Delhi District Court
State vs Gaurav Bhati on 16 September, 2023
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, NEW DELHI
SC NO. 149/2020
FIR NO. 387/2019
PS : Gazipur
U/S: 384/392/397/201/506 IPC
STATE
VERSUS
GAURAV BHATI
S/o Pramod Kumar
R/o House No. 2,
Gali No. 1, Prashant Garden,
Khoda Colony, U.P.
Date of Institution : 07.03.2020
Arguments Heard : 10.08.2023
Date of Judgment : 16.09.2023
JUDGMENT
1. Prosecution has filed present chargesheet against accused Gaurav Bhati for offences under sections 384/392/397/201/506 IPC. Case of the prosecution is that on 16.11.2019, PW-1 complainant Vinod Saharay S/o Sh. Munna Lal Saharay came to PS Gazipur and PW-7 IO ASI Sher Singh recorded his statement, wherein PW1 stated that he is permanent resident of Village Girola, Tehsil and District Godiya, Maharashtra and presently working as Toll Operator in MEP Toll Company at Toll Booth situated near CRPF Camp, Khoda Road, Delhi. On 16.11.2019 at about 3.00 a.m., he was on duty with two guards namely Parimal Singh and Krishan Singh. At that time, one person i.e. SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 1 of 17 accused Gaurav Bhati came there and threatened him by saying that as he had already worked on the said toll booth, he had to give him money and also to allow vehicles, as directed by him, to pass without charging toll. Thereafter, accused went away, while showing pistol to them. After some time, he returned and asked Toll Officials to hand over DVR of the CCTV installed there, as his recording was captured in the same. When PW1 refused to hand over DVR, accused took out pistol and on the point of pistol, dragged them to one side and took away the said DVR and left the spot in his white Brezza car, bearing registration no. UP- 16-6038. Due to fear, no police call was made however, PW1 informed his company about the said incident. On instructions of his company, he went to police station for recording his statement. Accused Gaurav Bhati had come at the Toll Booth 2-3 times before the incident and had threatened them and thus, he knew him that he resides somewhere in Khoda. On his statement Ex.PW1/A, IO prepared rukka and FIR was got registered. On the pointing out of the complainant PW-1 Vinod Saharay, IO prepared Site Plan. On 17.12.2019, accused Gaurav Bhati moved surrender cum Bail Application before the Court, where he was formally arrested. Case property could not be recovered despite efforts. IO recorded statement of witnesses. After investigation, charge-sheet under Section 392/397/385/ 201/506 IPC was filed.
2. Charge under section 385/392/397 IPC was framed against the accused on 16.03.2020 to which he pleaded not guilty and claimed trial.
3. Prosecution in support of its case examined 6 witnesses.
SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 2 of 17
(i) PW-1 Vinod Saharay is the complainant. He is the star witness of the prosecution being the complainant. He has testified that he was working as an Operator in MEP Toll Company for more than two years. In the intervening night of 15- 16.11.2019, he was performing his duty as Operator at Toll Booth, situated near CRPF Camp, Khora Road, Delhi. On that day, Security Guards Parimal Singh (PW-6) and Krishna Singh (PW-2) were performing their duties with him at the Toll Booth. At about 3.00 am, one person namely Gaurav Bhati came there and threatened him on the point of pistol that he had already worked on the aforesaid Toll Booth with some other company and he would not pay the toll for his vehicle. Thereafter, he went away. After some time, accused Gaurav Bhati again came back in a white colour Breza Car bearing Registration No. 6038 at the Toll Booth and asked him to hand over the DVR of the Camera installed at the Toll Booth. But, he refused to hand over the DVR to him. However, on the point of pistol, accused took away the DVR from the Toll Booth. He informed the official of his company. Some officials came there and took him to Police Station Gazipur where the matter was reported to the police. Police recorded his statement in the Police Station which is Ex.PW1/A. He has identified his signatures on his statement. He further deposed that security Guard Krishna told him that earlier also, on one or two occasions, accused Gaurav Bhati had come at the aforesaid Toll Booth. He has correctly identified the accused Gaurav Bhati in the Court. Police prepared site plan at his instance. On 17.11.2019, he was called by the police in the SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 3 of 17 Police Station where he identified the accused Gaurav Bhati. In an answer to the leading question put by Ld. Additional P.P., this witness had admitted that he had gone to Police Station Gazi Pur on 17.12.2019, where he identified the accused. During his cross- examination, he had stated that they collect toll tax of commercial vehicles only. He had admitted that he had not disclosed physical profile of the accused nor did he disclose colour of the pistol to the police. He did not know the make of the DVR. The altercation with the accused took place for about 15-20 minutes. There was only one Tax collecting counter at that time & no other car was present for paying the tax. He had not made a call at number 100 to the police. None of the officials had made a call at number 100 in his presence.
