Delhi District Court
S.C. No. 46/10 Fir No. 269/09 State vs . Satish Gupta Etc. 1 /38 on 31 July, 2013
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.46/10
(Unique I.D. No.02403R0348482009)
FIR No. 269/09
PS: Hauz Khas
U/S 394/397/411/120B IPC
State
Versus
(1) Satish Gupta
S/o Sh. Ved Ram Gupta
R/o H. No. L-8, Beekay House,
Green Park Extension, New Delhi.
(2) Birender Gupta
S/o Sh. Chander Prakash
R/o H. No. 3/486, Khichdipur
Colony, New Delhi.
(3) Vikas @ Vicky Gupta
S/o Sh. Shiv Shankar Gupta
R/o H. No. B-24 C/o Sh. Ranbir
Singh (owner), Khora Colony,
Ghaziabad, U.P.
Presently R/o Village Rewri Kalan,
P.S. Milak, Distt. Rampur ( U.P).
Date of Initial Institution :24.10.2009
Date of Institution in this court :25.09.2010
Date of Pronouncement Order :31.07.2013
S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 1 /38
JUDGMENT
1. Accused persons, who are three in number, were charged on 08.06.2010 for having committed offences under Section 120B, 395 read with Section 120B IPC. Accused Vikas and Birender Gupta were also charged under Section 411 IPC. The accused persons had pleaded not guilty and hence the State examined 13 witnesses on its behalf to prove its case.
2.1 PW-1 Krishan Kumar Bohra deposed that he worked as Accountant in Macawber Beekay Power Pvt. Ltd. Company. A theft of currency notes took place in the Company which was subsequently recovered by the police and he saw the counting proceedings in the Chamber of the Ld. Judge. He proved the Panchnama of the counting of those notes to the tune of Rs. 83,41,000/- and proved the Panchnama as Ex. PW1/A. In his cross-examination, he stated that currency notes were recovered in his presence and there was no mark of identification on the currency notes to show that they were stolen from the S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 2 /38 company. He stated that Rajeev Aggarwal and Jagbir were also with him at the time of the counting of the currency notes. He stated that the currency notes were in the denomination of Rs. 1000, 500, 100 and 50.
2.2 PW-2 Rajbir stated that on 26.07.2009 at about 10:30 p.m, he received a call from Satish Gupta that some persons had tied him and ran away. Witness gave this information to the owner of the company, namely, Ajay Kumar Gupta, who directed him to reach the spot. He reached L-8 Green Park Extension, New Delhi, where he found main gate to be open and the light was on. He called Satish and Guard Vinod Kumar. He saw Vinod Kumar was tied with a string and had a piece of cloth in his mouth. He released him and brought him near the main gate where Satish was found lying under the table with his legs and hands tied with a string and a piece of cloth in his mouth. He opened string of Satish. Thereafter, he informed Police at 100 number. Police came at the spot and Satish and Vinod Kumar were taken S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 3 /38 to the hospital by the PCR van. Local Police and Crime Team reached the spot. He proved the seizure of clothes, string and a black colour Danda as Ex. PW2/A. Leading questions were asked from him by the Ld. Addl. PP wherein he admitted that police had lifted blood from stairs of basement and had also lifted a screwdriver from account office at first floor, which was seized vide seizure memo Ex. PW2/B and Ex. PW2/C respectively. He identified one red colour cloth, one yellow colour cloth, two strings of jute and one Danda of black colour. He stated that red colour cloth belonged to Guard Vinod Kumar and yellow colour cloth belonged to Satish. The strings were used to tie the Guard and Satish Kumar and Danda was kept by Vinod Kumar. They were given Ex. P-1, P-2, P-3 and P-4 respectively. In his cross- examination, he stated that there were three police vehicles and two private vehicles and about 15-16 persons were there when Birender Gupta was arrested from his house at Khichripur. He stated that he had gone in the police vehicle and had remained in the police vehicle. He S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 4 /38 stated that Satish had no injury in his person when he reached there. He denied the suggestion that he did not receive any call from Satish. He also denied the suggestion that Satish has been falsely implicated in this case at the instance of the owner.
