Delhi District Court
2 vs . on 9 May, 2016
1
IN THE COURT OF SH. PAWAN KUMAR MATTO:
ADDL. SESSIONS JUDGE01 (WEST):
TIS HAZARI COURTS: DELHI.
SC No. : 08/2012
FIR No. : 137/11
U/S : 3(1), 3(2), 3(4) & 5 of MCOC Act, 1999
PS : Kirti Nagar
ID no. 02401R0 03044 2012
The State
(Govt. of NCT of Delhi)
Vs.
1 Suresh Kapoor
S/o Sh. Prakash Lal @ Prakash Narain
R/o House no. 386, Maan Colony, Karnal, &
2 Sumit @ Amit Kapoor
S/o Sh. Ramesh Kapoor
R/o H. No.106, New Bhagat Nagar,
Panipat, Haryana ...... Accused
Sessions case filed on: 31.05.2012
Arguments heard on: 02.05.2016
Judgment pronounced on :09.05.2016
JUDGMENT
1. Brief facts of the case of the prosecution, as mentioned in the charge sheet are that on 11.05.2011, one Sh. Sachin Arora SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 1 of 39 2 S/o Late Sh. Chunni Lal Arora R/o E242, 1st Floor, Double Storey, Ramesh Nagar, Delhi was going for morning walk near Onkarshwar Mandir, Ramesh Nagar, Four robbers on two motor cycles, stopped him and on knife's point robbed his gold's chain. He shouted for help and on hearing of his shoutings, Sh. Sunny Malhotra and Sh. Hunny Malhotra, who were present on the spot started following robbers on their motor cycles. The complainant also started chasing the robbers. When these four robbers reached near Hedgewar Park, Ramesh Nagar, Sh. Sunny Malhotra pushed the motor cycle of one of the robbers. As a result of which, the motor cycle got lost its balance and slipped. Sunny Malhotra caught one of the robber, who attacked on him with knife, but he managed to save from the knife and both the robbers left their motor cycle and they ran towards Rama Road, Kirti Nagar, who were being followed by public, whereas other two robbers on other motor cycle succeeded in fleeing away from the spot. When, two robbers reached near Petrol Pump, Rama Road, they overpowerd Sh. Pramod Aggarwal and snatched his santro car. But in the meantime, Sh. Pritam Singh, who was also present on the spot and saw the robbery of the car, banged his car into the SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 2 of 39 3 car of Sh. Pramod Aggarwal which was robbed by robbers for fleeing away. One robber namely Suresh Kapoor S/o Sh. Sh. Prakash Narain R/o H. No. 386, Maan Colony, Karnal & 18/464, Char Chaman Colony, Karnal, Haryana was apprehended with the help of above persons on the spot. The Santro car of Parmod Aggarwal bearing registration no. DL4CND 9973 was recovered from accused Suresh Kapoor. Case was registered on the statement of Sh. Sachin Arora S/o Late Sh. Chhuni Lal Arora, R/o E242, First Floor, Double Storey, Ramesh Nagar, Delhi and the accused were arrested. Suresh Kapoor along with associates were also found involved in several cases of robbery, extortion and chain snatching. The other accused namely Umesh Bajaj (already discharged) S/o Sh. Diwan Chand, R/o H. Bo. 405, 13 Extension, Karnal, Haryana was arrested from Mayapuri Chowk, Delhi on 30.05.2011, at the instance of informer. The interrogation of Umesh Bajaj led to the recovery of a motor cycle no. DL8SAG 3502. Accused Amit Kapoor @ Sumit Kapoor S/o Sh. Ramesh Kapoor, R/o H. No.106, New Bhagat Nagar, Panipat, Haryana was arrested in front of hotel Jagir Palace, M. S. Garden, Delhi on 01.06.2011 at the instance of informer. The activities and SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 3 of 39 4 involvement of all the three accused namely Suresh Kapoor, Umesh Bajaj & Sumit @ Amit Kapoor were allegedly studied by the police and immediately after the incident, accused Suresh Kapoor was found allegedly in possession of the robbed Santro Car of this case, four gold's chains and one motor cycle which was registered in the name of Umesh Bajaj (already discharged). Considering the facts that the alleged commission of offences of this FIR bearing no. 137/11 is the outcome of alleged activities of organized crime. A proposal was put before competent authority to grant approval to add provision of MCOC Act in the FIR and to investigate the same. The approval was granted on 05.08.2011 by Addl. C.P.(West) and Section 3 MCOC Act was added in this case and it was revealed that the accused were involved in the following cases: Sl. FIR No. U/Section PS Property involved Property Cogni Associates No. recovered zance taken or not 1 137/2011 392/397/411/34 Kirti Gold neck chain Gold neck Yes Suresh Kapoor, Umesh IPC and Nagar Santro car chain, Bajaj, Amit Kapoor, 25/27/54/59 Santro car Ravinder @ Chikna A.Act 2 124/11 379/356/ Kirti Gold neck chain Gold neck Yes Suresh Kapoor & Amit 411/34 IPC Nagar chain Kapoor 3 255/2004 356/379/ Kirti Gold neck chain Gold neck Yes Suresh Kapoor & Amit 34 IPC Nagar chain sold Kapoor 4 195/2011 382 IPC Hari Gold neck chain Gold neck Yes Suresh Kapoor Nagar chain SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 4 of 39 5 5 219/2004 356/379 IPC Punjabi Gold neck chain No Yes Suresh Kapoor & Vikas Bagh with locket @ Vikki 6 124/2004 379/356/411/34 Rajouri Gold neck chain Gold Neck Yes Suresh Kapoor & Vikas IPC Garden Jain @ Vikkir 7 250/2004 356/379 IPC Rajouri Purse with No Yes Suresh Kapoor & Vikas Garden Samsung mobile @ Vikki phone & 800/ 8 242/2004 379 IPC Rajouri Gold neck chain No. Yes Suresh Kapoor & Vikas Garden @ Vikki 9 199/2004 379/411 IPC Rajouri Purse, mangal Yes Suresh Kapoor & Vikas Garden sutra, tops with @ Vikki chain, nose pin 10 122/2005 25/54/59 A. Act Vikas Buttondar knife Buttondar Yes Suresh Kapoor Puri knife 11 335/2007 356/379 IPC Hari Gold neck chain Gold neck Yes Suresh Kapoor Nagar chain 12 275/10 379/356/511/34 Vikas Attempt to chain Buttondar Yes Umesh Bajaj & Amarjeet IPC & 25/54/59 Puri snatching knife Sahgal Arms Act 13 327/10 379/356/34 IPC Uttam Gold neck chain Gold neck Yes Umesh Bajaj & Amarjeet Nagar chain sold Sahgal 14 140/06 356/379/34 IPC Rajouri 1,10,000/ cash 50,000/ Yes Suresh Kapoor & Vikas Garden Vikas Patra, Key
2. On completion of the investigation, the accused were chargesheeted in the present case and the copies of the charge sheet thereof were supplied to accused. The accused Umesh Bajaj was discharged by the predecessor of this Court.
3. On finding prima facie case, the charge U/s 3(1)(ii) of MCOC Act is framed against both the accused Suresh Kapoor and Sumit @ Amit Kapoor for being numbers of organized crimes syndicate and for having indulgence in the unlawful activities by use of violence, intimidation or other unlawful means with the SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 5 of 39 6 object of getting pecuniary benefits, to which,the accused had pleaded not guilty to the charge and claimed trial.
4. In order to prove its case, prosecution has examined 32 witnesses.
5. PW1 SI Maya Devi is the Duty Officer, who has deposed about the registration of FIR no. 137/11 U/S 392/397/411 r/w Sec.34 of IPC & SEC.25 of Arms Act and proved the computerized copy of said FIR Ex.PW1/A.
6. PW2 Inspector Sukhdev Meena has proved the photocopy of FIR no.124/04 u/s 379/411/34 IPC as Ex.PW2/A and photocopy of FIR no. 250/04 as Ex.PW2/C, registered against the accused Suresh Kapoor & Vicky and FIR no. 199/04 Ex.PW2/B. During his crossexamination, he has admitted that in the charge sheets of the said cases, it is not mentioned that accused Suresh Kapoor was member of organized crime syndicate or he has committed any organized crime.
7. PW3 Inspector Manoj Kumar has deposed that FIR no. 122/05 Ex.PW3/A was registered against accused Suresh Kapoor, copy whereof is Ex.PW3/A. During his crossexamination, he has admitted that in the charge sheet of the said cases, it is not SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 6 of 39 7 mentioned that accused Suresh Kapopor was member of organized crime syndicate or he has committed any organized crime.
8. PW4 ASI Karamvir Singh has deposed that he is the IO of the case registered vide FIR no. 275/10 photocopy whereof is Ex.PW4/A. This FIR is not relating to the accused who are facing the trial in this court
9. PW5 SI Gokul Ram was the IO of the case registered vide FIR no. 242/04. He has proved the copy of said FIR as Ex.PW5/A, registerered u/s 379 IPC against accused Suresh Kapoor & Vikas @ Vicky. During his crossexamination, he has admitted that in the charge sheet of the said case, it is not mentioned that accused Suresh Kapoor was member of organized crime syndicate or he has committed any organized crime.
10. PW6 SI Arjun Pandit was the IO of case registered vide FIR no. 335/07. He has proved the copy of same FIR as Ex.PW6/A, registered against accused Suresh Kapoor. During his crossexamination, he has admitted that in the charge sheet of the said cases, it is not mentioned that accused Suresh Kapoor was member of organized crime syndicate or he has committed any SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 7 of 39 8 organized crime.
11. PW7 Sh. Satbir Singh was the IO of case registered vide FIR no. 195/11. He has proved the copy of same FIR as Ex.PW7/A, registered against accused Suresh Kapoor and Umesh Bajaj. During his crossexamination, he has admitted that during the investigation of the case registered vide FIR No. 195/11, he did not get any evidence that accused Suresh Kapoor was member of organized crime syndicate or he has committed any organized crime.
12. PW8 ASI Rampal Singh was the IO of case registered FIR no. 124/11. He has proved the copy of same FIR as Ex.PW2/A, registered against both accused. During his cross examination, he has admitted that in the charge sheet of the said case registered vide FIR no.124/2011, there is no averment that the accused were members of organized crime syndicate or he has committed any organized crime.
13. PW9 Retd. SI Lakhan Singh was the IO of case registered vide FIR no. 219/14 u/s 356/379 IPC. He has proved the copy of same FIR as Ex.PW9/A, registered against accused Suresh Kapoor. During his crossexamination, he has admitted SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 8 of 39 9 that in the FIR of the said case, there is no averment that the accused were members of organized crime syndicate or he has committed any organized crime.
