Delhi District Court
State vs . Upender Gupta & Anr. on 25 April, 2022
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IN THE COURT OF MR. NEERAJ GAUR : ADDL. SESSIONS JUDGE-
05 : NORTH-WEST : ROHINI COURTS/DELHI
In the matter of :-
(Sessions Case No.52314/2016)
CNR No.DLNW01-001074-2014)
FIR No. : 462/2013
Police Station : Saraswati Vihar
Charges framed under Section : 392/394/397/411/458/34
IPC and 25 Arms Act.
STATE
Versus
1. UPENDER GUPTA
S/O LATE SH. SATENDER PRAKASH GUPTA
R/O D-36, SUDARSHAN PARK
NEW DELHI
2. SHAHBAAZ AHMED
S/O SH. KHURSHEED AHMED
R/O WZ-936A, BASAI DARA PUR
NEW DELHI
3. GAUTAM KOLI
S/O SH. NAVRATAN KOLI
WZ-46D/2B, BASAI DARA PUR
NEW DELHI
......Accused Persons
State Vs. Upender Gupta & Anr.
FIR No.462/2013
PS : Saraswati Vihar Page 1 of 46
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Date of institution : 01.02.2014
Date of arguments : 02.12.2021, 12.12.2021,
24.12.2021, 22.03.2022,
25.04.2022
Judgment Pronounced on : 25.04.2022
Decision : Accused Upender Gupta
convicted u/s
392/394/34/411/452 IPC
Accused Gautam Koli
Convicted u/s
392/394/34/411/452/397 IPC.
Accused Shahbaaz convicted
u/s 25 Arms Act and acquitted
u/s 392/394/34 IPC.
JUDGMENT
PROSECUTION CASE
1. On 12.10.2013, a PCR call vide DD No.43A was assigned to the IO/SI Pradeep Kumar and he alongwith Const. Dharmender reached at A-8, Enclave, Pitampura, Delhi. The injured was already taken to Bhagwan Mahavir Hospital. The almirahs kept in the said house were found opened and the articles were found State Vs. Upender Gupta & Anr.
FIR No.462/2013PS : Saraswati Vihar Page 2 of 46
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scattered. Blood was also found scattered on the floor. The crime team was called at the spot. The IO reached at the said hospital and met the complainant Narender Bhalla. Narender Bhalla gave a statement to the effect that on 12.10.2013 at about 5 a.m., he was sleeping in his house i.e. A-8, Maharana Pratap Enclave, Pitampura, Delhi. Suddenly, someone woke him up who was armed with pistol. The pistol was pointed towards him and the said boy, aged about 25-26 years, threatened the complainant to give his articles. The said boy pushed the complainant and snatched a diamond ring from the finger of the complainant. The said boy also opened the almirah and scattered the articles. The complainant gave his wallet containing about Rs.2000/- that was robbed by the said boy. The boy also took money from the ladies purse. The complainant also noticed that another boy was standing on the door of the room and had gagged the mouth of the domestic servant Santosh with a cloth.
State Vs. Upender Gupta & Anr.
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Santosh was also pushed on the corner. The mother of the complainant namely Swarn Bhalla aged 85 years was also pushed. Thereafter, the complainant, his mother and the servant Santosh were taken to the other bedroom on the point of the weapon. The almirah of the second bedroom was also opened by the said boys. The accused then called the third associate and asked him to come inside. The complainant seized the opportunity and tried to nab the first boy but the complainant was hit 2-3 times on his head by the butt of the pistol. Due to this, the complainant started bleeding. The said boys looted the laptop of the son of the complainant. The said boys then locked the complainant and other persons inside the house. The complainant found that the mobile phone of his mother and cash of Rs.25,000/- was also taken away besides laptop bag containing important documents.
INVESTIGATION State Vs. Upender Gupta & Anr.FIR No.462/2013
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2. The present FIR was registered and investigation was initiated.
The servant of the complainant namely Santosh was also examined. Crime team was called and chance prints were lifted from the spot. The sweet box and other articles were seized from the spot. On 16.10.2013, on the basis of a secret information, three accused persons were nabbed when they were inside an Innova car. From the possession of accused Shahbaaz Ahmed, one pistol with three live cartridges were recovered. From accused Upender Gupta, one Rolex wrist watch was recovered that he confessed to have stolen from the complainant. From accused Gautam Koli, one golden ring was recovered. All the articles and the Innova car were seized by the IO. Some other articles were also recovered from the accused persons that were the stolen properties of different cases and they were seized under Section 102 Cr.P.C. Accused persons refused for their judicial TIP. During their police custody, other case property State Vs. Upender Gupta & Anr.
