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Delhi District Court

State vs . Sandeep Bhatnagar Etc. on 19 January, 2016

                                    1


                     In the Court of Dig Vinay Singh
         ASJ/Special Judge : NDPS : Rohini Courts(N­W) : Delhi

     In the matter of  : 
                       SC No.           40/13
                       State Vs.        Sandeep Bhatnagar etc.
                       FIR no.          255/06
                       PS               Vikas Puri
                       U/s              120B/392/397/411/34 of IPC


            State 

                 Versus 

        1. Sandeep Bhatnagar @ Sanju
           S/o Late Sh. Purusharth Prakash Bhatnagar
           R/o H.No. 4D, Pocket A, 
           Vikas Puri Extn. Tilak Nagar, Delhi.

        2. Pawan Gupta @ Tinkle 
           S/o Sh. Satish Chander Gupta 
           R/o JG II 766B, Vikas Puri, Delhi.

        3. Rishi Gupta 
           S/o Sh. Ramji Lal Gupta 
           R/o H.No. 667, Shiv Nagar,
           Jaleshar Road, P.S. Kotwali, Uttar Firojabad, U.P.

        4. Satish Chander Gupta 
           S/o Sh. Khajanchi Lal Gupta 
           R/o JG II 766B, Vikas Puri, Delhi.

                            Date of receipt            :  29.08.2006
                            (Received in this court) :  08.11.2013
                            Date of arguments        :  05.01.2016
                            Date of announcement :  19.01.2016


                                   JUDGMENT

1. The above named four accused were charge sheeted for offences U/s 120B/392/397/411/34 of IPC. The crux of the SC No. 40/13 Page 1 of 59 2 allegations is that accused Sandeep Bhatnagar, Pawan Gupta and Rishi Gupta entered into a criminal conspiracy to rob UTI Bank, Vikas Puri. In pursuance of that conspiracy, Rs. 40 Lakh was robbed from the bank by them. Fourth accused Satish Chand Gupta is charge sheeted for having received part of the robbed amount.

1.1. Briefly stated, the facts of the case are that on 8.5.2006 an information was received under DD no.10A in police station Vikas Puri at 12.35 PM that one Mr. Mithun from UTI Bank, Vikas Puri gave an information that Sandeep Dam (the branch manager of the bank and not the accused) was appearing suspicious and police may be sent. This call was assigned to SI Udai Singh, who at the relevant time was already out of police station in connection with attending call of some other case under DD no. 9A with Ct. Vishnu. True copy of this DD no. 10A was dispatched to SI Udai Singh through Ct. Rajeev. SI Udai Singh met Ct. Rajiv outside the gate of police station itself when he was returning. In the meanwhile, another information was received in the police station at 12.40 PM which was received through PCR in which it was informed that the Branch Manager Sandeep Dam informed that the bank has been robbed. This information was recorded in DD no. 11A and its copy was also sent to SI Udai Singh through Ct. Jagmohan. Thereafter, SI Udai Singh along with Ct. Jagmohan reached UTI Bank, Vikas Puri branch located at J­3, Vikas Puri. In the bank, the branch manager Sandeep Dam gave a written complaint to SI Udai Singh.

SC No. 40/13 Page 2 of 59 3

1.2. Complainant Sandeep Dam stated that he was working as Assistant Vice President in the said branch of the bank and at 11.40 AM one person was noticed by him standing at the cash counter of the bank with a deposit slip and a currency note of Rs. 500/­. He saw that man from his cabin. After sometime, the said person entered cabin of the complainant and produced a piece of paper on which "786 Allah is Great.....etc" was written. That person also claimed that he was having a bomb and he had done his homework well. That person thereafter called someone who was addressed as Salim through his mobile, asking the person on other side of call to deliver empty carry bags for cash. After that, another person came in the cabin of complainant and delivered carry bags and went away. The complainant under fear obtained keys of the strong room from Ms. Seema the deputy manager of the bank and under fear went to the Strong Room with the offender. In the strong room, no cash was found. Thereafter, the offender asked the complainant to hand over the cash from the branch cash counter. Upon it, the complainant spoke to the cashier Ms. Binny and enquired about the available cash. On confirmation about the cash, the complainant asked the cashier to send the cash in a box through peon of the bank, namely Deepak. Ms. Binny along with Deepak same in his cabin and gave cash of Rs. 40 Lakh, out of which Rs. 30 Lakh was inside box and remaining Rs. 10 Lakh was brought by Ms. Binny, in his cabin. The cash was then transferred into the two bags by peon Deepak, and the offender asked Deepak and another peon Sonu to carry the bags till the door of the SC No. 40/13 Page 3 of 59 4 bank. The offender also threatened the complainant of dire consequences in case police was informed. When the offender left the bank and was out of sight, the complainant alerted Mr. Mithun to call the police and the complainant also went outside the bank and also alerted one policeman standing outside the branch. Complainant claimed that he can identify both the offenders who came to the bank and robbed the bank of Rs. 40 Lakh.

1.3. On this complaint the present case was registered and investigation was assigned to Inspector Narrottam Chauhan. During investigation, secret information was received that the offenders used one pearl silver colour esteem car with alloy wheels at the time of committing robbery. During investigation, another secret information was received that accused Sandeep Bhatnagar residing at Pocket A, Vikas Puri has a similar car. Meanwhile, a secret information was received that Sandeep Bhatnagar would come at near B.K.Jewellery Shop, Tilak Nagar on 27.05.2006 at about 9­9.30 PM. Upon it, accused Sandeep was apprehended. He confessed about his involvement in the crime. Accused Sandeep got recovered his passport, air ticket, 600 American dollars and other documents and mobile phone. He also got recovered a sum of Rs. 5 Lakh cash from cupboard in his house. From his house, one rexine cover belt with synthetic cloth belt and electrical wires and spring etc. were also recovered which he had used at the time of robbery as a human bomb belt. Accused Sandeep also got recovered one tourist bag from the double bed in his house, which was used for transporting cash from the bank. He also got SC No. 40/13 Page 4 of 59 5 recovered his T­shirt which he was wearing at the time of incident and his esteem car no. DL 7C D 4342. From the dicky of the car, another sum of Rs. 5 Lakh out of the robbed amount was also recovered. Account of Sandeep bearing no. 1610000100250259 at PNB, Vikas Puri was seized since part of the robbed amount was deposited in the said account. During investigation, accused Sandeep also informed that from the part of robbed amount, he gave Rs. 50,000/­ to his sister­in­law Smt. Rajni, which were also recovered from Smt. Rajni.

1.4. On 28.05.2006, accused Satish Chand Gupta, father of accused Pawan Gupta was apprehended and from his possession a sum of Rs. 25,000/­ out of the robbed amount given to him by Pawan Gupta for his expenses were recovered.

1.5. Accused Pawan Gupta was apprehended on 7.6.2006 based on secret information, from near Fire Station near Madhuban Chowk, Rohini. Accused Pawan Gupta also made disclosure statement and led the police team to Swami Sofitel Hotel at Delhi Gate, Mathura Road, Agra, and from Room no. 106 of that hotel, he got recovered a briefcase containing Rs. 3.5 Lakhs which was part of the robbed amount. Police custody of Pawan Gupta was obtained. Thereafter, Pawan Gupta led the police team to Aarti Hotel in Agra on 6.6.2006, and in front of that hotel his Wagon­R car no. DL8C K 4946 was found parked and from the dicky of the said wagon­R car, a cash amount of Rs. 8 Lakh were recovered which was also part of the robbed amount. Accused Pawan Gupta also led the police SC No. 40/13 Page 5 of 59 6 team to his in­laws house in Agra on 7.6.2006 at Civil Lines, Farzana, Agra and got recovered a sum of Rs. 2 Lakh inside a polythene from under the water tank on the first floor of the house. Accused Pawan Gupta also got recovered a sum of Rs. 1 Lakh from his factory at WZ­ 51C, First Floor, Basai Dara Pur Village Delhi near Tyagi Dharamshala from inside a polythene inside a carton box. Thereafter, on 10.6.2006 Pawan Gupta got recovered another sum of Rs. 50,000/­ from under the water tank on the roof top of his house no. 766B, Vikas Puri, Delhi.

1.6. Accused Rishi Gupta was apprehended in some other case under FIR no. 40/06 of police station Special Cell U/s 25 Arms Act 1959 and information was received in police station Vikas Puri on 6.6.2006 about his apprehension in another case, vide DD no. 38A. Production warrant of Rishi was obtained and Rishi was arrested in the present case on 9.6.2006. His police custody was obtained. Rishi Gupta also got recovered a sum of Rs. 50,000/­ from under the water tank of roof top of his house no. RU­157, Power House, Pitampura, Delhi. Accused Rishi Gupta also disclosed that out of the robbed amount a sum of Rs. 1.5 Lakhs was given by him to one Mukesh Gupta. Mukesh Gupta died in an encounter in U.P on 26.06.2006 and therefore, that amount could not be recovered. From the possession of Rishi Gupta, another sum of Rs. 1.5 Lakh was recovered in the FIR no. 40/06 Police Station Special Cell, Lodhi Colony.

1.7. Accused Sandeep and accused Rishi both refused to undergo their Test Identification Parade during SC No. 40/13 Page 6 of 59 7 investigation.

1.8. It was revealed during investigation that accused Sandeep, Pawan and Rishi entered into the criminal conspiracy to commit the above mentioned crime and in furtherance of that conspiracy accused Sandeep went to the bank in the cabin of branch manager and robbed the bank. Upon being called it was accused Rishi who went to deliver the two bags. At that time, accused Pawan was outside the bank in the pearl silver Esteem car no. DL7C D 4342 while sitting on the driving seat with the ignition of the car ON. Total Rs. 40 Lakh was robbed from the bank by the three of them. From the possession of accused Sandeep Bhatnagar, a total of Rs. 10,50,000/­ and 600 US $ were recovered out of the robbed amount. Rs. 15 Lakh in total was recovered from Pawan Gupta. Rs. 2.5 Lakh was recovered from Rishi Gupta, and Rs. 25,000/­ were recovered from Satish Chand Gupta. The remaining amount had been spent by the accused persons, by the time they were apprehended. Mobile call details of the accused were also obtained which also revealed location of the accused persons around the bank at the relevant time and their inter se connectivity.