14. PW10 Sh. Vinod is the landlord of accused Suresh Kapoor who has deposed that he had rented out the accommodation no.18/464 at Karnal on the monthly rent of Rs2,000/ one year prior to the recording of his statement in October, 2011.
15. Whereas, PW11 Inspector Sanjay Sharma has deposed that FIR no.140/06 Ex.PW11/A was registered against Raja @ Vicky @ Vikas and accused Suresh and Rs.50,000/ were recovered at the instance of both the accused in the said case and during his cross examination, this witness has admitted that it is correct that no averments in the FIR Ex.PW11/A was there to show that the accused in the said FIR was running an organized crime Syndicate or they were member of the crime Syndicate.
16. Whereas, PW12 SI Rajeev Kumar has deposed that FIR no.138/11 in the PS Janak Puri Ex.PW12/A was registered against accused Suresh for snatching the chain of gold and accused Suresh Kapoor was arrested by SI Mohd. Harun. During SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 9 of 39 10 his cross examination, this witness has admitted that it is correct that no averments in the FIR Ex.PW12/A was there to show that the accused in the said FIR was running an organized crime Syndicate or he was member of the crime Syndicate.
17. Whereas, Subhash Chander, PW13 has deposed that accused Suresh Kapoor had purchased the plot no. 386, measuring about 72 sq. yards, situated at Maan colony, Karnal, Haryana from Dhanwanti for an amount of Rs.2,51,000/ and an attested copy of registry is Ex.PW13/A. And during his cross examination, this witness has admitted that plot no.386, measuring about 72 sq. yards, situated at Maan colony, Karnal, Haryana was purchased by Alka Kapoor from Dhanwanti and Alka Kapoor had made payment of an amount of Rs.2,51,000/ to the vendor.
18. Whereas, PW15 Sh. O. P. Bhatia has deposed that he is the Registered Valuer, he had valued the plot no. 386, measuring about 72 sq. yards, situated at Maan colony, Karnal, Haryana, his report is Ex.PW15/A and the request letter of ACP J. K. Sharma is Ex.PW15/B and the photocopy of the documents which were perused by him are Ex.PW15/C. And during his cross SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 10 of 39 11 examination has stated the said property stands in the name of Alka Kapoor. He has denied that he has exaggerated the value of property.
19. Whereas, PW16 Sh. Surjeet Singh has deposed that he owns a House no. 18/464, Old Char Chaman, Karnal, and he rented out the said property to the accused Suresh Kapoor in the year 2006 & 2007 on a monthly rent of Rs2,000/, in which he lived with his family for two years. And during his cross examination he has stated that he does not know as to whether the accused was running jewellery shop in the name of B.K. Jeweller at Shiv Colony, Kaithal Road, Haryana. He has denied that Alka Kapoor W/o Suresh Kapoor was running any beauty parlour in Karnal.
20. Whereas, PW17 Sh. K. S. Virk (Retired Income Tax Officer), Ward no. III, Karnal, Haryana has deposed that on the request of ACP/IO to provide the details of the income tax return filed by Suresh Kapoor for the period 2007 to 2011. He had furnished the zerox copies of the income tax return for the assessment year 2008 to 2011 and proved the request Ex.PW17/A. And photocopies of the incometax returns of Suresh SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 11 of 39 12 Kapoor for the assessment year 20092010, 20102011 are Ex.PW17/B & Ex.PW17/C respectively and his reply to request of IO is Ex.PW17/E. This witness was cross examined and during his cross examination he has stated that he is income tax assessee and filed the income tax return under the head of the professional.
21. Whereas, PW19 Sh. Harish Kumar, Sr. Manager of Canara Bank, has deposed that Shakuntala Devi opened Saving Account No.3019108000436, in the Canara Bank on dated 15.09.2009 vide Form Ex.PW19/A and copy of the statement of account is Ex.PW19/C and the certificate u/s 65B of Evidence Act is Ex.PW19/B. This witness was crossexamined and during his cross examination, he has stated that he cannot say whether the amount debited and again credited on the other day is same or different and also admitted it to be correct that the print out of the Ex.PW19/C was taken on dated 26.02.2015 and certificate U/S 65B of the Indian Evidence Act is Ex.PW19/D is dated 28.02.2015.
