Delhi District Court
Bhupender Kumar @ Neetu vs The State Govt Of Nct Of Delhi on 23 January, 2025
Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi
Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025
IN THE COURT OF PRINCIPAL DISTRICT & SESSION JUDGE
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CA/12/2020
CNR NO.: DLWT01-000191-2020
Sunil Kumar @ Sonu
S/o Sh. Bhagmat
R/o VPO Karawara Manakpur,
Distt. Rewari, Haryana. .....Appellant
Versus
The State (Govt of NCT of Delhi) .....Respondent
Date of institution : 13.01.2020
Date of conclusion of arguments : 14.01.2025
Date of judgement : 23.01.2025
AND
CA/11/2020
CNR NO.: DLWT01-000192-2020
Bhupender Kumar @ Neetu
S/o Sh. Dhir Singh
R/o House No. A-115, Rama Park,
Mohan Garden, Uttam Nagar,
New Delhi-110059. .....Appellant
CA/12/2020 CNR NO.: DLWT01-000191-2020
CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 1 of 58
Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi
Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025
Versus
The State (Govt. of NCT of Delhi). .....Respondent
Date of institution : 13.01.2020
Date of conclusion of arguments : 14.01.2025
Date of judgement : 23.01.2024
JUDGEMENT
1. These two appeals under Section 374 CrPC are directed against the judgement of conviction dated 12.12.2019 and order on sentence dated 21.12.2019 passed by Ld. Metropolitan Magistrate-03, West, Tis Hazari Courts, Delhi in Criminal Case No. 70848/2016 titled as State Vs. Sunil Kumar & Anr. instituted upon FIR No. 124/2006, PS Maya Puri. For sake of convenience the appellants would also be referred to as accused.
2. Notices of appeals were issued to respondent/State. Trial court record was summoned and arguments were heard.
Prosecution Case
3. The prosecution case as per charge sheet is that on 8.4.2006 at about 12:10 am (midnight), complainant Rahul Gupta (PW1) was returning on his motorcycle no. DL4SAN-7857 after attending an engagement ceremony of his sister. When he was passing through CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 2 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Gali no.5, Sagarpur, Delhi near Aggarwal Sweets, Pankha Road, accused Bhupender Kumar and Sunil Kumar stopped him and slapped him. They robbed him of his gold chain, gold ring and his mobile phone etc.. Accused Bhupender Kumar took the keys of his motorcycle and rode over it while the complainant was made to sit on the motorcycle sandwiched between these two accused persons. The accused persons drove the motorcycle, thus abducting the complainant to Gurgaon. There, they beat him up and threw him at Sohna Road, Gurgaon, Haryana and then, decamped with the aforesaid motorcycle. Somehow complainant reached Sheetla Dharam Kanta and made a call to his brother Vijay Gupta, who came and took him to PS Dabri and then to DDU Hospital, Delhi. The matter was reported to police of PS Maya Puri, which had jurisdiction over the place of robbery. ASI Gian Singh was assigned the matter, who reached DDU Hospital, recorded statement of injured Rahul Gupta, who took ASI Gian Singh to place of robbery. After writing a Rukka below the statement of injured, it was sent to Police Station Maya Puri, where an FIR under Section 394/365/34 IPC was registered and investigation was assigned to ASI Gian Singh. Accused Bhupender Kumar was apprehended on a secret information CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 3 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 and at his instance, the stolen motorcycle was recovered from his house. Accused Bhupender Kumar also got recovered the stolen finger ring from a jeweller namely Gagan Deep Dhalla. During investigation, accused Bhupender Kumar refused to take part in Test Identification Parade. Later on investigation taken over by Inspector Surender Sharma. Accused Sunil Kumar surrendered in the court of Metropolitan Magistrate. With permission of the court, he was interrogated, arrested and was sent to judicial custody. Accused Sunil Kumar participated in Test Identification Parade and he was duly identified by complainant. Thereafter, police remand was taken during which he got recovered the stolen mobile phone from his residence.
4. After completion of investigation, charge sheet was filed.
Charge
5. After hearing arguments, Ld. Metropolitan Magistrate framed a charge under Section 365, 394/34 IPC and Section 411 IPC against accused Sunil Kumar and Bhupender Kumar. A separate charge under Section 411 IPC was framed against accused Gagan Deep Dhalla.
6. All the accused persons pleaded not guilty and claimed trial.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 4 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Prosecution Evidence
7. Prosecution examined in all 16 witnesses.
8. Statement of PW1 Rahul Gupta is complainant (victim). PW2 Vijay Gupta is the brother of complainant. PW3 Ct. Shashi Kumar turned hostile and testified that police officials never recorded his statement Ex.PW3/A and that he never participated in investigation. He denied that Investigating Officer handed over a rukka to him and he went to police station and got FIR registered. PW4 Ajeet Kumar Gupta testified that he had given his mobile phone to Rahul Gupta, who later on told him that it had been robbed by two or three persons. He identified the said mobile as Ex.P1. PW5 ASI Virender Kumar was posted as constable in PS Maya Puri at the relevant time. He had participated in the investigation with the Investigating Officer. PW6 HC Raj Singh had also joined the investigation. PW7 SI Gyan Singh is the first Investigating Officer. PW8 WSI Nirmala proved present FIR Ex.PW8/A. PW9 Dr. Vineet Kumar Soni, CMO, DDU proved MLC of complainant as Ex.PW9/A. PW10 Inspector Surender Sharma took over the investigation after 26.5.2006. He completed the investigation and filed the charge sheet. PW11 HC Anil participated in investigation on 2.6.2006. PW12 ASI Bodh Raj proved CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 5 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 DD Entry no. 8A Ex.PW12/A. PW13 Sh. G. N. Pandey, Ld. Metropolitan Magistrate proved TIP proceedings in respect of accused Bhupender Kumar, who refused to take part in TIP proceedings. PW14 Sh. P. S. Malik proved TIP proceedings in respect of accused Sunil Kumar, who was duly identified by complainant. PW15 Sh. Sanjeev Kumar, Ld. Metropolitan Magistrate conducted TIP proceedings in respect of gold ring, which was identified by complainant. PW16 SI Joginder Singh is MHC(M) and proved relevant entries as Ex.PW16/A, Ex.PW16/B and Ex.PW16/C. Statements under Section 313 CrPC
9. All the accused persons denied all the allegations.
Defence Evidence
10. The accused persons did not prefer to lead any evidence in defence.
Crux of impugned judgement dated 12.12.2019 and order on sentence dated 26.12.2019.
11. Vide impugned judgement accused Bhupender Kumar and Sunil Kumar were convicted under Section 365, 394/34 IPC as well as under Section 411 IPC. Accused Gagan Deep Dhalla was convicted CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 6 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 under Section 411 IPC.
12. After hearing arguments, following sentences were awarded to Sunil Kumar and Bhupender Kumar (both the appellants herein) :
Sl. Section Sentence Compensation Sentence in default No. of payment
1. 394 IPC Rigorous Nil Nil Imprisonment for two years.
2. 365 IPC - do - Total Simple compensation imprisonment for of Rs.20,000/- three months.
to be paid by each appellant.
Note : Both the sentences were to run concurrently. The appellants herein did not deposit the aforesaid compensation because of the order of suspension of sentence passed by this court on filing of these appeals.
13. It appears that Ld. Metropolitan Magistrate understood the error in this judgement that the robbers cannot be convicted as dishonest receivers of the stolen property. It may the reason that in the aforesaid order on sentence, he did not impose any sentence under Section 411 IPC upon the appellants herein, though they were CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 7 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 convicted under Section 411 IPC in the main judgement. Framing of charge under Section 411 IPC against them and their conviction under Section 411 IPC appears to be inadvertent.
14. Convict Gagan Deep Dhalla was sentenced to pay a fine in the sum of Rs.10,000/-. This fine was deposited by him. It is informed that he has not filed any appeal against the said conviction and sentence.