2.3 PW-3 Sh. Subrata Sil is General Manager of Macawber Beekay Pvt. Ltd and he proved certificate of employment of Satish Gupta from 01.05.2007 to 26.07.2009 as Office Boy-cum-Electrician. 2.4 PW-4 Vinod Kumar Singh is the Security Guard. He deposed that on 26.07.2009, he was posted from 8:00 p.m to 8:00 a.m at L-8, Green Park Extension, New Delhi i.e Bee Kay House. He stated that after leaving Satish on reception on that night at about 10:00 p.m, he came inside the room after taking meal and then he went inside the kitchen for washing utensils. When he was washing utensils, he heard voice of Satish 'Guard sahab, Guard sahab, koi hamein maar raha hai'. When he came out of S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 5 /38 the kitchen, one person pushed him and gave beatings to him. One more person came there and hit him on his head with a Danda from back side. In the process of saving, his head from the assault by hands, he received fracture injuries on his fingers and head. Thereafter, he fell down and he was tied with string and his mouth was tied with a cloth and they left him on the stairs of the basement. He further stated that thereafter they went upstairs and after sometime they also brought Satish and left him on the stairs of the basement. Satish asked him to ring up the owner but since his hands and mouth were tied, he could not reply. Thereafter, Satish went upstairs dragging himself and informed Rajbir, PSO, who reached the spot after sometime and freed him. Thereafter, he and Rajbir went upstairs and noticed that the door of the account office was open and the locker was also broken open. Thereafter, police was informed and they were taken to Trauma Center by police. He proved his statement as Ex. PW4/A which was recorded by the Police. In his cross- examination, he stated that he was posted at Bee Kay S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 6 /38 House since 22.07.2009 and after working for two days in the day shift from 24.07.2009 onwards he worked in night shift. He stated that he did not notice any vehicle standing at the main gate of Bee Kay House nor he noticed any person near the gate. He could not identify the persons, who had assaulted him. He stated that he did not see those two persons, who had gone up after tying their hands and feet. He stated that he was not aware that locker had Rs. 91 lacs. The locker was empty after the incident. He denied the suggestion that Satish Gupta has been falsely implicated in this case as he had not vacated L-8, Bee kay House, Green Park Extension, where he was residing with his family.
2.5 PW-5 Rajeev Agarwal is an Accountant in Macawber Bee kay Pvt. Ltd. He deposed that on 26.07.2009, he came to know from his employer that a theft had taken place in the office at L-8, Green Park Extension. He stated that he had told the police that he had operated the electronic safe on 21.07.2009 from which S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 7 /38 theft had taken place. He also stated that only he was aware about the code of that electronic safe which was *1234#. Leading questions were put to him by the Ld. Addl. PP wherein he stated that Rs. 91 lacs were kept in the electronic safe and Police had recorded his statement on 03.08.2009. He stated that on 28.08.2009, he alongwith Krishan Kumar Bohra and Jagbir Singh had gone to Patiala House Courts where the recovered currency notes amounting to Rs. 83,41,000/- were counted in the presence of the Ld. Magistrate, which was duly videographed. He further stated that he had taken the above said currency notes on superdari on behalf of the company on 02.09.2009. He proved the Special Power of Attorney in this regard as Ex. PW5/A. In his cross- examination, he stated that he has no personal knowledge about the incident except what was told by his employer to him. He further stated that he had gone to the PS on 27.07.2009 between 3:00 a.m to 4:00 a.m, on 03.08.2009 at about 1:00 p.m to 2:00 p.m and on 02.09.2009 at about 5:00 p.m for taking money on superdari.