22. Whereas, PW20 V. Rangnathan, the then Additional Commissioner of Police (West) has deposed that he had accorded approval vide Ex.PW20/A and he had also accorded Sanction U/S 23 (2) of the MCOC Act against accused Suresh Kapoor and SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 12 of 39 13 Umesh Bajaj vide Ex.20/C and sanction against Amit @ Sumit Kapoor was granted U/S 23(2) of MCOC Act vide Ex.PW20/D. This witness was cross examined and during his cross examination, this witness has admitted it to be correct that he has not given details of the record considered by him at the time of granting sanction. Replying to the question raised by counsel for accused Sumit regarding the documents of pecuniary gain by the accused Sumit Kapoor, he has stated that the mother of the accused Sumit Kapoor had opened an account and transaction of Rs8,63,000/ was there in her account and further stated that the loan was taken from Bajaj Financial Company by Mrs. Shakuntala Devi i.e. the mother of accused Sumit Kapoor and Sumit Kapoor admitted that Mrs. Shakuntala Devi was not interrogated nor any notice was served to her and when he was asked as to whether he had verified about the fact of involvement of accused Sumit with crime syndicate with other accused from any independent witness. He had given negative reply thereof. He has admitted that no confessional statement of Sumit Kapoor was recorded by him. This witness has also admitted that no certified copies or copies of the charge sheets of the cases detailed in the proposal SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 13 of 39 14 Ex.PW20/A are there on the judicial record which could be considered by him prior to the passing of the order U/S 23(1)(a) MCOC Act on 05.08.2011. This witness has admitted that there is no document produced before him which could suggest that the charge sheets relied upon in the proposal Ex.PW20/A were produced before him at the time of according of the approval Ex.PW20/A. He has also admitted that he did not ask to the IO to produce before him the charge sheets prior to the according of the approval Ex.PW20/A. When this witness was asked by Ld. Defence counsel as to whether can he show any document from the judicial file which could suggest that the accused facing the present trial were running any organized crime syndicate or were members of any such syndicate and this witness has admitted that no such document is there on the judicial file. This witness has denied the suggestion given by the counsel for accused Suresh Kapoor that the Suresh Kapoor had never given confessional statement or his signatures were obtained on blank papers under the coercion and pressure. This witness has admitted that the sanction Ex.PW20/C does not bear any time thereon. He has also admitted that he did not ask to the IO to examine Alka Kapoor SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 14 of 39 15 prior to the approval or sanction. This witness has denied that approval and sanction given by him were incorrect and not justifiable.
23. Whereas, PW21 Ms. Ravinder Bedi, the then ACMM has deposed that the accused Suresh Kapoor and Umesh Bajaj (already discharged) were produced in judicial custody and ACP concerned had moved an application which was accompanied by confessional statements of both accused Suresh Kapoor and Umesh Bajaj (already discharged) which was recorded by DCP, SouthWest District in terms of Section 18 of MCOC Act and further deposed that the statements of accused Suresh Kapoor and Umesh Bajaj are Ex.PW21/A and Ex.PW21/B respectively and this witness has proved her order dated 20.08.2011 Ex.PW21/C. During her cross examination this witness has admitted to be correct that she did not look into the confessional statements of both the accused Suresh Kapoor and Umesh Bajaj. She has also deposed that she had enquired from both the accused whether their confessional statements were recorded under pressure, coercion, threat or undue influence before recording their statements Ex.PW21/A and Ex.PW21/B and she SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 15 of 39 16 has also admitted it to be correct that she did not inquire about this fact from the DCP as to who had recorded the said statements.
24. Whereas, Sh. Anil Kumar Ojha, the then DCP (South West District) of Delhi has been examined as PW22. He has deposed that during August, 2011, he was posted as DCP SouthWest and on dated 18.08.2011 accused Suresh Kapoor and Umesh Bajaj were produced before him by the ACP/IO for recording their confessional statements u/S 18 of MCOC Act and further stated that all the proceedings were sealed in the envelope and sent to the CMM Tis Hazari and statement of accused Suresh Kapoor is Ex.PW22/D1 and certificate issued by him regarding the statement accused Suresh Kapoor is Ex.PW22/A and intimation regarding the said statement sent to the Ld.CMM is Ex.PW22/D. This witness was cross examined by counsel for accused Suresh Kapoor and during his cross examination he had admitted that the file pertaining to the present case was not submitted before him for his perusal prior to the recording of statements of the accused. He has admitted it to be correct that in the confessional statement Ex.PW20/D1, it is not incorporated that the said statement was ever read over or explained to the SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 16 of 39 17 accused. He has denied that the accused never stated to the IO that they were not willing to give any confessional statements.
25. Whereas Sanjay Kumar Registry Clerk has been examined as PW23 who has proved that plot measuring 72 sq. yards at Jyoti Nagar, Karnal was purchased by Mrs. Alka Kapoor W/o accused Suresh Kapoor from Dhanwanti for an amount of Rs2,51,000/ on dated 06.07.2009 and proved the certified copy of registry thereof is Ex.PW13/A. During his cross examination he has admitted that the payment of Rs.2,51,000/ was made by Alka Kapoor.
26. Whereas, PW25 Sh. Gopal Krishan has proved the Registration Certificate of the vehicle bearing registration no. DL8SAV 0621 as Ex.PW25/A is in the name of Sahiba Bakshi.
27. Whereas, Inspector Om Prakash, has been examined as PW26 who has proved that he was the IO in the case registered FIR no.255/04 and he had arrested to accused Suresh Kapoor and Sumit Kapoor. This witness was cross examined by counsel for the accused and it was suggested to him that accused Suresh Kapoor and Sumit Kapoor were acquitted in the case FIR no.255/04, but, this witness has shown his innocence about the SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 17 of 39 18 same.
28. Whereas, SI Mohd. Haroon has been examined as PW27 who has deposed that he had arrested to the accused Suresh Kapoor @ Suresh Kumar and Umesh Kumar @ Pawan who were formally arrested in the court of Predecessor of this court. Suresh Kapoor was arrested vide memo vide Ex.PW27/A and he was personally searched vide Ex.PW27/B and also deposed that disclosure statement of accused Suresh Kapoor is Ex.PW27/E was also recorded in his presence. This witness was cross examined and during his cross examination he had admitted it to be correct that it is nowhere stated in the disclosure statement that the said document was read over and explained to him before signing and he has denied that no such disclosure statement was ever recorded.