Appeal
15. Ld. Counsel for appellants has vehemently assailed the impugned judgement and has submitted that the impugned judgement suffers from wrong appreciation of facts. On the other hand, Ld. Additional Public Prosecutor has defended the impugned judgement. Testimony of PW1 Rahul Gupta
16. I would like to reproduce the entire testimony of complainant Rahul Gupta (PW1) as under.
"I am running a battery shop. On 07.042006 I was coming from gali number 5 Sagar Pur, Delhi after joining the engagement ceremony of my sister. On that day at about 12:00 Midnight when I reached near Aggarwal Sweets, Sagar Pur, Delhi on my motorcycle bearing registration number DL-4SAN-7857 meanwhile accused Bhupender whose name later on disclosed called me. I stopped my above mentioned motorcycle bearing registration number DL-4SAN-7857 thereafter the other co-accused Sunil whose name later on disclosed came near me and slapped me.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 8 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Two other boys were also accompanied the above mentioned accused persons. Accused Bhupender took the keys of my above mentioned motorcycle bearing registration number DL-4SAN-7857. Accused Bhupender pushed me and accused Sunil hit me at my head with some object. Both accused Bhupender and Sunil took me on my above mentioned motorcycle bearing registration number DL- 4SAN-7857. The above mentioned motorcycle bearing registration number DL-4SAN-7857 was driven by accused Bhupender and I was sitting in between the accused Bhupender and accused Sunil on my above mentioned motorcycle bearing registration number DL-4SAN-7857. Thereafter we reached at Vikas Puri Petrol Pump, Delhi. Accused persons took the petrol from Vikar Puri Petrol Pump Delhi and accused persons also picked up my purse containing Rupees2,660/- (Rupees Two Thousand Six Hundred Sixty), my voter identity card and my pan card. Accused persons gave my money in lieu of petrol to petrol filler at Vikas Puri Petrol Pump Delhi. Accused persons took me to Sohna Road Gurgaon Haryana. Accused persons tried to strangulate me with my belt. Accused Sunil jumped on my chest and I became unconscious. After some time I gained my consciousness and with the help of public persons I reached at Sheetal Dharamkanta Sohna Road gurgaon Haryana from where I called telephonically to my brother Vijay Gupta. After some time my brother Vijay Gupta reached at the spot and took me to DDU Hospital, Hari Nagar, Delhi. Police was called and I made complaint regarding this incident to the police which is exhibited as Ex.PW1/A, which bears my signature at point A. My worn golden chain, golden ring and my mobile phone make Nokia 1100 were also snatched by accused persons.
I had identified accused Sunil in Tihar Jail Hari Nagar, Delhi. Later on my above mentioned snatched golden ring was recovered and I had taken the same on superdari vide superdaginama exhibited as Ex.PW1/B, which bears my signature at point A. Today I have brought my above mentioned snatched golden ring. My above mentioned snatched golden ring is exhibited as Ex.P-1.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 9 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 XXXXX by Shri R. S. Chauhan Counsel for accused Gagan Deep.
Nil opportunity given.
XXXXXX by Shri S. P. Yadav for accused Bhpender and accused Sunil.
The engagement ceremony of my sister has been got done with relative of MCD Councillor Ram Naresh Gupta. In this function my entire family had come. Voluntarily Said. All my ten brothers including my cousins and all the ladies of my family. All the ten brother are residing in same locality close by. Mahesh Gupta who is my cousin brother was also there in this function. It is correct that there are criminal cases including murder cases against my cousin Mahesh Gupta. I was alone on my above mentioned motorcycle. Above mentioned motorcycle belonged to Deepak Kapoor friend of my brother Vijay Gupta. I do not know the place of residence of Deepak Kapoor. I had met Deepak Kapoor several times. I had taken above mentioned motorcycle 10-12 days prior to the day of this incident. I had my driving license on date of incident. My driving license was also snatched away by accused persons. However, I had not told the snatching of my driving license by accused persons. Voluntarily Said. Police did not ask me about snatching away of my driving license by accused persons. It is true that I had told the police on my own about the articles that were snatched from my possession by accused persons. I made complaint to Police Station Dabri Delhi about the snatching away of my driving license for the purpose of getting a duplicate driving license. I do not know the date of complaint to the Police Station Dabri Delhi. I did not have the RC and the helmet with me at the time of the incident. Deepak Kappor was not present in this engagement ceremony. The incident took place in front of Cadbury Shop Near Aggarwal Sweets Shop Sagar Pur Pankha Road Delhi. The above mentioned place of this incident is about one bus stand away from Police Station Hari Nagar Delhi. Voluntarily Said. The above mentioned place of this incident is about 200-300 meters away from the place of this incident. This incident laster for CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 10 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 about five-seven minutes at in front of Cadbury Shop Near Aggarwal Sweets Shop Sagar Pur Pankha Road Delhi. There were no public persons at that time however on a pulsar motorcycle one person who was connected with the accused was standing nearby. It is correct that I had told the police that two persons also accompanied with accused persons. I do not know the registration number of motorcycle. Meat shop was opened and two persons were present there. I raised a he and cry but none came forward to save me. Dharmender shopkeeper saw this incident. Dharmender was also called at Police Station. Police made enquiries from Dharmender. Voluntarily Said. However statement of Dharmender was not recorded by police in my presence. I had told to the police in my statement that Dharmender had seen this incident. My motorcycle was pulsar. I did not know accused Bhupender and accused Sunil prior to this incident. I had not taken the name of accused Bhupender and accused Sunil in my complaint to police which is exhibited as Ex.PW1/A. At the time of this incident at Sagar Pur Delhi no PCR van was present. It is correct that there is police picket at D-Block Janak Puri Delhi and police personnel remains in this police picket at D-Block Janak Puri Delhi. I cannot tell the distance between the place of incident at Sagar Pur Delhi and police picket at D-Block Janak Puri Delhi. The accused Bhupender and accused Sunil took me towards Uttam Nagar side Delhi after making my sit on my above mentioned motorcycle. It is correct that on the way towards Uttam Nagar Delhi there are two Police Stations. Voluntarily Said. There were no police barricades on the Uttam Nagar road Delhi at that time. There was no PCR Van also on the Uttam Nagar road Delhi. I cannot tell what is the distance between the above mentioned pertrol pump and Uttam Nagar T-Point Delhi. it is incorrect to suggest that there are PCR Vans at Janak Cinema Delhi, Dabri More Delhi, C-1 Janak Puri Delhi and Uttam Nagar T-point Delhi. We had reached at above mentioned petrol pump at about 12:00 to 12:30 midnight. I cannot tell the name and company of above mentioned petrol pump. It is correct that CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 11 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 there were about five-six sales persons of the above mentioned petrol pump. No other vehicle was there at the above mentioned petrol pump. At the above mentioned petrol pump accused Sunil go down and I did not get down. Payment was made at the above mentioned petrol pump by accused Sunil. I do not know the quantity of petrol that was filled in my above mentioned motorcycle at the above mentioned petrol pump. On my above mentioned motorcycle the accused persons did not have any weapon. I had not told the sales persons of above mentioned petrol pump about this incident of snatching and my kidnapping. It is correct that Police Station Vikas Puri Delhi also situated adjacent to above mentioned petrol pump. After the above mentioned petrol pump the same route was taken on the return to go to Gurgaon Haryana. I cannot tell whether we had taken the N118 to go to Gurgaon Haryana. I had gone to Gurgaon Haryana before this incident but I am not aware about the route of Gurgaon Haryana. I cannot tell whether we had crossed the Haryana Border at Kapeshera Delhi or Rajo Puri Delhi. I had not seen the gypsies of Haryana Police or the gypsies of Delhi Police at the Haryana Border. All of us were without helmets. I do not know whether we had crossed the toll booth at Haryana Border. It is correct that there were many public vehicle on the way of Vikas Puri Delhi to Gurgaon Haryana. Just before Gurgaon Haryana we took a turn where I raised hue and cry on seeing police gypsy. However accused Sunil shut my mouth. It is wrong to suggest that accused Sunil had not shut my mouth. Accused Sunil was wearing a white shirt and accused Bhupender was wearing a gray shirt. I do not know the colour of trouser of accused Sunil and of accused Bhupender. Due to this incident my button of my shirt were broken, my shirt was torn underneath the armpit and my shoes were taken off. It is correct that when I was medically examined I was wearing the same clothes. It is also correct that when police recorded my statement I was wearing the same clothes and my torn clothes were not seized by police. I had called telephonically to my brother at about 03:00 AM. At Sheetla Dharam Kanta Sohna road Gurgaon Haryana CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 12 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 there was one STD booth person and one truckwala. I cannot tell the time when accused left me at Sohna Road Gurgaon Haryana. I did not pay to the above mentioned STD booth wala. I had told the police that I had called the above mentioned STD booth. Police did not record the statement of above mentioned STD booth wala in my presence. I cannot tell whether the police enquired from STD booth wala about his name, address as well as the date and time of police enquiry from the STD booth wala. I cannot say whether the police during the course on investigation took any document about my above mentioned call from above mentioned STD booth from above mentioned STD booth wala. The accused beat me up firstly near Cadbury shop Delhi and then just before Gurgaon Haryana when I was raising hue and cry on seeing the police gypsy. I got injuries on my eyes and on my neck. My eyes were bleedings. I was beaten by fist blow at my eyes by accused persons and blood came in my eyes when I was strangulated by accused person. I did not sustain injury on my chest. I had told about my injury to doctor at DDU Hospital Hari Nagar Delhi. At about 03:00 to 03:45 AM my all brothers reached at Sohna road Gurgaon Haryana. I was taken not taken to any hospital at Haryana by my brothers. Neither my brother nor myself made any call at PCR 100 from above mentioned telephone booth. When we came back to Delhi I first went to Police Station Dabri Delhi where I met the police persons and gave a complaint in writing and the police persons of Police Station Dabri Delhi then took me to DDU Hospital Hari Nagar Delhi for medical examination. I reached Police Station Dabri Delhi at about 04:00 AM and at DDU Hospital Hari Nagar Delhi after about 10-15 minutes. Ex.PW1/A was recorded in DDU Hospital Hari Nagar Delhi by a police man of Police Station Dabri Delhi whose name I do not know. Ex.PW1/A was recorded at 06:30 in morning at DDU Hospital Hari Nagr Delhi in presence of my brothers. I was discharged at 08:00 AM from DDU Hospital Hari Nagar Delhi. From DDU Hospital Hari Nagar Delhi I was taken to the place of occurrence.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 13 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Further cross examination of this witness is deferred due to paucity of time.