S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 8 /38 2.6 PW-6 HC Ram Singh stated that on 26.07.2009, he received a DD No. 31A at about 10:10 p.m. He alongwith HC Ram Niwas reached L-8, Green Park Extension and found PSO Rajbir standing outside the gate of that house. He told them that the injured persons have already been taken to the hospital by the PCR van. On inspection of the spot, one Danda, some pieces of jute rope, one Gamcha and blood was found. One screwdriver was also found lying on the first floor near safe of the company. After sometime, SI Chander Shekhar reached there, who left for hospital alongwith HC Ram Niwas, leaving this witness at the spot. After about 2 ½ to 3 hours, SI Chander Shekhar came back at the spot and seized danda, rope, Gamcha and blood was lifted. He proved the seizure memos of all these objects as Ex.PW2/A to PW2/C. He identified the case property in the court. In his cross-examination, he stated that he received information about DD No. 31A on his mobile phone as he was already on another call and as such he did not make any departure entry in the PS. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 9 /38 2.7 PW-7 Jagbir Singh stated that on 28.08.2009 he alongwith K.S. Bohra and Rajeev Aggarwal went to Patiala House Courts when the amount of Rs. 83,41,000/- was counted. The counting was videographed and photographed. He proved the seizure memo of the currency notes as Ex.PW1/A. 2.8 PW-8 SI Rajbir Singh proved recording of FIR No. 269/09 u/s 394/34 IPC as Ex. PW8/A and he proved his endorsement on the rukka as Ex.PW8/B. 2.9 PW-9 ASI Islamuddin stated that on 27.07.2009, accused Satish made a disclosure that he was working in Bee Kay House as an Electrician-cum-peon. About 10 days ago, when he had gone to give tea to Rajeev Aggarwal in his house, he was putting cash in safe and at that time, he saw code of the safe 1234. He became greedy and shared this information with his brother-in-law Birender and two other persons in village, Shokeen and Firoz. He showed Bee Kay House to Birender, Shokeen S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 10 /38 and Firoz a day before the incident. An Auto Driver Vikas @ Vickey was joined in plan by Birender and he was offered share in the booty. On 26.07.2009 at about 9:30 p.m, all four reached Bee Kay House in auto of Vikas. Birender stayed near the auto while Firoz and Shokeen went inside Bee Kay House. Guard was hit and injured and he himself was tied by them. Firoz and Shokeen committed loot from the safe on the second floor. He then telephoned Rajbir, who came and untied him. He disclosed that the amount looted was carried by Birender, Firoz and Shokeen in the auto of Vikas. On 28.07.2009, he alongwith SI Chander Shekhar, HC Hukam Chand and other staff alongwith accused Satish went to 3/485, Khora Colony, Noida where they met Birender, who confessed his involvement in the offence. IO recorded his disclosure statement as Ex.PW9/A. His arrest was proved as Ex.PW9/B. He disclosed that the looted amount has been kept by him in a flat in Nayaya Khand and some amount has also been given to Vikas, Firoz and Shokeen. Birender then took them to a flat in Nayaya Khand from where S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 11 /38 Rs. 83,21,000/- was recovered from a bag and a steel box. The pointing out memo and the seizure memo of the notes was proved as Ex.PW9/D. The case property was deposited in the Malkhana. On 28.07.2009, supplementary disclosure statement of accused Birender Gupta was recorded as Ex.PW9/E. On 29.07.2009, Firoz and Shokeen were searched in Delhi and on 30th and 31st July, 2009, they were searched in Udham Singh Nagar - native village of accused Satish, but they were not found. On 02.08.2009, he alongwith SI Chander Shekhar, HC Hukam Chand and other staff with Birender went to native village of Vikas at Rampur. Local police was also involved. Vikas was found at his house. He disclosed to have got Rs. 30,000/- as auto fare and some other amount out of the looted amount. He got recovered Rs. 20,000/- from his house stating that rest of the amount of Rs. 10,000/- has been spent by him. The recovered amount was seized vide seizure memo Ex.PW9/F. Auto No. DL-1RL-0776 was recovered at the instance of Vikas and was seized vide seizure memo Ex.PW9/G. In his cross-examination S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 12 /38 conducted on behalf of accused Birender Gupta, he could not tell the number of the house from where the money was recovered. He stated that no independent witness was joined in recovery of money. In the cross-examination of accused Satish Gupta, he stated that no statement of any neighbour at Khora Colony was recorded by the IO nor anybody was asked to join the investigation; IO had not asked for the ownership document of that house from accused Birender Gupta. In the cross-examination for accused Vikas, he stated that Dilip was the owner of the said auto.
