Delhi District Court
State vs . Raka Gupta Etc. on 16 April, 2012
State Vs. Raka Gupta etc.
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 31/2011
State Vs. : 1. Raka Gupta
S/o Sh Sunil Kumar Gupta
R/o Village & P.O Surpur,
P.S Surpur, District Eta, U.P
2. Rajesh Kumar Choudhary
S/o Sh Pappu Choudhary,
R/o Village & P.O Talimpur
Nagar , P.S Kasimpur,
District Aligarh, UP
3. Pappu Yadav @ Bangali
(Proclaimed Offender)
S/o Sh Niraj Kumar Yadav,
R/o Village Baragushi,
P.O Banchuka, P.S Aalipur,
District Jalpaigudi, West Bengal
4. Nitin Kumar Sharma
S/o Sh Rakesh Sharma
SC No. 31/2011 1/23
State Vs. Raka Gupta etc.
R/o Mohalla Rampuri near
Kodio Ka Mandir, Roorki Road,
Mujjafar Nagar, UP
5. Lalitesh @ Mithun Gupta
(Proclaimed Offender)
S/o Sh Ram Parkash Gupta,
R/o H. No. C103,
Mohalla Brampur,
Badau, U.P
6. Shree Pal Singh Chandel
(Proclaimed Offender)
S/o Sh Ram Mewat Singh
R/o VPO Anowa, P.S Rajpur,
District Kanpur, U.P
FIR No. 465/2005
P.S. Sarojini Nagar
U/s 399/402 IPC & 25 Arms Act
Date of Institution : 07/11/2005
Date when arguments
were heard : 16/04/2012
Date of Judgment : 16/04/2012
SC No. 31/2011 2/23
State Vs. Raka Gupta etc.
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the facts of the prosecution case are as follows:
On 07/09/2005 at about 4 pm, Inspector Rajiv Ratan (PW2), Incharge AATS, South West District was informed by secret informer that some bad elements, natives of Uttar Pradesh who used to commit small offences and steal motorcycles will come at around 8 pm opposite Delhi Police Public School, Safdarjung Enclave in vacant forest, collect there and commit some serious offence, having weapons in their unlawful possession, can be apprehended on raid.
Inspector Rajiv Ratan (PW2) briefed SI Balkishan, Ct Jag Mohan, Ct Gajender, Ct Ajay Kumar, Ct Vishwajeet and Ct Kuldeep to take action on the information received. SI Bal Krishan with aforesaid accompanying staff left their office AATS, South West District at 6 pm and at 6.20 pm reached opposite Delhi Police Public School, Safdarjung Enclave. SI Balkishan asked few passersbyes to join raiding party but all refused and went away after disclosing their reasonable inability and without wasting time, SI Balkishan gave two SC No. 31/2011 3/23 State Vs. Raka Gupta etc. big torches to Ct Gajender and Ct Vishwajeet and asked them and his other staff that on seeing the light of mobile phone above and down, they will light their torches in the aforesaid direction and then he and other staff will reach the site. SI Balkishan deputed his accompanying staff outside Delhi Police Public School, Safdarjung Enclave and at forest in front of it. SI Balkishan himself took position at some distance from Gas Agency Indane in forest. At about 8.25 pm three motorcycles came from Safdarjung Enclave side, stopped near wall of said forest. After parking the motorcycles, six boys went towards the forest. On their reaching in the forest, another boy from the same direction had come inside the forest. All seven boys collected at a distance of 500 feet from Indane Gas godown, in the forest. SI Balkishan went near said boys in the forest in darkness, while standing in the bushes, started hearing talks of the boys. Rajesh Kumar Choudhary (accused) said, "Aaj pehela mauka hai, mota kaam kar rahe hai, ghabrana nahi, pahele to mei katta dikhakar wa Pappu chaku dikhakar sath wale gas godown Indane S.J Enclave ke workero ko kaboo kar lenge wa jitna cash hoga lootenge, agar koi bola to ya hol hujjat ki to Mithun workero ko rasse se bandhega phir unke muh SC No. 31/2011 4/23 State Vs. Raka Gupta etc. par tape lagayga, Nitin apna chakoo, Shree Pal apna chura wa Raka apni lohe kee raad istemal karega wa cash cheenkar hum jaise jaise aaye thei, waise hee jaakar Khoda Colony mei milenge, hame har halat mei kaamyaab hona hai". After saying that Rajesh Kumar Choudhary (accused) asked from all boys, "Tayyaar Ho". All of them answered in yes. At 8.35 pm, all those persons stood to give the effect to their said plan. SI Balkishan gave agreed signal from his mobile phone. Both side search lights became on. All the seven persons stood where they were on seeing the light. SI Balkishan in loud