1.9. On completion of investigation, chragesheet was filed for the above mentioned offences.

2. Accordingly, a charge U/s 120B & 392 of IPC was framed against all the three accused. In the alternative, a charge U/s 411 of IPC each was framed against accused Sandeep, Pawan and Rishi qua recovery of the respective robbed amount from the three of them.

SC No. 40/13 Page 7 of 59 8

Separately, a charge U/s 411 IPC was framed against accused Satish Chand Gupta. Against accused Sandeep Bhatnagar, an additional charge U/s 397 of IPC was framed. All the accused persons pleaded not guilty to the charges and claimed trial.

3. In support of its case, prosecution examined total 37 witnesses.

3.1. From amongst the formal witnesses;

3.2. PW4 Ct. Jagmohan carried the DD no. 11 from police station Vikas Puri to SI Udai Singh who met him outside the police station and then accompanied SI Udai Singh to the bank where tehrir was prepared and the witness was directed to go to the police station and got the FIR registered. After getting the FIR registered, the witness handed over copy of FIR and tehrir to the investigating officer SI Narottam Singh Chauhan.

3.3. PW5 ASI Jai Prakash simply recorded DD no. 38A on 6.6.2006 upon receipt of information from Special Cell about arrest of accused Rishi Gupta in some other case of Special Cell.

3.4. PW7 Ashok Kumar Goyal, the Chief Manager of PNB, Vikas Puri, Delhi had supplied the account details of accused Sandeep Bhatnagar pertaining to two accounts no. 1610000100319659 and 1610000100250259 to the investigating agency. The first account was in joint name of accused Sandeep and his wife and the second was in the individual name of Sandeep. Statements of both the accounts are proved as Ex.PW7/E & F, respectively.

SC No. 40/13 Page 8 of 59 9

3.5. PW10 W/ASI Manjeet Kaur simply recorded DD no. 10A at 12.35 PM on 8.5.2006 when information given by Mithun (PW8) qua the incident was lodged. She also proved DD no. 11A lodged at 12.40 PM on that very day, when information about the incident was given by complainant Sandeep. She also proved FIR of this case Ex.PW10/C. 3.6. PW13 SI Kishan Pal was the duty officer who lodged FIR no. 40/06 police station Special Cell dated 6.06.2006 regarding recovery of arms from accused Rishi after he was apprehended on 6.6.2006.

3.7. PW19 Jagdish Prasad from Corporation Bank, Bikaji Cama Place proved the bank statement of Sanguine Tour & Travels Pvt. Ltd. for the period 1.1.2006 to 31.05.2006 as Ex.PW19/A. 3.8. PW20 Pratap Singh, from the concerned MLO Office proved that the Wagon­R car no. DL 8C K 4946 is registered in the name of accused Pawan Gupta.

3.9. PW21 Sh. Rakesh Tiwari from the concerned MLO Office proved that the Maruti Esteem Car no. DL 7C D 4342 was registered in the name of Sanguine Tours & Travels.

3.10. PW24 Ms. Harpriya Joshi and PW25 HC Yashpal Singh from FRRO proved the embarkation and dis­embarkation details of accused Sandeep Bhatnagar as Ex.PW24/A to C & Ex.PW25/A to C. It may be mentioned here that accused Sandeep Bhatnagar, vide his statement dated 23.09.2010, admitted the said record and did not dispute it.

SC No. 40/13 Page 9 of 59 10

3.11. PW26 SI Udai Singh went to the bank on receipt of DD no. 10 A & 11A along with Ct. Jag Mohan and then in the bank, on receipt of complaint of PW1, made endorsement on the complaint and sent Ct. Jagmohan for registration of FIR. Further investigation was handed over to SI Narottam Chauhan.

3.12. PW28 M.N.Vijayan, the Nodal Officer from Tata Tele Services Ltd. exhibited the Customer Application Form, Identity Proof, Call Detail Records for the period 8.5.2006 to 10.05.2006, along with Cell ID Address with requisite certificate U/s 65 Evidence Act as Ex.PW28/A to E, pertaining to mobile no. 9213723388 of accused Sandeep Bhatnagar.

3.13. PW29 Anuj Bhatia, the Nodal Officer from Vodafone Essar Mobile Services Ltd., exhibited the Customer Application Form, Identity Proof & Call Detail Records for the period 1.5.2006 to 31.5.2006, along with Cell ID Address with requisite certificate U/s 65 Evidence Act as Ex.PW29/A to 29/D, pertaining to mobile no. 9811539372 of Mhd. Rashid. This witness also exhibited the Customer Application Form, Identity Proof & Call Detail Records for the period 1.5.2006 to 31.5.2006, along with Cell ID Address with requisite certificate U/s 65 Evidence Act as Ex.PW29/E to 29/H, pertaining to mobile no. 9811194806 of accused Pawan Gupta. The Cell ID address is proved as Ex.PW29/I, qua both the mobile phones.

3.14. PW30 Ajit Singh, the Nodal Officer from Idea Cellular Ltd., exhibited the Customer Application Form, Identity Proof, as Ex.PW30/A & B, stating that the mobile no.

SC No. 40/13 Page 10 of 59 11

9911289861 was in the name of Alsareea Abdul, between the period 23.2.2006 to 19.9.2006.

3.15. PW32 Ramjit Yadav was the concerned SHO in Lucknow who investigated case under Crime No. 215/06 U/s 307 IPC qua the deceased accused Mukesh Gupta.

3.16. From amongst the material witnesses, certain common witnesses have been examined against accused Sandeep Bhatnagar and Rishi from the bank which was robbed on 8.5.2006. Those witnesses are as follows;

3.17. The complainant Sandeep Dam as PW1, deposed that he was present in the bank on 8.5.2006 as Branch Manager at about 10.45 AM when accused Sandeep Bhatnagar came in his cabin and placed in front of him one paper chit on which some words such as "786" and "Allah is Great"

were written, besides other words out of which he could recollect word Jihadi/Jihad. He got scared after reading the contents of chit. Accused Sandeep told him that he was carrying a live bomb on his body and his associate was also present in the branch with another bomb. Accused Sandeep lifted his T­shirt and revealed some electrical wires on his body and then asked the key of cash vault. Prior to it, accused Sandeep made a call to someone and addressed the person on other side as Salim, instructing that person to bring bags. Within few seconds, accused Rishi Gupta came in the cabin with two bags, one black and other green. Accused Rishi left the bags and went out of the cabin. After taking keys of the vault, accused Sandeep took the witness to the cash vault. Finding nothing in the cash vault, where there were SC No. 40/13 Page 11 of 59 12 only two almirahs, the accused Sandeep asked the witness to come back to cabin. At that time, again accused lifted his T­shirt and revealed that a metallic box was tugged inside his pant which was covered with brown plastic tape and electric wires criss­crossing the metallic box. Upon return from the cash vault, the accused Sandeep threatened the witness not to touch anything in the cabin and not to try to inform the police till after ten minutes of leaving of the accused, stating that his accomplice would be there in the bank to keep an eye on his activities. Accused Sandeep also asked the witness to enquire about the cash available at the cash counters, upon which the witness found out from the cashier that Rs. 40 Lakhs were available in the cash branch. Accused Sandeep directed the witness to get the said cash, upon which the witness asked the cashier Ms. Binny Rana (PW2) to bring the cash. PW2 brought the cash of Rs. 40 Lakh, out of which Rs. 30 Lakh was in a box and Rs. 10 Lakh cash was given by PW2 outside the box. The cash box containing Rs. 30 Lakh was brought by peons Deepak and Sonu @ Jogiram (PW3). The cash was then transferred in the two bags of accused by the two peons and meanwhile, PW2 Ms. Binny Rana had left. After the cash was transferred in the two bags of accused, the two peons also assisted the accused in carrying the bags containing cash till the main entrance of the bank. Thereafter he informed his colleague Mr. Mithun Bhandari (PW8) to inform the police and he himself came out of the bank. Outside the bank, one policeman was noticed, who was informed by this witness about the dacoity. Then this SC No. 40/13 Page 12 of 59 13 witness returned to the branch and called the police again, telephonically. After the police arrived, the witness gave his complaint Ex.PW1/A. The witness identified the bag in the court as Ex.P1, which was recovered from the possession of accused Sandeep. The witness also deposed that accused Sandeep was arrested in his presence from near B.K.Jewellery, Tilak Nagar and he signed the arrest documents as well as disclosure statement of accused Sandeep. The witness also deposed that the accused Sandeep then took the police team to his house on fourth floor in Vikas Puri from where he got recovered Rs. 5 Lakh cash and another sum of Rs.

5 Lakh was recovered from the dicky of his car. The bags were also taken into possession from the house of accused Sandeep. A dummy bomb was also taken into possession from his house, as also the T­shirt and car. The dummy bomb is identified in the court as Ex.P2, T­ shirt is identified as Ex.P3, the currency notes were collectively identified as Ex.P4 and, the car as Ex.P5. The witness deposed that passports and American dollars were also recovered from the possession of accused Sandeep. The witness identified accused Sandeep as well as accused Rishi in the court specifically.

3.18. Corroborating the testimony of PW1, PW2 Ms. Binny Rana, the cashier in the bank, deposed that on the asking of PW1, she took stock of the available cash in the cash branch and then carried Rs. 40 lakh to the cabin of PW1 with the help of peon Deepak. At that time, when she went to deliver the cash in the cabin of PW1, accused Sandeep SC No. 40/13 Page 13 of 59 14 Bhatnagar was found sitting in the cabin opposite complainant Sandeep Dam. The witness specifically deposed that it was accused Sandeep Bhatnagar who was present in the cabin of PW1 when she went to deliver cash to his cabin. She also identified accused Sandeep Bhatnagar distinctly in the court.