(ii) PW-2 Krishan Singh is eye witness to the incident, who was also present at the Toll Booth at the time of incident. He deposed that he has been working as Security Guard with M/s MEP Company two months prior to registration of the present case. He stated that in the intervening night of 15-16.11.2019, he was performing his duty at Toll Booth near CRPF Camp, Delhi. Vinod Sahare (PW-1) was performing his duty there as Operator and Parimal (PW-6) was also performing his duty as guard there. At about 3.00 am, one person namely Gaurav Bhati came there and threatened the Operator Vinod Sahare that he had already worked on that Toll Booth and would not pay the toll for crossing his vehicle. At that time, he was present there with the Operator Vinod Sahare. Thereafter, accused Gaurav Bhati went away from there. After some time, Gaurav Bhati came back, took out a SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 4 of 17 pistol and took away the DVR installed inside the Toll Booth. Accused also threatened not to report the matter to the police and thereafter, he went away. He has correctly identified accused Gaurav Bhati present in the Court. The Operator Vinod Sahare informed the official of his company. Company officials came at the Toll Booth in the evening and he gave his complaint in writing to them at about 8.00 pm when he joined his night duty on 16.11.2019. Matter was also reported to the police. Thereafter, company officials went away. Police officials came at Toll Booth in the evening and they also made enquiries from him. During his cross-examination, this witness deposed that he help in streamlining of the vehicles and collection of tax. He admitted that the toll booth is situated 10 paces away from Gurjar Gate. There are houses and shops near that gate. He had not noticed any camera on the said Gurjar Gate. Police had recorded statement of Vinod Sahare in his presence. He did not call police at number 100. He admitted that PCR of U.P. Police and Delhi Police pass through that area on road. They did not stop any PCR vehicle.
(iii) PW-3 HC Rambir is Duty Officer. He deposed that ASI Sher Singh presented rukka, drawn on the statement of Vinod Saharay Ex.PW1/A and on the basis of said Rukka, the present FIR was registered. He has proved computerized copy of FIR as Ex.PW3/A, endorsement on rukka as Ex.PW3/B and certificate under Section 65B of Indian Evidence Act as Ex.PW3/C. SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 5 of 17
(iv) PW-4 HC Amit Kumar has proved arrest memo of accused as Ex.PW4/A, personal search memo of accused as Ex.PW4/B, pointing out memo at the instance of the accused as Ex.PW4/C, disclosure statement of accused as Ex.PW4/D.
(v) PW-5 Ct. Pradeep has deposed that he handed over the rukka and copy of FIR to IO and thereafter, joined the investigation with the IO.
(vi) PW-6 Parimal Singh is also eye witness to the incident. He deposed that it was the incident of intervening night of 15- 16.11.2019. In those days, he was working in NPS Company as Security Guard. His duty was at Toll near CRPF Camp. One another Guard namely Krishna Singh (PW-2) was also present there apart from one Toll Operator Vinod Sahare (PW-1). At about 3.00 am, accused Gaurav Bhati (correctly identified) came in a white colour Breeza car. Accused took out a gun and pointed out towards Toll Operator and threatened him that he would not pay toll charges of his car. He further threatened that they had to exempt toll charges of the vehicles as per his wish. He also told that he had already operated that Toll before and they had to act as per his wishes. Thereafter, he left. After 5-10 minutes, he again returned to the toll and pointed out his gun towards Toll Operator and demanded the DVR of CCTV camera installed at the Toll Plaza. Thereafter, he himself took out the DVR from the system and again threatened them not to inform the police. Booth Operator informed the Manager. Manager came to the spot. After some time, police also reached at the spot and present case was registered. He has deposed that he does not remember the SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 6 of 17 registration number of the Breeza Car of accused Gaurav Bhati. In an answer to the leading question put by Ld. Additional P.P., this witness had stated that he cannot say if the registration number of the Breeza Car of accused was UP-16-6038. He has admitted that he has forgotten the registration number due to lapse of time. During cross-examination, this witness has stated that distance between Toll Plaza and Gazipur is about 300 meters. Police patrolling is usually done during night time by Delhi and U.P. Police. He did not inform the police that accused had pointed a gun towards Toll collector. He knew the name of accused Gaurav Bhati as he used to frequently pass through that Toll. He had informed his senior J.P. regarding the incident. He was Supervisor in the company. At the time of incident, Managers of Toll Collection Company and their Flying Squad (7- 8 persons) had come to the spot. Manager had called the police there itself at about 3.00 a.m. in presence of this witness. Police had reached at the spot within 10 minutes of the call. He did not note down the registration number of the car. He was standing at a distance of 50 meters from the place of incident.