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including ipod, Silver type coins and hair straightener were recovered. Exhibits including the pistol and live rounds were sent to FSL. TIP of the case property recovered from the accused persons was also conducted. On completion of investigation, all the three accused persons were chargesheeted under Section 394/397/411/34 IPC. The accused Shahbaaz Ahmed was additionally chargesheeted under Section 25 of the Arms Act. CHARGE
3. Vide order dated 21.05.2014, charge under Section 394 IPC was framed against all the three accused persons. Separate charges under Section 411 IPC were framed against the accused Gautam Koli and Upender Gupta. Charge under Section 458 IPC read with Section 34 IPC was framed against accused Upender Gupta and Gautam Koli. Charge under Section 25 Arms Act was framed against the accused Shahbaaz. Charge under Section 397 State Vs. Upender Gupta & Anr.
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IPC was framed against the accused Gautam Koli. Vide order dated 25.04.2019, charge under Section 392/34 IPC and 394/34 IPC was framed against all the three accused persons. All the accused persons pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
4. PW-1 Sh. Narender Bhalla and PW3 Sh. Santosh Kumar are the material witnesses. PW1 supported the prosecution case and categorically mentioned the fact as already mentioned in para 1 of the judgment. He proved the statement given to the police as Ex.PW1/A. He also identified his signatures on the seizure memo Ex.PW1/B in respect of his blood stained clothes. He identified the accused Gautam Koli as the person who committed robbery on a gun point and who was wearing red colour shirt and who had hit PW1 with pistol on his head. PW1 identified accused Upender Gupta as the robber present in the State Vs. Upender Gupta & Anr.
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house and was talking on the phone. PW further deposed that he participated in the TIP proceedings Ex.PW1/C of the case property in which he had identified hairdryer, Rolex watch, Diamond Ring, Currency notes of various countries and one ipod. The said articles have been identified in the court as Ex. P2 to P6. PW1 further identified his blood stained kurta as Ex. P1.
5. PW-3 Sh. Santosh Kumar also supported the prosecution case.
He categorically deposed that on 12.10.2013, he was present in the house where he was working as a domestic servant under Sh.Narender Bhalla (PW-1). At about 04:30 PM, Sh. Narender Bhalla was sleeping in his room and Smt. Swarn, the mother of Narender Bhalla was also sleeping. Two boys came inside the house and asked about "Mahender Ji". One of the boys who was having one sweet box in his hand was asked by PW3 about his entering his house without permission and both the boys were State Vs. Upender Gupta & Anr.
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taken outside the gate. The said boys again asked as to when the 'Madam' will come and PW3 stated that she will come at about 06:00/07:00 PM. When PW3 came inside the house after about half an hour, the said two boys again entered the house. They tried to catch hold of PW3 but PW3 ran upstairs and was finally caught. His hands were tied with his own belt and his mouth was tied with a piece of cloth. The said boys asked about the cash and the boys also threatened the PW3 to kill him. PW3 was brought to the room of Swarn Bhalla and one of the boys pointed out pistol on the temple of Swarn Bhalla and threatened her not to raise any alarm. In the meantime, a third boy in a muffled face came and did nothing. Then the first two boys took PW-3 to the room of Narender Bhalla/PW1 who was sleeping. Thereafter, PW-3 deposed in the same lines as PW1 regarding the robbery. PW-3 identified his signatures on the seizure memos Ex.PW-3/A and Ex.PW-3/B respectively in respect of his belt State Vs. Upender Gupta & Anr.FIR No.462/2013
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and the piece of cloth. PW-3 identified accused Gautam and Upender Gupta as the boys who initially entered the house and identified Shahbaaz as the boy who was called subsequently. PW-3 further stated that accused Upender Gupta was having a sweet box with him when he came first and accused Gautam was armed with pistol. PW-3 identified his belt with which his hands were tied as Ex.P7 and the reddish colour cloth piece with which his mouth was tied as Ex. P8. He also identified half Kg sweet box of "Aggarwal Bikaneri Sweets" as Ex. P9 that accused Upender Gupta was carrying. He also identified the pistol used by accused Gautam as Ex. P10.
6. PW-2 HC Gajender was the MHC (M) who deposed about the depositing in the malkhana various sealed pullandas, car, personal search articles of the accused persons on various dates. He also deposed about handing over of the parcels for the State Vs. Upender Gupta & Anr.