voice gave warning that they had been surrounded by police party, none should try to run away. Before those persons could run away, police party surrounded and apprehended those persons whose names were later revealed as (1) Rajesh Kumar Choudhary, (2) Pappu Yadav @ Bangali, (3) Raka Gupta, (4) Nitin Kumar Sharma, (5) Amit @ Pintu @ Mintu, (6) Lalitesh @ Mithun Gupta and (7) Shreepal Singh Chandela. From the right dub of pant of accused Rajesh Kumar Choudhary, a countrymade pistol having live cartridge and one another live cartridge from right pocket of worn pants of accused Rajesh Kumar Choudhary were recovered. Sketches of the arm and SC No. 31/2011 5/23 State Vs. Raka Gupta etc. ammunition was prepared which were kept in a parcel, sealed with the seal of BKB. Form FSL was filled up. Seal after use was given to Ct Gajender. From accused Pappu, a button actuated knife was recovered. Its sketch was prepared. It was also converted into parcel, sealed with the seal of BKB and seal after use given to Ct Gajender. From the back side of worn pant of accused Raka Gupta an iron rod which was kept in the pant and the shirt was recovered. It was kept in a parcel, sealed with the seal of BKB. From the right dub of worn pant of accused Nitin Kumar Sharma one button actuated knife was recovered. It was measured and its sketch was prepared, it was kept in a parcel and sealed with the seal of BKB. From the right pocket of pant of accused Amit @ Pintoo @ Mintu khakhi coloured plastic tape was recovered which was kept in a parcel and sealed with the seal of BKB. From the right pocket of pants of accused Lalitesh @ Mithun Gupta a plastic rope (blue coloured old nylon rassa) was recovered which was kept in a parcel, sealed with the seal of BKB. From accused Shripal Singh Chandel, from back side of his worn pant a knife was recovered which was kept in a parcel, sealed with the seal of BKB and seal after use handed over to Ct Gajender. Three SC No. 31/2011 6/23 State Vs. Raka Gupta etc. motorcycles bearing numbers DL7SAA0776, DL3SAA5734 and DL3SAA6540 which were parked at pavement were seized. One of them bearing no. DL3SAA5734 was found to be stolen whose theft was reported in case FIR No. 496/05, police station Hauz Khas. About other two motorcycles nos. DL7SAA0776 and DL3SAA6540 record could not be ascertained. SI Balkishan (PW1) prepared rukka, gave it to Ct Ajay Kumar who took it to police station, gave it to ASI Roshan Lal (PW4), duty officer. ASI Roshan Lal (PW4), duty officer recorded FIR No. 465/05, under Sections 399/402/411 IPC and 25 Arms Act and after registration of FIR, investigation was entrusted to SI Richpal (PW3). SI Richpal (PW3) reached the spot, met SI Balkishan (PW1). SI Balkishan (PW1) handed over the accused and the case property to SI Richpal (PW3). Accused were arrested. Their personal searches were conducted. Matter was investigated. Ct Pramod (PW6) took case property to FSL on 28/09/2005 and later on report was obtained. On conclusion of investigation chargesheet for offences under Sections 399/402/411 IPC and 25 Arms Act was filed against the accused persons. SC No. 31/2011 7/23
State Vs. Raka Gupta etc.
2. After the completion of the requirements under Section 207 Cr.P.C., case was committed to the court of Sessions.
3. SI Richpal (PW3) filed the final report of investigation before Juvenile Justice Board in year 2007 in respect of accused Amit @ Pintoo @ Mintu who was juvenile.
4. Since accused Lalitesh @ Mithun Gupta absconded, initially his warrants and then his proclamation processes were issued and vide order dated 23/01/2007 of my Ld. Predecessor accused Lalitesh @ Mithun Gupta was declared proclaimed offender. CHARGE
5. In terms of order dated 21/2/2007 charge for offences under Sections 399 IPC, 402 IPC was framed against five accused persons namely (1) Rajesh Kumar Choudhary, (2) Pappu Yadav @ Bengali, (3) Raka Gupta, (4) Nitin Kumar Sharma and (5) Shreepal Singh Chander. Also charge for offence under Section 25 Arms Act was framed against accused Pappu, Rajesh Kumar Choudhary and SC No. 31/2011 8/23 State Vs. Raka Gupta etc. Nitin Kumar Sharma. All accused persons pleaded not guilty and claimed trial.