Statement of Rahul Gupta (Recalled for further cross examination) after 21.07.2012.
XXXXX by Sh. S. P. Yadav, Ld. Counsel for accused Bhupender and Sunil.
I had not described the description of the other two persons accompanied the accused Bhupender and Sunil. I had only RC of the motorcycle on the day of incident out of the all documents. Police officials had not taken my RC. Vol. As my purse was sntached by the accused persons and that purse had contained my RC. It is correct that it is not mentioned in my complaint Ex.PW-1/A that purse had contained my RC. Vol. I had told to the police about the same and they replied that they will add subsequently. It is wrong to suggest that I was not on motorcycle and I was not having any RC. It is wrong to suggest that I was not abducted and not beaten by the accused persons and no such robbery was committed by accused persons. Today, I can not tell the number of my Pan Card due to the lapse of time. It is correct that I had not handed over any income tax return to the police officials. Vol. They had not demanded the same. I had a bakery shop at the time of incident, since 2-3 years prior to the incident. I got unconscious when accused persons hit against my head at the spot. I can not tell whether blood was oozing from my head. I regained my consciousness at Vikaspuri. At that time, I did not observe whether blood was oozing from my head. When I was taken to the hospital, I was in unconscious condition. At D Block Flyover accused persons again hit against at my face and on my head, due to which, I again become unconscious and I regained my consciousness nearby one mall situated in Gurgaon after seeing the lights and at that time, blood was not oozing from my head. When I regained my consciousness I was nearby Sheetla Dharamkanta and I called my brother and we went to the Dabri PS and when I sit in the car I again became unconscious and I regained my consciousness in the hospital after the admission. It is wrong to suggest that I am deposing falsely about the same CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 14 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 and I depose to the doctor that I sustained injury in RTA (road traffic accident). I was got admitted by my brother. Vol. we are eight brothers and one of them got admitted me in the hospital as 5-6 brothers including my mother were present over there. It is correct that my MLC mentioned the name of my brother Mahesh as I was got admitted by him. It is correct that Mahesh is my cousin (tau ka beta). I sustained injuries on my hands, chest, on neck and on my head. Some X-rays were also taken during treatment but I do not remember whether my surgery was done or not. It is wrong to suggest that I did not sustained any injury in the incident. My clothes were torn in the incident. I did not hand over those cloths to the police officials on my own. Vol. My socks were recovered from Sheetla Dharamkanta, Gurgaon.
The phone which was robbed from me by accused persons was belongs to one doctor namely Ajeet Kumar and his clinic was was nearby my bakery shop and I do not know on whose name the sim was with respect to that mobile. I disclosed that phone was belongs to Ajeet Kumar to the police officials. Police officials called the Ajeet Kumar and investigate the matter in PS. It is wrong to suggest that I was not having any mobile and it was not robbed from me. I can not tell about the weight of ring. I did not hand over any ownership proof of the ring to the police officials as it was not demanded by police. Vol. I identified my ring in court. It is wrong to suggest that I handed over other rings to IO at the time of TIP. I had not disclosed to the police officials from which shop I purchased the ring. Today, I do not remember whether there was any identification mark of manufacturing on my ring. Vol. due to the lapse of time. It is wrong to suggest that I am deposing falsely to falsely implicate the accused persons."
17. Ld. Counsel for appellants has assailed the credibility of PW1 on various grounds, which will be discussed by me under separate head.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 15 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Whether the incident took place at a different place than testified by the prosecution witnesses.
18. As per aforesaid DD entry no. 8A Ex.PW12/A, an information was received about quarrel in front of Aggarwal Sweets Pankha Road Delhi and that injured was admitted in hospital by his brother Mahesh. On the other hand as per Rukka written beneath the statement Ex. PW-1/A of Rahul Gupta, the incident took place in front of Cadbury Shop, Pankha Road Delhi. It is submitted by Ld. Defence Counsel that these are two different places and that the prosecution has failed to establish the place of occurrence.
19. Ld. Additional Public Prosecutor has countered the arguments submitting that DD 8A as well as the statement Ex.PW1/A of victim Rahul Gupta mention the place to be near Aggarwal Sweets, Pankha Road. It is submitted that there are many shops on Pankha Road including Aggarwal Sweets as well as Cadbury Shop. Therefore, it cannot be said that the places of incident are different.
20. I have considered the rival submissions on this point. The DD No. 8A Ex.PW12/A shows that this DD was recorded on an intimation by ASI Surender Singh from DDU Hospital. As per this DD, the incident took place near Aggarwal Sweets in front of Pankha Road.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 16 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 In the statement Ex.PW1/A, victim Rahul Gupta has specified the place of incident of abduction to be the road near Aggarwal Sweets leading towards Janak Cinema, Pankha Road just after crossing the red light. In the rukka written by ASI Gian Singh below the statement Ex.PW1/A, he has mentioned that he reached on Pankha Road near red light of Maya Puri Road with Rahul Gupta, who pointed out the place of incident in front of Cadbury Shop. PW7 ASI Gian Singh has testified that he returned to the spot along with the victim, who showed him the place of incident. Thereafter, he prepared a site plan Ex.PW7/A. Perusal of this site plan shows that Maya Puri Road touches Pankha Road and makes a T point. Aggarwal Sweets has been shown at this T point and Cadbury Shop has been shown at a very short distance from it at point A in the site plan Ex.PW7/A. Thus, both the shops are very near to each other and therefore, it cannot be said that the place of incident mentioned in the DD No. 8A Ex.PW12/A and in the rukka written below the statement Ex.PW1/A of the victim Rahul Gupta are different. Accordingly, I find no substance in the arguments of Ld. Defence Counsel and I hold that the place of incident has been correctly identified in the investigation and duly proved by the prosecution.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 17 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Whether the incident was only a quarrel and not abduction.
21. Ld. Counsel for accused persons has drawn my attention to the DD entry no. 8A dated 8.4.2006 Ex.PW12/A, which is an information in respect of a quarrel and not in respect of kidnapping. I have perused the aforesaid DD. Perusal of the same shows that ASI Surender Singh informed from DDU Hospital telephonically that Rahul, who was injured on Pankha Road near Aggarwal Sweets, in an incident of quarrel (झगड़ा) has been admitted to hospital by his brother Mahesh. Perusal of this DD shows that matter has been reported to police by ASI Surender Singh, who is not an eye witness to the incident. Therefore, the information sent by ASI Surender Singh is only general in nature and the same does not contain the details of the incident. Further, it is nowhere mentioned in this DD as to whether it was injured himself or his brother Mahesh, who gave such information. The said DD was recorded at 2:15 am on 8.4.2006. The time of dispatch of rukka written after the statement Ex.PW1/A of Rahul Gupta is 10:00 am. Perusal of the rukka shows that DD entry no.8A was assigned to ASI Gian Singh, who reached DDU Hospital, recorded his statement and thereafter, took him to the place of incident and thereafter, wrote this rukka and dispatched it at 10:00 CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 18 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 am. As per evidence of PW1 Rahul in cross examination, his statement Ex.PW1/A was recorded at 6:30 am and he was discharged from hospital at about 8:00 am. Thereafter, he was taken to the spot of abduction. Thus, it is clear that the statement Ex.PW1/A of victim Rahul Gupta was recorded promptly and the FIR was registered at 10:15 am on 8.4.2006 as reflected from an endorsement below the rukka as well as from copy of FIR on record. In this statement, Rahul Gupta has described the incident of robbery and his abduction in no uncertain words. Therefore, the incident cannot be brushed aside by terming it to be a simple case of quarrel. I am convinced that it is a case of robbery and abduction as testified by PW1 Rahul Gupta. Whether non examination of Mahesh, the brother of victim, is fatal to prosecution case?
22. Ld. Counsel for accused persons has drawn my attention to DD Entry No.8-A vide which injured was informed to have been hospitalized by his brother Mahesh at DDU Hospital. Ld. Counsel for accused persons has further drawn my attention to the MLC Ex.PW9/A of the injured, which shows that victim was brought to hospital by his brother Mahesh. However, Rahul Gupta (PW1) has testified that his brother Vijay Gupta had come to Gurgaon and took CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 19 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 him to DDU Hospital in Delhi.
