Delhi District Court
State vs . Sushil Kumar Rastogi Etc. on 16 September, 2019
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. SUSHIL KUMAR RASTOGI ETC.
FIR No. 90/2005
New Case No. 293809/16
U/s : 420/120-B IPC
P.S. : Kotwali
Date of Institution : 24.10.2005
Date on which case reserved for Judgment : 16.09.2019
Date of judgment : 16.09.2019
JUDGMENT
1.FIR No. of the case : 90/2005
2.Date of the Commission : 13.03.2005
of the offence
3.Name of Complainant : Inspector R.S. Chauhan
4.Name of the accused : (1) Sushil Kumar Rastogi
S/o Sh. Jeevan Lal,
R/o H.No.265B, Gali No.10, Laxmi
Nagar, Delhi.
(2) Arpit Rastogi
S/o Sh. Sushil Kumar Rastogi,
R/o H.No.265B, Gali No.10, Laxmi
Nagar, Delhi.
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 1 / 20
(3) Ankit Rastogi
S/o Sh. Sushil Kumar Rastogi,
R/o H.No.265B, Gali No.10, Laxmi
Nagar, Delhi. (Proceedings qua
him abated vide order dated
25.04.2015).
5.Offence complained of : 420/120-B IPC
6.Plea of accused : Pleaded not guilty
7.Final order : Acquitted.
BRIEF FACTS
1. The story of the prosecution is that on or before 13.03.2005 accused persons alongwith coaccused Ankit Rastogi (since expired) entered into a criminal conspiracy and agreed to do an illegal act to cheat the public at large by selling them the question papers of Maths of 12th Standard of CBSE for a sum of Rs. 10,000/ each before the exam scheduled to be held on dated 14.03.2005 and accused persons in pursuance of criminal conspiracy on 13.03.2005 at about 11:30 Pm in the basement of H. No. 2847, Katra Kushal Rai, Kinari Bazar, Delhi where "Taxila Coaching" was displaced, sold a photostat copy of handwritten seven sheets stappled with a pin to trap witness Shweta (Neha) which was purported to be the question paper of 12th class, CBSE scheduled to be held on FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 2 / 20 14.03.2005 on the pretext that the question papers sold by accused persons and thereby accused persons committed offences punishable u/s 420/120B IPC. The matter was investigated and chargesheet was filed in the Court on 24.10.2005.
2. On the basis of the chargesheet, charge of offences under section 420/120B IPC was framed against the accused persons namely Sushil Kumar Rastogi and Arpit Rastogi and the charge was duly explained to them in vernacular to which they pleaded not guilty and claimed trial on 07.02.2009. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution has examined 12 witnesses in total.
4. PW1 Ms. Shweta Sharma deposed that in the year 2005, she was working as correspondence with Zee News Network. She received an information that some persons in the area of Chandni Chowk are indulging in the illegal activity of selling the solved question papers of Mathematics to the innocent students of Class XII. She got in touch with one Ankit on her mobile phone and met in front of Haldiram Shop at Chandni Chowk on 13.03.2005 between 11:00PM to 11:30 PM. She told Ankit that she want the solved question paper for her younger sister Shikha who is appearing in FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 3 / 20 Class XII exam. Thereafter, she discuss the information with her senior officers and talked the police officials and a raiding party was organized. She was accompanied her colleague Neha who was introduced as Shikha. On 13.03.2005 at about 11:15 PM she, Neha and police officer reached in front of Haldiram Shop, Chandni Chowk where one boy met them who told them that he is the same boy to whom she talked on telephone and led them in a street where Taxila Coaching Center was situated in basement. Accused Ankit handed over set of papers to the police officer and asked Rs. 10,000/ for the said papers. Police officer gave Rs. 10,000/ to the said boy and police officer also asked the boy to get the paper solved as the exam was scheduled on the next day. The boy told them that one part will be solved by him and the another part will be solved by brother and started solving the paper on register. Two other boys were also sitting there who were also getting the paper solved. In the meantime, the premises was raided by the police and two persons were apprehended. The money was also recovered from the drawer and the question paper which was given to the police officer by the said boy was seized and some another set of papers were also recovered. She could not identify the person who handed over the papers to her to whom she talked about the paper. She also could not identify the person who were apprehended from the coaching center as a period of five year has already been passed and not identified the accused in the court as the whole operation was carried out in the night hours. Accused Arpit had taken them i.e. herself, Ms. Neha Sharma (Shikha) and R.S. Chauhan (uncle of Shikha) to the basement of Taxila Coaching in FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 4 / 20 Kinari Bazar. Accused Arpit took the money and handed over the same to his father who was also present there. She correctly identified accused Arpit and his father in the court. On handing over the currency notes, father of accused Arpit had counted the notes and told that one note was in torn condition by accused Arpit had said to ignore. Thereafter, Mr. Sushil Kumar Rastogi, father of accused Arpit had kept