(vii) PW-7 ASI Sher Singh is the Investigating Officer, who has recorded the statement of complainant (PW1) Vinod Sahare and prepared rukka Ex.PW7/A and handed over the same to Duty Officer directly and got the present FIR registered. Thereafter, he reached at Toll Booth near CRPF Camp, Khora Colony. Complainant also reached there. He prepared a site plan Ex.PW7/B on the instance of complainant. He inquired guards on the Toll. Meanwhile one constable came there and handed him SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 7 of 17 over copy of FIR alongwith original rukka. He recorded the statements of guards Parimal, Krishna and supplementary statement of complainant. Complainant gave complete particulars of the accused Gaurav Bhati in his supplementary statement. He checked the CCTV footage in the vicinity but of no avail. He alongwith that constable went at the address of accused Gaurav Bhati, however, he was not present there. Thereafter, they returned back to the PS. He recorded statement of that constable. On 17.12.2019, accused moved his surrender cum bail application. He also reached in the court and obtained permission from the court to interrogate and formally arrest the accused. He recorded disclosure statement of accused Ex.PW4/D. Accused was arrested vide arrest memo Ex.PW4/A. Thereafter, SI Amit took the charge of this case and obtained one day PC of the accused and handed over the custody of the accused to him. Pointing out memo Ex.PW4/C was prepared at the instance of the accused. He tried to get recovered the case property of this case i.e. used pistol and DVR but of no avail. HC Amit was with him at that time and he recorded his statement U/s 161 Cr.P.C. Accused was sent to lockup and on the next day he was produced before the court and was sent to JC. After completion of the investigation, he prepared the chargesheet and submitted the same before the court for judicial verdict. He has correctly identified accused Gaurav Bhati.
4. In his cross-examination, this witness has deposed that he reached at the spot where he met only two guards Parimal and Krishna and the complainant and did not meet anyone else. He SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 8 of 17 did not request any independent public person to join the investigation. He had admitted that the complainant did not give any physical description of the accused Gaurav Bhati. When he reached the house of the accused for the first time, he met a very old lady and she disclosed to be the grandmother ( nani) of the accused and he did not serve any notice on her to produce the accused. He did not seize instruments relating to DVR i.e. Computer, CPU, connecting wire etc. He did not collect any scientific evidence to prove the installation of DVR on the date of incident. The company did not provide purchasing or ownership proof of the DVR. They did not provide the make, model, colour and version of the DVR. He even did not collect attendance register of the guards and complainant, however, he collected company report Ex.PW7/DA with regard to duty of those persons. He admitted that initially complainant mentioned one Breeza car no. UP 16 6038 of white colour in his statement Ex.PW1/A. He also admitted that both the guards also disclosed the same number in their statement u/s 161 Cr.P.C. He did not contact the owner of the said vehicle no. UP 16 6038 in any manner. He volunteered that when he interrogated accused, he disclosed the complete and actual number of the car as UP 14DN 6088 and examined its owner. He admitted that this number is not mentioned in the disclosure statement of the accused Ex.PW4/D. He did not record statement of owner of car no. UP 14DN 6088 nor cited him as a witness. He had admitted that he did not collect any documentary evidence except letter of the company to establish presence of the complainant and two SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 9 of 17 guards. There were shops surrounding the spot and several residential houses were also there at some distance from the Toll, but admittedly, IO did not call any person from there.
5. Statement of accused was recorded under section 313 Cr.PC in which he denied all the allegations and submitted that it is a false case and he is innocent and has been falsely implicated in this case. No DE has been led by the accused.
6. Sh. Gaurav Pandey, learned Additional Public Prosecutor has argued that complainant / PW-1 has supported the contents of the FIR. He was cross-examined at length by the accused but his testimony remained unshaken. Other two important prosecution witnesses PW-2 and PW-6 who were also working in the Toll Booth were present at the spot and both had suppoted the case of prosecution. It is stated that PW-2 and PW-6 had also supported the statement made by complainant PW-1. It is stated that the case property i.e. DVR could not be recovered but that will not cause any dent on the prosecution case.