23. My attention has been drawn by Ld. Counsel for accused persons to DD Entry no.8A Ex.PW12/A as well as MLC of the injured Ex.PW9/A in which it is mentioned that Rahul Gupta was admitted to DDU Hospital by Mahesh Gupta. It is submitted that the prosecution has deliberately withheld Mahesh Gupta. It is further submitted that the prosecution version that Vijay Gupta (PW2) brought the victim to Hospital is unworthy of credence and is a concocted story.
24. Ld. Additional Public Prosecutor has controverted the aforesaid arguments submitting that Vijay Gupta (PW2) in cross examination has testified that he received the call from his brother from landline number, which belonged to Sheetla Dharam Kanta. PW2 further testified that his brother Mahesh was all along with him when he went to Sheetla Dharam Kanta and had taken his brother to police station and hospital. It is argued that this evidence of PW2 regarding being accompanied by Mahesh Gupta has not been controverted by defence in his cross examination. Therefore, it is submitted that it cannot be said that Vijay Gupta did not go to Gurgaon and bring the victim to Delhi.
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25. I have considered the rival submissions on this point. In his statement Ex.PW1/A recorded by ASI Gian Singh, Rahul Gupta has stated that his brother Vijay Gupta brought him from Gurgaon and admitted him in DDU Hospital. Prosecution examined Rahul Gupta as PW1 and his testimony has already been reproduced by me. In his evidence, PW1 has testified that accused persons took him to Sohna Road, Gurgaon, Haryana. They had beaten him up due to which he became unconscious. When he regained consciousness, he reached at Sheetla Dharam Kanta, Sohna Road, Gurgaon from where he called his brother Vijay Gupta. On receiving this call, Vijay Gupta reached there and thereafter, took him to DDU Hospital, Hari Nagar, Delhi. Prosecution examined Vijay Gupta as PW2. In his examination in chief, PW2 has testified that on receiving the call, he immediately reached at Sheetla Dharam Kanta, Sohna Road Gurgaon along with 4-5 companions, where he found the victim in injured condition. Thereafter, he took him to PS Dabri and thereafter, went to DDU Hospital for treatment. In cross examination dated 5.6.2017, PW2 has testified that his brother Mahesh was all along with him, when he went to Sheetla Dharam Kanta and had taken his brother (i.e. Rahul Gupta) to police station and hospital. This testimony is enough to convince CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 21 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 this court that Mahesh Gupta had also accompanied PW2 Vijay Gupta to Sheetla Dharam Kanta and both of them had brought Rahul Gupta to DDU Hospital. This is the reason that the name of Mahesh finds mention in MLC of the injured as the person, who had admitted Rahul Gupta in hospital. It is for this reason that in DD entry no. 8A Ex.PW12/A, name of Mahesh has also been mentioned as the person, who got admitted the injured in hospital. As Vijay Gupta and Mahesh Gupta are witnesses to the same facts, it was enough from the Investigating Agency and Prosecution to mention the name of one of them as prosecution witness. Investigating Officer chose to cite Vijay Gupta as a witness and prosecution examined him as PW2. There is nothing on record to show that name of Mahesh Gupta has been deliberately withheld by the Investigating Officer. It is necessary to mention that all the witnesses are not required to be cited by the prosecution. An adverse inference can be drawn only if a particular witness is withheld deliberately. There is nothing on record to suggest that Mahesh Gupta was deliberately withheld and had he been examined, he would have testified contrary to the prosecution case. Consequently, I hold that name of Mahesh Gupta has not been deliberately withheld by prosecution. Therefore, non examination of CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 22 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Mahesh Gupta is not fatal to the prosecution case. Whether the statement EX. PW-1/A of Rahul Gupta and the rukka below it were prepared in a pre-planned manner?
26. Ld. Counsel for appellants has submitted that as per PW-7 ASI Gian Singh, statement Ex.PW1/A of Rahul Gupta was recorded opposite Cadburry Shop, Pankha Road, Near Red Light, Maya Puri Road Delhi at about 10:06 a.m. on 08.04.2006 after discharge of injured from DDU Hospital, Delhi. But as per the testimony of the PW- 1 and PW-2, statement of PW1 was recorded at DDU Hospital on 08.04.2006 at 06:30 a.m. by the police of P.S. Dabri, Delhi. Ld. Defence Counsel submits that the prosecution has failed to prove as to where Rukka was recorded and by whom and in which police station.
27. Ld. Defence Counsel further submits that this indicates that the said statement Ex. PW- 1/A and the rukka were recorded after lot of deliberation in a pre-planned manner. Further, it is submitted that the endorsement/Rukka/Tehrir of the IO ASI Gian Singh was not exhibited.
28. Ld. Additional Public Prosecutor has countered the aforesaid arguments submitting that in last few lines of his statement CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 23 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Ex.PW1/A, Rahul Gupta has stated as under :
"और फिर मुझे DDU Hospital ले आए जहाँ पर अब आप आए. आपने मेरा ब्यान लिखा ..............."
29. It is submitted by Ld. Additional Public Prosecutor that it makes clear that the statement of Rahul Gupta was recorded by ASI Gian Singh in the hospital itself. Ld. Additional Public Prosecutor has drawn my attention to the contents of endorsement/rukka/tehrir below the statement of Rahul Gupta and it clear mentions that ASI Gian Singh wrote the said rukka after taking Rahul Gupta to the spot for identification of place of abduction. Ld. Additional Public Prosecution has drawn my attention to the evidence of PW7 ASI Gian Singh, who has testified that he recorded the statement of Rahul Gupta, which is Ex.PW1/A and thereafter, he handed over the original Tehrir to Ct. Shashi Kumar for getting the FIR registered. It is submitted that though the Tehrir has not been separately exhibited but from his testimony, it is clear that he had written a Tehrir/rukka after the statement of Rahul Gupta and that the entire statement of Rahul Gupta along with Tehrir have been marked as Ex.PW1/A. Therefore, it cannot be said that the Rukka/Tehrir has not been proved.
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30. Regarding the contradiction in the testimony of PW7 ASI Gian Singh and the rukka/tehrir regarding the place of writing rukka, Ld. Additional Public Prosecutor submits that it is a minor contradiction and does not affect the merit of the case.
31. I have considered the aforesaid submissions. It is true that the time of recording of statement Ex.PW1/A has not been mentioned in the rukka. However, it is mentioned in the statement Ex.PW1/A by Rahul Gupta that his statement was recorded in DDU Hospital. The rukka/tehrir below this statement mentions that Rahul Gupta was taken to Pankha Road after being discharged from the hospital. The MLC Ex.PW9/A of the injured Rahul Gupta mentions the time of examination of the injured at 5:15 am. This indicates that statement of Rahul Gupta was recorded after 5:15 am. PW1 Rahul Gupta has testified in his cross examination dated 21.7.2010 as under :
"Ex.PW1/A was recorded at 6:30 in morning at DDU Hospital, Hari Nagar, Delhi in presence of his brothers. I was discharged at 8:00 am from DDU Hospital, Hari Nagar. From DDU Hospital, Hari Nagar, Delhi, I was taken to place of occurrence."
32. This part of testimony makes it clear that his statement Ex.PW1/A was recorded after 6:30 am and Rahul Gupta was CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 25 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 discharged from DDU Hospital at about 8:00 am on 8.4.2006. Thereafter, he was taken by ASI Gian Singh to Pankha Road where PW1 identified the place of his abduction. Then, the rukka/tehrir was written below the statement Ex.PW1/A and the same was dispatched to police station at 10:00 am. FIR thereafter was recorded promptly on the statement Ex.PW1/A at 10:15 am on 8.4.2006. Ld. Defence Counsel wants to submit that the non mention of time of recording of rukka is due to the reason that it took time for police to convert the story of quarrel to the story of abduction. I disagree with this submission. The timeline mentioned as above shows that police was quite prompt in recording the statement of Rahul Gupta and lodging FIR. I have perused the testimony of PW7 ASI Gian Singh. He has testified that on receiving a DD no. 8A on 8.4.2006, he went to DDU Hospital where he obtained the MLC of the victim and made inquiry from him which was reduced in writing, which is already Ex.PW1/A. Therefore, the submission of Ld. Counsel for appellants that the statement of victim was recorded at the place of abduction is not correct. In fact PW7 has testified that the same was recorded at the Hospital itself. However, the submission of Ld. Defence counsel is correct to the extent that PW7 ASI Gian Singh has testified that after CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 26 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 recording the statement Ex.PW1/A, he handed over the original Tehir to Ct. Sushil Kumar for getting FIR registered. On the other hand, Tehrir/rukka reveals that first ASI Gian Singh went along with Rahul Gupta to Pankha Road, then wrote Tehrir and thereafter, he sent it to police station for registration of FIR. This contradiction should be seen in light of the first paragraph of examination in chief of PW7, which is reproduced as under :
"I am retd. SI and I had met with an accident on 19.02.2016 and was admitted to ICU of Trauma Centre, AIIMS for several days and I had sustained head injuries and I had lost my memory due to the said accident."