3.19. PW3 Jogiram @ Sonu was one of the peons in the branch of the bank on the date of offence. He deposed that another peon Deepak accompanied PW2 Ms. Binny at about 11.30 AM in the cabin of PW1 and Deepak was carrying one box and Ms. Binny was carrying two bundles of currency notes. This witness helped Deepak in carrying the box containing cash inside the cabin of PW1. At that time, accused Sandeep Bhatnagar was found sitting in the cabin of PW1. This witness also identified accused Sandeep Bhatnagar distinctly. The witness also deposed that after sometime, he and Deepak helped in transferring the cash amount in the two bags of accused Sandeep and then they carried one bag each along with accused Sandeep till the gate of the bank. They left the bags at the gate in the custody of accused Sandeep and then returned inside the branch.

3.20. PW6 Seema Bhatia deposed that she while posted as Deputy Manager in the bank on 8.5.2006 was called by PW1 inside his cabin seeking keys of vault. She collected the keys of chest vault from the cashiers and then gave it to PW1 in his cabin. At that time, accused Sandeep Bhatnagar was sitting in the cabin of PW1. Even this witness identified accused Sandeep in the court SC No. 40/13 Page 14 of 59 15 clearly. After the incident, PW1 told this witness that accused had robbed the bank under the threat of being a human bomb.

3.21. PW8 Mr. Mithun Bhandari was branch Sales Manager in the bank concerned on the date of incident. He simply deposed that at about 12.30 PM, PW1 came to his cabin and asked him to call the police. The witness then called the police. He along with other colleagues went to the cabin of PW1 where two persons from MCD were asking about NOC for running the branch and thereafter PW1 also made a call at number 100. The witness was declared hostile by the prosecution and was cross examined. During cross examination by the Ld. Prosecutor, the witness admitted that he had told the police in his statement that he had seen one person coming out from the cabin of PW1, and Deepak and Sonu carrying two bags along with that person and he had also given description of that person to the police. However, the witness failed to clearly identify accused Sandeep Bhatnagar in the court.

3.22. PW9 Ms. Binita Basu was the head of Currency Chest in the said bank and she deposed that on that day, on receipt of a letter from PW1, she allowed withdrawal of cash amount of Rs. 75 Lakh from the currency chest of the bank, prior to the occurrence of the incident. The witness proved the letter of PW1 in this regard Ex.PW9/A and relevant entry in the currency chest book Ex.PW9/B. 3.23. PW11 Satbir was the security guard posted outside the bank. He deposed that at about 12.25 PM on 8.5.2006, SC No. 40/13 Page 15 of 59 16 peons Deepak and Sonu brought two bags, and kept them near him outside the bank. Thereafter, accused Sandeep Bhatnagar and Rishi Gupta took those two bags, who had followed the two peons, and then this witness accompanied accused Sandeep and Rishi Gupta till their esteem car of silver pearl colour which had alloy wheels as there were instructions to accompany the customers of bank who carry huge cash till up till their vehicles. Thereafter, PW1 told that those two offenders had looted the bank by threatening to be human bombs. The witness categorically identified both accused Sandeep Bhatnagar and Rishi Gupta in the court and he also identified one of the bags as Ex.P1 during his testimony.

3.24. PW12 Rakesh was also a security guard in the bank on the date of incident at Cash Counter and he deposed that at about 12.20 PM, he saw peons Deepak and Sonu carrying two bags and accused Sandeep Bhatnagar following them outside bank. This witness also identified accused Sandeep Bhatnagar in the court distinctly.

3.25. Besides the above witnesses, against accused Sandeep, following witnesses have been additionally examined by the prosecution.

3.26. PW18 Ms. Neerja Bhatia, the then Ld. Magistrate conducted TIP of accused Sandeep Bhatnagar who refused to undergo TIP despite caution by the Ld. Magistrate that his refusal may invite adverse inference to be drawn against him.

SC No. 40/13 Page 16 of 59 17

3.27. PW31 Smt. Rajni, the sister­in­law of accused Sandeep Bhatnagar deposed that she was running the Tour & Travel Business in the name of Sanguine Tours & Travels from Bikaji Cama Place and that accused Sandeep Bhatnagar, her jija, used to work in her office in 2003. She had given Esteem car no. DL 7C D 4342 to accused Sandeep Bhatnagar but the EMIs of the said vehicle were being paid by accused Sandeep. The witness also deposed that accused Sandeep had paid a sum of Rs. 50,000/­ which she handed over to the investigating officer and which were recovered by the investigating officer vide memo Ex.PW31/A bearing her signature.

3.28. Qua the arrest of accused Sandeep Bhatnagar, witnesses PW22 Gurdeep Singh, PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan and PW37 SI Narottam Singh, deposed that accused Sandeep Bhatnagar was apprehended on 27.05.2006 from near B. K. Jewellers within the jurisdiction of police station Tilak Nagar, when he came there in a TSR. He was apprehended based on secret information against him. Prior to apprehension of accused Sandeep, on request public person Gurdeep Singh (PW22) agreed to become witness at near B. K. Jewellers. After his apprehension at about 9.15 PM, accused led the police team to his house no. 4D, Pocket A, Vikas Puri Extension, Delhi. Prior to it, he made disclosure statement Ex.PW1/D. Accused Sandeep got recovered a sum of Rs. 5 Lakh from an almirah in his bed room which were taken into possession vide Ex.PW1/E. He also got recovered his T­shirt which he was wearing at SC No. 40/13 Page 17 of 59 18 the time of robbing the bank, which was taken into possession vide memo Ex.PW1/I. From the box of double bed, he got recovered one tourist bag with sticker of Times of India affixed stating that the said bag was used for carrying the money from the bank, which was also seized vide memo Ex.PW1/G. He also got recovered one belt and few wires which were used while robbing the bank as human bomb, which were also seized vide memo Ex.PW1/H. Thereafter, he led the police team to the parking near his house where the Esteem car was parked. In the dicky of the esteem car, another sum of Rs. 5 Lakh was found which were also seized vide seizure memo Ex.PW1/F. The esteem car was seized vide memo Ex.PW1/J. The witnesses including the public witness Gurdeep Singh and Sandeep Dam identified the bag, currency notes, belt, T­shirt and the esteem car in the court. Public witnesses also identified accused Sandeep Bhatnagar in the court as the same person. PW37 SI Narottam Singh also deposed that on 28.5.2006 during police custody accused Sandeep Bhatnagar got recovered his passport, Air India ticket, voucher and 600 US $ along with one mobile from one almirah of his house which were also taken into possession vide memo Ex.PW1/L. 3.29. Qua accused Rishi Gupta, besides the above mentioned witnesses, following witnesses were examined.

3.30. PW17 Sh. Raj Kapoor, the then Ld. Magistrate conducted TIP of accused Rishi, who also refused to undergo TIP despite caution by the Ld. Magistrate that his refusal may SC No. 40/13 Page 18 of 59 19 invite adverse inference to be drawn against him.

3.31. PW16 SI Ranvir Singh was handed over investigation of case FIR no. 40/06 under which Rishi Gupta was arrested on 6.6.2006 and he made disclosure statements regarding his involvement in the present case. Thereafter this witness informed police station Vikas Puri on 7.6.2006 about arrest and confession of accused Rishi, and when PW37 SI Narottam Singh went to Special Cell, this witness handed over copy of disclosure statement of accused Rishi along with other documents of case FIR no. 40/06 to SI Narottam.

3.32. PW15 HC Bijender Singh deposed that on 11.06.2006, SI Narottam Singh came to Special Cell and had shown him photocopy of seizure memo of currency notes which this witness signed as a witness, Ex.PW14/A & B, and he also identified the notes recovered from accused Rishi Gupta under case FIR no. 40/06.

3.33. PW14 HC Dharamvir Singh and PW23 HC Suresh Chand both deposed that on 6.6.2006, when they were posted in Special Cell, NR, Rohini, accused Rishi Gupta was apprehended on secret information against him from bus stand opposite Power House, Pitam Pura at about 7.20 PM. From his possession, one country made pistol with three live cartridges inside one green and blue colour bag were recovered. From his possession, a sum of Rs. 1,55,000/­ inside a polythene inside the same bag were also recovered which were sealed and taken into possession vide seizure memo Ex.PW2/C. Regarding the country made pistol, separate case under FIR no. 40/06 SC No. 40/13 Page 19 of 59 20 was registered. Both these witnesses identified the currency notes recovered from accused Rishi Gupta as Ex.P6.

3.34. PW35 Jaspinder Singh Puri used to run a guest house in the name of Green Guest House at Karol Bagh, Delhi. He deposed that on 18.06.2006, accused Rishi Gupta was brought to his hotel, who informed that he stayed in the room no. 102 of his hotel from 11.5.2006 to 18.05.2006 with deceased Mukesh Gupta vide Entry at serial no. 1259 in the register dtd. 11.05.2006 and receipt no. 63692, both Ex.PW34/C & D, which were taken into possession by the IO vide seizure memo Ex.PW34/E. 3.35. PW37 SI Narottam deposed that accused Rishi Gupta was formally arrested in the present case on 9.6.2006 after his production from jail and interrogation. Police custody of accused Rishi Gupta was obtained for three days on 16.6.2006.

3.36. PW34 ASI Jai Bhagwan and PW37 SI Narottam also deposed that accused Rishi Gupta made a disclosure statement on 18.6.2006 Ex.PW34/A, in which he disclosed that he had concealed Rs. 50,000/­ under water tank at RU­157, Pitam Pura, Delhi. He then led the police team to that place and got recovered a sum of Rs. 50,000/­, which were taken into possession vide seizure memo Ex.PW34/B. These witnesses also deposed that accused Rishi Gupta led the police team to Hotel Green Guest House at Karol Bagh from where copy of register and copy of receipt Ex.PW34/C & D were taken into possession vide memo Ex.PW34/E. SC No. 40/13 Page 20 of 59 21 3.37. Against accused Satish Chand Gupta, the witnesses examined by the prosecution are PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan and PW37 SI Narottam Singh. These witnesses deposed that based on secret information, accused Satish Chand Gupta, father of co­ accused Pawan Gupta, was apprehended on 28.05.2006 from A Block, bus stand, Vikas Puri at about 9.15 PM. This accused admitted that he had received Rs. 25,000/­ out of the robbed amount from his co­accused Pawan Gupta, and that he can get the amount recovered from his house. Thereafter, he led the police team to his house JG­ II/766B, Vikas Puri, and he got recovered Rs. 25,000/­ from almirah of his room in his house, which was taken into possession vide Ex.PW33/E. This accused also produced passport of his co­accused son Pawan Ex.PW37/C which was seized vide memo Ex.PW33/F. The investigating officer also deposed that he collected the call details of accused Rishi Gupta.