the money in drawer of the desk. They had asked accused Arpit to solve the question paper as there was little time in starting of examination which was scheduled to be held on next date in the morning, on which accused Arpit had shown his competency only for a section of the question paper in a register which is Ex. PW3/D at page No. 41 bearing her signature at point A. and told that the remaining section shall be solved by his brother. During that time, two boys who told their names Samaksh and Amar from Happy School at Darya Ganj had also come to ask for question paper and to get the same solved but accused Arpit had told them that he could only given the question paper to them on arrival of their parents with money. Inspector R.S. Chauhan had handed over the money to accused Arpit. The currency notes were consisting of one thousand rupees note and eighteen notes of Rs. 500/. All these currency notes were signed with a blue colour pen by them i.e. himself, Ms. Neha and Inspector R.S. Chauhan. After sometime, Inspector R.S. Chauhan had indicated his team waiting outside the premises of coaching centre and the team entered inside and Inspector R.S. Chauhan had withdrawn the currency notes from the drawer of the desk kept there and two other sets of question paper were also withdrawn from the same FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 5 / 20 drawer of the desk. The question paper and the register were seized by the police vide memo Ex. PW3/B bearing her signature at point B. The recovered and seized money was kept in an envelop and the same was sealed with the seal of K.M. The question paper given by the accused Arpit against the paid money of Rs. 10,000/ is Ex. PW3/C (Set 1) and other two sets of question papers from desk are Ex. PW3/C( colly) (in set 2 & 3) bearing her signature at point B. A Bill book was also recovered which is Ex. PW3/E bearing her signature at point B. Her mobile No. 9810468370 at that time when she talked with accused Ankit at his mobile in the evening at about 07:00 PM on 13.03.2005. She asked for sometime and in the meantime she spoke to her boss namely Sh. Sanjay Vohra. She remember the first four digit and last four digit of mobile No. of accused Ankit which are 9899...4128 on which she called him and he called her back from the same number. She never met with accused Ankit so she cannot identify accused Ankit by face. She correctly identified accused Sushil Kumar Rastogi and Arpit Rastogi in the court. The currency notes of Rs. 500/ denomination are already Ex. P1 to Ex. P18 (Colly) and the currency note of Rs. 1,000/ is Ex. P19.
This witness was crossexamined by Ld. defence counsel. However her crossexamination is not being repeated for sake of brevity.
5. PW2 HC Madan Lal deposed that on 14.03.2005, he was posted as duty officer at PS Kotwali and at about 01:15, he received a rukka from HC Rambir sent by Inspector R.S. Chauhan of F& C, Crime Branch FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 6 / 20 for registration of case and on the basis of rukka, he recorded FIR No. 90/05, which is in his hands bearing his signature at point A. Copy of the same is Ex. PW2/A and he made endorsement on Ex. PW2/B bearing his signature at point A. This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
6. PW3 Ms. Neha deposed that in July 2004, she had joined Zee News Channel as a trainee correspondent. On 13.03.2005 she was called by her Bureau Chief Sanjay Vohra and Shweta Sharma and she was informed by Shweta Sharma that some persons were making effort to dupe innocent students of 12th Class of CBSE board on the pretext of making available question paper of Math subject after taking consideration. Her colleague Shweta Sharma also told that she has collected said information from one person namely Ankit and Ankit has called her in front of Haldiram PP Fountain for providing of Mathematic 12th class CBSE Board at about 11 11:30 PM. Thereafter, one sting team was formed by Sanjay Sir who instructed her to participate in the operation as Sikha Jain student of 12 th Class and also younger sister of Shweta. Thereafter, she alongwith her colleague Shweta and alongwith one camraman from Zee News Channel went to Haldiram, Chandni Chowk at about 11:00 PM and where Inspector R.S. Chauhan from concerned PS met us in civil uniform and joined the sting operation as her uncle. It was also decided that Rs. 10,000/ in lieu of question paper of Mathematic would be given to Ankit and she put her FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 7 / 20 signature on the each currency notes in the denomination of Rs. 1,000/ and Rs. 500/ and also signed by Inspector R.S. Chauhan and her colleague Shweta and reached in front of Haldiram. One young boy came there and asked from Shweta "Are you Shweta" to which she replied "Yes" and Shweta asked from that boy "Are you Ankit" to which he replied "No, I am Arpit, younger brother of Ankit and Ankit has gone to somewhere therefore he came to receive them. Thereafter, on asking of Arpit, they started following him and reached in the basement of a shop where the hoarding of Takshila Coaching was displaying. Accused Arpit asked "have you got the required amount" then Shweta replied "firstly you hand over question paper to them thereafter money would be paid.