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purpose of sending them to FSL on various dates. He also deposed about the release of various articles on superdari as per the order of the court. The Malkhana Register No. 19 containing various entries made by PW2 are Ex. PW2/A collectively. The RC Register is Ex. PW2/B. The acknowledgment receipt received from FSL is Ex. PW2/C.
7. PW-4 Ct. Dharmender deposed that on 12.10.2013, he alongwith SI Pradeep Kumar went to the place of incident where IO made enquires and recorded the statements. PW4 deposed that he brought the rukka to the PS for the registration of FIR. He identified his signatures on the Site Plan Ex. PW4/A. He identified his signatures on various documents prepared by IO viz. Seizure Memo of lifting of the blood Ex. PW4/B, Seizure Memo of one sweet box Ex. PW4/C, Seizure Memo of blood stained kurta Ex. PW1/B. He identified the case property i.e. half State Vs. Upender Gupta & Anr.
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Kg sweet box Ex. P9 and blood stained kurta Ex. P1.
8. PW-5 Ct. Devender deposed that he joined the investigation on 20.10.2013 when the accused Gautam Koli was in custody and made disclosure statement Ex. PW5/A. At the instance of accused Gautam Koli, the police went to first floor house, Basai Dharapur from where accused took out one polythene from inside the bed containing an iPod, mp3 Sony and hair straightener that were seized by the IO. The supplementary disclosure statement of the accused Gautam Koli prior to the recovery is Ex. PW5/D. He further deposed that accused Upender Gupta led them to his house at Sudershan Park and from first floor of his house, accused took out one white colour polythene containing nine silver coins and same was seized vide memo Ex. PW5/C. State Vs. Upender Gupta & Anr.
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9. PW-6 HC Ranbir Singh is the Duty Officer on 12.10.2013, who registered the DD no. 43 A Ex. PW6/A and the FIR Ex. PW6/B. He proved the endorsement made on rukka as Ex. PW6/C and certificate under Section 65 B of Indian Evidence Act as Ex.
PW6/D.
10. PW-7 Dr. Bhawna Gupta deposed that she examined the injured Narender Bhalla on 12.10.2013 and prepared the MLC Ex. PW7/A. The injured was referred for surgery and was examined by Dr. Nishant.
11. PW-8 Ct. Sidharth deposed that on 12.10.2013, while being posted in Crime Team as Finger Print Proficient, he visited the spot and inspected it and took 4 chance prints from sweet box, mirror, almirah drawer and almirah. His report is Ex. PW8/A.
12. PW-9 Retired SI Naresh Pal deposed that on 12.10.2013, he State Vs. Upender Gupta & Anr.
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inspected the spot and prepared a report Ex. PW9/A.
13. PW-10 Sh. Rajeev Ranjan, Nodal Officer, TATA Tele Services brought the record of mobile number 9212232511 as per which it was issued to Upender Gupta S/o Sh. S.P. Gupta. He proved the record as Ex. PW10/A. The CDR of the said number is Ex. PW10/B. The certificate under Section 65 B and the forwarding letter are Ex. PW10/C and Ex. PW10/D respectively.
14. PW-11 Sh. Israr Babu from Vodafone Mobile Services brought the record of mobile number 9711529575 as per which it was issued to Gautam Koli S/o Sh. Narottam Koli. He proved the record as Ex. PW11/A. The CDR of the said number is Ex. PW11/B. The certificate under Section 65 B is marked as PW11/C. State Vs. Upender Gupta & Anr.
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15. PW11 further brought the record of mobile number 9899533711 as per which it was issued to Shahbaj Ahmad S/o Sh. Khurshid Ahmad. He proved the record as Ex. PW11/D. The CDR of the said number is Ex. PW11/E. The certificate under Section 65 B is marked as Ex. PW11/F. PW11 further proved the Cell ID chart as Ex. PW11/H.
16. PW-12 Ct. Subhash deposed that he took 17 photographs during inspection of the spot on 12.10.2013. The photographs are Ex.PW-12/A1 to Ex.PW-12/A17 with CD Ex.PW-12/B.
17. PW-13 Sh. Bhupender Singh, Ld. ACJ, NW, deposed that on 31.10.2013, while he was posted as MM, he fixed an application for holding TIP of the case property for disposal on 01.11.2013. On 01.11.2013, he conducted the TIP of the case property produced by the IO in sealed condition vide TIP proceedings Ex. State Vs. Upender Gupta & Anr.
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PW1/C.