2.10 PW-10 ASI Hukam Chand stated that on 27.07.2009 he alongwith SI Chander Shekhar and HC Islamuddin and other staff with Satish Gupta went to 3/485, Khichripur Colony from where Birender was arrested. He disclosed that the robbed amount has been kept at a house in Indira Puram, Ghaziabad. They reached the house which was opened by Birender Gupta from a key, who informed that the amount was kept in a bag and a S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 13 /38 steel box. The steel box was opened by breaking the latch and Rs. 83,21,000/- were recovered. Thereafter, on 29.07.2009, they went to Udham Pur in search of Firoz and Shokeen and came back on 30.07.2009. On 02.08.2009, they went to Rampur in search of Vikas from where he was arrested and Rs.20,000/- was recovered from his house. In his cross-examination for accused Birender Gupta, he stated that Ghaziabad police was not informed about the recovery from Nayaya Khand nor any independent witness was joined in recovery. 2.11 PW-11 Saleem proved the superdarinama of Auto No. DL-1RL-0776 as Ex.PW9/A1. In his cross- examination, he stated that he does not know in whose possession this auto was on 26.07.2009. He further stated that he had sold his auto to Mahesh Motors immediately after its purchase and he had received an information from Mahesh Motors to get the auto released on superdari. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 14 /38 2.12 PW-12 SI Chander Shekhar is the IO. He stated that on 26.07.2009 at about 10:30 p.m, he received a DD No. 31A regarding a robbery at L-8, Green Park Extension, New Delhi. He reached the spot where HC Ram Singh and HC Ram Niwas met him. He was told that injured had been shifted to Trauma Center, AIIMS through PCR. He inspected the spot. Blood spots, baton used by security guards, rope, Gamcha, a screwdriver were found. He alongwith HC Ram Niwas went to AIIMS leaving HC Ram Singh behind. Injured persons Vinod and Satish met him in the hospital. He recorded statement of Vinod in the hospital as Ex.PW4/A and prepared rukka Ex.PW12/A and sent Ct. Ram Singh for registration of FIR. Before leaving for the hospital, he had called the Crime Team and the Photographer, who reached the spot after his arrival from the hospital. Photographer clicked the photos of the spot. Fingerprints were also lifted from the spot. He proved the Crime Team Report as Ex.PW12/B. The exhibits were seized. He further stated that he became suspicious about Satish as Vinod had received more injures than Satish. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 15 /38 After sustained interrogation, Satish disclosed to have committed the offence with his brother-in-law Birender Gupta. He recorded his disclosure statement as Ex.PW12/D. Then they went to house of Birender Gupta at Khichripur and arrested Birender Gupta. Birender Gupta disclosed the role of Firoz, Shokeen and Vikas. Then they went to house No. 384B, Indira Puram, Nayaya Khand, Ghaziabad. The house was locked and the lock was broken open. Inside the room, Rs. 83,21,000/- were recovered after opening the steel box and bag. Firoz, Shokeen and Vikas were searched but they were not found. Firoz and Shokeen were also searched in Udham Pur but they were not found. On 02.08.2009, Vikas was arrested from Rampur and Rs.20,000/- was recovered from his house. On 04.08.2009, TSR No.DL-1RL-0776 was seized at the instance of Vikas Gupta. During investigation, details were sought from the complainant regarding cash and the details were seized vide seizure memo Ex.PW5/B. The recovered amount was released on superdari to Rajeev Aggarwal. In his cross-examination S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 16 /38 for accused Birender Gupta, he stated that PSO Rajbir was accompanying when accused Birender Gupta was arrested and he was also present at the time when the money was recovered from Birender Gupta. He admitted that he did not procure any ownership or tenancy document of house No. 384B, Indira Puram, Nayaya Khand, from Birender Gupta. In the cross-examination conducted on behalf of accused Satish Gupta, he stated that he did not collect any CCTV footage of the locker room as there was no CCTV camera installed there. He admitted that PSO Rajbir had told him that when he reached the spot, Satish Gupta was found tied, muffled and also had injuries on his body. He further stated that flat No. 384B, Indira Puram, Nayaya Khand, was in the name of Arvind Kumar Bhaumik but he has not placed any document on record in this regard. 2.13 PW-13 Ct. Satish proved DD No. 31A as Ex. PW13/A which was recorded on 26.07.2009 by HC Raj Kumar.
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3. All the incriminating circumstances were put to the accused persons but they denied their involvement in the offence. Accused Satish Gupta stated that since he was occupying a servant quarter, being in employment of complainant company, company wanted him to vacate that quarter and when he did not vacate that quarter, he was implicated in this case. Accused Birender Gupta stated that in order to exert pressure on his brother in law Satish Gupta, the complainants have implicated him.