3.38. Qua accused Pawan Gupta, PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan and, PW37 SI Narottam Singh deposed that on 2.6.2006 accused Pawan Gupta was arrested from near Fire Station, near Madhuban Chowk at 3.00 PM. He was arrested and his disclosure statement Ex.PW33/I was recorded, in which he disclosed that he had concealed part of robbed amount at Agra in a hotel. The accused Pawan Gupta then led the police team to Swami Sofital Hotel, Mathura Road, Agra. Police reached there on 3.6.2006. Accused opened the room no. 106 of the said hotel after keys were obtained from the reception SC No. 40/13 Page 21 of 59 22 (from Pankaj Sharma PW27). A briefcase was kept in the said room. He took out the key of briefcase from drawer in the room and then opened, the briefcase which was found to be containing Rs. 3,50,000/­ out of the robbed amount. The currency notes were taken into possession vide seizure memo Ex.PW27/E. This part of the testimony of these witnesses is corroborated by PW27 Pankaj Sharma who deposed that police officials brought Pawan Gupta to the hotel where he was a receptionist. The room no. 106 of the hotel was opened after keys were handed over by him. There was a briefcase containing Rs. 3.5 Lakhs cash amount in the room. The witness also proved that two receipts Ex.PW27/A & B in the name of Pawan Gupta pertain to their hotel which were taken into possession by the police vide memo Ex.PW27/C and which were prepared by receptionist Rajesh Gautam.

3.39. It is also deposed by PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan, PW37 SI Narottam Singh and, PW36 Inspector Jai Prakash, that on 6.6.2006 accused Pawan Gupta was again taken to Agra and on 7.6.2006 he made a supplementary disclosure statement Ex.PW36/A and thereafter he led the police team to Aarti Hotel, Agra and pointed out one Wagon­R car no. DL 8C K 4946 parked near the hotel and got recovered a sum of Rs. 8 Lakh from the dicky of the said car. The key of the said car was obtained by accused Pawan from the counter of the hotel, which belonged to his brother­in­law. The currency notes of Rs. 8 Lakh were in a jute bag, out of which Rs. 3 Lakh SC No. 40/13 Page 22 of 59 23 were in the denomination of Rs. 500/­ each and remaining in the denomination of Rs. 100/­ each. The currency notes were seized, as also the car, vide memo Ex.PW36/ B & C, respectively. Thereafter, accused was brought back to Delhi. Police custody of accused Pawan was obtained in which he again made disclosure statement that he had kept Rs. 2 Lakhs at house of his in­laws at 4/8/2, Bagh Farzana, Agra, which also he can get recovered.

3.40. PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan and PW37 SI Narottam Singh, also deposed that they along with others again went to Agra and reached there on 8.6.2006. Accused Pawan led the team to the said house and got recovered Rs. 2 Lakh from under bricks beneath water tank on first floor of the said house. That amount was also seized vide memo Ex.PW33/K. Accused Pawan Gupta was then brought back to Delhi. He was further interrogated in which he disclosed that he had kept Rs. 1 Lakh in his factory in Delhi in Basai Dara Pur. He led the police team to WZ 51C, Basai Dara Pur, First Floor, Delhi from where, under the carton boxes, inside polythene bag, he got recovered Rs. 1 Lakh in the denomination of Rs. 100/­ each, which were also taken into possession after sealing the same vide seizure memo Ex.PW33/L. On 10.6.2006, accused Pawan Gupta further disclosed that he had concealed Rs. 50,000/­ under water tank on the roof top of his house and then he led the police team to his house JG­II, 766B, Vikas Puri, Delhi and got recovered a sum of Rs. 50,000/­ in the denomination of Rs. 100/­ each from under the bricks under water tank, which were also taken into possession after sealing the same vide SC No. 40/13 Page 23 of 59 24 seizure memo Ex.PW33/N. 3.41. The investigating officer deposed that on 26.6.2006, accused Mukesh Gupta who was also involved in the robbery was learnt to have died in an encounter by U.P. Police. Investigating officer also deposed about collection of other evidences viz., ownership of vehicles, call details and TIP etc.

4. On completion of prosecution evidence, all the incriminating evidence was put to all the accused U/s 313 Cr.P.C.

4.1. Accused Sandeep Bhatnagar claimed that he never went to the bank robbed, on 8.5.2006; he was present in his house on that day; he did not even know Rishi as he never met him prior to this case; the complaint of manager Sandeep Dam is false; on 27.5.2006 he went to police station Tilak Nagar when SI Kehar Singh from police chowki Tilak Vihar called him and there in the police station he was arrested without any reason and from there he was taken to the bank and then he came to know that he was implicated falsely in the present false robbery case; he was also shown to the witnesses of the case including the bank officials; his signatures were taken on blank papers in the police station under pressure; the recoveries of cash and articles are planted upon him; the esteem car was brought by one police official from his house till police station Vikas Puri and then was falsely used as case property of this case; he was not kept in muffled face and was shown to the bank officials in the police station; he never made any disclosure statements SC No. 40/13 Page 24 of 59 25 and; that he was innocent and falsely implicated in this case. This accused however admitted that the passport and air tickets were recovered from his house and the American dollars belonged to him.

4.2. When incriminating evidence was put to Pawan Gupta, he also generally denied the evidence against him and claimed that he has been falsely implicated in this case. Even he claimed that he was kept in unmuffled face and was shown to the witnesses including the bank officials. He however admitted that the Wagon R car no. DL 8 C K 4946 was registered in his name. Even this accused claimed that his signatures were obtained on blank papers which were misused in this case. He claimed that he had moved an application for surrender on 2.6.2006 on which he was called on 3.6.2006 but he was apprehended from the stairs and was taken to the police station. He claimed that police never took him to Agra at Swami Sofital Hotel; he never stayed in the said hotel; recovery of currency notes are planted upon him; he never led the police team to Aarti Hotel; his Wagon R car was parked near his house and was taken from near his house; it was not parked near Aarti Hotel; no money was recovered from Wagon­R car; he never led the police team to Bagh Farzana; he never led the police team to his factory at Basai Dara Pur; he never led the police team to his house and did not get recovered any money from anywhere. He also claimed that his father Satish Chand Gupta and his brother Vishal were illegally detained on 21.05.2006 at police station Punjabi Bagh regarding which SC No. 40/13 Page 25 of 59 26 his uncle Vishnu Mohan Gupta informed senior officers and also filed an application U/s 97/99 Cr.P.C in the court and then his father and brother were released on 23.5.2006, but when the application was not withdrawn from the court, his father was also falsely implicated in the present case.

4.3. Accused Satish Chand Gupta also denied the evidence against him, particularly, that he got recovered any amount of Rs. 25,000/­ from his house. He also claimed that he was implicated falsely in the present case. He claimed that he was apprehended from his house and not from A Block, Bus Stand, Vikas Puri, Delhi; his signatures were obtained on blank papers and; the recovery is planted upon him. Even this accused claimed that he was illegally detained with his another son Vishal from 21.05.2006 to 23.05.2006 and then he was released on 23.5.2006 but was subsequently again apprehended from his house on 28.05.2006 and implicated in this case.

4.4. When incriminating evidence was put to accused Rishi Gupta, even this accused denied the evidence against him generally and claimed that he did not go to the robbed bank at all on 8.5.2006; he was shown to several persons after he was arrested and thus he was falsely identified by the witnesses, particularly the bank officials; he was apprehended from his house, but he did not recollect the date of his apprehension; no currency was recovered from his possession and it was planted upon him; he was not kept in muffled face; he did not make any disclosure statement. However, this accused SC No. 40/13 Page 26 of 59 27 admitted that he led the police team to Hotel Green Guest House and that he had stayed in the said hotel for few days, therefore, he led the police team to the said hotel. However, this accused also claimed that he was falsely implicated in this case.

4.5. The accused persons led defence evidence in their favour. Total ten defence witnesses have been examined.

4.6. Accused Sandeep Bhatnagar examined two defence witnesses in his favour i.e. DW1 Neeta Bhatnagar (his wife) and DW2 V. K. Dass.

4.7. DW1 Neeta Bhatnagar deposed that police never came to her house along with Sandeep regarding this case and instead she was called to police station Vikas Puri in the last week of May 2006 on the pretext of some clarification required from her qua Visa of her husband. She went to the police station, where she was asked to sign some documents and she had signed blank papers. She was told that her husband Sandeep Bhatnagar would be released but he was implicated in this case. She also claimed that she had given key of the esteem car of her husband to the police official who had come to her house asking for the key, but her husband did not return home. In her cross examination, this witness admitted that she was a graduate and that she can read English as well as Hindi. She admittedly did not make any complaint to any authority about so called false implication of her husband. From testimony of this witness, it gets established that the esteem car was SC No. 40/13 Page 27 of 59 28 being used by accused Sandeep Bhatnagar. The testimony of this witness is unreliable against prosecution for the reason that she being wife of accused though claims that her husband was falsely implicated and that she signed blank papers, but despite being an educated lady, took no steps in that regard. It is highly unlikely that she signed blank papers being a graduate, merely on the assurance of the police that her husband would be let off.

4.8. DW2 V. K. Dass simply deposed that he never saw police coming to the house of accused Sandeep in May and June, 2006 and that accused Sandeep was a man of good character. In the evidence of this witness, the defence did not get specified that accused Sandeep was not taken to his house on 27.05.2006 after his arrest as neither there is any date nor there is any time revealed in the testimony of this witness which could establish that this witness was present in his house on 27.05.2006 particularly at the time when Sandeep was taken to his house. When this witness did not specify the date and time of his availability in his house, he cannot be relied to the effect that he did not see Sandeep brought to his house by the police on 27.05.2006.