7. Sh. Kulvinder Singh, learned Counsel on behalf of accused has argued that prosecution has miserably failed to prove its case against the accused. It is argued that there is delay of 15 hours in registration of the FIR despite the fact that PCR van of Delhi and U.P. visited there but complainant had not stopped the PCR van and reported the incident. Prosecution has not examined any official of the MEP Infrastructure Developers Ltd. Company and NPS Security. He has argued that there is contradiction in the motive as mentioned in the original complaint given by the complainant to the police and in his SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 10 of 17 deposition made in the Court. It is further argued that the author of Ex.PW7/DA which mentions the presence of PW-1, PW-2 and PW-6 at the spot on the time and date of incident has not been cited, produced or examined as a witness. It is further argued that none of the witnesses examined by the prosecution has testified about the colour, model or make of the DVR. There is no recovery of DVR and weapon of offence. There is contradiction regarding registration number of the car in which accused had come to the spot and committed the alleged offence.
8. I have heard and considered the submissions of Ld. Counsels for the parties. I have carefully perused the evidence led by the prosecution.
9. Case of the prosecution is that accused Gaurav Bhati has threatened PW-1 Vinod Saharay on the intervening night of 15/16.11.2019, while performing his duty at Toll Plaza at about 3.00 a.m. by saying that he had already worked on that booth, due to which PW-1 had to pay money to him and to allow the vehicles as directed by accused to pass the Toll, without paying any toll tax. It is also the case of prosecution, as per the FIR that accused Gaurav Bhati had shown the pistol to complainant and left the place but after some time, he again came to the spot and asked the complainant to hand over the DVR of CCTV on the reason that said DVR must be having his recording. When complainant refused to hand over the DVR, accused took out his pistol and after pointing the gun/pistol towards the complainant, he himself took the DVR and went from the spot in his Brezza car bearing registration no. UP 16 6038.
SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 11 of 17
10. The case of prosecution is that this incident is of 3.00 a.m. in the morning on 16.11.2019, but, the complaint was made in the evening at about 6.00 p.m. by the complainant. There is no explanation tendered either by the complainant or by the prosecution about the delay of more than 15 hours in lodging the complaint with the police. It is also important to consider here that as per the case of prosecution and the statement made by the material witnesses i.e. PW-1, PW-2 and PW-6, the information of incident was given by them immediately, to their superiors in the company, despite that, neither any superior officer of these witnesses have been examined by the prosecution nor there is any statement of any such superior, on record. As per the case of IO, he has not examined or inquired from any of the officers of the MEP Infrastructure Developers Ltd. Company and NPS Security. Therefore, the question arises, once an alleged incident has taken place and it is admitted by PW-1 that he has informed the senior officers about the incident immediately, who had reached the spot also, why the complaint was not made at that very time, either by PW-1 or by any senior officer and why the matter was kept pending till 6.00 p.m., on the same day. These questions have not been explained by the prosecution in any manner.
11. After considering the complaint as lodged by the complainant, on which, the FIR was registered and the statement of complainant recorded in Court as PW-1, it appears that, there are material contradictions, which make the case of the prosecution not trustworthy and unreliable. When complainant SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 12 of 17 has appeared as PW-1, in his examination-in-chief, he has stated that accused came at about 3.00 a.m. and threatened him on the point of pistol that he had already worked on the aforesaid Toll Booth with some other company and he would not pay the Toll Tax for his vehicle. Therefore, the allegation of complainant is that accused threatened the PW-1/complainant by stating that he would not pay toll tax for his vehicle, which later in the complaint and evidence has been identified as white colour Brezza car bearing registration no. 6038. On this point alone, the prosecution case cannot stand on its leg, as admitted, the toll tax was being charged only for commercial vehicles as is admitted by PW-1 in his cross-examination, but, there is not even an iota of evidence led by prosecution to prove that the vehicle of accused was a commercial vehicle or not. If the vehicle of accused was a private vehicle then, the question of paying toll tax for passing of that car does not arise. Hence, the case of the prosecution that accused threatened the complainant by saying that he will not pay toll does not appear to be believable.
12. Secondly, none of the prosecution witnesses has proved the vehicle number of the car of the accused. It is stated by PW-1, PW-2 and PW-6 in their evidence that the vehicle number of car of accused is UP-16-6038, however, it is only the IO PW-7 ASI Sher Singh, who has stated that number of vehicle of accused was not UP-16-6038 but was UP 14DN 6088. Again, there is no document placed on record, by the IO to prove that accused was having any such vehicle in his possession or that vehicle was a commercial vehicle or not.
SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 13 of 17
13. PW-2 Krishna Singh has stated in his cross-examination that he had given the complaint in writing to the company officials at about 8.00 p.m., on 16.11.2019, however, no such fact has been proved on record. Neither any such complaint has been filed on record.
