Delhi District Court
State vs 1 Nikesh Gupta (A-1) on 16 February, 2016
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0031672011
Sessions Case No. 88/1/13
FIR No. 09/2008
PS Model Town
U/s 302/201/120-B IPC IPC
State Versus 1 Nikesh Gupta (A-1)
Son of late Sh. Jai Bhagwan,
Resident of C-12, CC Colony,
Model Town, Delhi.
2 Lalit Yadav @ Pongi @ Lalli (A-2)
Son of Sh. Mahesh Yadav,
Resident of T-71, Raj Pura,
Gurmandi, Delhi.
3 Gaurav Kumar (A-3)
Son of Sh. Madan Singh,
Resident of Ram Dass Colony,
Village Tititree Railway Station,
Baghpat, UP.
4 Lal Bahadur (A-4),
Son of late Sh. Raja Ram,
Resident of H. No. 371, Sector-7,
Pocket G-21, Rohini, Delhi.
5 Mohd. Adil Alam (A-5),
Son of Sh. Ashiq Ali,
Resident of B-423, Sangam Park,
Rana Pratap Bagh, Delhi.
Date of institution in Sessions Court: 04.07.2011
Date of conclusion of arguments : 16.02.2016
Date of pronouncement of judgment: 16.02.2016
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Sachin Dev Sharma, learned defence counsel for all accused.
FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 1 of pages 11
JUDGMENT
1 Sh. Jai Bhagwan Gupta used to reside at C-12, CC Colony, Delhi. His wife Smt. Geeta Devi (PW15) and his son Nikesh Gupta (A-1) also used to reside with him.
2 On 11.01.2008 at about 6.30 AM, Sh. Jai Bhagwan Gupta left for morning walk. At about 7.15 AM, someone informed Smt. Geeta Devi that Sh. Jai Bhagwan Gupta was lying on the road near Priyadarshani Vihar Market. Nikesh Gupta (A-1) along with his mother rushed there and saw his father lying on the road. He was bleeding from his chest. He was immediately rushed to Hindu Rao Hospital where he was declared brought dead.
3 It will not be out of place to mention here that Police Control Room had also received information that one person had been shot and was lying unconscious. DD No. 7A had accordingly been registered at PS Model Town at about 7.25 AM.
4 Insp. Mir Singh (PW4) was deputed for investigation. Site was got photographed and crime team also inspected the spot. Postmortem report was also obtained. Death was found due to hemorrhage and shock consequent to gunshot injury During investigation, police made inquiries from various persons including the acquaintances and relatives of the deceased but there was no indication about the offender(s). Call details record (CDR) of mobile of deceased was also obtained and minutely scrutinized but the police remained clueless.
5 Since police could not get any wind about the actual offender, it prepared untraced report on 21.12.2009 with request that as and when there was any further clue about the alleged offender, matter would be reopened and further investigated.
FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 2 of pages 11 6 Such untraced report was also forwarded by ACP on 23.12.2009.
7 Thus, till 23.12.2009, it remained a blind murder case and there was no direct or indirect evidence about the offenders. There was no eyewitness. There was no other circumstance which may indicate complicity of anyone.
8 Crime Branch, however, came in possession of some secret information.
9 On the basis of such information, it overpowered all the five accused persons on 07.12.2010. These accused also including Nikesh Gupta (son of deceased). All of them were thoroughly interrogated. They made disclosure statements admitting their complicity in the matter.
10 Accused Nikesh Gupta revealed that his father used to maltreat him and, therefore, he was feeling insulted. His real mother Smt. Pushpa Gupta had committed suicide way back in 1988 and thereafter his father had re-married Smt. Geeta Devi and he was spending money very fast and, therefore, he (Nikesh Gupta) was feeling unsecured. He came in contact of accused Lalit Yadav @ Pongi (A-2) and hatched a conspiracy to kill Sh. Jai Bhagwan to become rich overnight. Accused Lalit Yadav (A-2) hired contract killers i.e. accused Gaurav (A-3) and one Rakesh son of Rohtash as well as accused Mohd. Adil Alam (A-5). A-5 Mohd. Adil was driver by profession who could drive vehicle at a very fast speed. One Maruti Zen car no. DL-1CE-7276 was purchased as per the plan.
11 A-1 Nikesh Gupta also allegedly promised to pay Rs. 10 lacs to A-2 Lalit Yadav for execution of plan and a sum of Rs. 6 lacs was paid as advance and balance amount of Rs. 4 lacs was kept with accused Lal Bahadur (A-4) who was having a shop of Chaurasia Paan Bhandar in the same area. Recce of the area was conducted and A-3 Gaurav and Rakesh took position in said Maruti Zen car which A-5 Mohd. Adil had parked near the shop of Chaurasia Paan Bhandar.
FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 3 of pages 11 12 As per the plan and instruction of A-2 Lalit Yadav and in terms of criminal conspiracy of all the accused persons, Rakesh fired at Jai Bhagwan but he missed the aim and, thereafter, A-3 Gaurav came out of the car and fired at Jai Bhagwan which pierced his chest. All the said accused persons then fled in the same Maruti Zen. A-1 Nikesh Gupta was also informed about the execution by A- 2 Lalit Yadav @ Pongi.
13 A-2 Lalit Yadav was having mobile number 9213644883 and mobile number of A-1 Nikesh Gupta was 9891490422. As per the plan, after the aforesaid contract killing, balance amount of Rs. 4 lacs was also collected from A- 4 Lal Bahadur.
14 Matter was accordingly further investigated. Efforts were made to recover the Maruti Zen car but same could not be recovered. However, two firearms belonging to A-3 Gaurav, which had already been seized by the police in other two cases, were seized in the present case as well after due permission and were also sent to FSL for obtaining forensic opinion.
15 After the aforesaid investigation, police concluded that there was sufficient material on record to make out a case u/s 302/201/120-B/34 IPC against all the five accused persons.
16 It is in these circumstances that a charge-sheet was laid in the Court on 05.02.2011. Case was ordered to be committed to the Court of Sessions vide order dated 02.06.2011.
17 Case was received on allocation by this Court on 04.07.2011.
18 Arguments on charge were heard by learned Predecessor and vide order dated 06.08.2014, all the accused were ordered to be charged under Sections 120-B IPC, 302 r/w 120-B IPC and simultaneously, A-2, A-3 & A-5 were FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 4 of pages 11 also ordered to be charged under Section 201 r/w 120-B IPC for causing disappearance of the SIM Card of mobile phone number 9213644883, weapons used in the commission of offence as well as said Maruti Zen car. All the accused pleaded not guilty and claimed trial.
19 Prosecution was directed to adduce evidence and has examined twenty five witnesses. These witnesses can be categorized as under:-
Public witnesses:
(i) PW15 Ms. Geeta Devi (mother of accused Nikesh Gupta)
(ii) PW16 Ms. Rachna Gupta (sister of accused Nikesh Gupta)
(iii) PW18 Sh. Kaushal Gupta (identifier of the dead body of Jai Bhagwan).
Witness related to Maruti Zen car no. DL-1CE-7276
(i) PW9 Sh. Praveen Kumar (second owner of Maruti Zen car)
(ii) PW10 Ct. Satish (third owner of Maruti Zen car)
(iii) PW11 Sh. Israr Khan (middleman through which Ct. Satish sold the car to A-5)
(iv) PW17 Sh. Mohd. Jamil (Record Clerk, Transport Authority, Mall Road, Delhi).
Nodal Officer
(i) PW14 Sh. Rajiv Ranjan (proved CDR of mobile number of A-2)
(ii) PW20 Sh. Pawan Singh (proved CDR of mobile number of A-1) Doctors
(i) PW1 Dr. Abhishek Pachauri (for proving postmortem report)
(ii) PW5 Dr. S.K. Prasad (doctor who examined Jai Bhagwan in casualty and pronounced him brought dead) Witness related to investigation
(i) PW2 HC Mohar Singh (MHCM).
(ii) PW3 Insp. Rajesh Vijay (police official who assisted in the investigation)
(iii) PW4 Insp. Mir Singh (first investigating officer).
(iv) PW6 SI Babu Lal (police official who proved DD entries).
(v) PW7 Ct. Mahender (police official who took sample to FSL).
(vi) PW8 SI Ranvir Singh (IO of DD No. 18A regarding theft of Rs. 34 lacs).
(vii) PW12 ASI Bharat Lal (duty officer).
(viii) PW13 SI Ramesh Chand (police official who assisted in the investigation)
(ix) PW19 SI Abhijeet Singh (police official who assisted in the investigation)
(x) PW22 SI Satpal Gupta (incharge crime team).
(xi) PW23 Insp. Manohar Lal (draftsman who proved scaled site plan).
(xii) PW24 SI Suresh Chand (police official who collected the MLC of deceased).
(xiii) PW25 ACP Ved Bhushan (investigating officer).
Witness from Crime Branch
(i) PW21 SI Virender Singh (police official who cracked the case) FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 5 of pages 11
20 All the accused were given liberty to file written statements under Section 313 (5) Cr.P.C. and in such statements, they claimed that they had been falsely implicated. They, however, did not desire to lead any evidence in defence.
