Delhi District Court
State vs . Gauransh Gudiyal And Other on 27 April, 2021
State Vs. Gauransh Gudiyal and Other
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTH-WEST)-02,
DWARKA COURTS: DELHI
Case Registration No. 123/2018
CNR No: DLSW01-003739-2018
FIR No. 343/2014
Police Station: Dabri
Under Section: 323/341/364-A/506 (II)/34 IPC
STATE
VERSUS
1. GAURANSH GUDIYAL @ SANDEEP
S/o Rajender Gudiyal
R/o H. No. 20, J. J. Block,
Chankya Place, Uttam Nagar,
New Delhi.
2. SANDEEP TEHLAN
S/o Braham Singh
R/o H. No. 63, Nangli Sakrawati,
Najafgarh, New Delhi.
Date of institution : 26.09.2017
Date of Reserving judgment : 06.04.2021
Date of Pronouncement : 27.04.2021
Decision : Acquitted
For State : Sh. Pramod Kumar, Learned Addl. Public
Prosecutor.
For Defence: Sh. Bijendra P. Kumar, counsel for accused
Gauransh Gudiyal.
Sh. Vivek Dagar, counsel for accused Sandeep
Tehlan.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 1....of 23
State Vs. Gauransh Gudiyal and Other
JUDGMENT
1. Accused persons were committed for trial by court of Sh.
Siddhartha Malik, Ld. MM-2, South West, Dwarka, New Delhi, charge sheet having been filed against accused for commission of offences U/sec 365/364-A/341/323/506/34 IPC.
2. Accused persons were charge-sheeted for commission of offences punishable under Sections 365/364-A/341/323/506/34 IPC on facts that after 11:15 PM on 11.05.2014 from House No. RZ-G-45A, G-Block, Gali No. 1, Vijay Enclave, New Delhi both accused in furtherance of their common intention abducted Nirmal Upadhyaya S/o Girish Chand Upadhyaya for ransom in Accent Car and demanded Rs. 1,50,000/- from family members of Nirmal Upadhyaya, gave beatings by use of danda, leg and fist blows to Nirmal Upadhyaya and threatened to cause his death or hurt besides which accused persons also obtained thumb impression of complainant Nirmal Upadhyaya on blank papers and signatures for Rs. 3 lacs loan. Both accused in furtherance of their common intention after kidnapping Nirmal Updhyaya for ransom, criminally intimidated Nirmal Upadhyaya to cause his death or grievous hurt to his person with intent to cause alarm to him and after kidnapping Nirmal Upadhyaya for ransom, wrongfully restrained Nirmal Upadhyaya in a farm house and after kidnapping Nirmal Upadhyaya for ransom, voluntarily caused hurt on person of Nirmal Upadhyaya.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 2....of 23 State Vs. Gauransh Gudiyal and Other
3. Brief facts on the basis of which charge-sheet in the matter was filed are as follows:-
4. On 12.05.2014, SI Sunder Singh received DD No. 5-A as per which son of caller was taken by his acquaintance two hours ago who has not returned till now and demand of Rs. 1.5 lacs is being made from Mobile No. 9268224488. SI Sunder Singh on receipt of above information reached at the spot alongwith Ct. Sukhdev Singh where complainant Nirmal Upadhayay met them who was got medically examined from DDU Hospital.