This witness was crossexamined by Ld. defence counsel. However her crossexamination is not being repeated for sake of brevity.
7. PW4 Sh. Samaksh Jain deposed that in the year 2005, he was studying in the 12th, Happy School, Darya Ganj, Delhi. He was taking coaching classes from the Taxila Coaching Center run by accused Ankit Rastogi. He alongwith his friends were studying in the above said center and were waiting for Ankit for certain quarries and at about 0707:30 PM, while they were sitting there two girls with one boy alongwith younger brother of accused Ankit came to the institute. At about 09/09:30 PM, number of persons who claimed from CBI came there and started search of their bags and took them to Kutub Institutional area where media was also present. He correctly identified father, brother and accused Ankit in the FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 8 / 20 court.
This witness was crossexamined by Ld. APP for State. However his crossexamination is not being repeated for sake of brevity.
8. PW5 Sh. Ammar Ahmad deposed that in the year 2005, he was studying in 12th class and taking tuition classes from Taxila Coaching Center, Kinari Bazar run by accused Ankit. In the month of March 2005, he alongwith his friend were waiting for the accused Ankit regarding some queries/clarification as they had Mathematics paper on the next day. Accused Arpit alongwith two or three persons i.e. two ladies and one gents came there and sit there on a separate table with accused Arpit and starting talking on a topic which he do not know. Apparently accused Arpit was clearing some doubts and was teaching them from a book. After half and hour some persons came there and told the accused Arpit that they belonged to crime branch and had information of selling of question papers of Mathematics. They interrogated accused Arpit and asked him to call his brother Ankit and his father. The police personal took everyone outside the institute where some camera persons were present. The police took them to crime branch office in their vehicle where he alongwith Samaksh Jain were asked to sit a separate room for couples of hours. He correctly identified accused Arpit in the court.
This witness was crossexamined by Ld. APP for State. However his crossexamination is not being repeated for sake of brevity.
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 9 / 209. PW6 Smt. Farhat Ara deposed that her son Ammar used to attend some coaching center situated behind Jama Masjid and he was studying in 12th class. On one night, she received a phone call that her son has been arrested and she was called by Hauz Khas police officials.
This witness was crossexamined by Ld. APP for State. However her crossexamination is not being repeated for sake of brevity.
10. PW7 Sh. Pawnesh Kumar deposed that on 14.03.2005, he was posted as Controller of Examination, CBSE, Shiksha Kendra, 2 Community Center, Preet Vihar, Delhi. On that day, he handed over one letter No. CE/Conf./2005/938 dated 14.03.2005 stating that nine sets of Mathematics question papers for Class XII examination, 2005 Ex. PW7/B (colly) were being handed over to IO. The said letter is Ex. PW7/A bearing his signature at point A. This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
11. PW8 ASI Rambir Singh deposed that on 13.03.2005, he was posted as HC with F&C Section, EOW, Crime Branch. He alongwith Inspector R.S. Chauhan and other police officials went to PP Fountain, Chandani Chowk, Delhi. Thereafter, they went to Haldiram situated at Chandani Chwok and from there they went to Kinari Bazar. IO handed over him a rukka for registration of FIR in the PS Kotwali. He got the FIR registered and handed over the original rukka and copy of FIR to the IO.