33. The aforesaid reason explains as to why the aforesaid contradiction has occurred. Further, I agree with Ld. Additional Public Prosecutor that this contradiction does not go to the root of the case. It is necessary to mention here that this contradiction cannot even be considered because Ld. Defence Counsel has not confronted PW7 with rukka/tehrir prepared by him where it is written that PW7 wrote the rukka at Pankha Road. Sufficient is it to say that there is no circumstance on record to show that Rahul Gupta fabricated a new story at the instance of police officials. So far as exhibition of Tehrir/rukka is concerned, I am satisfied with the explanation given by CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 27 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Ld. Additional Public Prosecutor above that the entire statement of Rahul Gupta and Tehrir below it were collectively marked as Ex.PW1/A. All these facts convince me that there was no preplanned and premeditated design to concoct a story by converting it to statement Ex.PW1/A. Whether police withheld a material eye witness namely Dharmender and whether the site plan EX.PW-7/A, which does not show his shop is doubtful?
34. Ld. Counsel for accused persons has drawn my attention to cross examination dated 21.7.2010 of PW1, who has testified that he raised hue and cry at the time of abduction but none came forward to save him. He further testified that one shopkeeper namely Dharmender saw this incident and he was also called at the police station and police had made inquiries from him but his statement was not recorded by the police in his presence. Ld. Counsel for accused persons submits that the Investigating Officer has withheld a very material eye witness, who could have testified fairly about the whole incident and could have proved that it was only a case of quarrel and not of abduction. It is submitted that as per site plan various shops have been shown at the place of occurrence. However, shop of CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 28 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Dharmender has not been shown in the site plan Ex.PW7/A. Thus, it is submitted that even the authenticity of the site plan is doubtful.
35. Ld. Additional Public Prosecutor has strongly opposed this arguments submitting that it is not prosecution case that Dharmender was eye witness to the incident. My attention is drawn by Ld. Defence Counsel to the cross examination of PW7 ASI Gian Singh, who had testified in cross examination that he had not examined any shopkeeper of the shop, which are located near place of incident. It is submitted that no suggestion was given to PW7 that he had called a shopkeeper namely Dharmender and made inquiries from him. Further no suggestion was made to subsequent Investigating Officer Inspector Surender Sharma (PW10) to this effect. Ld. Additional Public Prosecutor argues that PW1 Rahul Gupta was examined after about four years from the incident and he was subjected to long and torturous cross examination. In such a situation, a witness is likely to mix facts. It is submitted that if any shopkeeper with the name Dharmender had witnessed the incident, it was for the defence to ask the witness as to how he came to know about the name of said witness and what was his address. This would have facilitated not only the accused/appellants to summon him in their defence but could CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 29 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 have enabled the court to summon him under Section 311 CrPC. It is argued by Ld. Additional Public Prosecutor that accused shirked from eliciting necessary details of said Dharmender from PW1 and therefore, the said part of cross examination of PW1 would not support the defence. It is submitted that when there is no eye witness namely Dharmender, the shopkeeper, there was no need for showing his shop in the site plan.
36. I have considered the aforesaid submissions. No question was asked by defence as to whether the shopkeeper namely Dharmender was known to PW1 even prior to the incident or he came to know about him after the incident. PW1 in his statement Ex.PW1/A made to the police has no where mentioned the name of shopkeeper as eye witness. The rukka prepared by Investigating Officer also does not refer to any such shopkeeper. The name of Dharmender as eye witness has occurred during long cross examination. However, as soon as name of Dharmender appeared, Ld. Defence Counsel did not proceed to ask further details of said Dharmender. Ld. Counsel for accused persons also did not put any question to the Investigating Officers namely ASI Gian Singh (PW7) and Inspector Surender Sharma (PW10) in respect of any Dharmender. When a witness is CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 30 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 being cross examined after about four years, his memory may fail. Further, a witness may feel confused while testifying in awe inspiring atmosphere of the court and under the incisive cross examination by the defence. Therefore, one stray statement about the presence of an eye witness appears to be the outcome of some confusion. Ld. Defence Counsel himself did not take this issue further and did not put any question regarding an eye witness namely Dharmender, a shopkeeper to any of the witnesses including the Investigating Officers (PW7 and PW10). Therefore, I disagree with Ld. Counsel for accused persons that one Dharmender was an eye witness in the present case and he was deliberately withheld by the prosecution. As there was no such eye witness, there was no reason for the Investigating Officers to mention his name and his shop in the site plan.
Existence of Motorcycle No.DL4S-AN-7857 : whether doubtful?
37. Ld. Counsel for accused persons submits that as per statement Ex.PW1/A Rahul Gupta has claimed himself to be the owner of motorcycle no. DL4S-AN-7857 and that he was driving this motorcycle and was passing through the street near Aggarrwal Sweets at Pankha Road. However, no authentic documents regarding his ownership has CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 31 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 been produced by PW-1 Rahul Gupta. It is submitted that during investigation the photocopy of motorcycle's bill were seized by the police from one Deepak Kapoor on 08.04.2006. It is submitted that as per photocopy of the duplicate Bill Ex.PW-7/D-1 the said motorcycle was purchased on 11.08.2004 in the name of Deepak Kapoor but the copy of said bill was not signed by any official of the agency. It is submitted that the Investigating Officer also did not collect the original bill to prove the ownership of the said motorcycle from agency (Swadeshi Auto Pvt. Ltd.). Further, no investigation was conducted by collecting the record from concerned Transport Authority, where the said motorcycle was registered. It is argued that it is also a question as to whether or not the motorcycle bearing no.DL4S-AN-7857 is registered motorcycle. Ld. Counsel for accused persons submits that the said owner Deepak Kapoor was not examined before the court during trial.
38. It is argued by Ld. Counsel for appellants that even the photographs of the said motorcycle were not retained by police before releasing the said motorcycle on superdari.
39. Ld. Counsel for appellants has drawn my attention to the following cross examination of PW7 :
"The said house was found open on our arrival, but I CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 32 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 cannot tell how many member were available at that time. The said motorcycle was recovered from the house of the accused. The said motorcycle was in working condition. Ct. Birender brought the said motorcycle to PS. The keys of the motorcycle were found in the motorcycle only, but the seizure memo of the motorcycle does not mention the seizure of the keys of the motorcycle. The register no.19 of MHC(M) is silent about the deposition of the above said keys. I cannot tell the time when the said motorcycle was deposited in the safe custody of MHC(M). The motorcycle was not mechanical inspected. It is correct that the motorcycle was slightly damaged due to the fall at Sona Road, Gurgaon, Haryana."
40. Pointing out to the aforesaid testimony, it is argued by Ld. Counsel for appellants that without keys, it is not possible to start the motorcycle and bring it to police station for its deposition in Malkhana. However, there is no reference to the keys in the seizure memo or the Malkhana register.
41. It is argued that all these aspects reveal that actually there was no such motorcycle in existence and the story about the motorcycle has been concocted with a view to convert a small case of quarrel into a case of kidnapping.
42. Countering the arguments of Ld. Counsel for appellants, Ld. Additional Public Prosecutor has drawn my attention to Section 60 of Indian Evidence Act 1872, which is reproduced as under :
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60. Oral evidence must be direct Oral evidence must, in all cases, whatever, be direct, that is to say, -
If it refers to a fact which could be seen, it must be the evidence of witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
................."
43. It is submitted by Ld. Additional Public Prosecutor that in view of Section 60 of Indian Evidence Act 1872, oral evidence of an object is sufficient. Therefore, it is submitted that the testimony of PW1 that he was driving the said motorcycle cannot be disbelieved. Ld. Additional Public Prosecutor argues that for proving a theft or robbery, it is not incumbent upon the prosecution to prove the ownership. It is submitted that the offences of theft and robbery are the offences against the possession of a movable property. Ld. Additional Public Prosecutor submits that the testimony of PW1 that he was riding the said motorcycle at the time of his abduction requires no corroboration and therefore, even if the photographs, bills, record of its registration and the motorcycle itself have not been produced, it does not affect the authenticity of prosecution case. Regarding the keys, Ld. CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 34 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Additional Public Prosecutor admits a flaw in investigation but it is submitted that same is so minor that this flaw should be ignored.
44. In nutshell, it is argued by Ld. Counsel for accused persons that neither the ownership of the said motorcycle was proved, nor its the original bill or registration certificate of the motorcycle was proved. Further, superdar Deepak Kapoor was not examined and the motorcycle was never produced in the court. Even the photographs of the motorcycle were not kept by MHC(M) before release of the said vehicle. Further, there is no recovery of keys of the motorcycle and the said keys are also not mentioned in the Malkhana register. Therefore, it is argued that prosecution has failed to prove that any motorcycle actually existed.