18. PW-15 Dr.Koan S.P deposed that on 14.02.2014, he was posted as Additional DCP-I. He perused the case file of the present case alongwith FSL report, the statements recorded by the police u/s 161 Cr.P.C and the copies of the other documents including seizure memo etc. After being satisfied that from possession of the accused Shahbaaz Ahmed, one country made pistol of 7.6 MM and three live cartridges were recovered without any licence, he accorded sanction u/s 39 of the Arms Act for prosecution of the accused u/s 25 Arms Act. He proved his order in this regard as Ex. PW15/A.
19. PW-16 SI Vikas deposed that on 16.10.2013, a secret information was received at PS Subhash Place. He alongwith other police officials went to the place of information i.e. Basai State Vs. Upender Gupta & Anr.FIR No.462/2013
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Dharpur, Near Govt. Girsl School, in coordination with SI Pradeep. One golden colour Innova car was parked near the said school. At the pointing out of the secret informer, the said car was surrounded by the police officials. Accused Shahbaaz, Upender Gupta and Gautam Koli were found inside the car. On formal search of Shahaz Ahmad, one desi pistol was found with a magzine loaded with three live cartridges. The sketch of the said pistol is Ex. PW14/B was prepared and the same was seized vide memo Ex. PW14/C. The wrist watch being worn by accused Upender Gupta was seized vide memo Ex.PW-14/E. One ring was taken from the possession of the accused Gautam Koli that was seized vide memo Ex. PW14/F. The accused persons were arrested vide memo Ex.PW-16/A to Ex.PW-16/C. They were personally searched vide memos Ex.PW-16/D to Ex.PW-16/F. Their disclosure statements Mark Ex.PW-14/D1 to Ex. PW-14/D3 were recorded. PW16 further deposed about State Vs. Upender Gupta & Anr.FIR No.462/2013
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recoveries of various articles at the instance of the accused persons. He proved the pointing out memo of the place of robbery by the accused persons as Ex. PW16/G. PW16 identified the pistol recovered from Shahbaaz Ahmed as Ex. P10 and cartridges as Ex. P11.
20. PW-17 Sh. V.R. Anand, Asstt. Director (Ballistics) FSL deposed that on 19.11.2013, he examined the pistol that was received by him in sealed condition. The said pistol was found in working condition. The exhibits were opined as "Firearm/Ammunition" as defined in the Arms Act 1959 vide report Ex. PW17/A.
21. PW18 Sh. Avdesh Kumar Inspector, Fingerprint Expert, Fingerprint Bureau deposed that on 22.10.2013, four chance prints and specimen fingerprints of six persons were received in State Vs. Upender Gupta & Anr.FIR No.462/2013
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the office in connection with the present FIR for comparison and for matching the same with the record of the Bureau. He proved his report as Ex.PW-18/A.
22. PW14 SI Pradeep is the IO of the case, who deposed about various steps taken by him for the investigation of the present case. During his deposition, the following documents were marked:-
(1) Statement of complainant Ex. PW1/A and rukka Ex.
PW14/B;
(2) Seizure memo of the belt and cloth piece after inquiries from Santosh Ex. PW3/A and Ex.PW-3/B;
(3) Seizure memo of sweet box Ex. PW4/C;
(4) Seizure memo of blood stains from floor Ex. PW4/E; (5) Seizure memo of blood stained kurta of complainant Ex.PW-1/B;
(6) Site plan Ex.PW-4/A. State Vs. Upender Gupta & Anr.
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23. PW-14 further deposed about the investigation conducted on 16.10.2013 on receipt of secret information and the consequent arrests of the accused persons. He deposed about the recoveries of the articles from the possession of the accused persons. He proved the following documents:-
(1) Sketch of pistol and cartridges Ex. PW14/B alongwith seizure memo Ex. PW14/C;
(2) Seizure memo of Rolex watch from accused Upender Ex. PW16/E, diamond studded ring from accused Gautam Koli Ex. PW14/F;
(3) Seizure memo of Innova car in which accused persons were found Ex. PW14/G.
24. He deposed that at the instance of the accused Shahbaaz Ahmed, gold ring, two ladies bangles, gold chain and five pieces of ear tops were recovered from the Almirah of his house that were seized under Section 102 Cr.P.C vide memo Ex. PW14/H. From the house of accused Gautam Koli, some other articles State Vs. Upender Gupta & Anr.FIR No.462/2013
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allegedly robbed in other robberies were seized vide memo Ex. PW14/I under Section 102 Cr.P.C. Accused Upender Gupta also got recovered few other articles pertaining to other robberies that were seized vide memo Ex. PW14/J under Section 102 Cr.P.C. He proved the seizure memo of the iPod and hair straightener recovered from the house of Gautam Koli as Ex.PW-14/L, seizure memo of nine silver coins recovered from the house of Upender Gupta as Ex.PW-5/C. PW14 identified the case property in the court.