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 10 / 20This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
12. PW9 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Idea Ltd deposed that he has seen call details record of mobile No. 9899004128 for the period from 01.03.2005 to 27.03.2005 (running into 7 pages) which are Ex. PW9/A (colly).
This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
13. PW10 Inspector Ranjay Atrishya deposed that on 13.03.2005 he was posted as SI with Fraud and Cheating Section, EOW, Crime Branch and on instructions from senior officers at around 10:30 PM, he reached at PP Fountain alongwith other members of team consisting of Inspector R.S. Chauhan, Inspector H.M. Bakshi, SI Vinod Gandhi, SI Manmohan Singh and HC Rambir. The gist of the information was shared by Inspector R.S. Chauhan with the team where two ladies namely Shweta Sharma and Neha Sharma who were correspondents from Zee News were also present. At around 11:15 PM, they reached at Haldiram Shop and he was supposed to be Shadow witness. He positioned himself with the west side of the Haldiram shop whereas Inspector R.S. Chauhan alongwith Shweta and Neha positioned themselves in front of the shop as the accused persons had asked to bring the candidates. Neha Sharma was posed as Shikha Jain and Inspector R.S. Chauhan posed as Uncle of Shikha Jain. At FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 11 / 20 around 11:30 PM, one boy namely Arpt Rastogi approached Shweta Sharma and after a brief talk, they started walking towards Katra Kushal Rai, Kinari Bazar. He too followed them in close proximity and after going through various lanes and by lanes they reached in the basement of H. No. 2847, Katra Kushal Rai, Kinari Bazar. He placed himself at a strategic location from where he would hear the conversation of accused and the team members and could also see them. Accused Arpit Rastogi sat on one of the 45 chairs behind the table and asked for promised money but Inspector R.S. Chauhan asked him to first show the question papers. Accused Arpit showed a set of question papers having 7 leaves which were tagged with the pin to Inspector R.s. Chauhan and Inspector R.S. Chauhan handed over Rs. 10,000/ to accused Arpit Rastogi. He correctly identified accused Arpit in the court. The said amount of Rs. 10,000/ was having one currency note of Rs. 1,000/ and 18 currency notes of Rs. 500/ denomination. Accused Arpit handed over the same amount to his father Sushil Rastogi (correctly identified by the witness in the court) who after counting the said amount stated that Rs. 1,000/ denomination note was torn on which accused Arpit took back the said amount from his father and stated that it OK and kept the amount in the drawer of the table. In the meantime, two boys namely Shaksham and Ammar also arrived at the spot and introduced themselves as 12th Class student of Happy School, Darya Ganj, Delhi. Both of them had to appear in the Math paper on 14.03.2005 and they asked for the Math question paper from accused Arpit Rastogi who asked them to wait till their parents/guardians come with the promised FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 12 / 20 money for Math question paper. After getting the papers Neha Sharma (Sikha Jain) asked accused Arpit Rastogi to solve the Math paper as there was very little time left on which accused Arpit Rastogi stated that he could only solve the Csection of the Math paper and the rest would be solved by his brother Ankit Rastogi. Accused Arpit Rastogi stared solving the paper in a register kept on the table. He signalled the raiding team with a pre decided signal and they rushed to the spot. Inspector R.S. Chauhan introduced himself and team members to accused persons and also gave the purpose of visit to accused persons. Inspector R.S. Chauhan seized the amount of Rs. 10,000/ from the drawer of the table and kept the amount in an envelop. He also seized the register and sent the rukka for registration of the case through HC Rambir. SI Manmohan Singh took over the investigation and after getting sufficient evidence against the accused persons, they were arrested. During the course of investigation, IO recorded disclosure statements of accused persons which are Ex. PW10/A and Ex. PW10/B bearing his signature at point A. IO also conducted the personal search of accused Sushil Rastogi and accused Arpit Rastogi vide memo are Ex. PW10/C and Ex. PW10/D bearing his signatures at point A. This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