45. I have carefully peruse the record on this point. The incident of abduction took place at about 12:00 midnight as per the testimony of PW1. As per evidence, the accused persons abducted PW1 on this motorcycle itself, drove the motorcycle to Gurgaon and after beating PW1, threw him on Sohna Road, Gurgaon. PW1 somehow reached at Sheetla Dharam Kanta on Sohna Road, made a telephonic call to his brother Vijay Gupta, who reached there and took PW1 to Delhi. Thereafter, PW1 was taken to DDU Hospital, where he was medically CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 35 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 examined and was discharged at about 8:00 am. In the hospital itself, PW1 gave his statement Ex.PW1/A to the police. This shows that PW1 gave his statement to police at earliest possible time. Therefore, it is not possible to hold that the averments in statement Ex.PW1/A might be doubtful. In this statement, PW1 has specifically mentioned that he was driving motorcycle no. DL4S-AN-7857, Pulsar and was proceedings from Aggarwal Sweets towards Janak Cinema when this incident of abduction took place. In his evidence before this court as PW1, he has testified that he was driving his motorcycle bearing registration no. DL4S-AN-7857. However, in his cross examination, he has clarified that the said motorcycle belonged to one Deepak Kapoor, friend of his brother Vijay Gupta and that he had taken the said motorcycle a few days prior to the date of incident. Therefore, it is clear that motorcycle is not owned by PW1 but he was simply using the same. I have perused the bill Ex.PW7/D1 dated 11.06.2004 pertaining to a Pulsar Motorcycle in the name of Deepak Kapoor. This bill was seized by ASI Gian Singh vide a recovery memo dated 8.4.2006 from Deepak Kapoor. I agree that this recovery memo has not been proved by PW7. However, in cross examination, the defence drew the attention of PW7 to the bill Ex.PW7/D1. Though PW7 ASI CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 36 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Gian Singh has also testified in cross examination that the bill does not mention any registration number of the bike, this part of this testimony should be rejected because the bill bears the registration number of the motorcycle as DL4S-AN-7857. I agree that PW7 has stated that this is a duplicate bill and that he did not make any inquiry from the MLO/Transport Authority but I am of the opinion that by collecting this duplicate bill, the Investigating Officer was convinced that the bike was purchased by Deepak Kapoor from Swadeshi Auto Pvt. Ltd. This duplicate bill should be seen in view of the fact that it has been seized as corroboration to the prosecution case that the vehicle was in the name of Deepak Kapoor and he had given it to PW1. In fact PW7 ASI Gian Singh has testified that as per his inquiry, the said bike was borrowed by complainant (PW1) from Deepak Kapoor.
46. Here it is necessary to mention that prosecution cited Deepak Kapoor as a prosecution witness but he could not be traced during trial. In the order sheet dated 29.6.2019, the Trial Court has specifically mentioned that summons to PW Deepak Kapoor received back unserved through concerned DCP and therefore, the said witness was dropped. I have perused the report on the summons, CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 37 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 issued for 16.12.2019 annexed with the Trial Court. On the back of this summons, the statement of one Sh. Raj Kapoor has been recorded by the Process Server to the effect that Deepak Kapoor is his son and he is living separately and that he has been disowned by him. The report on further summons also show that all the efforts were made to trace out this witness but he could not served being untraceable. Therefore, prosecution cannot be blamed for non production and non examination of this witness and it cannot be held that he was deliberately withheld by the prosecution.
47. I am of the considered opinion that the mentioning of motorcycle registration number by Rahul Gupta in his statement Ex.PW1/A is duly corroborated by the bill Ex.PW7/D1 bearing the registration number of the bike, even if it happens to be a duplicate bill. This is not a civil suit dealing with the ownership of a vehicle. Consequently it is proved that bike with registration no. DL4S-AN-7857. is in existence. This is further corroborated that the vehicle was recovered and deposited in the Malkhana Register. Prosecution has proved the relevant entry in the Malkhana Register as Ex.PW16/A showing that a Motorcycle make Pulsar No. DL4S-AN-7857 was deposited in the Malkhana vide entry no. 840 and the same was also released to CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 38 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Deepak Kapoor. Relevant entry is proved as Ex.PW16/A and its released on superdari has been mentioned at point B to B1. PW16 SI Jogender Singh has testified that on 30.4.2006, he was working as MHC(M) in PS Maya Puri and the said motorcycle was deposited on 30.4.2006 in Malkhana and it was released on 23.5.2006 to Deepak Kapoor in accordance with order of the Court. No such suggestion has been given that this entry is false. Therefore, it is clear that not only this motorcycle was being driven by PW1 on the date of incident but it was also recovered and deposited in the Malkhana. Hence, all the defects in the documents of ownership etc. as pointed by Ld. Counsel for accused persons are of no consequence. Ld. Additional Public Prosecutor has admitted the discrepancy in investigation and fault on part of Investigating Officer of not mentioning the keys in seizure memo and consequently no entry about keys in Malkhana register. However, I agree with Ld. Additional Public Prosecutor that this is a minor lapse in investigation. Therefore, it cannot be said that the motorcycle is a non existent property.
Recovery of Motorcycle No. DL4S-AN-7857 vide Seizure Memo EX.PW-5/A.?
48. Ld. Counsel for appellants has drawn my attention to following CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 39 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 portion of cross examination of PW7 ASI Gian Singh, which is reproduced as under :
"The accused Bhupender took us to his alleged house from where the motorcycle of complainant was got recovered at about 05:00 - 05:30 pm on 30.04.2006. I did not make any inquiry from the local inhabitants of the area regarding the ownership of the alleged house of the accused Bhupender and I had not obtained any documentary proof regarding the ownership of the alleged house of the accused Bhupender. The said house was found open on our arrival, but I cannot tell how many member were available at that time. The said motorcycle was recovered from the house of the accused. The said motorcycle was in working condition. Ct. Birender brought the said motorcycle to PS. The keys of the motorcycle were found in the motorcycle only, but the seizure memo of the motorcycle does not mention the seizure of the keys of the motorcycle. The register no. 19 of MHC(M) is silent about the deposition of the above said keys. I cannot tell the time when the said motorcycle was deposited in the safe custody of MHC(M). the motorcycle was not mechanical inspected. It is correct that the motorcycle was slightly damaged due to the fall at Sona Road, Gurgaon, Haryana."
49. Ld. Counsel for appellants, while drawing my attention to the aforesaid evidence of PW7 ASI Gian Singh, has submitted that it is strange that he did not collect any document to ascertain as to whether the House No.A-10, Gali No.1, Arjun Vihar, Najafgarh, Delhi belonged to appellant Bhupender Kumar. Further, as per testimony of PW7, the said house was open and some members were present. It CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 40 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 is submitted that despite fact that the family members were present in the said house, none of them was made a witness to the recovery. It is submitted that in the charge sheet, seizure memo of motorcycle Ex.PW-5/A, arrest memo Ex.PW-5/B and personal search Ex.PW-5/C the address of the accused Bhupender Kumar has been shown as A- 10, Gali No.1, Arjun Vihar Park, Delhi. But no site plan of the place of recovery was prepared.
50. Further, it is submitted that even if it is presumed that the motorcycle was recovered from the house, it is not proved that said motorcycle was recovered from the exclusive possession of the accused Bhupender because many other family members were also present in the house.
51. Ld. Additional Public Prosecutor has countered the arguments submitting that there was no need for asking any ownership proof of the said house. It is submitted that if accused does not reside in the said house, it is for him to prove as to what was his actual address at the time of offence. Further, it is submitted that no clarification was sought by the appellants in cross examination of PW7 as to why he did not join any family members or neighbourers as a witness to the recovery of motorcycle. Further, it is argued that appellant Bhupender CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 41 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Kumar may not be in exclusive possession of the motorcycle but it must be kept in mind that he got the said motorcycle recovered consequent to his disclosure statement and therefore, it is to be explained by him as to how he knew that the stolen motorcycle was lying in his house. It is argued that accused Bhupender Kumar has not brought on record any material to throw light about his knowledge of the stolen motorcycle found and recovered from his house.
52. I have considered the rival submissions. I am of the opinion that focus of Investigating Officer was upon recovery of the stolen motorcycle and he is not supposed to collect the ownership documents of H. No. A10, Arjun Vihar. The accused could have placed on record that the said house does not belong to him or he was not residing in the said house but he did not. Therefore, I find no substance in the arguments of Ld. Counsel for appellants on this point.
53. So far as joining of family members of the appellant Bhupender Kumar as witness to the recovery of motorcycle is concerned, I am of the opinion that such expectations from those family members is absolutely unrealistic. No person would agree to become a witness against his own family member.
CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 42 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025
54. I have considered the submissions of Ld. Counsel for accused persons on the fact that house was open at the time of recovery. However, it is required to be noticed that the Investigating Officer recorded a disclosure statement Ex.PW5/D in which he has stated that the motorcycle in question is lying at his house. This portion of evidence is a discovery of a fact pursuant to which, the motorcycle was recovered vide recovery memo Ex.PW5/A. Even if the house was open and few other family members were present at that said house, it cannot be said that the fact was not discovered pursuant to the aforesaid disclosure statement as such statement is relevant under Section 27 of The Indian Evidence Act 1872. Pointing out and getting the motorcycle recovered is also a relevant fact under Section 8 of The Indian Evidence Act. I would like to quote from Prakash Chand Vs. State (Delhi Administration) 1979 AIR SC 400 as under :
"For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
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55. In the present case, incident took place on 8.4.2006. As per the evidence of PW7 SI Gian Singh, accused Bhupender Kumar was arrested on 30.4.2006 on a secret information. This accused made a disclosure statement Ex.PW5/D and pursuant to this disclosure, he got recovered the aforesaid stolen motorcycle from his house. This conduct is relevant under Section 8 of Indian Evidence Act being a subsequent conduct as it influences the fact in issue.
56. In view of above discussions and aforesaid case law, the recovery of stolen motorcycle at the instance of accused Bhupender Kumar is admissible irrespective of the admissibility of his disclosure statement under Section 27 of Indian Evidence Act.
57. Ld. Metropolitan Magistrate has rightly relied upon the evidence of PW7 in this regard. Accordingly, I hold that recovery of motorcycle from the house of accused Bhupender Kumar at his instance stands proved.
Recovery of Gold Ring vide Seizure Memo EX.PW-6/A
58. Ld. Counsel for accused persons argued that as per prosecution the gold ring robbed from the complainant was recovered on 01.05.2006 from Gagan Deep Dhalla vide recovery memo Ex. PW-6/A. But the description of the said Ring i.e. weight, size were not CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 44 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 mentioned in the seizure memo. Further, it is submitted that PW-1 has not described the description (weight, size and design) of the ring in the complaint (Ex. PW-1/A) and in his statement before the trial Court. It is submitted that PW-1 has not produced any bill of the purchasing of the alleged Ring and was unable to tell the shop of the jeweller, from where he had purchased the said ring.
59. It is further submitted that no public person was joined in the investigation during recovery of the said ring which casts a serious doubt on its recovery.
60. Further my attention is drawn to the statement of PW-16 SI Joginder (MHCM), who has testified that the ring was deposited on 01.05.2006 vide entry no.841 Ex. PW-16/B and the said ring was released on 25.05.2006 on superdari to the complainant, the said entry is point C2/C1 on Ex. PW-16/A. It is submitted by Ld. Counsel for accused persons that as per prosecution, the said ring was taken out of Malkhana for TIP proceedings and it was placed before Sh. Sanjeev Kumar, Ld. Metropolitan Magistrate, where Rahul Gupta identified the said ring on 24.5.2006. It is submitted by Ld. Counsel for accused persons that there is no entry in the Malkhana register regarding taking out of the said ring on 24.5.2006. Therefore, it is CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 45 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 argued that some other ring was put to TIP because the recovered ring was never taken out from Malkhana.
61. Ld. Additional Public Prosecutor has countered the said submissions and has argued that even if no purchase bills etc. have been brought on record by the Investigating Officer to prove the purchase of said finger ring, the recovery of finger ring cannot be doubted on this ground. He further submits that as per the cross examination of PW7 ASI Gian Singh, he requested 2 or 3 passerbys to join the investigation but none of them agreed and they all left the spot without disclosing their names and addresses. Therefore, it is submitted that non joining of public witnesses is duly explained. Regarding non existence of the entry in Malkhana register in respect of taking out of the ring from Malkhana for its production before Ld. Metropolitan Magistrate for conducting TIP, it is submitted that this aspect has been explained by PW16 SI Jogender Singh in cross examination that when such case property is sent to court, a DD entry is made. Further he has testified that a rough entry is made in this regard, when the case property is received in the Malkhana again and that now said record i.e. rough register is destroyed. It is submitted by Ld. Additional Public Prosecutor that this is sufficient explanation CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 46 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 as to why no entry in respect of taking out the ring for TIP exists in Malkhana register.
62. I have considered the rival submissions. I am of the opinion that collection of ownership proof of stolen gold ring could have be more supportive of the prosecution case. However, even in its absence, the ownership of the golden ring cannot be disputed. Although in the complaint specific marks/features on the gold ring have not been mentioned, the recovery memo Ex.PW6/A specifies that the finger ring was having the design of leaves. I have no hesitation to say that a person, who is wearing a jewellery continuously would not fail in identifying the same. In Earabhadrappa Alias Krishnappa Vs. State Of Karnataka, Date Of Judgment 11/03/1983 (AIR 1983 Supreme Court 446), it was held that as under :
"It is a matter of common knowledge that ladies have uncanny sense of identifying their own belongings, particularly articles of personal use in family ..... There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement."
63. It is pertinent to note that said finger ring was released to PW1, who produced it during his examination and proved it as Ex.P1. No suggestion has been given that Ex.P1 is not the ring, which was CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 47 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 stolen from him or which was identified by him during TIP proceedings. So far as absence of the entry in Malkhana register for taking it out for TIP purposes is concerned, PW16 has given an explanation, which cannot to be said to be untrue. I may point out that PW15 Sh. Sanjeev Kumar, ADJ (earlier Metropolitan Magistrate at relevant time) has testified that gold ring was produced in a pulanda, which was sealed with the seal of GS. The recovery memo Ex.PW6/A of the finger ring specifically mentions that the same was enclosed in a pulanda and was sealed with the seal of GS. PW15 Sh. Sanjeev Kumar, Ld. ADJ has testified that the pulanda containing finger ring was enclosed with the seal of GS. Therefore, it is clear that the finger ring, which was recovered vide recovery memo Ex.PW6/A from one accused Gagan Deep, is the same which was produced for TIP and exhibited as Ex.P1 in the testimony of PW1 Rahul Gupta.
64. As far as non joining public persons is concerned, I agree with Ld. Additional Public Prosecutor that the explanation by PW7 is sufficient.
65. Thus, I hold that the disclosure statement Ex.PW5/D which points out that the stolen finger ring was sold to Gagan Jewellers, Som Bazar Road, Arjun Park by accused Bhupender Kumar and CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 48 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 consequent to it, the recovery of stolen finger ring from accused Gagan Deep Dhalla vide recovery memo Ex.PW6/A stands duly proved.
Recovery Of Mobile Phone Vide Seizure Memo EX.10/1.
66. During the examination of PW1 Rahul Gupta, the stolen finger ring was marked as Ex.P1. However, inadvertently the mobile phone was also exhibited as Ex.P1 at the time of recording of evidence of PW4 Ajeet Kumar Gupta.
67. As per the testimony of PW4 Ajeet Kumar Gupta, he had given this mobile make Nokia to his landlord Rahul Gupta. In the robbery in question, the mobile phone was also robbed. He proved the said mobile phone with IMEI No. 35565500-204818-1 and identified it to be his own phone. He testified that SIM No. 9868804465 was allotted to his brother Ranjeet Kumar but he i.e. PW4 was using it.
68. Ld. Counsel for accused persons submits that as per seizure memo Ex. PW-10/I the recovery was only qua the handset from accused Sunil Kumar. However, the said SIM No. 9868804465 was not recovered from accused Sunil Kumar.
69. It is further argued that as per PW-1 and PW-2 the mobile phone belongs to Ajeet Kumar Gupta, friend of PW-2. As per the CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 49 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 statement of PW-4 (Ajeet Kumar Gupta) the mobile SIM No.9868804465 was in the name of his brother Ranjeet Kumar. The Rajender Kumar Gupta was not examined during investigation and during trial by the prosecution. It is further submitted that the Investigating Officer has not collected any documentary proof i.e. CAF (Customer Application Form), CDR (Call Details Report) and Location Chart etc. from the service provider agency to prove as to whom the said SIM was issued or who was the user of same.
70. Ld. Counsel for accused persons submits that the said mobile was seized at the instance of accused Sunil Kumar on 03.06.2006 from his house. The TIP of the phone was not conducted by the police during investigation. It is further submitted that no public person has joined the investigation at the time of recovery of the mobile phone. The ownership and residence proof of the said house of accused Sunil Kumar was not collected by the police. Further, it is argued that the house was open at the time of recovery and no resident of the said house was made a witness to the recovery. Further, it is argued that exclusive possession of the mobile phone of accused Sunil was not proved by the prosecution. Thus, it is argued by Ld. Counsel for appellants that recovery of mobile phone at the CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 50 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 instance of accused Sunil Kumar is highly doubtful.