4. Accused Birender Gupta and Vikas led defence evidence. DW-1 Sonia Gupta stated that she is wife of accused Vikas Gupta and her husband was arrested on 2.8.2009 from St. Joseph hospital, Barreilley where she had gone for delivery of her child which was born on 31.7.2009. Hospital wanted money which was brought by her mother in law. Her child died on 2.8.2009. Hospital documents were produced as mark DW-1/A, B and C. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 18 /38
5. DW-2 Anju Gupta stated that she is wife of Satish Gupta. She stated that on 26.7.2009 at about 9 pm she and her husband were taking dinner when she received a telephone call of Guard from L-8 Green Park Extension and Satish Gupta was called to reach office immediately. He went but did not return till morning. In the morning she went to office and came to know that Satish Gupta has been taken by police. For 4 days she went to police station Haus Khas but she was not allowed to meet him. On 5th day, she met him in police station. She further stated that on 27th and 28th July 2009, Karan, Jagbir, Rajbir and one more person came from office and asked her to vacate the quarter and threatened to get her children arrested if the quarter was not vacated. They also searched her house for money. She also filed an injunction suit regarding vacation of quarter vide Ex. DW-2/A. In her cross examination she stated that she does not know the name of that Guard. She stated that Vikas is her brother in distant relation.
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6. Ld. Addl. PP has argued that on 26.7.2009 DD No. 31 A was received whereafter SI Chandrashekhar reached L-8 Green Park Extension. He was told that the two injured persons namely Guard Vinod and accused Satish were found there in injured condition. They were sent to hospital in PCR van. Exhibits like rope, Gamchha, baton and blood were lifted from there. In the accountant room, the electronic safe was found open and empty and a screwdriver was found near the safe. IO recorded the statement of Guard Vinod and on his statement, rukka was prepared and case was registered. Since Guard Vinod had grievous injuries, but Satish had no visible injuries, IO grew suspicious about him and on sustained interrogation of Satish, he confessed his role in the offence and disclosed the names of his brother in law Birender Gupta, his friend Vikas, Firoz and Shokeen to be his accomplices. Accused Birender Gupta got recovered Rs. 83,21,000/- from his house at Nyaya Khand, Ghaziabad while Rs. 20,000/- were recovered from the house of accused Vikas while the other accused persons namely Firoz and S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 20 /38 Shokeen could not be arrested. He stated that the offences of criminal conspiracy, dacoity are proved against the accused persons while accused Birender and Vikas are also liable to be convicted for the offence under Section 411 IPC as the robbed money was recovered from them. 7.1 For accused Birender Gupta, Sh. Tarun Nanda, Advocate argued that there are material contradictions in recovery of money, arrest of this accused and in search of the accused persons who have absconded. It has been argued that it is a case which is based on recovery of money. No public witness has been joined by the police either at the time of arrest of the accused or at the time of recovery of money. Further, it has been stated that the recovery is hit by Section 100 (4) Cr PC. It has also been stated that the recovery is also doubtful as there is no evidence on record that the house from where the recovery is effected, belonged to the accused Birender Gupta. It has been argued that there is no cogent evidence on record showing the involvement of the accused as the recovery of S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 21 /38 the amount is stated to be planted.
7.2 For accused Vikas Gupta, Ms. Kiran Singh argued that the accused has been falsely implicated in this case and the recovery of Rs. 20,000/- has been shown from him, which he had kept for treatment of his wife and child. It has been argued that name of this accused surfaced only in 2nd disclosure of accused Satish Gupta and he did not disclose his name in his first disclosure, which in itself shows that the name of this accused has been falsely implicated. It has been stated that there is nothing to show that he was part of the conspiracy. It has been further stated that according to disclosure statement, Rs. 5 lakh were to be recovered from him but contrary to it, only a meager sum of Rs. 20,000/- was recovered from him. 7.3 For accused Satish Gupta, Sh. Alam Gir argued that accused Satish Gupta has been falsely implicated in this case by the complainant as the accused is occupying a servant quarter which was allotted to him by the S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 22 /38 complainant company, which they demanded him to vacate but since he did not vacate that servant quarter, he was implicated in this false case. It has been stated that in August 2009 a civil suit seeking injunction from eviction from that quarter. He stated that there is no recovery of any money from him, which shows that he has been falsely implicated. It was argued that there are no Firoz or Shokeen in the matter. He has also pointed out certain discrepancies which were pointed by the other Counsels.
8. I have heard both the sides and have perused the records of the case. Prosecution has to prove that the accused persons had entered into criminal conspiracy to commit dacoity, committed dacoity of Rs. 91 lakhs and out of the robbed amount, Rs. 83.41 lakhs were recovered from two accused persons. In other words, offences u/s 120-B, 395 and 411 IPC are to be proved by the prosecution.