14. PW11 Inspector Keshav Mathur deposed that on 13.03.2005, he was member of the raiding team and a raid was conducted at Kinari Bazar, Delhi 06 from where two of the accused persons namely FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 13 / 20 Arpit Rastogi and Sushil Rastogi (correctly identified by the witness in the court) were arrested by IO. On 13.03.2005, accused Ankit Rastogi was arrested by IO and his disclosure statement is Ex. PW11/A bearing his signature at point A. This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
15. PW12 Inspector Manmohan Singh deposed that on 13.03.2005, he was directed to reach Fountain, Chandani Chowk. He alongwith Inspector R.S. Chauhan, Inspector H.M Bakshi and other police officials reached the spot at about 10:45 PM. Shadow witness SI Ranjay came out and signalled the police team and they went inside the basement. They found accused Arpit and Sushil Rastogi (correctly identified by the witness in the court). A hand written copy of question paper of Math was shown to him by the girls and girls said the same was given to them by accused persons. Inspector R.S. Chauhan prepared rukka which is Ex. PW12/A and got the FIR registered. He seized Rs. 10,000/ and other articles vide seizure memo Ex. PW3/A and question paper seized vide memo Ex. PW3/B bearing his signatures at point B and C respectively. He arrested accused Arpit Rastogi and Sushil Rastogi vide memo Ex. PW10/C and Ex. PW10/D bearing his signatures at point B and their personal search memo are Ex. PW12/B and Ex. PW12/C bearing his signature at point A. he recorded the disclosure statement of accused persons which are Ex. PW10/A and Ex. PW10/B and Ex. PW11/A respectively, all bearing his FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 14 / 20 signature at point B. He also arrested Ankit (since deceased) Ex. PW12/D bearing his signature at point A and his personal search memo Ex. PW12/E bearing his signature at point A. The call details of witness Shweta and accused Ankit were obtainied in which it was shown that both had spoken with each other. He recorded statement of witnesses and collected documents placed on record. The case property is Ex. P1 to Ex. P18 and Ex. P19.
This witness was crossexamined by Ld. defence counsel. However his crossexamination is not being repeated for sake of brevity.
16. As all witnesses were examined by the prosecution, prosecution evidence was closed vide order dated 29.07.2019. Statement of the accused persons U/s 313 Cr. PC was recorded on 26.08.2019 and as no defence evidence was lead, matter was listed for final arguments. Final arguments were heard on 16.09.2019.
17. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
18. It is alleged by the prosecution that on or before 13.03.2005 accused persons alongwith coaccused Ankit Rastogi (since expired) entered into a criminal conspiracy and agreed to do an illegal act to cheat the public at large by selling them the question papers of Maths of 12th FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 15 / 20 Standard of CBSE for a sum of Rs. 10,000/ each before the exam scheduled to be held on dated 14.03.2005 and accused persons in pursuance of criminal conspiracy on 13.03.2005 at about 11:30 Pm in the basement of H. No. 2847, Katra Kushal Rai, Kinari Bazar, Delhi where "Taxila Coaching" was displaced, sold a photostat copy of handwritten seven sheets stappled with a pin to trap witness Shweta (Neha) which was purported to be the question paper of 12th class, CBSE scheduled to be held on 14.03.2005 on the pretext that the question papers sold by accused persons and thereby accused persons committed offences punishable u/s 420/120B IPC. The matter was investigated and chargesheet was filed in the Court on 24.10.2005.
19. In this regard, the prosecution has examined 12 witnesses in total including the complainant as PW1 Ms. Shweta Sharma and PW3 Ms. Neha, PW4 Sh. Samaksh Jain, PW5 Sh. Ammar Ahmad and PW6 Smt. Farhat Ara as public witnesses.
20. The main witness for the prosecution is PW1 Ms. Shweta Sharma who earlier deposed that she did not identify any of the accused persons who were apprehended from the coaching centre and as the operation was carried out at night, she was unable to recognize faces of any of the accused persons.
21. Thereafter on further examination in chief recorded on FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 16 / 20 09.01.2017, the witness identified the accused Arpit and his father and refused to identify accused Ankit. Thus, it is clear that complainant is an unreliable witness. Considering the fact that on one date of hearing, she refused to identify accused persons and on another date of hearing, she identified the accused persons. Further, the testimony of PW1 Ms. Shweta Sharma is not corroborated by material witness PW3 Ms. Neha who accompanied PW1 Shweta Sharma during the raid. PW1 Ms. Shweta Sharma nowhere stated that she was accompanied by a cameraman whereas PW3 Ms. Neha stated that she and Shweta Sharma were accompanied by a cameraman.