29. Whereas, Sh. P. P. S. Tomar, Income Tax Officer has been examined as PW28 who deposed that on the request of IO he had provided requisite details of incometax of Smt. Shakuntala Devi i.e. mother of the accused Sumit @ Amit Kapoor for a period 20072012. Same is Ex.PW28/A and his covering letter is Ex.PW28/B and he had also provided requisite details of SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 18 of 39 19 income tax returns of accused Sumit @ Amit Kapoor for a period 20072012 which is Ex.PW28/C & his covering letter dated 18.05.2012 is Ex.PW28/D. This witness was also crossexamined by Ld. Counsel for accused.
30. Whereas, Ct. Anil has been examined as PW29, who has deposed that on 02.03.2012, accused Sumit @ Amit Kapoor was formally arrested by IO in his presence and were personally searched vide Ex.PW29/A and also deposed that disclosure statement of this accused was also recorded which is Ex.PW29/B. And this witness has initially failed to identify to the accused Sumit @ Amit Kapoor, but, on the request of Ld. APP for the state, he was allowed to put leading questions, then he had identified to the accused. This witness was also cross examined by Ld. Counsel for accused Sumit @ Amit Kapoor.
31. Whereas, Sh. Amit Kumar, Area Manager (Collection), Karnal Bajaj Finance Ltd., Karnal, has been examined as PW30, who has proved the statement of account of personal loan of Rs. 50,000/ of Smt. Shakuntala Devi Ex.PW30/A and also the statement of account of personal loan of Rs.19,200/ of Smt. Shakuntala Devi vide Ex.PW30/B with certificate u/s 65B SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 19 of 39 20 Evidence Act vide Ex.PW30/C regarding Ex.PW30/A & Ex.PW30/B. This witness was also cross examined by Ld. Counsel for accused Sumit @ Amit Kapoor and during his cross examination, he has submitted that he was not aware about the income of family's members of Shakuntala Devi and his co applicant.
32. Sh. Rajesh Yadav, Branch Credit Manager, HDB Financial Services, Sonepat, Haryana, has been examined as PW31, who has deposed that Shakuntala Devi had taken the consumer loan of Rs.19,200/ which was repaid by her and thereafter, she had taken the loan of about Rs.50,000/ but exact amount is not remembered to him and also deposed that Amit Kumar was coapplicant in the said loan of Rs.50,000/ and certain photocopies of certain documents Mark 1 to 13 were handed over by him to the IO but during his cross examination, he has admitted that he had not prepared the photocopies of said documents.
33. ACP J. K. Sharma, the Investigating Officer has been examined as PW32 and he has deposed about the investigation. This witness was also cross examined by Ld. Counsels for accused.
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34. On the completion of the evidence of the prosecution, the statements of both the accused U/s 313 Cr. P.C. were recorded, wherein they have denied the correctness of the evidence of the prosecution and pleaded their innocence. They did not examine any witness in defence.
35. I have heard the Ld. APP for the state and Ld. counsel for the accused and perused the evidence on record.
36. Ld. APP has submitted that accused are member of organized crime syndicate and they are committing organized crime for pecuniary benefit as the accused in the FIR No.137/11 was registered as they had snatched the chain of gold from the complainant Sachin and submitted that accused Suresh was arrested on the spot and the other accused succeeded in fleeling away from there. It is also submitted that the confessional statement of the accused Suresh Kapoor Ex.PW22/D1 was recorded by the then DCP and was sent to Ld. ACMM.
37. Ld. APP has further submitted that it is proved on record that the accused are running syndicate of organized crime and since, it is proved on record that a plot in the name of the wife of accused Suresh Kapoor for a sum of Rs.2,51,000/ was SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 21 of 39 22 purchased and that amount had come from such illegal money and an amount of Rs.8,63,000/ is also found in the account of Ms. Shakuntala i.e the mother of the accused Sumit @ Amit Kapoor and there is no explanation about the source of said money. So, as per the presumption of Section 17(2) of Maharashtra Control of Organized Crime Act, 1999, the accused are liable to be convicted as the prosecution has proved its case beyond doubt.
38. It is also submitted that it is also proved that mother of the accused Sumit had taken loans of Rs.50,000/ and Rs19,200/ and the said loans were repaid and an amount of Rs.8,63,000/ was accumulated in the account of Ms. Shakuntala Devi i.e. the mother of the accused Sumit in Canara Bank and the said amount was obtained by the accused Sumit from the commission of organized crime and also submitted that since, it is proved on record that confessional statement of the accused Suesh Kapoor was also recorded. So, the prosecution has proved that the accused were running an organized crime syndicate and lot of money has been accumulated by them and thus, the accused are liable to be convicted U/S 3 of Maharashtra Control of Organized Crime Act, 1999.