5. Complainant gave his statement. Complainant in his statement stated that he is running a Shiksha Abhiyan Educational Society as Franchisee of NGO whereby poor children are taught computer education. He stated that he took franchisee of this NGO from one Gauransh Gudiyal @ Sandeep on 30.03.2009. He stated that every year, he is teaching 50-60 students. He stated that he took franchisee after giving Rs. 51,600/- to Gauransh Gudiyal @ Sandeep. He stated that while allotting franchisee, Gauransh Gudiyal gave written assurance on letter head of the franchisee regarding refund of this amount. He stated that Gauransh Gudiyal told him that if he teaches 80 students per year, he will be funded to tune of Rs. 50,000/- per month from the NGO. He stated that despite he training 80 students per year, Gauransh Gudiyal @ Sandeep did not give any fund and he had to run the institute from fees given by children. He stated that on account falling deficient, he funded the institute out of his own personal savings. He stated that he came to know that NGO is receiving cash to the tune of Rs. 3 FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 3....of 23 State Vs. Gauransh Gudiyal and Other Lacs per year. He stated that when he asked for his balance fund, Gauransh Gudiyal started threatening him on phone. He stated that when his institute was about to close down due to financial constrains, Gauransh Gudiyal gave him loan of Rs. 50,000/- and asked him to run the institute from 04.06.2013. He stated that he repaid loan amount of Rs. 40,000/- in 8 monthly installments of Rs. 5000/- each to Gauransh Gudiyal. He stated that Gauransh Gudiyal asked for amount of Rs. 2.5 lacs after calculating interest @ 10% and per day penalty of Rs. 500/- on amount of Rs. 50,000/-. He stated that when he felt that he has been wronged, he asked for refund of his reserve amount of Rs. 51,600/- whereupon Gauransh Gudiyal alongwith his partner Sandeep Tehlan came to his house at 11:15 p.m in the night of 11/12.05.2014. He stated that both of them called him to their house and asked him to talk in a white color Accent Car. He stated that as soon as he sat in the car, he was driven to Pushpanjali Farm House in airport area at a fast speed where he was blind folded and both of them said that he should be killed. Complainant stated that they started demanding Rs. 1.5 lacs from his family members after threatening for his life but when his family member did not respond, they took him to one unknown Farm House where he was beaten with a danda on account of which he suffered injuries over his left leg. Complainant was wounded with fists and leg blows. Complainant stated that during this time, Gauransh Gudiyal received call from PS Dabri whereupon his beating was stopped. Complainant stated that they asked complainant to FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 4....of 23 State Vs. Gauransh Gudiyal and Other sign on blank paper and got his signatures on loan of Rs. 3 Lacs. He stated that they asked for ransom for releasing complainant from family members of complainant on phone whereupon father of complainant informed PCR at 100 number. He stated that thereafter they dropped him near his house whereafter, complainant went to PS and made complaint.
6. On statement of complainant, SI Sunder Singh got lodged FIR u/s. 365/364-A/323/341/506/34 IPC after sending tehrir in the PS through Ct. Sukhdev. After registration of FIR, investigation was carried out by SI Sunder Singh. Accused persons were arrested at instance of complainant. Disclosure statements of accused were recorded. During investigation, car bearing No. HR26 BH 4141 was recovered alongwith Danda and piece of paper having Rasidi stamps. Place of incident was got identified and case property was deposited in Malkhana of PS.
7. Statements of witnesses u/s. 161 Cr.P.C were recorded and accused were sent to JC.
8. On 26.09.2017, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. MM-02, South West, Dwarka with a view to put accused for trial.
9. In the light of the police report and the documents filed alongwith the same, Learned MM-02, South West, Dwarka having taken cognizance of the offences complied with the provisions of section 207 of Cr.P.C. and committed the case to the Court of Sessions.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 5....of 23 State Vs. Gauransh Gudiyal and Other
10. On 07.08.2018, charge was framed against accused persons for having committed offences punishable under section 323/341/364-A/506 (II)/34 IPC. Charge was read over and explained to the accused persons to which they did not plead guilty and claim trial.