14. PW-6 Parimal in his cross-examination has stated that he had informed his senior by the name of J.P. regarding the incident and their Flying Squad had come at the spot. The Manager of Toll Booth had called the police, there itself. PW-6 has further stated, in his cross-examination, that Manager had called the police in his presence at 3.00 a.m., but as per record and the evidence led by the prosecution, there is no document or DD entry which could prove that police had visited the spot in question at 3.00 a.m. or any information of such incident was received by the police at 3.00 a.m. on 16.11.2019. Therefore, the testimony of PW-6 does not appear to be reliable, being in contradiction to case of prosecution.
15. The case of prosecution is that since, in the first instance, accused had shown his gun/pistol to the complainant, therefore, he came at the second time to take away the DVR in order to destroy the evidence, but it has been admitted by PW-5 Ct. Pradeep, as stated in his examination-in-chief that IO has checked CCTV cameras installed at Toll Booth, and the same were not found in working condition. Therefore, the case of prosecution that accused wanted to commit robbery of DVR by putting the complainant in danger or threat by pointing out the gun does not appear to be plausible.
SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 14 of 17
16. Accused in the present case has been chargesheeted for offences punishable under Sections 385/392/397 IPC. For proving the case against the accused, prosecution was required to prove that accused had put complainant or any other victim under threat or fear of injury and by doing so, had induced the person to deliver any property or valuable security to the accused. Admittedly, in the present case, in the first instance, when accused had allegedly come and threatened the complainant, he only told the complainant that he will not pay Toll for his car as per statement (Ex.PW1/A). Therefore, by making this statement, accused has not demanded any property or valuable security from the complainant. It is the case of the prosecution that he had shown the pistol to complainant, but there is no statement of complainant or any other witness i.e. PW-2 and PW-6 to prove that accused had threatened them of causing any injury either to the complainant or to any other person. Therefore, I am of the opinion that the ingredients of extortion as per Section 383 IPC has not been proved on record by the prosecution.
17. Neither the details of DVR has been mentioned by the complainant. No system of computer or DVR or electronics have been recovered or seized by the IO from the company. There is no official report of the MEP Infrastructure Developers Ltd. saying that DVR of the Toll Booth has been stolen or misplaced or taken away by any person especially the accused. In the absence of there being any complaint by the MEP Infrastructure Developers Ltd. which was running the Toll Booth claiming that DVR has been misplaced or stolen or taken away, I am of the SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 15 of 17 opinion that it cannot be considered that accused had committed robbery or theft of DVR.
18. Since, the prosecution has not been able to prove that accused has committed extortion on the complainant, therefore, no case is proved against the accused under Section 385 IPC because even at the second instance, accused allegedly had taken out the DVR himself and not made the complainant to deliver the same. Therefore, in my opinion, no case against the accused is proved under Sections 385 read with Section 383 IPC. Similarly, the offence under Sections 392 and 397 IPC are also not established or proved beyond reasonable doubt against the accused because, once extortion is not proved by the prosecution, the same cannot constitute an offence of robbery allegedly committed by the accused and the offence under Section 397 IPC is also not proved against the accused because there is no evidence on record that accused had used 'gun' to force, complainant to deliver any valuable property or security to accused.
19. In view of my above discussion, I am of the opinion that since there is delay of about 15 hours in registration of FIR, no official or senior officials of MEP Infrastructure Developers Ltd. Company and NPS Security have been examined by the IO or made witness in this case. There is no official report of the company stating that DVR of the Toll Booth has been stolen or robbed, hence, the prosecution has not been able to prove this case against accused, beyond reasonable doubt. The prosecution has also not proved that the car of the accused was a commercial SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 16 of 17 vehicle. Even the number of car is under doubt as the IO PW-7 ASI Sher Singh has stated that the number of car i.e. UP-16-6038 as stated by PW-1, PW-2 and PW-6 is an incorrect number and the number of vehicle of accused is UP 14DN 6088. There is no document of that car brought on record.
20. Considering the same, I am of the opinion that there are many loopholes and lapses in the prosecution case. Prosecution has failed to prove its case against accused beyond reasonable doubt, hence, extending benefit of doubt, accused Gaurav Bhati is hereby acquitted.
21. Accused is directed to furnish bail bond and surety bond in the sum of Rs.15,000/- in terms of Section 437-A Cr.P.C. with one surety in the like amount within a week from today. Till then, the bail bond already furnished by the accused is extended.
22. File be consigned to Record Room.
Digitally signedSHAIL by SHAIL JAIN Date: JAIN 2023.09.16 16:53:14 +0530 Announced in the open Court (Shail Jain) th today on 16 September, 2023 Principal District & Sessions Judge East, Karkardooma Courts, Delhi SC No.149/2020; FIR No.387/2019 State Vs. Gaurav Bhati; PS : Gazipur Page 17 of 17