21 I have heard arguments and carefully perused the entire material available on record.
22 I have no hesitation, even the slightest one, in holding that the arrest of the accused was not justifiable and warranted from any angle whatsoever.
23 Police was initially completely clueless. Since there was no eyewitness of the murder in question, it initially sent untraced report.
24 It is not comprehensible as to what was that particular tip off which the Crime Branch got from undisclosed source?
25 Testimony of PW21 SI Virender Singh is of utmost importance. According to him, one secret informer met them and told that the murder was committed by Nikesh Gupta in connivance with others. He also told the police that they all could be apprehended. Accordingly, a raiding party was prepared and all the accused were arrested and their disclosure statements were also recorded. PW21 SI Virender Singh was grilled by the defence and he admitted that Crime Branch could investigate those cases which were either referred by the Court or by Police Headquarters and he also did admit that present case was marked to them neither by the Court nor by PHQ. He, however, volunteered that Crime Branch could always give assistance for working out the case. He also claimed that no other investigation was conducted by him in the present case. When specifically asked as to what legally admissible material had been collected by the Crime Branch when Crime Branch was working out the case, he had no option but to own up that case had been worked out merely on the basis of disclosure statements.
26 Undoubtedly, police can hide the identity and credential of any secret informer but in the present case which was otherwise a case of blind murder, if FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 6 of pages 11 there was any such person whose version was of utmost importance and who could have thrown some light regarding the alleged conspiracy, police should not have wasted even a second and should have rather made such person a witness in the present case instead of protecting that mysterious secret informer. Obviously, tip off in such a scenario would mean some tangible evidence and not mere guess-work. Moreover, if secret informer was not shy of in coming in open and had even accompanied the raiding party, there was apparently no reason to have held him back. Moreover, logically, secret informer must have come across any eye-witness which might have prompted crime branch to take up the matter and re-open a closed case. Nothing of that sort is found to be present here..
27 Indubitably, sometimes it becomes absolutely impossible to crack a case. In any such situation, police can always take recourse to provisions related to grant of pardon. No such effort was made in the present case. No one was asked to give true and complete disclosure subject to his getting pardon in bargain.
28 Since the alleged disclosure of accused(s) did not yield to any recovery, therefore, these are essentially waste papers having no legal admissibility. Here, whereas, the entire case of state is dependent on those statements which have no legal value at all. I am really in big dilemma as to what to comment about the manner and style of investigation. Whether police has come with half-baked case? Or, whether the material is cooked-up altogether?
29 I have seen the testimony of all the prosecution witnesses from all possible angles. These do not indict the accused at all. Even defence does not dispute various aspects related to initial investigation. It has no dispute or qualm with respect to the registration of FIR, inspection of spot by the crime team, postmortem report, sending samples to FSL and other investigational aspects.
30 Surprisingly, as per the case of prosecution, it was Ms. Geeta (wife of victim), who learnt about the incident through someone. Prosecution has not bothered to throw light about the aforesaid aspect. Nobody knows as to who was that mysterious person who informed Geeta about the shooting incident. During FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 7 of pages 11 investigation, Geeta had suspected the role of her stepson Nikesh but in her deposition before the Court, she has turned hostile and has rather completely exonerated him by claiming that she had never told to police anything of that sort. She was duly confronted with her previous statement made before the police but she remained adamant to her stand taken in examination-in-chief. To the utter dismay of police, she rather emphatically deposed that there was cordial relationship between her husband and accused Nikesh. She also claimed that accused Lalit Yadav and Gaurav had been employed by her husband for business purpose and, therefore, even they used to visit their house.
31 PW6 Ms. Rachna Gupta (sister of Nikesh) has also deposed that there was good relationship between her brother and her father. She had also deposed that Lalit Yadav and Gaurav used to visit them as they had been employed by her father.
32 I am compelled to refer about the aforesaid aspect related to relationship between father and son because according to learned Prosecutor, Nikesh had earlier stolen a sum of Rs. 34 lacs from his father. Such alleged incident is reported to be of the year 2006 and the murder had taken place later i.e. in the year 2008. This seems to the self-invented figment purely based on estimation. Contention of state on this score is in air only as nothing even namesake has been placed on record which may indicate the complicity of accused Nikesh in any such theft-incident.