11. In support of its case, the prosecution examined 05 witnesses in total.
12. PW-1 Nirmal Kumar Upadhyay is complainant who deposed that earlier he used to run Computer Institute of Advanced Technology which was franchisee of "Shiksha Abhiyan Educational Society" of NGO. He deposed that he used to run said institute at RZ C -2/11, Gali No. 1, Mahavir Enclave, Part -I, New Delhi on rent at first floor. He deposed that every year about 80 students were given computer education in the institute. He deposed that he had taken the franchisee from accused Sandeep @ Gauransh Gudiyal in year 2009 after giving Rs. 51,000/-. He was told that if they take Rs. 100/- from every student as registration charge for computer education and there are minimum 80 students in a year, then all the expenses shall be born by NGO society. He deposed that he ran the institute accordingly for 04 years but was not given any money by NGO society. He deposed that he then told Sandeep @ Gauransh Gudiyal after four years that he was not in a condition to further run the institute whereupon accused Sandeep @ Gauransh Gudiyal gave him Rs. 50,000/- to run the institute and then they had a talk that instead of Rs. 100/-, they will take Rs. 1000/- from every student for each year. He FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 6....of 23 State Vs. Gauransh Gudiyal and Other deposed that from the fees received from the students, he returned sum of Rs. 50,000/- to accused Sandeep @ Gauransh Gudiyal in installments of Rs. 4,000/- or Rs. 5,000/-every month. He deposed that he then told accused Sandeep @ Gauransh Gudiyal for closing his institute and as per their talks earlier regarding refund of his amount deposited with NGO society, he demanded the said refund of his amount deposited with NGO society. He deposed that he had already returned about Rs. 40,000/- out of sum of Rs. 50,000/- given to him by accused Sandeep @ Gauransh Gudiyal and he was not having capacity to return balance amount of Rs. 10,000/-. He deposed that when he demanded refund of his amount deposited with NGO society, accused Sandeep @ Gauransh Gudiyal told him that he had to pay him back interest also on amount of Rs. 50,000/-given by him @ 10% per month. PW-1 deposed that he then told him to charge interest on his deposit of Rs. 51,000/- with the NGO Society. On this aspect, arguments took place.
13. PW-1 deposed that in the night of 10.05.2014, both the accused persons namely Sandeep came around 11:00 PM at his house. He deposed that he was called outside from his house and was told to sit in the vehicle by accused for talk. He deposed that he refused to sit in the vehicle. He deposed that accused Sandeep @ Gauransh Gudiyal then forcibly made him sit in the vehicle. Accused Sandeep Talhan started the vehicle which was Accent Car of White colour and proceeded towards Palam Side. On the way for sometime, the car was stopped and he was made to call at his home and made him say to his family FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 7....of 23 State Vs. Gauransh Gudiyal and Other members to pay Rs. 2.5 lacs. His brother refused to pay saying that he had no role in that. He deposed that after taking the vehicle to Pushpanjali Enclave, accused Sandeep @ Gauransh Gudiyal tied cloth on his eyes and thereafter took vehicle to a farm house. He deposed that he was alighted from the car in the farm house but cloth was not removed from his eyes. He deposed that he was beaten by danda and fists by both accused namely Sandeep. He deposed that his parents made a call at 100 number. He deposed that he received injuries in the leg near thigh. He deposed that accused Sandeep @ Gauransh Gudiyal received a call whereafter, accused stopped beating him. Accused Sandeep @ Gauransh Gudiyal made him write on a paper that he had gone with his friends with his will for visit and if any action is taken on this by police, then it will be wrong. He deposed that on asking of accused Sandeep Tehlan, accused Sandeep @ Gauransh Gudiyal made him write on other paper that he had taken Rs. 2.5 lacs from accused Sandeep @ Gauransh Gudiyal. He deposed that after pasting postal stamps on the paper, he was made to sign on paper by accused persons. He was then made to sit in the car and he was left near his home by accused persons. He alongwith his family went to police station on the same night and lodged report vide Ex. PW-1/A. Accused were called in the PS but they did not come. He deposed that next day, SI took him to house of accused Sandeep @ Gauransh Gudiyal but accused was not there. He deposed that after two days, accused went to PS. He deposed that thereafter, computerized FIR was recorded. He correctly FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 8....of 23 State Vs. Gauransh Gudiyal and Other identified both accused before court.