4.9. On behalf of accused Pawan, DW3 Shashi Dharan and DW4 Jivan Shiv Hare from Aarti Hotel, Agra, were examined.

4.10. DW3 Shashi Dharan deposed that in the month of May and June, 2006, no Wagon­R Car of Pawan was parked near the hotel and that Pawan never led the police to that hotel. He also deposed that no money was recovered SC No. 40/13 Page 28 of 59 29 from any vehicle near Aarti Hotel. This witness was working as Kitchen Supervisor in the said hotel at the relevant time but no proof of his employment was furnished to lend credence to his claim. Admittedly, this witness had good relations with the owner of hotel namely Hari Shankar and admittedly accused Pawan Gupta is son­in­law of the owner of the hotel. Therefore, the testimony of this witness has to be viewed with extreme caution. Since, no proof of his employment was furnished and no steps were taken by this witness or the in­laws of Pawan qua so called plantation of recovery of robbed amount, therefore, this witness ought to be held as unreliable. In his cross examination, this witness specifically admitted that just few days prior to his testimony in the court on 24.03.2015, he was told by owner Hari Shankar about registration of this case against accused Pawan. The said fact reveal that he was contacted by in­laws of Pawan, and this witness appears to have been persuaded by his erstwhile employer to depose falsely in favour of Pawan. After all, had recovery from near Aarti Hotel been planted, in­laws of Pawan would have taken some steps in that regard.

4.11. Similarly, DW4 Jivan Shiv Hare is none other than brother­in­law of Pawan, Pawan being jija of this witness. This witness deposed that in his hotel scooters can be parked but not cars, and there was no place outside the hotel to park cars. He also claimed that wagon R car of his brother­in­law accused Pawan was never parked outside the hotel and police never came to that hotel with Pawan and no money was ever recovered. This witness SC No. 40/13 Page 29 of 59 30 also deposed that he was residing at Bagh Farzana, Agra and police never came to that house also and no money was recovered from the first floor of the house as neither there was any water tank on the first floor of the house nor there was any direct way to reach the roof of the house and one could reach the roof of house only through the roof of neighbor. Again the testimony of this witness cannot be viewed without suspicion as he is closely related to accused Pawan and no steps were ever taken to mitigate false implication of Pawan, as is claimed. Admittedly, no complaint was made by this witness to anyone. The claim of DW3 & 4 that recovery of Rs. 8 Lakh was planted upon accused Pawan can also not be accepted for the reason that from where would that huge amount be arranged by a policeman simply to implicate a person, and it does not go down well that a policeman would arrange huge sum of Rs. 8 Lakh just to implicate one accused.

4.12. On behalf of accused Pawan, DW7 Anil Tiwari and DW8 Deepak have also been examined. Both those witnesses claimed that they were working in the factory of accused Pawan Gupta at Basai Dara Pur and that police never came to that factory in May or June, 2006 and no money was recovered from that factory. Neither of these two witnesses also furnished any documentary proof that they were employed with accused Pawan at any point of time. During cross examination of the recovery witnesses qua recovery from Basai Dara Pur at the instance of accused Pawan, names of these two persons were not even suggested to the investigating officer and other SC No. 40/13 Page 30 of 59 31 recovery witnesses drawing attention of those witnesses that the two labourers who were present in the factory of Pawan Gupta at Basai Dara Pur were these very persons or someone else. In absence of any documentary proof about employment of these two persons with Pawan Gupta and in absence of any steps by these persons also, against so called false implication, their testimonies leads us nowhere.

4.13. On behalf of accused Satish, DW9 Vishal Gupta and DW10 Vishnu Mohan Gupta have also been examined.

4.14. DW9 Vishal Gupta deposed that on 21.05.2006, his father Satish Chand Gupta and he himself were taken to police station Punjabi Bagh and were detained there. They were subsequently released on 22.05.2006. This witness also deposed that there was no staircase leading to the rooftop where water tanks were kept and therefore, Pawan never led the police team to roof top and no recovery of currency was affected from there. In the cross examination, the witness admitted that water tanks of the flat holders were kept on the roof top and in case maintenance or repair was required, one can climb the rooftop, but he claimed ignorance as to how one can go to the rooftop, which appears to be a deliberate evasion in giving true answer. After all, for routine maintenance and cleaning of water tank, one has to reach the water tank and obviously there must be some way to reach there. Therefore the claim that there was no stairs to reach rooftop seems a fallacious defence. Admittedly, this witness also did not make any complaint about implication SC No. 40/13 Page 31 of 59 32 of his father Satish or implication of his brother Pawan in the present case.

4.15. DW10 Vishnu Mohan Gupta deposed that when his brother Satish and nephew Vishal were illegally detained by police officials of police station Punjabi Bagh on 21.05.2006, he moved an application before court on 22.05.2006 and then his brother and nephew were released. The copy of application U/s 91 & 97 Cr.P.C are proved as Ex.DW10/A along with its order & reply as Ex.PW10/B & C, respectively.

4.16. On behalf of accused Rishi, DW5 Smt. Munni Devi and DW6 Ramji Lal i.e. parents of accused Rishi have been examined. Both these witnesses claimed that Rishi was taken by the police from his house at Pitampura on 3 rd or 4th of June, 2006 and at that time, Ramji Lal was not in the house. Rishi was taken on the pretext that he was wanted in some case of Firozabad, and later on they came to know that Rishi was implicated in the present case. Admittedly, even these two witnesses also did not make any complaint before any authority qua the so called false implication.

5. I have heard Ld. Prosecutor for the State and Ld. counsel for the four accused persons.

6. Taking up the case of accused Satish Chand Gupta, first of all, against this accused the case of prosecution is that he received a sum of Rs. 25,000/­ from his son co­ accused Pawan Gupta, knowing or having reasons to believe the same to be part of the robbed amount. Against this accused, Satish Chand Gupta, there is no charge that SC No. 40/13 Page 32 of 59 33 he was part of the conspiracy for robbing the bank. Qua this accused, even if the case of prosecution is taken as unrebutted to the effect that accused Pawan Gupta gave him a sum of Rs. 25,000/­ and that this accused Satish got recovered the said amount from his house, still charge U/s 411 of IPC cannot stand. In order to sustain a charge U/s 411 IPC, the prosecution ought to prove that this accused dishonestly received or retained part of the robbed amount, knowing or having reasons to believe the same to be robbed amount or part of it. There is nothing unusual in a son giving an amount to his father, particularly when the amount is not so heavy. It is nobody's case that Pawan informed his father Satish that the amount which he was handing over to Satish was part of the robbed amount. It may well be a case where this amount was required by Satish or it was simply given by Pawan to Satish without disclosing the source of procurement. Simply because Satish received that amount and retained that amount does not indicate that he accepted or retained that amount knowing or having reasons to believe it to be part of robbed amount. Prosecution has failed to prove as to on which date this amount was received by Satish from Pawan. Whether it was received even prior to the time when name of accused Pawan figured in the matter. Whether it was received even prior to apprehension of accused Sandeep Bhatnagar, or after it, has not been proved. Therefore, assuming the case of prosecution as to the fact that Satish received this amount from Pawan and retained it, charge U/s 411 of IPC has to fail for the reasons that there SC No. 40/13 Page 33 of 59 34 is no dishonesty attached. There is no presumption in law that he received or retained it knowing or having reasons to believe the same to be stolen/robbed amount. As mentioned above, neither the amount is heavy, nor it was received under circumstances, so suspicious as to give rise to any apprehension in the mind of Satish Chand Gupta that something was amiss about the amount. Consequentially, charge against accused Satish Chand Gupta fails and he has to be acquitted for the said charge.

7. Turning to the case against accused Sandeep Bhatnagar and accused Rishi, both these accused were categorically identified by most of the bank officials. PW1 Sandeep Dam identified both the accused categorically in the court as the same persons who came to rob the bank. PW2 Ms. Binny Rana also identified accused Sandeep Bhatnagar; PW3 Jogi Ram also identified accused Sandeep Bhatnagar; PW6 Ms. Seema Bhatia also identified accused Sandeep Bhatnagar; PW11 Satbir identified both the accused Sandeep Bhatnagar and Rishi Gupta and; PW12 Rakesh also identified accused Sandeep Bhatnagar, in the court as the same person. Those witnesses from bank have absolutely no reason to identify either of the accused falsely. No plausible reason has been put forth by accused Sandeep or Rishi as to why those bank officials would falsely identify these accused. It is nobody's case that those bank officials had any score to settle with either of the accused. There is no enmity. These two accused had no bank account in the bank in SC No. 40/13 Page 34 of 59 35 question. Therefore, there is no reason as to why the bank officials would become false witnesses against these two accused.

7.1. Ld. counsel for the accused laid great stress on the point that photographs of both these accused Sandeep and Rishi were obtained and published in magazines and that those two accused were not kept in muffled faces, they were shown to the witnesses after their arrest and before the TIP, and therefore, those two accused were justified in refusing to participate in TIP. In this regard, reliance has been placed on the following cases on behalf of the accused.

7.2. In the case of Islam & Anr. v. State NCT of Delhi : 2014 (9) LRC 403 (Del), it was also held that the object of conducting TIP is that it enables the witnesses to satisfy themselves that the accused whom they suspect is the real one seen by them and to satisfy investigating authority that the suspect is the real culprit.

7.3. In Jafar Malik v. State (NCT of Delhi) : 2009 (2) LRC 83 (Del), it was held that the complainant admitted that accused was shown before TIP, therefore, sanctity of TIP was lost.

7.4. In the case of Nazim Khan alias Guddu v. State : 2015 (2) LRC 192 (Del), it was held that when photograph of accused was shown to the witnesses before TIP, his refusal was justified.