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39. Ld. Counsel for accused Sumit has submitted that the applicant/accused has been falsely implicated in the present case. He has further submitted that charge sheet in the present case has been filed in grossviolation of Section 18 and 23 of Maharashtra Control of Organized Crime Act, 1999 and also submitted that prosecution has alleged that the mother of this accused Sumit @ Amit was having huge money in her account and has also submitted that the prosecution has failed to prove on record any cogent evidence to show that the money lying in the account of Ms. Shakuntala Devi was an illegal money as the voucher of depositing and withdrawal have not been proved on record and IO who has been examined as PW32 had admitted that no voucher of withdrawal or deposit were not collected by the IO and further submitted that the IO during his crossexamination has admitted that there are six members in the family of accused Sumit and stated that their monthly income was Rs.10,000/ and further submitted that since the IO has admitted that there were six members in the family of accused Sumit and the mother of accused and wife and brother of accused were earning so, an existence of amount of Rs.8 Lacs from the income of the other SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 23 of 39 24 family members cannot be ruled out and it was incumbent on the part of the prosecution to prove that this accused Sumit was either member of Syndicate or that he has obtained pecuniary benefit from the illegal activities and further submitted that he IO has not verified about the result of cases registered against Sumit prior to filing of charge sheet in the present case and submitted that the accused was granted bail in the case registered vide FIR no.137 and he was bailed out by this court. But, he has been falsely implicated in the present case and the prosecution has failed to prove its case beyond reasonable doubt and prayed for the acquittal of Sumit Kapoor.
40. Ld. Counsel for accused Suresh Kapoor has submitted that PW20 Rang Nathan has not applied mind at the time of granting of sanction. He has further submitted that since at the time of passing of the sanction in the case in hand, the PW20 was not having the charge sheets of all these cases and in the absence of the chargesheets of all those cases relied upon by the prosecution, the sanction granted by PW20 is erroneous. The prosecution has failed to prove on record that the accused were involved in any organized crime or they were members of the SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 24 of 39 25 organized crime syndicate and since the PW20 has admitted in his crossexamination that the charge sheets were not seen by him at the time of sanction. So, sanction granted by the DCP itself is erroneous and cannot be looked into and he has relied upon. The judgment passed by Supreme Court in cases State of Maharashtra Vs. Som Datta Nagpal 2007 Cr.LJ 1678.
41. The Ld. Counsel for accused Suresh Kapoor has also submitted that 13 cases were planted on the accused Suresh Kapoor and he is acquitted in 10 cases and he was convicted in two cases registered vide FIR no. 219/04 & FIR no335/07, the accused has been convicted and the IO of the case registered vide FIR no.219/04 has been examined as PW9 who was cross examined in this court, who has admitted that during his cross examination that it is correct that there is no everment in the said FIR to show that the accused were running any organized crime syndicate or were members of any organized crime syndicate.
42. Whereas, IO of the case registered vide FIR no.335/07 has been examined as PW6, who was also crossexamined and during his crossexamination, he has admitted that he did not get any evidence regarding the involvement of the accused Suresh SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 25 of 39 26 Kapoor in any organized crime or that he was member of any organized crime syndicate.
43. He has further submitted that DCP has erroneously approved and sanctioned as it was incombunt on the part of the DCP to go through the chargesheets of all the cases prior to approval and sanction and prayed that prosecution has failed to prove the guilt of the accused and prayed for the acquittal of the accused.
44. I have given thoughtful consideration to the submissions of the Ld. Counsels for the parties and perused the record.
45. The perusal of the record shows that in the case in hand, accused are alleged to have committed the offence punishable u/s 3(i)(ii) of MCOC Act.
46. Ld. APP for the State has submitted that since, it is proved on the record that accused Suresh Kapoor was involved in the number of criminal cases and the plot bearing no. 386, measuring about 72 sq. yards, situated at Maan colony, Karnal, Haryana has been purchased in the name of his wife Smt. Alka Kapoor and nothing has been brought on the record to prove that SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 26 of 39 27 Smt. Alka Kapoor was earning anything. So, in the absence of any cogent evidence, the presumption contained u/s 17 (2) of MCOC Act, can be drawn that the said property has been acquired by this accused in the name of his wife from his illegal acitivity. And, the scooty bearing no. DL8SAV0621 in the name of Smt. Sahiba Bakshi, who is the Mausi Saas of this accused, has been purchased from the money acquired from the illegal activities by this accused Suresh Kapoor and further submitted that Smt. Shakuntala Devi, who is the mother of accused Sumit Kapoor, and from the testimony of PW19, it is proved on the record that since Smt. Shakuntala Devi was having an amount of Rs.8,63,562/ in her account and Smt. Shakuntala Devi, who is the mother of this accused Sumit Kapoor, has acquired this money from the illegal activities of accused Sumit Kapoor and presumption contained u/s 17 (2) of MCOC Act also liable to be invoked.
47. But, in the considered opinion of this court, for invoking of such presumption contained u/s 17 (2) of MCOC Act, it was incumbent on the part of the prosecution to prove that both the accused were either involved an organized crime or that they were a members of any organized crime syndicate or that they were SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 27 of 39 28 involved in organized crime either as a member of any organized crime syndicate or for on behalf of any organized crime syndicate, either individually or jointly.
48. Ld. Counsel for accused Suresh Kumar has submitted that the prosecution has relied upon 15 FIRs, whereas, accused Suresh Kapoor is named in two FIRs and also submitted that accused Suresh Kapoor has been acquitted in 10 cases & he was convicted in two cases registered vide FIR no. 335/07 & FIR no. 219/04.
49. He has also submitted that the Investigating Officer of case registered vide FIR no. 335/07 has been examined as PW6, whereas, the Investigating Officer of the case registered vide FIR no. 335/07 has been examined as PW9.