14. PW-1 was cross examined by State as he partly resiled from his earlier statement. In his cross-examination, PW-1 admitted that his first statement was recorded on 12.05.2014. He admitted that he started his institute from 30.03.2009. He stated that he did not deposit Rs. 51,600/- with accused Sandeep @ Gauransh Gudiyal but had deposited only Rs. 51,000/-with him. He admitted that on the letter head of the society, accused Sandeep @ Gauransh Gudiyal gave in writing that the said amount shall be refunded to him. He admitted that accused Sandeep @ Gauransh Gudiyal promised him to pay Rs. 50,000/- every month from funds of trust in lieu of teaching target of 80 students every year but he did not pay him anything from funds of trust. He admitted that in compulsion, he ran the institute from fees of students and after incurring loss, he took out money from personal savings and ran the institute. He admitted that when he came to know from ITR that society was getting Rs. 3 lacs every year in cash, then he demanded his balance fund. He denied that incident took place in intervening night of 11 and 12, May, 2014. He volunteered that incident took place in the night of 10.05.2014. He volunteered that accused had taken him to Pushpanjali Enclave. He admitted that after cloth was tied on his eyes, both accused had said that "Ise Yahin Mar Kar Faenk Dete Hai". He admitted that when phone call from PS Dabri was received by accused Sandeep @ Gauransh Gudiyal, then accused stopped beating him. He volunteered that he was made to sign for Rs. 2.5 lacs. He FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 9....of 23 State Vs. Gauransh Gudiyal and Other admitted that accused had demanded money from his family members in lieu of leaving him. He stated that he does not know that on 12.05.2014, Accent Car No. HR-26BH-4141 White Colour was stationary near Power House at Vijay Enclave. He denied that in his presence, the said car was seized by police. He denied that both accused were apprehended on 12.05.2014 in his presence or were arrested. He volunteered that when accused were apprehended, he was called in PS.
15. PW-2 ASI Raja Ram is Duty Officer who deposed that he was duty officer at PS Dabri from 12:00 Midnight to 08:00 AM of 12.05.2014. He deposed that Ct. Sukhdev Singh gave him rukka sent by SI Sunder Singh at 03:50 AM on basis of which, he got lodged FIR of present case registered through Computer Operator vide Ex. PW-2/A. He exhibited endorsement on rukka vide Ex. PW-2/B. He exhibited certificate U/sec 65 B of Indian Evidence Act in support of FIR vide Ex. PW-2/C.
16. PW-3 Retd. SI Sunder Singh is IO who deposed that on 12.05.2014, on receipt of DD No. 5A Ex. PW-3/A, he alongwith Ct. Sukhdev went to House of complainant at WZ-D-45, Gali No. 1, Vijay Enclave, New Delhi where one Upadhyay met them but that he does not recollect his exact name. He deposed that complainant told that he was kidnapped by two persons in a vehicle and was given beatings by dandas and that they took him towards Bijwasan. He deposed that thereafter, he left the Constable at his house and took complainant to DDU hospital for his medical examination. After getting complainant FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 10....of 23 State Vs. Gauransh Gudiyal and Other medically examined, he recorded his statement in the hospital vide already Ex. PW-1/A. At this stage, PW-3 stated name of witness to be Nirmal Upadhyay. He deposed that thereafter, he returned back to hospital and made endorsement Ex. PW-3/A on statement of complainant, prepared rukka and got case registered through Ct. Sukhdev. He deposed that after registration of case, Ct. Sukhdev came back at the spot and handed over copy of FIR and original rukka to him. He deposed that thereafter, he alongwith Constable and complainant proceeded for further investigation.
17. PW-3 deposed that complainant took them to Bijwasan where he was given beatings. On interrogation, complainant disclosed name of Gauransh and Sanjay, again said Sanjeev, again said Sandeep. He deposed that vehicle was having number HR-4141. He correctly identified accused before court. He deposed that at that time, accused were sitting in the car and complainant identified both accused and car. He exhibited joint disclosure statement of accused persons without his signatures vide Ex. PW-3/B. He exhibited arrest memo and personal search memo of accused Gauransh vide Ex. PW-3/C and Ex. PW-3/C1. He exhibited arrest memo and personal search memo of accused Sandeep vide Ex. PW-3/D and Ex. PW-3/D1 respectively. He deposed that said car was taken into possession vide memo Ex. PW-3/E. He exhibited place of incident at pointing out of accused persons vide Ex. PW-3/F. He deposed that at instance of accused persons, a danda and some pieces of paper in torn condition having revenue stamp were taken into FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 11....of 23 State Vs. Gauransh Gudiyal and Other possession vide Ex. PW-3/G (Colly). He deposed that both accused pointed towards place of beating i.e. Sonu Rana farm House vide memo Ex. PW-3/H.