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9. PW-4 Vinod Kumar is the star witness of prosecution in this case. He has deposed that on 26.7.2009, he was performing duty as Guard from 8 pm to 8 am at L-8, Green Park Extension, New Delhi. Accused Satish was also present in the office at that time. When the Guard went in kitchen to wash his dishes after dinner, accused Satish called him by saying 'Guard Sahib Guard Sahib, koi hame maar raha hai', he came out, but one person pushed him and beat him. Then one more person came and hit him with a danda on his head from backside. He was tied down with a string and his mouth was tied with a cloth. He was left in the basement but the two assailants went upstairs. After sometime they brought accused Satish with them and left him on the stairs of the basement. Accused Satish asked him to ring the owner. Thereafter, Satish informed Rajbir, PSO. After arrival of Rajbir, Vinod went with him upstairs and found the locker to be broken open. Thereafter, police was informed, PCR van came which sent Vinod and Satish to hospital. PW-2 Rajbir stated that on 26.7.2009 at about 10.30 pm he S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 24 /38 received a call from Satish Gupta that some persons had tied him and ran away. Thereafter he reached at the spot and found both Vinod and Satish to be tied and their mouths were gagged with cloths. He untied both of them and informed police. PW-5 Rajeev Aggarwal, who is Accountant, stated that Rs. 91 lakhs were kept in the electronic safe which was last operated by him on 21.7.2009 and only he knew the security code of the safe as *1234#. PW-1 Krishan Singh Bohra and PW-7 Jagbir Singh had witnessed and signed the panchnama of counting of currency notes before the Court of Ld. Magistrate to the tune of Rs. 83,41,000/- which were recovered. PW-6 HC Ram Singh is the first person who reached the spot first alongwith HC Ram Niwas after receiving the information. He stated that when they reached the spot, PSO Rajbir was found standing outside the Bee Kay House and informed that injured had already been taken to hospital by PCR van. Thereafter, PW-12 SI Chandershekhar reached the spot and went to hospital. Statement of injured Vinod is recorded, and on that S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 25 /38 statement rukka was prepared by him and FIR was registered. Then, statement of accused Satish is recorded wherein he confessed about his own involvement and involvement of accused Birender and Vikas Gupta, besides roles of absconding accused persons Firoz and Shokeen. After arrest of Satish Gupta, he took police to the house of Birender where Birender made a disclosure statement and then he led police to Nayaya Khand and got recovered Rs. 83,21,000/- from a flat. Police then searched Firoz and Shokeen but they were not found. Then police searched for accused Vikas Gupta and from him Rs. 20,000/- were recovered.
10. If the entire evidence led on behalf of the prosecution is perused, there are so many questions which are left unanswered, which cause doubt over the prosecution case. The prosecution case started when accused Satish is stated to have made phone call to PSO Rajbir. However, no such call has been proved by the prosecution by producing the call detail records. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 26 /38 According to prosecution, thereafter PSO Rajbir made a call to police on 100 number. Again, this call made by PSO Rajbir has not been proved by producing Call Detail Records. Even the records of the PCR form were not produced or proved. PSO Rajbir when reached there, found Satish and Vinod to be tied and their mouths were gagged with clothes. It is beyond comprehension as to how Satish telephoned PSO Rajbir when his hands and legs were tied and his mouth was gagged with a cloth. In these circumstances, it was all the more necessary and important for the prosecution to have proved the said call, but that having not been done, creates doubt over the prosecution case.
11. Further, both - accused Satish and Vinod were sent to Trauma Center, AIIMS hospital by the PCR and statement of Vinod was recorded in the hospital by the IO. However, no such MLC of these persons has been produced or proved by the prosecution. If they were taken to hospital by the PCR, the prosecution ought to have S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 27 /38 produced and proved their MLCs, but this was not done by the prosecution. Besides, there is no evidence as to when they were discharged from the hospital, if they were taken there.
