar is stated to be aged about 33 years having a family comprising of parents, one elder brother, wife and one son. He holds a degree of St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 167 Bachelor of Commerce and at the time of his arrest was doing the business of publication. Ld. Counsel for the convict has vehemently argued that the convict is in Judicial Custody since 3.1.2010 and has clean antecedents. According to the Ld. Counsel the parents of the convict are suffering from all old age ailments.

The convict Vikas Aggarwal is stated to be aged about 30 years having a family comprising of parents, one elder brother and one younger sister. He holds a degree of Bachelor of Commerce and at the time of his arrest was doing his Private Business. The Ld. Counsel for the convict has argued that the convict is in judicial custody since 3.1.2010 and is a first time offender. It is submitted that the convict is the only son of his helpless parents since his father is suffering from blood pressure and hypertension etc. and his mother is suffering from arthritis. It is argued that the family of the convict has been undergoing a crucial phase of life and besides the financial hardships all family members have been lacking an emotional and moral strength in the absence of the applicant due to which they are at the verge of loosing all hopes of leading a peaceful life.

The convict Praveen Goel is stated to be aged about 30 years having a family comprising of parents, two married younger sisters, wife and one son. He is 10th class pass and at the time of his arrest was working in a Hotel. Ld. Counsel for the convict has vehemently argued that he is in judicial custody since 3.1.2010 after which he is inside the custody continuously. It is submitted that the convict is not involved in any other case St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 168 and is a first time offender. It is also submitted that at the time of the incident the convict was aged about 28 years and the parents of the convict are suffering from various old age ailments. Ld. Counsel has also pointed out that the grandmother of the convict with whom he was deeply attached had expired on 20.3.2013.

The convict Jitesh Gogia is stated to be aged about 30 years having a family comprising of parents, one elder brother, two elder sisters(of whom one is married) and wife. He is a B. Com. and is having a shop of Spare Parts at Kashmere Gate. Ld. Counsel for the convict has vehemently argued that the convict is a first time offender and is not involved in any other case. It is also argued that the wife of the convict is pregnant and the convict has to take her care also apart from his aged parents.

All the counsels have prayed for a lenient view and that the convicts be released on the period already undergone by them.

On the other hand the Ld. Addl. PP for the State has prayed for a stern view against the convicts. He has argued that during the trial of the present case the convict Harshit Prabhakar has been granted interim bail by the Hon'ble High Court during which period he has involved himself in another case bearing FIR No. 36/2012, PS Tilak Marg, under Sections 223, 224 IPC. He has also argued that keeping in view the allegations involved the convicts deserve no leniency.

I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 169 Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Recently there has also been a spike in reports of young educated youth belonging to affluent families committing crimes such as armed robbery as happened in the present case and it is on account of increasing culture of consumerism, lust for easy money, lack of role models within the family and no fear of law. Trigger friendly youths unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system.

This is not a case where the position of the convicts Harshit Prabhakar, Vikas Aggarwal, Praveen Goel and Jitesh Gogia could be held as vulnerable on account of abject poverty or social status. Rather, on the other hand they are all qualified young men belonging to affluent families and it is writ large that they were driven by desire for easy money for meeting their affluent life styles. There was no previous animosity between the convict and the victim and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 170

In this background, I award the following sentence to the convict Harshit Prabhakar:

1. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) years and fine to the tune of Rs.50,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One month.

2. For the offence under Section 411 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three years.

Both the sentences shall run concurrently.

I award the following sentence to the convict Vikas Aggarwal:

1. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) years and fine to the tune of Rs.50,000/­ . In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

2. For the offence under Section 411 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three years.

Both the sentences shall run concurrently.

I award the following sentence to the convict Praveen Goel:

1. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 171 (7) years and fine to the tune of Rs.50,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

2. For the offence under Section 411 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three years.

Both the sentences shall run concurrently.

In so far as the convict Jitesh Gogia is concerned, I award the following sentence to him:

1. For the offence under Section 392 r/w 120­B Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Five (5) years and fine to the tune of Rs.50,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

2. For the offence under Section 411 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Three years.

Both the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them, as per rules.

The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar Page No. 172 Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to all the convicts free of costs and one copy of order on sentence be attached with their jail warrant.

File be consigned to Record Room to be taken up on the arrest of accused Deepak Gogia who is a Proclaimed Offender.

Announced in the open Court                                           (Dr. KAMINI LAU)
Dated: 23.3.2013                                                   ASJ (NW)­II: ROHINI




St. Vs. Harshit Prabhakar Etc., FIR No. 528/09, PS Ashok Vihar                    Page No. 173