18. PW-3 further deposed that during investigation, he recorded statements of witnesses and deposited case property in Malkhana. He deposed that thereafter, both accused persons were brought to PS alongwith case property and on the next day, they were produced before court concerned from where they were sent to JC. Thereafter, he gave information in office of accused persons about their arrest. He deposed that after some days, he was transferred and he deposited the case file with MHC ( R ). He identified case property i.e. one Bamboo Danda seized by him at joint instance of accused persons vide Ex. P-1 before court.
19. PW-4 Ct. Sukhdev deposed that on 12.05.2014, he was on emergency duty. He deposed that he joined investigation of the case with IO SI Sunder Singh and went to spot i.e. Vijay Enclave, Dabri where complainant met him. He deposed that complainant pointed towards two persons. He correctly identified accused Sandeep before court and identity of accused Gauransh Gudiyal was not disputed. He corroborated Ex. PW- 3/C, Ex. PW-3/D, Ex. PW-3/C1, Ex. PW-3/D1 and Ex. PW-3/B. He deposed that car No. HR-26-DH-4141 was seized by IO vide memo already Ex. PW-3/E. He deposed that thereafter, he alongwith IO, accused persons and case property returned to PS. Identity of car was not disputed by defence counsels.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 12....of 23 State Vs. Gauransh Gudiyal and Other
20. PW-5 Dr. Vinat Kumar Soni appeared for Dr. Pallavi who stated to have left services of hospital and her whereabouts were stated to be not known. He exhibited MLC of patient Nirmal Kumar vide Ex. PW-5/A. He deposed that patient was given emergency treatment and advised X ray of left thigh with knee AP and lateral and thereafter, patient was referred to Doctor on duty, Department of Ortho for further management and expert opinion.
21. Prosecution Evidence was closed on statement of Ld. Additional PP for State on 23.01.2020.
22. Statements of accused persons U/sec 313 Cr. P. C. were recorded on 06.04.2021, wherein incriminating material appearing in evidence against accused was put to accused persons to which accused Gauransh Gudial admitted that PW-1 took franchisee from him in 2009 after giving Rs. 51,000/-. He admitted that he gave Rs. 50,000/- to complainant to run the institute. He stated that he was made to sign on blank papers by IO. He stated that he himself went to PS being called by IO. Regarding Ex. P-1, he stated that the same is matter of record. He stated that he is innocent and that witnesses have deposed falsely being interested witnesses and that he has been falsely implicated in this case.
23. Accused Sandeep Tehlan in his statement U/sec 313 Cr.
P. C either denied questions asked from him or expressed his ignorance. He stated that witnesses have deposed falsely being interested witnesses and that he has been falsely implicated in this case. He stated that he is innocent.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 13....of 23 State Vs. Gauransh Gudiyal and Other
24. Accused did not led Defence Evidence.
25. I have heard arguments addressed by respective counsels and perused the record.
26. Before testing ingredients of offences under Section 364A/506(II)/323/341/34 IPC on factual matrix of present case, let me first analyze as to whether facts of present case inspire sufficient confidence so as they require to be tested on ingredients of these sections.
27. Initial acquaintance of complainant/PW-1 with accused Gauransh Gudiyal appears to be atleast from year 2009. Complainant in his examination-in-chief deposed that he had taken franchisee from accused Sandeep @Gauransh Gudiyal in year 2009 after giving Rs. 51000/-. Complainant has stated this amount to be Rs. 51,600/- in his statement Ex. PW-1/A. Complainant in his cross-examination by State again reiterated this amount to be Rs. 51000/- and not Rs. 51,600/-. So, complainant has taken different stand so far as amount paid by him to accused Sandeep @Gauransh Gudiyal for taking franchisee of computer institute is concerned before court vis a vis Ex. PW-1/A.