12. The prosecution has claimed that a sum of Rs. 91 lacs were kept in the safe and as per PW-5 Rajeev Aggarwal, the said safe was last operated by him on 21.7.2009. There is no evidence on record that there were Rs. 91 lacs with the complainants which were kept in the safe on 21.7.2009. No cash record has been proved on record that the safe had Rs. 91 lacs on 21.7.2009. In fact, PW-5 Rajeev Agarwal proved the seizure memo of 5 accounts statements for the period 20.7.09 to 23.7.09 as PW-5/B but he did not prove the said account statements. That apart, even if the said account statements are perused, it is observed that one out of those five statements related to Macawber Beekay Pvt. Ltd. for the period 23.7.2009 to 24.7.2009 and a cash balance of Rs. 5 lac is shown. Second statement is of BSBK Engineers Pvt. Ltd. for the S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 28 /38 period 21.7.2009 to 23.7.2009 wherein a cash balance of Rs. 3,50,000/- is shown. Third statement is of Northern India Project Developers Pvt. Ltd. K-41, Hauz Khas Enclave for the period 1.7.2009 to 25.7.2009 and a cash balance of Rs. 22,50,000/- is shown. Fourth Statement is of BSBK AKG (India) Ltd. L-8 Green Park Extension for the period 1.7.2009 to 15.7.2009 and a cash balance of Rs. 40 lacs is shown. Fifth statement is of Neera Gupta C-4, 43, Safdarjung development Area for the period 1.7.2009 to 21.7.2009 and a cash balance of Rs. 20 lacs is shown. In other words, the statements are upto 25.7.2009. This is contrary to the seizure memo Ex. PW 5/B according to which the account statements were for the period 20.7.2009 to 23.7.2009. If these statements are to be believed, then as on 23.7.2009 there was no cash amounting to Rs. 91 Lacs. This is however, contrary to the deposition of PW-5 Rajeev Aggarwal who had stated that he had operated the safe last time on 21.7.2009. If that is to be believed, then either cash to the tune of Rs. 91 Lacs was not available for being kept in the safe on S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 29 /38 21.7.2009 or the safe was operated even after 21.7.2009. Further, it has not been proved that how and why the cash of those companies were kept in the electronic safe in question at L-8 and how are all these companies inter- related. Looking from any angle, there are doubts about the amount of cash kept in the safe.
13. Now we come to recovery of Rs. 83,21,000/-. Accused Birender is stated to have been arrested at the disclosure of accused Satish. Till the time of arrest of accused Birender, one public witness namely PSO Rajbir was there. Thereafter, Birender is stated to have made a disclosure that he can get recover the money. Signatures of PSO Rajbir appear even on this disclosure. Thereafter, police goes to Nayaya Khand, Ghaziabad from where the money amounting to Rs. 83,21,000/- is recovered. However, no independent public witness is present at this time although the recovery is from a residential colony where other flats are there. Even the said PSO Rajbir is not associated in this recovery, although, according to the S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 30 /38 IO, PSO Rajbir also accompanied them and was present at the time of recovery of money from Birender Gupta. But PSO Rajbir does not say in his deposition that he has also accompanied police to Nayaya Khand at the time of recovery of money from accused Birender Gupta. Signatures of PSO Rajbir do not appear on the seizure memo of Rs 83,21,000/- which shows that PSO Rajbir was not present at the time of recovery, otherwise, his signatures would have appeared on the seizure memo of money. Police knew that they can recover money from Nayaya Khand but still no steps are taken to associate any independent public witness. It is unbelievable that no public witness agreed to join the investigation. At least, somebody from the complainant company could have been associated in the recovery of the money.
14. That apart, there are contradictions regarding of manner of recovery also. PW-10 ASI Hukum Chand stated that the gate of the house at Indira Puram was opened by accused Birender Gupta by a key While PW-12 S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 31 /38 IO/SI Chandra Shekhar stated that the lock of the main gate of the flat, from where the money was recovered, was broken open. It is thus not known if the said house was opened with a key or its lock was broken open. In any case, neither the said key nor the said broken lock was seized and produced before this Court. Further, PW-10 ASI Hukum Chand stated that the amount of Rs. 83,21,000/- was kept in a bag and a steel box and the steel box was opened by breaking the latch. As against this, PW-12 IO/SI Chandra Shekhar does not state that the money was recovered by breaking latch of the steel box. He rather stated that the amount was recovered by opening the steel box. The said steel box has not been produced before this court.