33 Naturally, in this regard, testimony of PW8 ASI Ranvir Singh is of paramount importance. He had been asked to investigate DD No. 18A regarding the alleged theft of Rs. 34.70 lacs at C-12, CC Colony. He has deposed that he went there and met Jai Bhagwan as well as members of crime team and as per the instruction of SHO, such DD was kept in abeyance. DD No. 18A has been proved as Ex. PW8/A and DD No. 24A has been proved as Ex. PW8/B. These DDs do not indicate complicity of anyone much less of accused Nikesh Gupta. Even PW8 SI Ranvir Singh has deposed that he made inquiries at his level but did not make any inquiry from the family members of Jai Bhagwan. Nobody knows as to what is the final outcome of such complaint of Jai Bhagwan. It seems FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 8 of pages 11 that it was not proceeded any further as no FIR had even been recorded. Be that as it may, there is nothing to indict accused Nikesh at all with such theft.
34 Prosecution is heavily relying upon the CDR and location of accused. I have seen the testimony of PW14 Rajiv Ranjan, Nodal Officer, Tata Tele Services Ltd as well as of PW20 Pawan Singh, Nodal Officer, Idea Cellular Ltd. PW14 Rajiv Ranjan has proved the call record related to mobile phone number 9213644883 of one Rohit Sharma son of Jai Bhagwan and PW20 Pawan Singh has deposed about mobile number 9891490422 which was in the name of accused Nikesh Gupta.
35 According to IO/ACP PW25 Ved Bhushan, during investigation, he collected call details record and learnt that mobile phones used by Nikesh Gupta and Lalit Yadav indicated conversation between them prior to incident but there was only one communication between them after the incident. He also deposed that CDR also reflected their location to be same and such location was of the place of occurrence. I would, at the very outset, say that such fact is hardly of any consequence as even as per the relatives of deceased, Lalit Yadav used to visit their house in connection with his employment and, therefore, the alleged same location is hardly of any substance as such. PW25 ACP Ved Bhushan/IO of the case was also asked several court questions in this regard. Suffice it to say that he has not been able to properly elucidate and satisfy even about the aspect of there being same location of both such accused.
36 Moreover, even if such contention of State is accepted and it is assumed that the location of both the accused persons was of the same place, such aspect would not, by itself, signify anything as such when location of these two accused near or around the place of occurrence is not unnatural. Prosecution cannot be permitted to stretch itself too far and too away for inferring any conspiracy merely because of same location and call-exchange more so when nobody knows as to what were the contents of such call. Since the actual contents of the mobile phone conversation are not available to the prosecution, mere fact that call was made by one to another or their location cannot itself prove anything in absence of any other material. Moreover, as already noticed FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 9 of pages 11 above, even if location of both the accused are found to be one and the same, it would not create any suspicion and would not show anything of unusual pattern when it has positively come on record that accused Lalit used to come to the house of deceased being his employee.
37 Two firearms, which had been allegedly recovered by the police from accused Gaurav in other two cases, were seized in the present case as well and were sent for forensic opinion. Besides the aforesaid two forearms, (F1 & F2), one bullet marked Ex. EB1 was also sent to FSL for giving forensic opinion. EB1 was the remnant of the bullet which had been recovered from the body of the victim. Report of Sh. Puneet Puri, Senior Scientific Officer (Ballistic) is Ex. PX-1. Such report does not do anything good to the prosecution as according to the report of Sh. Puri, characteristics of striations present on such bullet were insufficient for comparison and, he, therefore, could not give any opinion whether EB1 could have been discharged from country made pistol .315 bore (F1).
38 As already noticed above, neither the Zen vehicle nor any SIM card could be recovered during investigation. There is no witness who might have seen accused driving any such car much less committing the murder in question. There is no other fact or circumstance which may show their involvement and complicity. It will be also important to mention that one Rakesh Pehalwan was also with Gaurav at the time of alleged shooting and he has not been charge- sheeted as he had already died in a shooting incident.
39 Before parting, I would also like to mention that it is only on the basis of 'inadmissible' disclosure statements that investigating agency has tried to weave the sequence of events and has claimed to have cracked the case. Police has no business to take away the valuable fundamental right of personal liberty in such gross unjustifiable manner. Suspicion, howsoever strong it may be, cannot take place of proof and, therefore, investigating agency was not right in sending up the accused for trial on the basis of speculation alone.
FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 10 of pages 11 40 In view of my foregoing discussion, I am left with no option but to acquit all the accused. All the accused are accordingly acquitted of all the charges levelled against them in the present case.
41 Accused are, however, directed to furnish personal bond and surety bond in a sum of Rs. 10,000/- each in terms of Section 437A Cr.P.C.
42 File be consigned to Record Room.
Announced in the open Court On this 16th day of February 2016 (MANOJ JAIN) Addl. Sessions Judge (FTC) North-West Distt: Rohini Courts: Delhi FIR No. 09/2008 PS Model Town (State Vs. Nikesh Gupta etc) Page 11 of pages 11