50. PW6 ASI Arjun Pandit, who is the Investigating Officer of the case registered vide FIR no. 335/07, during his crossexamination, has admitted that he did not get any evidence regarding the involvement of accused Suresh Kapoor in any organized crime or that he was a member of organized crime or that he was running any organized crime syndicate.
51. Whereas, PW9 Retd. SubInspector Lakhan Singh, SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 28 of 39 29 who was the Investigating Officer of the case registered vide FIR no.219/04, has also admitted during his crossexamination that it is correct that no avernment in the said FIR shows that the accused were running any organized crime syndicate or member of any organized crime syndicate and also admitted that no such evidence has been surfaced during the course of the investigation of the case registered vide FIR no. 219/04.
52. Since, in the case in hand, the prosecution has relied upon 15 FIRs and the Ld. Counsel for accused has submitted that at the time of granting sanction u/s 23 (2) MCOC Act, PW20 has committed grave error, as he did not go through the chargesheets filed by the IOs of the different cases in the different courts and he has merely seen the FIRs and orders vide which cognizance were taken by the courts concerned. He has further submitted that even in the present case, no chargesheet has been filed by the Investigating Officer of the present case. In the considered opinion of this court, it was PW20, who has granted sanction, who has admitted that no document produced before him, which could suggest that the chargesheet relied upon, before the proposal Ex.PW20/A was produced before him, and he did not ask to the IO SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 29 of 39 30 to produce the chargesheets before him prior to the approval.
53. It is clear that Sh. V. Rangnathan, who has been examined as PW 20, has passed approval without going through the chargesheets relied upon by the IOs of the case and even, IO of the present case, has failed to prove on record the charge sheets of all the cases relied upon by the prosecution, from which, it may be infered that the accused were involved in any organized crime or they were member of any organized crime syndicate. And since, in order to prove the guilt of accused, it was incumbent on the part of the prosecution to prove that the accused persons were either involved in any organized crime or they were member of any organized crime syndicate.
54. And since, it is proved on the record that there were 6 family' members of accused Sumit @ Amit Kapoor and IO of the present case, has stated that the gross income of all 6 member of family of this accused is Rs.10,000/, as the reply of the IO does not inspire any confidence where six members of a family would be earning the amount of Rs.8/9 lacs is normal and in the present case and since, the prosecution has alleged that accused are involved in the organized crime and from the commission of SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 30 of 39 31 organized crime, members of the families of the accused have obtained any property/money.
55. Since, the prosecution has failed to bring on record any cogent evidence to prove that the accused have committed any organized crime. So, in the absence thereof, presumption incumbent u/s 17 (2) of MCOC Act cannot be invoked with mere fact that Smt. Alka Kapoor, wife of accused Suresh Kumar, has purchased the plot bearing no. 386, measuring about 72 sq. yards, situated at Maan colony, Karnal, Haryana, for an amount of Rs. 2,51,000/ or that Mausi Saas of accused Suresh Kapoor has purchased the scooty or that Smt. Shakuntala Devi, who is the mother of accused Sumit & Amit Kapoor, had deposited an amount of Rs.8,63,562/ in her account from the illegal activities of accused Sumit @ Amit Kapoor.
56. So, in view of the failure on the part of the prosecution to prove the involvement of the accused persons in any organized crime & in view of existence of number of properties in the names of relatives of these accused, are not sufficient to convict all accused as per provision of Section 17 (2) of MCOC Act.
57. No doubt, that the prosecution has placed on record SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 31 of 39 32 the confessional statement of accused Suresh Kapoor which is Ex.PW20/D1, which was recorded by PW22 and the concerned DCP has been examined as PW22. But, at the same time, it is also relevant that as per the mandates of section 18 (2) of MCOC Act, the confession recorded under section 18 (1) of MCOC Act.. should be recorded in free atmosphere, whereas in the case in hand, the accused Suresh Kapoor was admittedly in judicial custody and when produced before the Ld. ACMM (West), who has been examined as PW21 for recording of his statement Ex.PW21/B. He has deposed that the police officials had obtained his signatures on blank papers forcefully. They have also obtained his signatures on typed papers statements which were not given by him and statements were taken forcefully and involuntarily which were not read over to him and pleaded his innocence and stated that he does not own any movable or immovable property in his name. Therefore, the confessional statement of accused Suresh Kapoor cannot be held to be good on the yardstick of section 18 (2) of MCOC Act. So, the same cannot be used against Suresh or Sumit.
58. Since accused Umesh Bajaj has already been SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 32 of 39 33 discharged and he is not being tried together with the present accused, therefore, confessional statement of accused Umesh Bajaj which is Ex.PW22/B cannot be looked into. From statement of accused Suresh Kapoor Ex.PW21/B recorded by Ld. ACMM on dated 20.08.2011 it is clear that the confessional statement of the accused Suresh Ex.PW20/D1 is not recorded by PW22 in free atmosphere. Therefore, the same confessional statement of Suresh Kapoor is not relevant nor it can be relied upon for convicting to the accused Suresh Kapoor or his coaccused Sumit @ Amit Kapoor.
59. It is proved on the record that the accused Suresh Kapoor & Sumit @ Amit Kapoor have been acquitted in the case registered vide FIR no.124/11 vide judgment dated 27.11.2013.
60. It is proved on the record that the accused Amit Kapoor and Suresh Kapoor have been acquitted in the case registered vide FIR no.255/2004 vide judgment dated 08.10.2012.