6. In the course of trial accused Pappu Yadav and Shreepal absented. Initially warrants were issued against them and thereafter proclamation processes were issued. Vide order dated 19/07/2010 accused Pappu Yadav was declared proclaimed offender. Vide order dated 29/02/2012 accused Shreepal was declared proclaimed offender. WITNESSES:
7. To connect the accused with the offences charged, prosecution has examined in all 6 witnesses namely Inspector Bal Kishan (PW1); Inspector Rajiv Ratan (PW2); Inspector Richpal Singh (PW3); ASI (Retired) Roshan Lal (PW4); Ct Gajender Singh (PW5) and Ct Pramod (PW6).
STATEMENTS OF ACCUSED:
8. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the SC No. 31/2011 9/23 State Vs. Raka Gupta etc. accused persons. All accused pleaded innocence and false implication.
9. Accused Raka Gupta stated that he was apprehended from Khoda, Sector57 on 03/09/2005 while he was standing on the water rehri; one white Zen came and three persons from the said vehicle and four persons on motorcycles called him and made him sit in the Zen and from there he was taken to Vasant Vihar in the office of Crime Branch and falsely implicated in this case.
10. Similarly accused Rajesh submitted that police lifted him from Khoda Colony on 03/09/2005, brought him to Sarojini Nagar and falsely implicated in this case.
11. Also accused Nitin Kumar Sharma stated that he was apprehended by the police at Mamura village on 03/09/2005, brought to Vasant Vihar and falsely implicated in this case. ARGUMENTS
12. I have heard the arguments of Ld. Addl. PP for the State, SC No. 31/2011 10/23 State Vs. Raka Gupta etc. the defence counsel and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
13. Sh A.T Ansari, Ld. Addl. PP for the State argued that the officials of the raiding party made efforts to join independent witness but none agreed, while the official witnesses were consistent about the apprehension and manner of occurrence, commission of crime committed by the accused persons, recovery of arms and ammunition from the accused regarding which no explanation have been offered by the accused persons in their statements. Ld. Addl. PP for the State has prayed for conviction of the accused persons.
14. Sh Anil Kumar Gupta, Ld. Defence Counsel argued that the examined material witnesses testified in material contradiction with each other making their version not reliable and instead doubtful and per se the version of prosecution is not believable or probable since the alleged recovered countrymade pistol was found not in working order by the forensic expert and the persons proceeding/planning to commit dacoity would not be taking with SC No. 31/2011 11/23 State Vs. Raka Gupta etc. them such weapon which is not in working condition. It was also argued that the officers of investigating agency were having considerable time with them for joining independent witnesses but despite that no fairness has been shown by the investigating agency in the investigation by joining independent witnesses in the apprehension of accused, their searches and consequent recovery. It was vehemently argued that prosecution has miserably failed to prove its case against the accused persons who have been lifted and case properties were planted upon them and they have been falsely implicated in this case. Ld. Counsel for accused prayed for acquittal of the accused persons.
APPRECIATION OF EVIDENCE:
15. Inspector Rajiv Ratan (PW2), Incharge AATS, South West District deposed that on 07/09/2005 at 4 pm, he received secret information from secret informer that some boys of UP will collect opposite Delhi Police Public School, Safdarjung Enclave, in the forest and will commit some offence. What Inspector Bal Kishan (PW1) testified is different to the version of Inspector Rajiv Ratan SC No. 31/2011 12/23 State Vs. Raka Gupta etc. (PW2), since he says that the information received by Inspector Rajiv Ratan (PW2) was that some bad elements would gather at jungle area near Safdarjung Enclave, who may be armed with illegal arms. The secret information reduced into writing in DD NO. 4, dated 07/09/2005, copy on record embodies, " Kuch badmash jo Uttar Pradesh ke rehne waale hai jo choti moti wardatey wa motor cycle chori karte hai aaj kareeb 8 baje shaam Delhi Police Public School Safdarjung Enclave ke samaney bane khalee jungle mei ikatha hoge wa kisi sangeen waardaat ko anjaam denge jinkey paas najayaaj aslah bhi hai".
16. On the face of record, there was ample time of four hours with the officers of investigating agency that is from 4 pm to 8 pm to put in black and white their sincere efforts and to have joined independent witness(es) in the raid, apprehension of accused persons, search and seizure, in terms of the received secret information. It was not so done.