25. All the PWs duly cross examined on behalf of the accused persons.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
26. After closure of evidence, statements of accused persons under Section 313 Cr.P.C were recorded and the entire evidence was put to each of them. The accused persons denied the State Vs. Upender Gupta & Anr.
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incriminating evidence and claimed that they were falsely implicated. Accused persons led evidence in defence.
27. DW-1 Sh. Nikhoj Mohanti was a witness of accused Gautam Koli who deposed that on 16.10.2013, he was doing his work of plumbing in the adjoining house of accused Gautam Koli. At about 7/7:30 p.m., 5-6 police officials in civil dress came and asked about Gautam Koli. Accused Gautam Koli was called from his house and police officials also took DW1 and his friend Pawan Gupta to Police Post Shakarpur and then to Police Station Subhash Place. He and his friend Pawan Gupta were freed at about 12:00 night and police officials told that Gautam Koli would also be released after some inquiry.
28. DW-2 Sh. Vijay Gupta deposed that on 16.10.2013, while he was present at his house, police officials came in civil dress and asked about his brother Upender Gupta. Upender Gupta also State Vs. Upender Gupta & Anr.
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came and alongwith DW1 was taken to PS Subhash Place. DW2 was instructed to go back and Upender Gupta was not so allowed on the pretext of making enquiries. In the evening, DW2 again went to PS Subhash Place and one police official demanded Rs. 2,00,000/- for freeing his brother and threatened to falsely implicate him. On next morning, police officials informed that Upender Gupta had been arrested. ARGUMENTS AND FINDINGS
29. It is firstly argued by Ld. Defence counsel that PW-1 admitted in his evidence that all the accused persons were shown to him in the police station. He clearly stated in his cross-examination dated 25.03.2015, "I was called in the PS in the evening and it was one day after the arrest of the accused. I had identified the accused there at the PS". No TIP was held. The identification of State Vs. Upender Gupta & Anr.
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the accused persons for the first time in the court creates a doubt in the prosecution case. It is further argued that accused Shahbaaz was not identified by the complainant. It is argued that his identification by PW-3 Santosh is not reliable as PW-3 himself is not reliable witness. It is argued that PW-3 himself admitted that the third boy (who is accused Shahbaaz as per prosecution case) remained in muffled face all throughout and this third boy was shown to him later on at the PS. It is argued that no recovery from Shahbaaz of any stolen article has been made and his identification is doubtful. Reliance have been placed on the judgment titled as Kalicharan Vs. State of NCT of Delhi 2015 (2) JCC 1304.
30. In this regard, it is argued by Ld. APP for the State that the PW-
1 identified the accused persons in the police station after they had refused to undergo TIP. Ld. APP for the state submitted that State Vs. Upender Gupta & Anr.
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the accused persons have been correctly identified not only by PW-1 Sh. Narender Bhalla but by his servant i.e. PW-3 Santosh Kumar.
31. I have considered the rival submissions regarding the identification of the accused persons. PW-1 categorically identified accused Upender and Gautam as the persons who entered in his room and had committed the robbery. He identified accused Gautam Koli as the person who had hit him with a pistol on his head and he identified accused Upender Gupta as the person who was present in his house and was talking on the phone. These two accused persons were also identified by PW-3 Santosh as the persons who firstly entered in the house and committed the robbery. PW-3 identified accused Upender Gupta as the person who was having a sweet box with him and accused Gautam who was armed with a pistol. So the State Vs. Upender Gupta & Anr.FIR No.462/2013
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identity of accused Upender Gupta and Gautam Koli has been proved on record.
32. So far as the identity of the accused Shahbaaz is concerned, PW-3 initially identified him as a third person who was called by the first two accused persons. However, PW-3 maintained in the chief examination that this third boy was having his face muffled and he did nothing. He reiterated in the cross-examination dated 18.09.2014 that this boy, who had come in muffled face remained in muffled face during the occurrence and that he was shown to PW-3 by the police later on at the PS. The identity of accused Shahbaaz from the oral testimonies of the main witnesses is not very convincing.