22. The third witness namely PW4 Sh. Samaksh Jain also resiled from his original statement and was crossexamined by Ld. APP for State and he denied the suggestions that police had recovered some documents in his presence from the accused persons. He further denied the suggestions that he had any knowledge about solving of math paper for a consideration of Rs.10,000/.
23. Similarly, PW5 Sh. Ammar Ahmad refused to identify one of the accused persons and as he also resiled from his original statement, he was crossexamined by Ld. APP for State and he completely denied the suggestions of the prosecution when he was crossexamined by Ld. APP for State and thus this witness cannot be considered to be a reliable witness.
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 17 / 2024. PW6 Smt. Farhat Ara also resiled from her original statement and denied all the suggestions put by Ld. APP for State. Even otherwise, various contradictions were noted during the crossexamination of PW1 Shweta Sharma and PW3 Ms. Neha with regard to accompanying of the photographer.
25. Even otherwise, no other independent witnesses were joined by the IO in the raid. No other occupants of the place where the raid was conducted were joined by the IO. It remains unexplained as to why the cameraman who accompanied the witnesses were not examined as witness by the prosecution.
26. Apart from the material witnesses having resiled from their original statements, the Investigating Officer (IO) failed to send the seized documents to FSL for any fingerprints or handwriting examination. There is nothing to connect the accused persons to the solved question papers as alleged by the prosecution. There are contradictions in the testimonies of PW3 and the IO with regard to the source of amount of Rs.10,000/. As per PW3 Ms. Neha, PW1 Ms. Shweta Sharma was carrying Rs.10,000/ whereas as per the crossexamination of the IO Inspector Man Mohan Singh, the said amount was borrowed by Inspector R.S. Chauhan from his friend. Thus, it is not clear as to who procured the amount of Rs.10,000/ before handing over to the accused persons.
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 18 / 2027. As per the crossexamination of PW3 Ms. Neha, their entry and exit details used to be recorded in the logbook of their office. However no such departure entry were seized by the IO to substantiate the presence of PWs Ms. Neha and Ms. Shweta Sharma during the raid. PW12 who is IO of the present case admitted during his crossexamination that no DD entry as regards his departure for raid his made. He further did not seize any DD entry of police officials from PS Kotwali regarding their departure and arrival from the spot. He admitted that he did not join the owner of the building in the investigation where the raid was conducted. He also did not join any other independent witnesses. He admitted that he did not obtain the specimen handwriting and signatures of the accused persons as well as of Sanjay. The IO could have obtained the CAF form, CDR details of the PWs as well as the accused persons to substantiate their presence at the spot, however, the same was not done. No recording of the conversation between the accused persons and the PWs were placed on record by the IO.
28. Thus, considering the fact that all the main public witnesses have resiled from their original statements and considering the above loopholes in the investigation, it is clear that none of the witnesses have deposed or proved the allegations of the prosecution against accused Sushil Kumar Rastogi and Arpit Rastogi and thus benefit of doubt is required to be given to both accused persons.
29. It has been held in case of Sadhu Singh V/s State of Punjab FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 19 / 20 1997(3) Crime 55 the Hon'ble Punjab & Haryana High Court : "In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
30. Since the factual matrix of the case has not been proved, I feel no hesitation in stating that prosecution has failed to prove its case against the accused persons. Hence, accused persons namely Sushil Kumar Rastogi and Arpit Rastogi are acquitted of the charge framed for the offence punishable U/s 420/120B IPC.
31. Ordered accordingly.
Digitally signed by CHETNA CHETNA SINGH
Announced in the open SINGH Date:
2019.09.18
Court on 16.09.2019 16:38:57 +0000
(Chetna Singh)
Addl. Chief Metropolitan Magistrate
Central/Tis Hazari Courts, Delhi/16.09.2019
FIR No. 90/2005 State Vs Sushil Kumar Rastogi etc PS: Kotwali Page No. 20 / 20