61. It is proved on the record that the accused Suresh Kapoor has been acquitted in the case registered vide FIR no. 195/2011 vide judgment dated 10.07.2013.
62. It is proved on the record that the accused Suresh SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 33 of 39 34 Kapoor and Vikas have been convicted in the case registered vide FIR no.219/2004 vide judgment dated 03.01.2015.
63. It is proved on the record that the accused Vikas and Suresh have been acquitted in the case registered vide FIR no. 124/2004 vide judgment dated 13.02.2014.
64. It is proved on the record that the accused Vikas and Suresh Kapoor have been acquitted in the case registered vide FIR no.250/2004 vide judgment dated 23.11.2010.
65. It is proved on the record that the accused Vikas and Suresh Kapoor have been acquitted in the case registered vide FIR no.242/2004 vide judgment dated 16.10.2012.
66. It is proved on the record that the accused Vikas and Suresh Kapoor have been acquitted in the case registered vide FIR no.199/2004 vide judgment dated 12.03.2014.
67. It is proved on the record that the accused Suresh Kapoor have been acquitted in the case registered vide FIR no. 122/2004 vide judgment dated 07.08.2012.
68. It is proved on the record that the accused Suresh Kapoor has been convicted in the case registered vide FIR no. 335/2007 vide judgment dated 23.02.2012.
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69. It is proved on the record that the accused Suresh Kapoor has been convicted in the case registered vide FIR no. 335/2007 vide judgment dated 23.02.2012.
70. It is proved on the record that the accused Vikas and Suresh Kapoor have been acquitted in the case registered vide FIR no.140/2006 vide judgment dated 16.11.2013.
71. It is proved on the record that the accused Suresh Kapoor has been acquitted in the case registered vide FIR no. 138/2011 vide judgment dated 20.02.2014.
72. Since, it is proved on the record, that the PW20, had granted the sanction in the absence of the chargesheets, and in view of testimony of various PWs as discussed here in above, from which, it is proved that the accused were not found to be involved in the organized crime nor they were members of any organized crime syndicate. So, the sanction granted is held to be erroneous which was granted on the basis of the FIRs and the order of cognizance taken by various courts since, the IO has failed to examined Alka Kapoor, Shakuntala & Sahiba Bakshi and prosecution has failed to prove on record that IO has ever joined these persons as witnesses during the investigation. Therefore, it SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 35 of 39 36 is lapse on the part of the IO. In the considered opinion of this court, IO should have enquired from the said persons about the amount lying in the account of Shakuntala and about the source of the money from which the plot has been purchased by the Alka Kapoor and the vehicle purchased by Sahiba Bakshi. The story of the prosecution is suspicious
73. It was incumbent for the prosecution to prove that the accused had committed the activities prohibited by law either singly or jointly, as members of an organized crime syndicate or on behalf of the such syndicate by use of violence or threat of violence or intimidation or coercion or other unlawful means with the object of gaining pecuniary benefits or other advantages.
74. The prosecution was also required to prove the nexus or link of the accused with the organized crime syndicate and this link is the crux of the term continuing unlawful activities.
75. The case of the prosecution is that the amount deposited in the account of Shakuntala, and the house purchased in the name of Alka Kapoor and the vehicle purchased in the name of Sahiba Bakshi derived from the commission of the organized crime. But the prosecution has failed to lead any cogent SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 36 of 39 37 evidence to this effect.
76. No movable or immovable property or any vehicle in the name of the accused was found. No document with regard to the account in any bank in the name of the accused was found. No specific document was seized which could show that the accused have obtained any property from the commission of the organized crime or that accused were involved in any organized crime or they were member of any organized crime syndicate.
77. The prosecution has failed to bring on record any evidence to prove the amount lying in the account of Shakuntala belong to Sumit or that the said amount is obtained from commission of an organized crime or the same has been acquired through the organized crime syndicate funds. The prosecution has also failed to prove that the amount of Rs.2,51,000/ spent by Alka Kapoor for purchasing the abovementioned plot, was obtained by Smt. Alka Kapoor from the commission of the an organized crime by the accused Suresh Kapoor or obtained from unlawful activities of the accused Suresh or that the vehicle bearing registration no.DL8SAV 0621 in the name of Sahiba Bakshi was purchased from the amount obtained from commission SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 37 of 39 38 of an organized crime or the same has been acquired through the organized crime syndicate funds.
78. In view of the above discussions, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt that accused have committed the offence of organized crime punishable U/s 3 (1) (ii) of the MOCOC Act.
79. In view of the above discussion, I am inclined to hold that since doubts are there in the version of the prosecution and benefit of doubts are liable to be given to the accused. Therefore, I am inclined to hold that the prosecution has failed to prove it's case beyond reasonable doubt. Accordingly, both the accused namely Suresh Kapoor and Sumit @ Amit Kapoor are acquitted of the charge. As per provision of Section 437A of Cr.P.C the accused are ordered to be released on bail on furnishing of bail bond in a sum of Rs.30,000/ with one surety of like amount each for a period of six months. The accused shall ensure their attendance and appearance before the Ld. Appellate Court, if so required.
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80. On filing of the bail bond/surety bond, the file be consigned to Record Room.
Announced in the open court (PAWAN KUMAR MATTO) today i.e. on 09.05.2016 Additional Sessions Judge01(West) Tis Hazari Courts, Delhi SC No. 08/2012 FIR No. 137/11 PS Kirti Nagar Page 39 of 39