33. It was further argued by Ld. Defence Counsel that there are many contradictions in the testimonies of various witnesses as State Vs. Upender Gupta & Anr.FIR No.462/2013
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regards the time of incident. PW-1 stated in his chief examination that the incident occurred at about 05:00 pm. PW-3 Santosh deposed that it was about 04:30 pm. It is submitted that the statement of the complainant was recorded at about 09:00 pm with a delay of about 04 hours.
34. Ld. APP for the State argued that there is no material contradiction in the testimonies of the various witnesses and there is no delay in registration of the FIR. After the incident, the PCR officials came and PW-1 was taken to Mahaveer Hospital.
PW-1 came back to his house after about 03 hours and at that time, his statement was recorded.
35. PW-3 stated that two boys initially came at about 04:30 pm and they were sent back. After about half an hour (about 05:00 pm), the said two boys again entered the house. PW-1 stated that the State Vs. Upender Gupta & Anr.
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robbers entered his room at about 05:00 pm. There is no material contradiction in the testimonies of these two witnesses as regards the time of the incident. So far as delay in FIR is concerned, the same is sufficiently explained by Ld. APP that the complainant was initially taken to hospital and after his return, the complaint was formally written.
36. Ld. Defence Counsel further argued that the articles recovered from the accused persons are planted and some of the articles were not even mentioned by PW-1 as stolen but these articles have been shown as recovered stolen properties. It is highlighted that as per the seizure memo Ex.PW-14/E, a wrist watch make Rolex was recovered from accused Upender that he was wearing on his left arm. It is submitted that no wrist watch was mentioned by the complainant as stolen from his house either in the initial FIR or in the subsequent list Ex.PW-1/DA. Similarly, State Vs. Upender Gupta & Anr.
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the complainant stated in the list Ex.PW-1/DA that silver coins (8 - 10 pieces) were stolen. The police also seized 9 silver coins from accused Upender Gupta. It is submitted that PW-1 deposed in the court that some currency coins of various countries were amongst the stolen articles. It is argued that there is a difference between currency coins and silver coins.
37. In this regard, Ld. APP for the State contended that TIP of the recovered stolen articles was held vide proceedings Ex.PW-1/C in which the PW-1 correctly identified the case properties including the Rolex watch. Not only this, PW-1 correctly identified the various case properties Ex.P2-P6 in the court as the properties robbed by the accused persons. So far as the difference between the silver coins and the currency coins is concerned, Ld. APP for the State argued that it could be a linguistic error in writing silver colored currency coins as silver State Vs. Upender Gupta & Anr.
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coins.
38. I have considered the above submissions and gone through the record. PW-1 in his cross-examination explained that the police had mentioned the coins as silver coins in an incorrect manner and he only wanted to convey that he had coins of foreign countries which he had collected over the period and those coins included some silver coins. The writing of currency coins as silver coins appears to be a linguistic error particularly when the coins have been identified by PW-1 as the stolen property.
39. So far as Rolex watch is concerned, PW-1 explained in his cross-examination that the said watch was bought by him from America.
40. Ld. defence Counsel further argued that PW-1 admitted that the State Vs. Upender Gupta & Anr.
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list of stolen articles Ex.PW-1/DA was not in his hand. It was argued that PW-1 is a retired official of high rank and it is strange that such an educated person did not prepare the list in his own handwriting. It is argued that the police first planted the recoveries and then prepared a list themselves to manipulate the investigation.
41. The perusal of cross-examination of PW-1 shows that PW-1 explained that this list was signed by him at point A and this list might have been given to the police 3-4 days after the incident as he was trying to assess the loss. Merely because the list Ex.PW- 1/DA was not in the handwriting of PW-1, the same cannot be looked with suspicion.
42. It was further argued that simple and easily available articles like hair-straightener, I-pod etc. have been shown as the stolen State Vs. Upender Gupta & Anr.
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property and identification of such properties is not reliable as planting of such properties cannot be ruled out.
43. In my considered opinion, the identification of case property as stolen properties cannot be rejected only because such articles are simple and easily available. Moreover, there are other expensive stolen articles recovered in the present case regarding which no argument is made.
44. It was further argued by Ld. Defence counsels that a sweet box allegedly being carried by the accused persons was recovered from the spot. PW-1 admitted in his cross-examination that police had shown him the CCTV footage of one sweet shop from where the said sweet box was purchased. It is argued that no such CCTV footage was filed which shows that the accused persons could not be seen in such CCTV footage. It is argued State Vs. Upender Gupta & Anr.
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that every lapse in investigation accrues a benefit in favor of the accused persons.