71. Ld. Additional Public Prosecutor has countered this submission submitting that PW10 Sub Inspector Surender Sharma took up the investigation on 26.5.2006. Accused Sunil moved an application for surrender before the court of Ld. Metropolitan Magistrate. With the permission of Ld. Metropolitan Magistrate, accused Sunil was interrogated. My attention is drawn to the testimony of PW10 Sub Inspector Surender Sharma, who testified that thereafer, accused Sunil Kumar was arrested and accused was sent to judicial custody. In TIP proceedings accused Sunil Kumar was identified as offender by Rahul Gupta. Thereafter, accused Sunil Kumar was taken in police custody for one day vide application Ex.PW10/F. He testified that during police custody, accused Sunil Kumar made a disclosure statement Ex.PW10/G and he himself led the police to his house and the Nokia Mobile phone was recovered from his house at the instance of accused Sunil Kumar. The said mobile phone was seized vide seizure memo Ex.PW10/I. Ld. Additional Public Prosecutor submits that this mobile phone has been identified by PW4 as the same which was given by him to PW1 Rahul Gupta prior to robbery. Therefore, it is submitted that this is enough evidence to prove that the mobile CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 51 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 phone recovered at the instance of accused Sunil Kumar, is the same which was robbed from Rahul Gupta. It is submitted that rest of the arguments are of no consequence.
72. I have considered the submissions. PW1 Rahul Gupta in his initial statement Ex.PW1/A has mentioned his mobile SIM No. 9868804465. He testified that golden chain and golden ring worn by him and his mobile phone make Nokia 1100 was snatched by the accused persons. PW4 has testified that he had given the said mobile phone to PW1 and that its SIM number is in the name of his brother Ranjeet Kumar. PW4 identified the said phone in his testimony. PW10 Inspector Surender Sharma has proved that the said mobile phone was recovered at the instance of accused Sunil Kumar from his house vide recovery memo Ex.PW10/I. In the recovery memo, it is specifically mentioned by the accused Sunil Kumar that the SIM card was thrown by him. However, he got recovered the said mobile phone from the small Godrej Almirah in his house. Therefore, it is clear that the mobile phone was in exclusive possession of the accused Sunil Kumar. He has not claimed it to be his own mobile phone. Nor he claims that it belongs to any of his family members in statement under Section 313 CrPC. In face of the CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 52 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 testimony of PW4 that it was the mobile phone which was given by him to PW1 and in face of testimony of PW1 that it was robbed by the accused persons, the identity of the stolen mobile phone does not remain in doubt. Non collection of its purchase bill, CAF and CDRs etc. cannot belie the factum of its theft and subsequent recovery. Non joining of public witness would not shake the prosecution case as hardly any public person agrees to be a witness against criminals. Whether the testimony of PW1 Rahul Gupta can be held to be unworthy of reliance in view of certain defects in investigation?
73. I have already reproduced the entire testimony of PW1 Rahul Gupta. Ld. Counsel for accused persons has assailed his testimony submitting that it is unbelievable that the accused persons alleged to have kidnapped Rahul Gupta would stop to fill petrol and Rahul Gupta would not shout for help. It is argued that the prosecution has also not produced any witness from the petrol pump from where as per the allegation the petrol was filled up by the accused persons. Further, there is no corroboration from Sheetla Dharam Kanta, Gurgaon, from where Rahul Gupta made a call. Further, Rahul Gupta was first taken to Dabri Police Station and then he was admitted in DDU Hospital. Thereafter, the matter was taken by the police of Maya Puri. It is CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 53 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 submitted that version of PW1 made to PS Dabri has not been brought to light by police or by PW1 himself. Further, it is argued that as per the Section 166 Cr.P.C. the local police of Gurgaon was not informed, call or taken up by the Delhi Police while investigating the present case. Therefore, it is argued that taking of accused Bhupender or PW- 1 to Gurgaon by the Delhi Police is highly doubtful because local police was not informed or accompanied by them.
74. Ld. Additional Public Prosecutor has drawn my attention to the judgements cited by Ld. Metropolitan Magistrate viz State of Rajasthan Vs. Kishore,AIR 1996 SC 3035 and C. Muniappan Vs. State of T. N. (2010) 9 SCC 567 : [(2010) 3 SCC (Cri)1402] in the impugned judgement and argued that any lapse of Investigating Officer or perfunctory investigation cannot override an otherwise proved case.
75. I have considered the rival submissions and I am of the opinion that testimony of PW1 is duly corroborated by recovery of the stolen motorcycle at the instance of accused Bhupender Kumar and recovery of a gold finger ring from another accused Gagan Deep Dhalla on the information of accused Bhupender Kumar. Further, the stolen mobile phone was recovered at the instance of accused Sunil CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 54 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 Kumar. Accused Bhupender Kumar refused to take part in TIP proceedings as per T. I. P. Proceedings conduced by PW13 Sh. G. N. Pandey, Ld. Metropolitan Magistrate. Accused Sunil was identified during TIP proceedings Ex.PW14/A. PW1 Rahul Gupta has unmistakbly identified the accused persons in his evidence before the court. Ld. Counsel for accused persons has tried to find out few discrepancies in these TIP proceedings. However, I am of the opinion that the accused persons remained in contact with PW1 Rahul Gupta for a very long time, which gave sufficient opportunity to him to observe their faces and features. Therefore, the identification of the accused persons by PW1 in the court was sufficient. Ld. Counsel for appellants submits that the whole case has been fabricated because of the reason that the appellants were having criminal antecedents. I disagree with this submission. PW1 Rahul Gupta appears to be a responsible person. There is no previous enmity or any other motive of PW1 to falsely implicate the appellants. It is unbelievable that he would deliberately identify the appellants simply at the instance of police. On perusal of the testimony of PW1, I find a ring of truth around it and therefore, I hold that Ld. Metropolitan Magistrate has rightly convicted both of them under Section 394/365/34 IPC.
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76. To conclude, it is held that both the appellants in furtherance of common intention had committed hurt to PW1 Rahul Gupta in committing robbery. Therefore, the conviction of both the appellants under Section 394/34 IPC is upheld. Prosecution has also proved beyond reasonable doubt that both the appellants had abducted PW1 Rahul Gupta with intention to the secretly and wrongfully confined and therefore, their conviction under Section 365/34 IPC is also upheld.
77. I have already held that their conviction under Section 411 IPC is inadvertent and the judgement to the extent of conviction under Section 411 IPC is set aside.
78. In view of above discussions, the impugned judgement dated 12.12.2019 is hereby upheld with the aforesaid modification.
79. I have also considered the quantum of sentence. Ld. Counsel for appellants has submitted that the convicts have remained in judicial custody for about six months and that they should be let off on the sentence, which they have already undergone. I am of the opinion that Ld. Metropolitan Magistrate has already taken a very lenient view in sentencing the appellants and therefore, I am not inclined to show any further leniency. However, I find that the appellants belong to CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 56 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 poor strata of society and do not have means to pay compensation of Rs.20,000/- each as imposed by the Trial Court. Therefore, I set aside the portion of compensation. Further, I find that Ld. Metropolitan Magistrate has not imposed any fine despite the fact that Section 365/34 as well as Section 394/34 IPC mandate imposition of imprisonment and fine. Therefore, the impugned order on sentence as modified and both the appellants are sentenced as under :
Sl. Section Sentence Fine Sentence in default
No. of payment
1. 394/34 Rigorous Rs.100/- Simple
IPC Imprisonment imprisonment for
for two years. Seven Days
2. 365/34 Rigorous Rs.100/- Simple
IPC Imprisonment imprisonment for
for two years. Seven Days
80. Both the sentences shall run concurrently. The custody period during which they remained in judicial custody shall be set off against the aforesaid sentences. Copy of judgement be supplied free of cost to the appellants. They have been apprised that they can avail legal aid from DLSA, West for filing of appeal. Separate note to this effect be provided to the appellants as per rules. Both the appellants are CA/12/2020 CNR NO.: DLWT01-000191-2020 CA/11/2020 CNR NO.: DLWT01-000192-2020 Page 57 of 58 Sunil Kumar @ Sonu Vs. The State Govt. of NCT of Delhi Bhupender Kumar @ Neetu Vs. The State Govt. of NCT of Delhi Judgement dt. 23.01.2025 taken to custody. Sentence warrants be prepared and be sent to jail to serve the sentences. If fine is deposited, the receipts be issued. Copy of this judgement along with trial court record be remitted to the Trial Court. The signed copies of this judgement be placed in both the appeal files and thereafter, same be consigned to record room. Announced in the open court on 23.01.2025.
Digitally signed by VINOD KUMAR VINOD KUMAR Date: 2025.01.23 14:18:27 +0530
(Vinod Kumar)
Principal District & Sessions Judge
West District, Tis Hazari Courts, Delhi
CA/12/2020 CNR NO.: DLWT01-000191-2020
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