28. Complainant in his examination-in-chief has deposed that he told accused Sandeep @Gauransh Gudiyal after four years that he was not in a condition to further run the institute, then accused Sandeep @Gauransh Gudiyal gave him Rs. 50,000/- to run the institute. He deposed that from fees received from students, he returned amount of Rs. 50,000/- to accused FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 14....of 23 State Vs. Gauransh Gudiyal and Other Sandeep @Gauransh Gudiyal in installments of Rs. 4,000/- or Rs. 5,000/- every month. Later on regarding the same amount, complainant in his examination-in-chief again stated that he had already returned about Rs. 40,000/- out of sum of Rs. 50,000/- given to him by accused Sandeep @Gauransh Gudiyal and he was not having capacity to return balance amount of Rs. 10,000/-. State has not re-examined complainant with regard to aspect as to which of his statement qua return of amount of Rs. 50,000/- to accused Sandeep @Gauransh Gudiyal is correct.
29. Complainant in his examination-in-chief deposed regarding date of incident to be 10.05.2014. Complainant in his cross- examination by state denied that incident took place in the intervening night of 11th and 12th May, 2014. He volunteered that incident took place on night of 10.05.2014. Perusal of DD No. 5B Ex. PW-3/A which is first record of acquaintance of complainant asking for money shows that the same has been lodged at 1:07 AM on 12.05.2014 wherein factum of complainant being taken away by his acquaintance has been mentioned to be of two hours earlier which shows that alleged incident is of intervening night of 11th and 12th May, 2014 and not of 10.05.2014. Even MLC of complainant Ex. PW-5/C is dated 12.05.2014 which as per prosecution story is immediately after the alleged incident. Complaint given by complainant Ex. PW-1/A is also dated 12.05.2014. Complainant in his examination-in-chief further deposed that he with his family went to police station on the same night and lodged report there. Complainant/PW-1 in his cross-examination on behalf of FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 15....of 23 State Vs. Gauransh Gudiyal and Other accused Sandeep @ Gauransh Gudiyal stated that on the night of incident, he had given complaint in PS. From contradictory statements of complainant, date of alleged incident has become doubtful and tempering in Ex. PW-1/A, Ex. PW-3/A and Ex. PW-5/A cannot be ruled out.
30. Further, complainant in his examination-in-chief has deposed alleged ransom amount got asked by complainant at instance of accused from his family members to be Rs. 2.5 lacs. Complainant in his cross-examination by state has denied that accused demanded Rs. 1.5 lacs from his family members. As per Ex. PW-1/A and Ex. PW-3/A, the alleged ransom amount demanded by accused persons was Rs. 1.5 lacs. There is contradiction between ransom amount deposed by complainant before court and that stated in Ex. PW-1/A and Ex. PW-3/A which reduces credit of complainant as witness.
31. Complainant in his cross-examination by state admitted that when call from PS Dabri was received by accused Sandeep @ Gauransh Gudiyal, then accused stopped beating him. Similar is stance of complainant in Ex. PW-1/A. Surprisingly, IO in the charge-sheet has not mentioned name of police official who called at mobile of accused Sandeep @ Gauransh Gudiyal after which alleged beating of complainant was stopped nor has cited him as witness thus leaving a very important link in prosecution story unestablished. IO has further failed to bring on record CDRs of mobiles of the said police official or that of accused Sandeep @ Gauransh Gudiyal which could have led credibility to prosecution story.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 16....of 23 State Vs. Gauransh Gudiyal and Other
32. IO on his part left further deficiency in investigation. He failed to record statement of family member of complainant (As per deposition of complainant, it appears to be his brother) from whom alleged demand of ransom was made by accused Sandeep @ Gauransh Gudiyal, neither cited him as witness nor he has brought on record CDRs of accused Sandeep @ Gauransh Gudiyal and the said family member of family of complainant which could have corroborated complainant's version in this regard. It is an important missing link in story of prosecution.