45. Ld. APP for the State argued that to solve a case, the police makes every effort and explores every angle to get a lead in investigation. It is not necessary that every such effort would result into a lead. It is submitted that the sweet box was carried by the accused persons in their hands only to make a friendly entry in the house and not to actually gift the sweet box to the complainant. There is every possibility that such sweet box was purchased from somewhere else and consequently the police did not get any CCTV footage of the accused persons from the shop mentioned in the sweet box.
46. The circumstances clearly show that the robbers wanted to make a friendly entry in the house and the purpose of carrying the sweet box was this only and not to gift the sweet box. In State Vs. Upender Gupta & Anr.
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such a situation, it can be presumed that the sweet box was not necessarily purchased from the shop as mentioned on the sweet box. Therefore, the investigation cannot be doubted only because the police tried to check the CCTV footage and found nothing. The explanation given by Ld. APP for the state is found convincing.
47. Ld. Defence Counsel further argued that the arrest of the accused persons alongwith the case properties is highly doubtful. It is submitted that as per the IO/PW-14 SI Pradeep Kumar, a secret information was received on 16.10.2013 and a raiding party was constituted. The raiding party left in the evening for Basai Darapur and PW-14 reached there at about 12 midnight and saw one Innova car near the gate of one school. The car was surrounded and all the three persons were found sitting inside the car. It is argued that as per PW-14, the car was already State Vs. Upender Gupta & Anr.
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stationed but as per PW-16, the car came after the arrival of the team. It is argued that the contradiction are material and creates a doubt regarding the arrest of the accused persons. It is submitted that DW-1 & 2 clearly deposed that on 16.10.2013, some police officials in civil dress came at their respective houses at 07:00 - 07:30 pm and apprehended accused Gautam and Upender. It is argued that DW-1 & 2 proved that the accused persons were apprehended in the evening itself and the entire story of their apprehension from the Innova car in the night has been concocted by the police.
48. Ld. APP for the State argued that DW-1 is the friend of accused Gautam and DW-2 is the brother of accused Upender. Both of them are highly interested witnesses who deposed to protect the accused persons.
49. I have considered the above arguments. First of all, PW-16 State Vs. Upender Gupta & Anr.
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stated in his chief-examination that the Innova car was stationed near the school. In his cross-examination, he stated that the said car reached after their arrival. It is settled law that the evidence of a witness is to be read in whole and not in isolation. Due to lapse of time, minor contradictions are bound to occur. Every contradiction cannot be considered as material if there is consistency in the overall version. The contradiction in the evidence of PW-16, as pointed out by Ld. Defence Counsel is not found material. So far as the testimonies of DW-1 &2 are concerned, both of them are interested witnesses and their testimonies have not inspired the confidence of this court.
50. Ld. Defence Counsels, in the written submissions have pointed out few more contradictions. As already discussed, the effect of contradictions is to be judged in the light of the overall evidence. I have not found any contradiction material enough to reject the State Vs. Upender Gupta & Anr.
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prosecution case.
51. It is further argued by Ld. Defence Counsels that the chance finger prints lifted from the spot did not match with any of the accused persons which creates a doubt in favor of the accused persons. In this regard, Ld. APP for the State argued that as per the report of the fingerprint expert Ex.PW-18/A, one chance print matched with the fingerprint of wife of the complainant. Two other chance prints were partial and smudged and did not disclose sufficient number of ridge details for comparison and was unfit for comparison.
52. As already discussed, the police explores every possibility to collect every evidence. In this case, the police although lifted the chance prints but those chance prints were found smudged. The absence of chance prints of the accused person is not fatal to the State Vs. Upender Gupta & Anr.
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prosecution case in the given facts and circumstances.
53. As regards accused Shahbaaz, Ld. APP for the State argued that the recovery of pistol Ex.P-10 with two live cartridges Ex.P-11 has been duly proved on record by the prosecution. It is argued that the recovery of pistol from accused Shahbaaz is a strong circumstantial evidence against him.
54. On the contrary, it is argued by Ld. Defence counsel that the weapon recovered from accused Shahbaaz could not be linked with the present case.
55. I have considered the above submissions. The identification of accused Shahbaaz is doubtful, as already discussed. The pistol recovered from accused Shahbaaz has not been identified by PW-1 as the same pistol that accused persons were carrying at State Vs. Upender Gupta & Anr.
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the time of robbery. PW-3 identified the pistol Ex.P-10 as the same pistol that was used by accused Gautam at the time of robbery. The question before the court is whether recovery of the pistol used at the time of the robbery, after 4 days of the incident can be treated as a circumstantial evidence against accused Shahbaaz.