17. Inspector Bal Kishan (PW1) did not whisper of details SC No. 31/2011 13/23 State Vs. Raka Gupta etc. of secret information, time of coming of the prospective offenders nor their purpose in his testimony. Even Inspector Bal Kishan (PW1) did not whisper that the directions of forming raiding party were of Inspector Rajiv Ratan (PW2) but he simplicitor stated that the direction was so of senior officials. Inspector Bal Kishan (PW1) also stated that torches were given to Ct Gajender (PW5) and Ct Vishwajeet to provide light at the time of raid. As per case of prosecution, the torches were to be used to give signal, which was not so testified by the examined material witnesses including PW1. Inspector Bal Kishan (PW1) stated that he placed himself near the gas godown to hear the conversation of the suspects. In the site plan prepared by the investigating officer and placed on record with the chargesheet no such place has been depicted where PW1 had placed himself and had allegedly heard the conversation of the suspects. Ct Gajender (PW5) in his cross examination stated that Inspector Bal Kishan Badola (PW1) was at the distance of 4/5 metres behind bushes in the forest, when he had heard the conversation of the boys. Regarding said bushes PW5 specified that they were of height of six feet and persons behind bushes could not be seen. Said SC No. 31/2011 14/23 State Vs. Raka Gupta etc. bushes were also not depicted in the site plan prepared by the investigating officer. As per version of PW5, if the said bushes were of height of six feet and behind the bushes the persons conversing could not been seen, then as per presented prosecution case how could Inspector Bal Kishan (PW1) ascertain that it was accused Rajesh who conversed, "Aaj pehela mauka hai, mota kaam kar rahe hai, ghabrana nahi, pahele to mei katta dikhakar wa Pappu chaku dikhakar sath wale gas godown Indane S.J Enclave ke workero ko kaboo kar lenge wa jitna cash hoga lootenge, agar koi bola to ya hol hujjat ki to Mithun workero ko rasse se bandhega phir unke muh par tape lagayga, Nitin apna chakoo, Shree Pal apna chura wa Raka apni lohe kee raad istemal karega wa cash cheenkar hum jaise jaise aaye thei, waise hee jaakar Khoda Colony mei milenge, hame har halat mei kaamyaab hona hai".
18. Admittedly, it was pitch dark at the place of occurrence, there was no source of light, the suspects/accused could not be seen. The suspects, now accused, were not previously known to any of the member of the raiding party. There was no occasion for Inspector SC No. 31/2011 15/23 State Vs. Raka Gupta etc. Bal Kishan (PW1) to have actually ascertained which of the accused had conversed as aforesaid. Infact it was highly improbable that from the distance of 4/5 metres, behind bushes of height of six feet, Inspector Bal Kishan (PW1) could have actually heard the conversation, as per presented case of prosecution, as elicited in preceding para no. 1. What infact Inspector Bal Kishan (PW1) testified was that he heard conversation that accused Rajesh was telling others that others should not frighten as it was first occasion and he will show katta while Pappu will show knife and they will rob the cash from the gas godown and Nitin would tie up the victims while other would show their weapons and in that manner they will commit robbery. The testified conversation inter se suspects/accused, is different/contradictory/contrary to conversation inter se suspects/accused, as embodied in the presented case of prosecution, elicited at the outset in this judgment.
19. Amongst the examined material witnesses namely Inspector Bal Kishan (PW1), Ct Gajender Singh (PW5), none has said that any efforts were made for joining any watchman/worker of the SC No. 31/2011 16/23 State Vs. Raka Gupta etc. gas godown adjacent to the place of occurrence and/or from school across the road. Admittedly, houses were 100/150 metres away from the spot. The members of the raiding party had reached at the spot at 6.20 pm. They consumed two hours and twenty minutes in reaching at the spot and allegedly accused had arrived at 8.25 pm. After reaching at the spot, the members of the raiding party had at their elbow more than two hours. For four and half hours from busy road adjacent to place of occurrence, no passerbye, no vehicle owner/occupier, no nearby residents, occupiers of premises nearby, workers/watchman of the gas godown/ school were even asked to join raid, apprehension of accused, their search or seizure.
20. It is expected by the Court from the officers of investigating agency to make sincere efforts to depict fairness in investigation which can be so by joining independent witness if they have with them reasonable time and if such persons are available. It is not the chance apprehension of the accused persons in this case. Information received was before hand. Information received was also concrete, exact time, place of collection was in the knowledge of the SC No. 31/2011 17/23 State Vs. Raka Gupta etc. investigating agency. Yet, what is presented by the officers of investigating agency expecting them to believe the Court is that few passersbye had left who did not join investigation on request. No action was taken against them as per law. Such feeble plea seldom finds favour with the Court. It adds dimension to the shadow of doubt casted over the prosecution case.
21. Ct Gajender (PW5) even could not tell what other members of raiding party including him and Ct Vishwajeet were having with them while he (PW5) and Ct Vishawajeet were having with them one torch each. It is not to be lost sight of that the information received with officers of investigating agency had been of collection of some bad elements who were collecting for committing some serious offence. Yet, it is not borne out of the deposition of the material witnesses that any of the members of the raiding party had got issued any arm or ammunition or they were carrying with them any arm/ammunition. Ct Gajender (PW5) even could not say whether any member of the raiding party had shown any arm at the time of apprehension of accused.