7.5. The said argument is misconceived. It proceeds on a wrong notion that TIP was must in the facts & SC No. 40/13 Page 35 of 59 36 circumstances of the present case. Test Identification Parade is a tool in investigation which helps investigating agency to determine that their investigation is proceeding in right direction qua the identity of an accused. TIP can never be a substantive piece of evidence. TIP would be required in those cases where witnesses are deprived of having careful look towards an accused and the witnesses merely get a fleeting glimpse of an accused, such as in the case snatching of any valuable by an accused who comes suddenly and immediately after snatching vanishes. TIP is not required in those cases where an accused comes face to face with a victim, interacts with victim either for a brief period or substantially long period. TIP would not be required in those cases where witnesses get an opportunity to clearly see face of an offender for a substantial amount of time.

7.6. In the present case when accused Sandeep Bhatnagar went in the cabin of PW1 Sandeep Dam, he remained with him for a fairly long period while Sandeep Dam was terrorized on the pretext that accused Sandeep was a human bomb carrying live bomb on his body. Accused Sandeep accompanied Sandeep Dam to the strong room, then back to his cabin, then obtaining cash amount through cashier, transferring of the amount in the bags brought by accused Rishi etc. 7.7. Similarly, accused Rishi was also seen by witness Sandeep Dam after he was called by accused Sandeep telephonically to deliver two bags.

7.8. Both these accused were also seen by the guard PW11 SC No. 40/13 Page 36 of 59 37 Satbir who accompanied them up to their car outside the bank. The accused Sandeep was also seen by the cashier and the two peons who accompanied accused Sandeep till outside bank with the bags. The whole transaction in the bank took some time, thereby giving ample opportunity to Sandeep Dam and other bank officials to clearly see both these accused. It may also be mentioned here that the witnesses had given physical description of accused Sandeep Bhatnagar long before he was apprehended. When these witnesses were in a good position to see and remember the accused, there was no requirement of holding test identification parade. Therefore, the arguments of these two accused qua that aspect of the matter has to be rejected. These two accused Sandeep and Rishi have been categorically identified by the bank officials, which in the opinion of this court does not suffer from any kind of infirmities and there being no suspicion as to their identity, this court finds their identification by the bank officials, reliable.

7.9. At the time of apprehension of accused Sandeep Bhatnagar, one independent witness PW22 Gurdeep Singh was joined. PW22 Gurdeep Singh supported the case of prosecution that he became member of the raiding team on the request of police officials, then in his presence accused Sandeep Bhatnagar was arrested on 27.05.2006 and then the accused Sandeep led the police team to his house, from where the accused got recovered part of robbed amount from his house as well as from the dicky of his esteem car along with the bag used in the robbery, the belt with wires around, which was used as SC No. 40/13 Page 37 of 59 38 live bomb on his body. Testimony of this witness is corroborated by Sandeep Dam also, who also witnessed those recoveries from the car and house of accused Sandeep Bhatnagar. Thus, the contention of the accused Sandeep that no one from the locality of his house was joined at the time of recovery pales into insignificance. Neither Sandeep Dam, the bank manager, nor Gurdeep Singh had any enmity with Sandeep Bhatnagar to falsely rope him. For that matter, even the police officials who witnessed the recovery from the house of accused Sandeep Bhatnagar have no reason to falsely depose, on that aspect of matter. I have already mentioned above that the testimony of wife of accused Sandeep Bhatnagar i.e. Nita Bhatnagar and V.K.Dass are unreliable in defence of accused. Therefore, this court has no reason to disbelieve the fact that accused Sandeep Bhatnagar got recovered a sum of Rs. 5 Lakh from his house; a bag in which robbed amount was taken; another sum of Rs. 5 Lakh from the esteem car parked outside his house and; also the fact that belt with wires were recovered from his house. In the statement of accused, Sandeep admitted that esteem car was being used by him. His wife as DW1 has claimed that she handed over the key of car to one police official who came to take keys of car from her house. That fact establishes that the esteem car though in the name of firm of Smt. Rajni (PW31) was being used by accused Sandeep Bhatnagar.

7.10. As mentioned above, police officials would not have planted a huge sum of Rs. 10 Lakhs on accused Sandeep Bhatnagar, merely to implicate him falsely in this case.

SC No. 40/13 Page 38 of 59 39

After all, there is no reason for them to have done it. This court does not find anything suspicious in the testimonies of Sandeep Dam (PW1), Gurdeep Singh (PW22) or, the police official recovery witnesses, in order to impeach the fact of recovery of Rs. 10 Lakh; the esteem car; the bag; the belt with wires etc. 7.11. Except for some trivial contradictions which does not go to the root of the prosecution's case, nothing came out in the cross examination of the witnesses in favour of accused, to discredit the witnesses. The contradictions occurring in the testimonies of prosecution witnesses are extremely small and inconsequential. They do not in any manner create doubt that robbery did not occur in the bank or that the accused persons were not involved or any recovery is planted upon any of the accused.

7.12. It is argued on behalf of accused that the so called chit produced by accused Sandeep before the complainant containing some religious quotations has not been produced by the prosecution, therefore, the entire case of the prosecution should be disbelieved. I am afraid no such inference can be drawn for non­production of the said chit. It has not come in the evidence convincingly that the said chit was left behind by the accused Sandeep in the cabin of complainant. Therefore, quite possibly that chit was carried back by accused Sandeep. Though, complainant Sandeep Dam unconvincingly claimed that he had given that chit to the investigating agency, but that can be a result of not remembering the details by the witness. The investigating officer did not ever admit that he took any SC No. 40/13 Page 39 of 59 40 such chit in possession from the complainant or anywhere. When the witnesses are examined in the court after a substantial gap of time, such minor and inconclusive stray statements are bound to occur. Complainant Sandeep was cross­examined in the court after more than two years of the incident. One must also not forget the state of mind of a person confronted with such situations. Having encountered a human bomb in front of him who looted the bank, one can understand the trauma the complainant must have faced during and after the occurrence on that day. Therefore, it can't be said convincingly that he remembered that accused Sandeep left the chit behind or that the chit was handed over to the police. Otherwise also, assuming that the chit was left behind by the accused and is not proved in the evidence, that does not in any manner diminishes the ocular veracity of the complainant and other bank officials.

7.13. It is also argued on behalf of Sandeep that the prosecution did not prove documents in support of the claim that a sum of Rs. 70 Lakh was withdrawn from the currency chest of the bank, or that out of it Rs. 30 Lakh was paid to some customer before the remaining amount of Rs. 40 Lakh was robbed. Counsel for accused argues that the relevant registers and entries have not been proved in support of that claim. The said argument is contrary to records. PW9 Ms. Binita Basu proved letter of complainant dated 8.5.2006 seeking the said amount of Rs. 70 Lakh as Ex.PW9/A, and the copy of currency chest cash book is also proved as Ex.PW9/B. This witness orally also categorically deposed that the said amount was SC No. 40/13 Page 40 of 59 41 withdrawn in the morning of the date of incident. Non­ proving of the disbursal of Rs. 30 Lakh to some customer prior to the bank being robbed, is inconsequential. That was not a fact in issue or a relevant fact in the present case and therefore it need not have been proved by the prosecution at all. Absence of signature of the complainant on the entry register to the currency chest is also inconsequential and there cannot be any adverse inference drawn on that aspect of the matter.

7.14. It is next argued on behalf of the accused that on the currency notes recovered in this case, there was no slip or stamp of the bank which could connect the amount with the bank and therefore it is not established that the currency notes produced in the court were indeed robbed from the bank. It has come in the evidence of the prosecution evidence that though not all but some of the currency note bundles were indeed bearing the slip of the bank. Even otherwise after the robbery the robbed notes remained with the accused persons for quite some time before the notes were recovered. In all probability, even if those currency notes had some slips or stamp, the accused persons would have not let it remain as evidence against them. It is not a case where immediately after the robbery the accused persons were apprehended and the notes recovered. In such circumstances, even this contention is negated.

7.15. It is also argued that photographs of inside the bank have not been proved and when the complainant admitted that his cabin had a glass partition which was visible to all, it SC No. 40/13 Page 41 of 59 42 would have been important for the prosecution to have proved the photographs of inside the bank. Non­ production of the photographs of the bank are again inconsequential. Even if the cabin of the complainant had a glass partition, that does not mean that robbery was impossible merely because people from outside the cabin could see inside the cabin. The sequence of events of this case are not such that it could not have occurred inside the glass cabin of the complainant. What the accused Sandeep did was, he entered the cabin, produced a chit containing some words in order to threaten the manager and under his clothes revealed some instruments/wires in order to create fear in the mind of the complainant as if he was wearing some bomb belt. None of those acts of accused were such which could not have been performed in the glass cabin of the complainant.

7.16. It is also argued on behalf of the accused that none of the MCD/police officials who were engaged in the sealing drive in the nearby buildings were examined by the prosecution and none of them noticed the incident which makes the case of prosecution improbable. This argument is fallacious. It is not necessary that those officials also witnessed the accused entering or coming out of the bank. The incident of this case occurred inside the bank and those officials were not present inside the bank. Therefore, there was no requirement for the prosecution to have examined them.

7.17. Argument of accused that since there was no proof of employment of PW3 Jogi Ram, therefore, he cannot be SC No. 40/13 Page 42 of 59 43 relied in favour of the prosecution, is again fallacious, as the other witnesses from bank have mentioned that this witness was working as a peon in the bank on the relevant day.

7.18. Similarly, the list of customers who were interrogated by the investigating agency and who were present in the bank at the time of incident, was not required to be proved. For obvious reasons not everyone from public gives willingness to become a witness in criminal matters. Even otherwise their testimonies would have been nothing but repetitive as a number of bank officials have been examined qua the identity of accused Sandeep and Rishi.

7.19. It is argued by the counsel for the accused that no certificate U/s 65B of Indian Evidence Act has been proved qua the FIR and therefore, the FIR of this case which is a computer printout has to be ignored. There is no requirement to furnish certificate U/s 65 B of Indian Evidence Act qua FIR of a criminal case. Quite often computers are used as a substitute of typewriters. While registering an FIR on computer manually the columns are filled up by the person who types the contents of FIR on the proforma already feeded. The computer infact does not in any manner processes that information or yields any result of that feeded information. There is no software application which processes the said data. It is merely typed, stored in a prescribed format and, then its printout is taken on as many number of occasions, as is required. Since, there is no processing required to the typing and printout, the certificate U/s 65B of Indian Evidence Act is SC No. 40/13 Page 43 of 59 44 not required.