56. The golden principles to be followed in a case based on circumstantial evidence have been laid down in the celebrated judgment passed by Hon'ble Apex Court in Sharad Birdi Chand Sharda Vs. State of Maharashtra AIR 1984 SC 1622 that are as under :-
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances State Vs. Upender Gupta & Anr.
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concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
57. The recovery of the pistol has been effected after 4 days of the incident when the three accused persons were apprehended in an Innova Car. This recovery after 4 days is not of such a nature as to exclude every other hypothesis. The chain of circumstances State Vs. Upender Gupta & Anr.
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has missing links and I am finding it unsafe to link accused Shahbaaz with the robbery on the basis of recovery of the pistol.
58. The relevant provisions of the charges framed against the accused are reproduced hereunder :-
"392 IPC- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years;
394 IPC- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397 IPC- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
411 IPC- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 458 IPC- Whoever commits lurking house-trespass by night, or house-breaking by night, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining State Vs. Upender Gupta & Anr.FIR No.462/2013
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any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.
34 IPC- Acts done by several persons in furtherance of common intention- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
25 Arms Act provides :-
[ (1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than 4[seven years but which may extend to fourteen years] and shall also be liable to fine.] (1AB) Whoever, by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.] [(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for life and shall also be liable to fine.] (IB) Whoever-
(a) Acquires, has in his possession or carries any firearm or ammunition in contravention of section3, or .........
59. From the discussion made herein above, the prosecution has been able to prove that accused Upender Gupta and Gautam State Vs. Upender Gupta & Anr.
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Koli, in furtherance of their common intention committed robbery from the house of the complainant by committing theft of various articles and for that end voluntarily caused hurt to PW-1 and caused wrongful restraint to PW-3. It is also proved that hurt was voluntarily caused to the complainant while committing the robbery. Charges u/s 392/394/34 IPC have been proved against accused Upender Gupta and Gautam Koli.
60. It is further proved that stolen articles were recovered from accused Gautam Koli and Upender Gupta that they have received or retained knowing the same to be stolen property. Charges u/s 411 IPC have been individually proved against accused Upender Gupta and Gautam Koli.
61. It is also proved on record that the accused Gautam Koli was State Vs. Upender Gupta & Anr.
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armed with a pistol at the time of the offence and he used the same at the time of committing the robbery. Charge u/s 397 IPC is proved against accused Gautam Koli.
62. So far as charge u/s 25 Arms Act is concerned against accused Shahbaaz, the prosecution has proved the recovery of a pistol Ex.P-10 with live cartridges Ex.P-11 from the possession of accused Shahbaaz. Sanction u/s 39 Arms Act is also duly proved. The FSL result Ex.PW-17/A proves that the said pistol was a firearm/ammunition within the meaning of the Arms Act. Charge u/s 25 Arms Act is duly proved against accused Shahbaaz.
63. The next charge against accused Upender Gupta and Gautam Koli is u/s 458 IPC of committing lurking house trespass by night, armed with pistol after making preparation for causing State Vs. Upender Gupta & Anr.
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hurt/assault. The offence occurred at about 04:30 PM - 05:00 PM in the month of October. To prove the charge u/s 458/34 IPC, it must be established that the trespass was committed after the sunset and before sunrise. The time when the offence was committed was daytime. A conviction u/s 458 IPC cannot be recorded. However, it is proved beyond reasonable doubts that the accused Upender and Gautam committed house trespass after preparation for causing hurt or assault or for putting any person in fear of hurt or assault or wrongful restraint which constitutes a minor offence u/s 452 IPC. Charge u/s 452 IPC is also proved against accused Upender Gupta and Gautam Koli. CONCLUSION
64. In view of the foregoing discussion, the following conclusions are made :-
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a) accused Upender Gupta and Gautam Koli are held guilty and accordingly convicted u/s 392/394/34 IPC.
b) accused Upender Gupta and Gautam Koli are held guilty and accordingly convicted u/s 411 IPC.
c) accused Upender Gupta and Gautam Koli are held guilty and accordingly convicted u/s 452 IPC.
d) accused Gautam Koli is held guilty and accordingly convicted u/s 397 IPC.
e) accused Shahbaaz is held guilty and accordingly convicted u/s 25 Arms Act.
f) accused Shahbaaz is held not guilty and accordingly acquitted u/s 392/394/34 IPC.
Announced in open Court Dated : 25th April, 2022 (Neeraj Gaur) ASJ-05/North-West District Rohini Courts/Delhi/25.04.2022 State Vs. Upender Gupta & Anr.
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