15. There is no evidence on record as to how that Flat No. 384-B is associated with accused Birender. Rather, PW-12 IO/SI Chander Shekhar had stated that the said flat was owned by one Arvind Kumar Bhaumik. However, there is no evidence as to how accused were associated S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 32 /38 with this Flat as the place of recovery is not a public place but a private house, which was found to be locked. Unless and until the prosecution gives some explanation as to how and why the accused Birender had kept the robbed money in that Flat, they cannot succeed in establishing the recovery of money and imputing it on the accused. Besides, no site plan of the place of recovery has been placed on record or proved.
16. There are no photographs of the site on record although the Crime Team was called at the spot. If the Crime Team had gone to the spot, they must have clicked photographs of the spot, including that of the electronic safe. No evidence has been placed on record to show the size of the said electronic safe to give an idea to the court as to whether it was big enough to accommodate the cash amounting to Rs. 91 lakhs which included notes of Rs. 1000, 500, 100 and 50. Besides, there is no evidence on record about the denomination of the notes which were kept in the safe and robbed from there.
S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 33 /38
17. No evidence has been produced by the prosecution to show as to how the screw driver, which is stated to have been found near the safe, was used. The safe is question was electronic safe which was operated by digital code *1234# and hence, there was no need for the accused persons to have used the said screw driver.
18. Prosecution has also not produced any evidence as to how and in what manner the cash was taken away by the accused persons from the spot. The containers used by the accused persons to carry the cash have neither been recovered nor produced nor disclosed as to what happened to those containers/bags. Further, there is no evidence of any neighbour that some persons had come to the spot i.e. L-8, Green Park on 26.7.2009 at about 10 pm in an auto nor is there any evidence about going of those persons out of L-8 Green Park.
19. Prosecution has also failed in bringing any evidence on record that the recovered auto was involved in the S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 34 /38 offence. PW-11 Saleem is the owner of the said auto who had got the same released on superdari. However, PW-9 ASI Islamuddin, in his cross-examination, has stated that the said auto belonged to one Dilip. This Dilip has not been examined as a witness by the prosecution. No documentary evidence has been produced which could associate accused Vikas with that auto. There is no witness from the vicinity of either the place of offence or the place of residence of accused that the said auto was being possessed at the relevant time by the accused Vikas.
20. PW-1 Krishan Singh Bohra had stated that the recovered currency notes had no special marking that those currency notes belonged to the complainant company.
21. It is cardinal principle of criminal law that it is the prosecution which has to prove its case beyond reasonable doubt and the prosecution has to stand on its own legs, without taking benefit from the weakness of the defence. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 35 /38 Accused can be asked to enter into its defence only after the prosecution has discharged its burden of proving its case beyond reasonable doubt.
22. The accused persons in their statements recorded u/s 313 Cr PC had denied their involvements and pleaded false implication. Accused Satish Gupta stated that he was in possession of a servant quarter at L-7 Green Park which the complainant company wanted him to vacate and when he did not vacate the said quarter, he was implicated in this false case. Accused Vikas Gupta claimed that the amount of Rs. 20,000/- was his money which he had kept for treatment of his wife and newly born son, but police arrested him from hospital.
23. This court is however, not testing their defence as the said stage comes only after the prosecution has crossed the stage of proving its case beyond reasonable doubt. S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 36 /38
24. It is no more res-integra that if no public witness is joined in a recovery and only police witnesses are there, the case of the prosecution cannot be disbelieved only on this ground as the court has to take into consideration the attendant circumstances also to arrive at the conclusion as to whether the witnesses can be believed or not.
25. It is painful for this Court to observe that the investigating agency has not shown professional approach in this case and rather conducted the investigation in a lackadaisical manner, which has helped the accused persons to slip through. Had the investigators worked diligently and with responsibility, the result might have been different.
26. The chain of events, thus, have not been proved by the prosecution beyond reasonable doubt so as to enable this court to give a finding in favour of the prosecution and against the accused persons. It is trite that in case the prosecution is unable to prove its case beyond reasonable S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 37 /38 doubt, its benefit has to go to the accused persons. But in the circumstances, this Court has no option but to acquit the accused persons, giving them benefit of doubt. However, in the circumstances of the case, the accused persons shall not have any claim on the recovered amount.
27. In the net result, the accused persons are acquitted giving them benefit of doubt.
Announced in the open Court. (Rajeev Bansal)
Dated:31.07.2013 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 46/10 FIR No. 269/09 State vs. Satish Gupta etc. 38 /38