33. IO further failed to cite father of complainant as prosecution witness nor recorded his statement under section 161 Cr. P.C. who as per Ex. PW-3/A is informant of DD No. 5B dated 12.05.2014 and thus has left a vacuum in version of prosecution as DD No. 5B is first information regarding taking away of complainant by his acquaintance and regarding demand of Rs. 1.5 lacs. IO/PW-3 in this regard in his cross-examination conducted on behalf of accused Sandeep Tehlan has stated that informant of the incident was father of complainant. He stated that he did not record statement of father of complainant in this case. He volunteered that he tried to locate him but he could not be found. He stated that he had gone to house of complainant 2- 3 times to record statement of his father. He stated that he did not serve any notice to father of accused( it appears that inadvertently on account of typographical mistake instead of word 'complainant', word 'accused' has been recorded in deposition of PW-3) in respect of the same. I am of the view FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 17....of 23 State Vs. Gauransh Gudiyal and Other that IO has not carried out investigation properly and it is merely lip service by IO in his cross-examination to state that he went to house of complainant 2-3 times to record statement of his father in absence of any written record in this regard.
34. Complainant is witness on seizure memo of car bearing No. HR26-BH-4141 Ex. PW-3/E (purportedly the vehicle wherein complainant was abducted) and arrest and personal search memos of accused Ex. PW-3/C, Ex. PW-3/D, Ex. PW-3/C1 and Ex. PW-3/D1. Complainant in his examination-in-chief has deposed that accused were called in the PS but they didn't come in the PS. He deposed that after two days, accused went to PS. Complainant in his examination-in-chief has not said anything with regard to registration number of the car wherein he was abducted. Case of prosecution is that complainant accompanied police on 12.05.2014 and accused while sitting in car bearing number HR26-BH-4141 were arrested from Dabri Dwarka Ganda Nala Road, near Power House towards Dwarka, Delhi on 12.05.2014 in presence of complainant. Complainant in his cross-examination by state denied that on 12.05.2014, he accompanied police to Vijay Enclave, near power house in search of accused. He further stated that he does not know that on 12.05.2014, Accent car bearing No. HR26-BH-4141 white colour was stationary near power house at Vijay Enclave. He denied that in his presence, the said car was seized by police. He denied that both accused were apprehended on 12.05.2014 in his presence or were arrested. He denied that the aforesaid Accent car was seized by police on 12.05.2014 in his presence.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 18....of 23 State Vs. Gauransh Gudiyal and Other He volunteered that when accused were apprehended, he was called in PS. Complainant in his cross-examination on behalf of accused Sandeep Tehlan stated that he told IO in his statement that behind the Accent car, photo of Bhagat Singh was pasted on the black glass but he had not told number of Accent car. He stated that in his statement Ex. PW-1/A, there is no mention of photo of Bhagat Singh pasted on the back glass of the car. Complainant was not shown car bearing No. HR26-BH-4141 wherein he was allegedly abducted during his examination-in- chief. Complainant has not stated registration number of car wherein he was abducted nor anything like photo of Bhagat Singh being pasted on back glass of the said car being reported in Ex. PW-3/E, it was all the more necessary to show the alleged car to complainant in his examination-in-chief particularly when complainant has denied its recovery in his presence. So, in these circumstances, it can be said with certainty that prosecution has failed to prove identity of car wherein complainant was allegedly abducted. Complainant has also denied that accused were arrested in his presence on 12.05.2014 from abovementioned car. Place of arrest of accused persons become doubtful in these circumstances. Manipulation of evidence in these circumstances on part of IO is quite obvious and accused cannot be convicted in these circumstances.
35. Complainant/PW-1 in his cross-examination on behalf of accused Sandeep Tehlan stated that police prepared site plan at his instance but that he does not remember the date when it was FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 19....of 23 State Vs. Gauransh Gudiyal and Other prepared. He further stated that it was prepared within 10 days of the incident. IO/PW-3 on the other hand negated preparing of site plan of the spot and place of beatings in his cross- examination on behalf of accused Sandeep Tehlan. Further , there is no site plan filed by IO with charge-sheet. Either complainant is lying or IO. In these circumstances, reliability of prosecution story vanishes further.