SC No. 31/2011 18/23
State Vs. Raka Gupta etc.
22. As admitted by Ct. Gajender (PW5), they did not offer themselves to search of the accused persons before conducting their respective searches.
23. SI (now inspector) Richpal (PW3) was the person who had prepared the site plan, as per prosecution case, that too at the instance of Inspector Bal Kishan (PW1). Strangely enough, none amongst PW1 and PW3 testified of such preparation of site plan. In the said site plan of the place of occurrence prepared by PW3, placed on record with chargesheet, even no gate nor any entry point has been shown as to from where accused entered the said forest but it only depicts the boundary wall. It also depicts the Mark A, as the place where the seven accused had collected and were apprehended and the Mark B as the place where the three motorcycles were stationary.
24. From amongst the members of raiding party Ct Gajender (PW5) and Ct Vishawajeet are the only persons who were SC No. 31/2011 19/23 State Vs. Raka Gupta etc. signatories to all seizure memos Exts PW1/A, PW1/C, PW1/E, PW1/F, PW1/H, PW1/I, PW1/J, PW1/K, PW1/L, PW1/M, arrest memos Exts PW3/A to PW3/G, personal search memo Exts PW3/H to PW3/O, sketches Exts PW1/B and PW1/D and none else of the raiding party had signed any such documents as if they were not present at the scene of crime or had paled into insignificance. Aforesaid seizure memos, sketches of arms and ammunition bear on top of them the FIR number etc., of this case, despite the fact that as per ruqqa Ex PW1/N, these documents were brought into existence, prior to registration of FIR, copy Ex PW4/A, by duty officer ASI Roshan Lal (PW4). For that there is no justifiable explanation in prosecution evidence on record. Also, it is highly improbable that one who is proceeding to commit serious offence of dacoity, would carry a countrymade pistol which is not in working order. FSL report Ex PF1 depicts the pistol, Ex P1 to be not in working order. No finger prints were lifted from any arm recovered. No sanction under Section 39 Arms Act was obtained. These facts add dimensions to the shadow of doubt casted over the prosecution case. SC No. 31/2011 20/23
State Vs. Raka Gupta etc.
25. The entire work of investigation carried at the scene of crime and before reaching there by the members of the raiding party required fairness on the part of the investigating agency. Such fairness could be shown by joining independent public persons or inhabitants of nearby locality in the raid, search or seizure. Despite admitted availability, nearby residents of the locality, watchman/employees of gas godown/nearby school, public persons were not joined in the raid, apprehension of the accused, search of the other accused or alleged recoveries or in the hearing of the conversation amongst the accused for alleged preparation of the dacoity. Feeble plea of asking of the organizer of raiding party to few persons to join investigation and they going away, without telling their names and addresses, has been churned which has seldom found favour with the Courts. None amongst the refusing person has been proceeded against for offence under Section 187 IPC, despite the fact that there were sufficient members of the raiding party amongst whom one or more could have been entrusted with such task.
26. On record in the evidence of prosecution there is no SC No. 31/2011 21/23 State Vs. Raka Gupta etc. cogent version about the exact words spoken by any or all accused to be inferred or proved that they had in any manner made any preparation to commit dacoity/robbery or had assembled for such purpose.
27. For want of any cogent evidence of the conversation amongst the accused which could be attributed to the preparation of the commission of the offence of dacoity or the reason of their assembling in more than five in number at the scene of alleged crime, material witnesses testifying in contradiction with each other and their testimonies embodied with severe infirmities going to the root of the matter to check the basic version and core of the prosecution case, coupled with the fact of no independent witness having been joined in the raid, lead me to the conclusion that the prosecution has not been able to prove its case against the accused, beyond reasonable doubt. Accused Raka Gupta, Rajesh Kumar Choudhary and Nitin Kumar Sharma are accordingly held not guilty and acquitted for the offences charged. Bail bonds of accused on bail are cancelled and their respective sureties are discharged. File be SC No. 31/2011 22/23 State Vs. Raka Gupta etc. consigned to record room, which can be recalled on appearance, production of proclaimed offender accused Pappu Yadav @ Bangali, Lalitesh @ Mitun Gupta and Shreepal Singh Chandela.
Announced in the open court (GURVINDER PAL SINGH)
on date 16/04/2012 ASJ (FTC)/SD/ NEW DELHI.
SC No. 31/2011 23/23