7.20. Merely because no lady police official was taken to the house of accused Sandeep, at the time of recovery does not vitiate the recovery which the accused Sandeep got effected from his house, particularly, when complainant Sandeep Dam and PW22 Gurdeep Singh, both being independent witnesses, have supported the prosecution on the said facts.

7.21. It is also emphasised a lot by the counsel for accused that in some magazine/media report, it was published that the deceased accused Mukesh who died in an encounter in U.P. had become human bomb at the time of robbery. It is argued that the said publication dislodges the story of prosecution that accused Sandeep acted as human bomb at the time of robbery. Even this contention is bound to fail for the simple reason that what was published in the magazine was unauthenticated information given by someone quite likely some police official from U.P., where the encounter occurred. None of those Uttar Pradesh police officials were associated in the investigation of this case at any stage and therefore, most likely their information was either derived from the deceased accused's confession or somewhere else, which is inconsequential in the present trial.

7.22. Argument of accused that nobody from B.K.Jewellers was joined at the time of apprehension of accused Sandeep has to be rejected for the reason that independent witness Gurdeep Singh was joined, with whom there is no enmity of accused Sandeep and it is also not proved that SC No. 40/13 Page 44 of 59 45 Gurdeep Singh was a stock witness or interested in prosecution of accused Sandeep in any manner.

7.23. The reason as to why wife of accused Sandeep was not asked to sign the memos qua recovery from his house is but obvious. Investigating agency usually avoids making family members of an accused as witness since there is every likelihood that during trial those family members would not support prosecution against their own family member. It was not required in the present case as there were two independent witnesses already joined by the prosecution.

7.24. It is also argued that signature of Gurdeep Singh does not exist on all the documents prepared after arrest of accused Sandeep till the recoveries got affected by him and therefore, that witness ought to be held as a planted witness. There is no force in this argument. Not only Gurdeep Singh but also complainant Sandeep Dam deposed that both of them were there at the time of recoveries got effected by accused Sandeep. On the recovery memo of the robbed amount, bag, T­Shirt and car Ex.PW1/E, F, G, I & J respectively, signatures of Gurdeep Singh exists as also signatures of complainant Sandeep Dam. The police officials have also corroborated that Gurdeep Singh was joined at the time of arrest of accused Sandeep and he remained with the police team till all the recoveries were got effected by him on that day. Thus, merely because Gurdeep Singh did not sign, the arrest memo, personal search memo and disclosure statement etc. is not a ground to disbelieve that he was SC No. 40/13 Page 45 of 59 46 joined. Complainant Sandeep Dam has signed those documents as a witness.

7.25. Thus, so far as accused Sandeep and Rishi are concerned, the prosecution successfully proves beyond any reasonable doubt that these two accused went into the bank on 8.5.2006 and robbed the bank.

8. Turning to the case against accused Pawan, against him the witnesses examined by the prosecution are PW20 Pratap Singh, PW27 Pankaj Sharma, PW33 ASI Harpal Singh, PW34 ASI Jai Bhagwan, PW36 Inspector Jai Prakash and PW37 SI Narottam Singh Chauhan. The crux of the evidence of these witnesses against accused Pawan has already been mentioned above. Suffice it to note that out of those witnesses PW27, PW33, PW34 and PW37 deposed that accused Pawan got recovered a sum of Rs. 3.5 Lakh from Room no. 106 in Swami Sofitel Hotel, Agra, on 3.6.2006.

8.1. Qua that part of recovery, Ld. counsel for the accused argues that the witness from the hotel i.e. PW27 has not identified accused Pawan Gupta and, in presence of that witness accused Pawan Gupta never stayed in that hotel and even the two receipts collected from the hotel Ex.PW27/A & B neither bears signatures of the accused nor those documents were executed in presence of PW27. It is also argued that these witnesses did not categorically identify accused Pawan as the same person.

8.2. Though PW27 Pankaj Sharma initially stated in his examination in chief that he was unable to identify accused Pawan Gupta, but he also stated that accused SC No. 40/13 Page 46 of 59 47 Pawan Gupta appeared to be same person who was present with the police at the time of recovery of Rs. 3.5 Lakh from the said hotel. In the later part of his testimony, the witness also claimed that after he saw the accused closely, he can say that the accused appeared to be the same person. Though, PW27 did not see accused Pawan Gupta staying in the hotel before the day of recovery as this witness during the relevant time was on leave, but that does not discredit entire evidence of recovery at the instance of Pawan. It is not a case where the witness denied that accused Pawan Gupta was not that person who was present at the time of recovery of Rs. 3.5 Lakh on 3.6.2006. The testimony of PW27 corroborates the testimonies of other police officials who were present at the time of recovery and who categorically identified this accused. PW33, PW34, PW36 and PW37 have all identified accused Pawan Gupta in the court as the same person. PW27 deposed that he signed the recovery memo Ex.PW27/C. This document is signed by accused Pawan Gupta also. It is not a case where the witness signed the document as a blank paper. There is no suggestion given to this witness PW27 that when this witness signed this document as a witness, the signature of Pawan were either not existing or were obtained later on or that the blank paper were already signed by accused Pawan. From the said document also, the presence of accused Pawan at the time of recovery gets established.

8.3. It is also argued by the accused that the key of Room no.

106 was obtained by the police from the reception of the said hotel therefore, the accused was not the person who SC No. 40/13 Page 47 of 59 48 was in possession of key of the room of the hotel and no proof has been led by the prosecution to support that accused Pawan is the same person who stayed in the hotel, particularly, when the receipts Ex.PW27/A & B does not bear the signature of accused Pawan. Based on the said argument, it is claimed that recovery of Rs. 3.5 Lakh cannot be relied against accused Pawan. This argument has to be rejected for the simple reason that U/s 27 of Evidence Act, it is not the custody of the place of recovery which is material. Rather it is the knowledge of an accused as to the case property available at a particular place which becomes admissible. The fact discovered in the present matter is that the amount of Rs. 3.5 Lakh were kept inside a briefcase inside Room no. 106 of the said hotel. It is the knowledge of the said accused Pawan leading to the said recovery, what is admissible. Quite often a guest staying in a hotel leaves the key of the room with the reception for housekeeping and for other purposes including the fear of loss of key. In such circumstances, if the key was taken from the reception and not from the accused, it is immaterial. It has come in the evidence that the key of briefcase was taken out by accused Pawan from a drawer inside the room and then the briefcase was opened which contained cash. I do not find it a case where it can be believed that police planted such a huge amount from its pocket on this accused, just to implicate him. In the evidence of PW27 the fact of recovery of that amount from this hotel clearly gets established and in the testimony of police officials, it has come as to how the disclosure was made by the accused SC No. 40/13 Page 48 of 59 49 and then he got the amount recovered.

8.4. The accused in his statement under Section 313 Cr.P.C.

except making a bald denial, has not stated anything. In this context, one may refer with profit to a decision in Suresh [State of Maharashtra v. Suresh, (2000) 1 SCC 471 : 2000 SCC (Cri) 263] wherein it has been held that there can be three possibilities when an accused points to the place where the incriminating material is concealed without stating that it was concealed by himself. Elucidating on the three possibilities, the Court observed thus: (in para 26) "26. ... One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well­justified course to be adopted by the criminal court that the concealment was made by himself."

8.5. The prosecution therefore proves successfully beyond any reasonable doubt that this amount of Rs. 3.5 Lakh was got SC No. 40/13 Page 49 of 59 50 recovered by accused Pawan Gupta. Accused has not explained that if this amount was not from the robbed amount, from where this amount came in possession of accused Pawan Gupta. Non­examination of the executor of receipt Ex.PW27/A & B does not make any difference qua recovery of that amount. The fact of stay of this accused in the said room of hotel is also not in question in this case, for the foregoing reason that it is the knowledge of this accused as to the case property which becomes relevant.

8.6. PW33, PW34, PW36 & PW37 have also deposed that this very accused got recovered another sum of Rs. 8 Lakh from dicky of his wagon car no. DL 8 C K 4946 which was parked near another hotel namely Aarti Hotel at Agra. It has come in the evidence that this Aarti Hotel was owned by in­laws of accused Pawan. As per prosecution witnesses, key of Wagon - R car was obtained by this accused from the said hotel and then it was opened. Unless accused Pawan had led the police to the said hotel, police would not have known that the said hotel exists, or it is owned by his in­laws, or that the car was parked there. Ownership of car is not disputed by the accused. Accused has not proved that if this car was not recovered from Agra, from where this car came into possession of police. Again, I do not find it believable that police would plant such a huge amount of Rs. 8 Lakhs from its pocket, just to implicate the accused. Besides the above mentioned two amounts, accused Pawan also got recovered Rs. 2 Lakhs from roof of house of his in­laws at Agra, Rs. 1 Lakh from the factory in Delhi and Rs.

SC No. 40/13 Page 50 of 59 51

50,000/­ from roof of his house. In total, accused Pawan got recovered Rs. 15 Lakhs. There is no explanation as to from where that money came in possession of accused, if it was not out of the robbed amount.

8.7. It is vehemently argued by the accused that during recoveries from Agra and Delhi, no independent public witness was joined by the investigating agency, particularly, the driver of the Innova car in which the police team travelled was not joined and therefore, there is non­ compliance of Section 100 of Cr.P.C and therefore those recoveries must be disbelieved.

8.8. Law does not say that in every case where independent public witness is not joined, the recovery must be disbelieved or that the police officials are not believable simply for the reason that they are from uniformed force. Law infact provides that in case testimony of police officials is found believable, it can be acted upon even in absence of public witnesses. Quite often public witnesses do not come forward to become witness in such criminal cases for the fear of being asked to come to the court and depose in favour of prosecution. Many public persons would stay away from such process due to anxiety in appearing in the court and wasting their time, money and energy. In this regard, reliance can be placed upon the cases of Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746 and; Ram Swaroop Vs. State (Govt. of N.C.T of Delhi) (2013) 14 SCC 235.