36. IO/PW-3 allegedly recovered danda used to beat complainant in present case vide memo Ex. PW-
3/F(inadvertently pointing out memo and seizure memo of danda and pieces of paper have been exhibited separately in deposition of PW-3 whereas it is only one document and pieces of paper have in actual been exhibited vide Ex. PW-3/G). IO/PW-3 in his examination-in-chief has correctly identified this danda vide Ex. P1. This danda when produced before court bore seal of IO 'SS' and FIR No. 343/14, PS Dabri was also written on sealed parcel when produced before court. During cross-examination of IO/ PW-3 on behalf of accused Sandeep Tehlan, IO was shown this danda Ex. P1 and FIR No. 375/14 u/s 323/341/506 IPC dated 12.05.2014 was found mentioned on the said danda. This court asked IO as to how FIR No. on danda has been mentioned differently to which IO stated that it is same danda which was seized by him but that he is not aware as to who wrote FIR number and sections which are different than present FIR. It is beyond comprehension when case property in sealed condition was produced before court, how come IO is not aware that who mentioned FIR No. differently upon the FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 20....of 23 State Vs. Gauransh Gudiyal and Other same. Tempering of case property on part of IO is writ large in this case and accused thus can't be convicted in this case.
37. Complainant/PW-1 in his examination-in-chief deposed that accused Sandeep @ Gauransh Gudiyal made him write on a paper that he has gone with his friends with his will for visit and if any action is taken on this by police then it will be wrong. He further deposed that on asking of accused Sandeep Tehlan, accused Sandeep @ Gauransh Gudiyal made him write on other paper that he has taken Rs. 2.5 lacs from accused Sandeep @ Gauransh Gudiyal. He further deposed that after pasting postal stamps on the paper, he was made to sign on the paper by accused persons. As per prosecution version, these writings were got recovered by accused persons vide memo Ex. PW- 3/F . These torn written papers have been placed on record by IO which are exhibited on record vide Ex. PW-3/G. Perusal of these torn papers prima facie does not show that they have been written under any duress by complainant as writing on these papers is smooth and appears to be in natural flow and it does not appear that the same have been written by complainant after receiving beatings from accused. Similarly signatures of complainant on these torn papers are also very smooth. Further, these papers constituted evidence against complainant and it is beyond logic that accused will try to destroy evidence in their favour. It appears that these torn papers have been planted in order to support complainant's version but on account of my observations in this para, they are taken to be averse to complainant.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 21....of 23 State Vs. Gauransh Gudiyal and Other
38. Complainant/PW-1 in his cross-examination on behalf of accused Sandeep Tehlan has admitted that dispute was regarding money transaction. He in his cross-examination on behalf of accused Gauransh Gudiyal admitted that accused Sandeep @ Gauransh Gudiyal is a good person. He admitted that their relations soured because of money transaction. Complainant in his MLC Ex. PW-5/A did not take name of accused persons. PW-5 Dr. Vineet Kumar Soni in his cross- examination on behalf of accused Sandeep Tehlan has stated that possibility cannot be ruled out if a person falls on a hard surface and receives such type of injuries. Money dispute in background coupled with what has been stated by PW-1 and PW-5 in their cross-examinations as mentioned above, it is clear that motive is available with complainant to implicate accused in present matter in order to avert his financial liability.
39. In view of my abovemade discussion, I am of the opinion that there is no requirement of testing ingredients of offences under section 364-A/323/341/506(II)/34 IPC on factual matrix of present case as evidence produced by prosecution on record does not inspire sufficient confidence so as to convict accused persons. Further, there are various important missing links in prosecution story and case property appears to have been tempered/manipulation appears to have been done with case property. It can be said that prosecution has failed to prove its case against accused persons beyond reasonable doubt. Hence, accused persons are acquitted for commission of offences under section 364-A/323/341/506(II)/34 IPC.
FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 22....of 23 State Vs. Gauransh Gudiyal and Other
40. Let copy of this judgment be sent to DCP concerned with direction to him to take action against IO for his negligence, lapses and tempering of case property as pointed out in this judgment.
41. File be consigned to Record Room. Digitally signed by SONU SONU AGNIHOTRI Announced through VC on 27th April, 2021 AGNIHOTRI Date: 2021.05.06 19:12:18 +05'30' (Sonu Agnihotri) ASJ-02 (South- West), Dwarka Courts, Delhi 27.04.2021 FIR No: 343/2014 PS: Dabri Case Registration No. 123/2018 page no. 23....of 23