8.9. Similarly, the argument that no one from the local police was joined and that no DD entries in the local police SC No. 40/13 Page 51 of 59 52 station have been proved, qua the recoveries from Agra, cannot be a reason to disbelieve the prosecution witnesses examined in the present matter. In this regard reliance placed by the accused on the case of Riaz Ali v. State (Govt. of NCT) Delhi : 2012 (2) JCC 1092, is not helpful to their case. In that case it was held that non­ joining of police officials of local Police Station during investigation creates a doubt. In that case, that was not the only reason of extending benefit to the accused, but there were other reasons also which created suspicion about the case of prosecution. The said case is, therefore, distinguishable.

8.10. It is also strongly contended by the accused that accused Satish and his son were picked by the police officials of police station Punjabi Bagh and after an application was filed U/s 97/99 of Cr.P.C, they were released and then accused Satish was again caught in the present case. It is also argued that prosecution did not clarify as to on what basis accused Satish and his another son were picked up. Perusal of evidence of this case reveals that indeed accused Satish and one of his sons were called in police station Punjabi Bagh and then they were released from the police station. In this regard, family members of accused had filed an application U/s 97/99 of Cr.P.C before the concerned court at the relevant time, in reply to which the police officials from police station Punjabi Bagh informed that though accused Satish and his son were called to the police station but they were released. It has come in the evidence that accused Satish and his son were picked up based on secret information against SC No. 40/13 Page 52 of 59 53 accused Rishi, Mukesh and Pawan. Accused Pawan was subsequently apprehended and from his possession huge amount out of the robbery has been recovered from different places. Therefore it cannot be claimed by the accused that the act of police officials of police station Punjabi Bagh in calling accused Satish who is father of accused Pawan and in calling another brother of accused to the police station for enquiry was in any manner unjustified or malicious. As per Ex.DW10/C, after about two hours of their detention, accused Satish and his son was released from police station Punjabi Bagh.

8.11. Accused relies upon the case of Ramesh v. State (Govt.

of NCT of Delhi) : 2013 (2) LRC 237 (Del), to contend that identification of Pawan by the witness from hotel cannot be believed as he was tutored by the police. It was held in that case that when the complainant in his cross­ examination admitted that he was briefed by the police official outside the court as to what statement he was to give, the benefit goes to the accused. The said case is distinguishable since in that case there were material discrepancies making the case of the prosecution highly doubtful which affected the very foundation of the prosecution case and, therefore, the admission by the complainant that he was briefed by the IO was taken as a circumstance against prosecution.

8.12. Thus the prosecution succeeds in proving the fact that accused Pawan Gupta also got recovered a substantial part of the robbed amount, beyond reasonable doubt, as discussed above.

SC No. 40/13 Page 53 of 59 54

9. The next question which arises is, as to whether the prosecution succeeds in proving criminal conspiracy between accused Sandeep, Rishi and Pawan?

9.1. In this regard counsel for accused claims that there is no evidence of conspiracy lead by the prosecution. Reliance is also placed upon John Pandian & Ors. v. State Rep. By Inspector of Police : 2011 (1) LRC 18 (SC), wherein it was held that for a charge of criminal conspiracy a few bits here and few bits there on which prosecution relies cannot be adequate for connecting an accused and the circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of offence in furtherance of conspiracy. Every such circumstance relied by the prosecution for establishing conspiracy must be proved to have nexus with that conspiracy. In absence of any convincing evidence, merely because accused traveled together with others and stayed in two hotels it cannot be said that it was in order to perpetrate conspiracy. In that case of murder, the circumstantial evidence was found to be lacking and benefit of doubt was extended to the accused by Hon'ble Supreme Court. The said case is distinguishable on the facts and circumstances and is not applicable to the facts of this case.

9.2. Since criminal conspiracy is hatched away from unwanted eyes & ears of others, in secrecy, therefore, mostly evidence of criminal conspiracy is circumstantial. Rarely would some tangent evidence of criminal conspiracy surface. There is no tangent evidence of conspiracy in the SC No. 40/13 Page 54 of 59 55 present case. The prosecution tried to rely on the mobile call details of the accused persons to show their interse connectivity and to reveal their presence at or around the bank at the time of robbery. Those mobile call details cannot be read in favour of the prosecution for defect in the Certificates U/s 65 B of the Indian Evidence Act. The certificates proved in this case do not comply with the requirements U/s 65 B as well as the requirement of the certificate being contemporaneous. Even assuming the such certificates to be proper, and even if it is taken that there were interse calls between the accused and that location of mobile phone of accused Pawan was near the bank on the date of incident, that would not by itself be indicative of the fact that the calls between the accused were only qua conspiracy or that location of mobile of this accused could not have been for any other purpose.

9.3. If we keep aside the mobile call details of the accused persons, there is no other evidence available on record to prove conspiracy between accused Pawan with other two before or at the time of commission of crime.

9.4. However, presence of accused Sandeep Bhatnagar and accused Rishi in the bank has been proved through cogent evidence. It has come in the evidence that after accused Sandeep Bhatnagar threatened the manager of the bank, he called up accused Rishi to deliver the bags and accused Rishi came in the bank and delivered the bags and then left the cabin of the complainant. It has also come in the evidence of the guard that after the bags filled with cash were carried by the two peons of the bank till SC No. 40/13 Page 55 of 59 56 outside the bank, both these accused carried the bags till the car in question. The said conduct of accused Sandeep and Rishi clearly indicates prior meeting of minds between these two persons for committing robbery. This part of evidence does not indicate any other fact contrary to the fact of conspiracy between these two. Thus, conspiracy between Sandeep and Rishi is writ large and these two accused ought to be found guilty U/s 120 B of IPC.

9.5. However, in absence of any evidence of conspiracy against accused Pawan, accused Pawan needs to be acquitted U/s 120 B of IPC. But indeed from his possession, huge amount out of the robbed amount was recovered, therefore Pawan has to be convicted U/s 411 of IPC.

9.6. Turning to the question whether Sec. 397 of IPC gets attracted in the present matter or not against accused Sandeep, it may be mentioned that law now is well settled that there cannot be any vicarious liability U/s 397 of IPC and therefore, other accused Rishi could not have been charged for the said offence. Rishi did not use any deadly weapon at the time of robbery. Allegations qua that aspect of the matter is against Sandeep only. But the fact of the matter is that admittedly no live bomb or any other deadly weapon was used while committing robbery by Sandeep. Admittedly, the instruments/wires got recovered by Sandeep were dummy bomb. In the following cases, it was held that in such circumstances, Sec. 397 of IPC does not get attracted.

SC No. 40/13 Page 56 of 59 57

10. In Md. Aslam v. State of Bihar : 1985 Cri. L. J. 1760, it was held that expression "uses any deadly weapon" in Section 397 of IPC connotes something more than merely being armed with a deadly weapon. In that case, there was no evidence that accused pointed out the revolver towards victim and the revolver was not found to be in working condition, therefore, Section 397 of IPC was held to be not attracted.

11. In Babulal Jairam Maurya & Anr. v. The State of Maharashtra : 1993 Cri. L. J. 281, toy pistol was used and it was held that it cannot come within the purview of deadly weapon to make it punishable U/s.397 IPC.

11.1. Sec. 411 of IPC does not get attracted against accused Sandeep and Rishi. They got the amount recovered, but a thief/robber himself cannot be a receiver or retainer of stolen property. What is covered in Sec. 411 of IPC is, if a person receives or retains any stolen property knowing or having reasons to believe the same to be stolen. It implies that if it is proved that a person committed theft or robbery and is so held guilty, that person cannot be jeopardised by convicting him U/s 411 of IPC also.

12. Accused have also relied upon following cases to claim acquittal, but none of those cases help the accused of present case in the facts and circumstances.

12.1. In Islam & Anr. v. State NCT of Delhi : 2014 (9) LRC 403 (Del), in a case of robbery it was held that when currency notes were recovered after 18 days of incident and no independent witness was joined to the recovery of currency or the weapon of offence, there may be a strong SC No. 40/13 Page 57 of 59 58 suspicion but suspicion cannot take place of proof. The accused was given benefit of doubt in that case.

12.2. In Uday Kumar Sinha v State : 2015 (2) LRC 324 (Del), due to material inconsistency in the case of prosecution benefit was extended to the accused.

12.3. In the case of Ramu @ Raju & Anr. v. State : 2011 (1) LRC 175 (Del), recovery of weapon of offence was found suspicious and was not in consonance with prosecution's case, therefore, benefit was extended to the accused. In that case, it was also held that when the circumstance of recovery of katta was not put to accused in his statement, it cannot be used against accused.

12.4. In Govindaraju @ Govinda v. State by Sriramapuram P.S. & Anr. : 2012 (3) JCC 1714, it was held that where two views are possible, the one favouring the accused has to be accepted. In that case, it was also held that the testimony of sole eye­witness to the incident has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses the conduct of eye witness in that case was found to be unnatural.

12.5. In the case of Ashok Narang v. State : 2012 (1) JCC 482, it was held that defence witness is entitled to equal respect as that of the prosecution as to credibility and trustworthiness, and also that where one integral part of story put forth by the witness was not believable then the entire case fails. That case is also distinguishable on the facts and circumstances.

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13. Thus, accused Sandeep and Rishi are found guilty and convicted U/s 120 B r/w Sec. 392 as well as Sec. 392 r/w Sec. 120 B of IPC.

14. Accused Pawan is held guilty U/s 411 of IPC, but acquitted U/s 120 B & 392 of IPC.

15. Accused Satish is acquitted of the charges U/s 411 of IPC.

Announced in the open court on 19th day of January, 2016.

Dig Vinay Singh ASJ/Special Judge : NDPS (N­W) Rohini Courts/Delhi SC No. 40/13 Page 59 of 59