Delhi District Court
State vs Kaushal Chauhan Etc. on 16 July, 2016
State Vs Kaushal Chauhan etc.
FIR no.181/12
PS: North Rohini
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No.118/13
Unique Case ID: 02404R0011232013
State
Vs
1. Kaushal Chauhan
S/o. Sh. Bhim Singh Chauhan
R/o. 350, Village Rithala,
Rohini, Delhi
2. Amit
S/o. Sh. Tejpal
R/o. VPO Sanjarvas,
District Bhiwani,
Haryana
3. Subhash
S/o. Om Prakash
R/o. 418, Mode Wali Gali,
Nandram Katra,
Bhiwani, Haryana
4. Rohit Kumar @ Raju
S/o. Sh. Jaipal
R/o. Vpo Dhaulana,
District Hapur,
UP.
5. Pawan Kumar @ Pony
S/o. Sh. Joginder Singh
R/o. VPO Phaught Sanjarwas,
District Bhiwani,
Haryana
Page no. 43/ 43
State Vs Kaushal Chauhan etc.
FIR no.181/12
PS: North Rohini
6. Pawan Kumar
S/o. Sh. Gajanand Verma
VPO Jatu Lohari,
District Bhiwani,
Haryana
7. Pradeep Verma
S/o. Sh. Shyam Sunder Verma
R/o. 870, Ram Nagar Gulawti,
District Bulandshahar,
UP.
FIR No. : 181/12
Police Station : North Rohini
Under Section : 394/395/397/412/414/34 IPC &
25/54/59 Arms Act.
Date of committal to Sessions Court : 21.05.2013
Date on which judgment reserved : 16.07.2016
Date on which judgment pronounced : 16.07.2016
JUDGMENT
1. This is a case under section 392/394/395/397/412/34 Indian Penal Code, 1860 (IPC) & 25/54/59 Arms Act.
CASE OF THE PROSECUTION
2. (i) on 22.06.2012 at 12 noon, Kaushal Chauhan (the accused no.1), Amit (the accused no.2), Rahul (the juvenile), Paramjeet (the juvenile), Jhullan and Matender committed the dacoity in the office of Muthoot Finance situated at Aggarwal Mall, First Floor, Pocket E1, Sector7, Rohini, Delhi (hereinafter referred to as "the office") and robbed Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini 13.5 kg of jewellery articles, Rs.60,000/ in cash and two mobile phones of the employees of Muthoot Finance. Out of them, the accused no.1 & 2, Rahul and Paramjeet went inside the office and committed the dacoity while Jhullan and Matender remained outside the office to keep watch. After committing the dacoity, they all along with the bags containing robbed articles ran away from there on the motorcycles. At the time of incident, Rajiv Mishra (the guard), Prem Prakash (the office boy), Pragati Sharma (the accountant) and Harish Saini (the complainant/account assistant) all employees of Muthoot Finance were present in the office. The Guard and Office Boy sustained the injuries. On the basis of the complaint made by the complainant, FIR was lodged. In the complaint, the complainant narrated the entire incident and stated that all four boys who entered the office were aged between 25 and 30 years and he could identify them, if brought before him.
(ii) on 11.10.2012, the Investigating Officer (IO) was informed that the accused no.1 had been arrested by NorthWest Special Staff in Kalandara u/s.41.1 (d) Cr.P.C. Accordingly, the accused no.1 was formally arrested with permission of the Court in the present case. On 12.10.2012, the accused no.1 refused to participate in the TIP proceedings. The accused no.1 made a disclosure statement that he kept the packets of robbed gold, money and mobile phones of the office staff in two bags. Out of the robbed cash of Rs.60,000/, they distributed Rs.10,000/ each amongst themselves. He concealed the revolver in the factory. He separately kept 1 kg of jewellery with him. Out of 7.5 kg jewellery, he gave half of the same to the accused no.2, Rahul and Paramjeet and remaining half he kept for himself, Matender and Jhullan.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini
(iii) out of the jewellery came in the share of the accused no.1, he sold 700 gms. of jewellery through the accused no.4 to one Pradeep Kumar Soni and 700 gms. to the accused no. 6 (the goldsmith). From the amount realized through the said sale, he utilised some amount to discharge his debts; he purchased one Tata Safari from brotherinlaw of his brother for Rs.6 lacs; and he spent remaining amount on his enjoyment. The Special Staff recovered 3.469 kg of jewellery, Rs.8 lacs cash, one Tata Safari, one motorcycle, one Desi revolver from the possession and at the instance of the accused no.1.
(iv) during investigation, Special Staff, Rohtak Police arrested the accused no.2 and Rahul in Kalandara u/s.41.1. (2) and 109 Cr.P.C. They also recovered the case property from them. Subsequently, they were arrested formally in the present case with the permission of the Court. Both of them refused to participate in the TIP proceedings. During investigation, both of them disclosed that they along with Paramjeet went to their village Sanjarwas and kept the looted articles in the house of their common friend the accused no. 5. Next day, they distributed the jewellery amongst themselves and gave some jewellery to the accused no. 5 also. The accused no.2 sold the jewellery which came in his share to the accused no. 3 (the goldsmith) for Rs.11 lacs. Out of that, he spent Rs.3 lacs on his enjoyment. Special staff recovered Rs.7.98 lacs from him. From the possession of Rahul, 332 gms. jewellery was recovered by the Special Staff and he stated that the remaining jewellery, which came in his share, he gave that to his father who had died and he did not know where the same was.
(v) During investigation, the accused no.3 was arrested who disclosed Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini that he purchased 700 gms jewellery from the accused no.2 and after refining the same, he sold smallsmall portions of the same to different shopkeepers. No recovery could be effected from the accused no.3.
(vi) During investigation, the accused no.4 was arrested who disclosed that he purchased the looted jewellery from the accused no.1 and further got it sold to Pradeep Kumar Soni and got Rs.2 lacs commission which he spent. No recovery could be effected from the accused no.4.
(vii) During investigation, the accused no.5 was arrested and disclosed that he kept the looted jewellery in his house at the instance of his friend i.e. the accused no.2, Rahul and Paramjeet. He got one bracelet and two chains as his share which he gave to Rahul to sell.
(viii) On 20.03.2013, the accused no.6 surrendered in the police station and was formally arrested vide memo Ex. PW27/A.
(ix) The accused 7 was granted anticipatory bail and was formally arrested in the present case vide memo Ex. PW31/J on 04.02.2013.
(x) Subsequently, Paramjeet (JCL) was arrested and was sent to Juvenile Justice Board (JJB) and stated that he gave the jewellery came in his share to his cousin brother Deepak.
(xi) TIP of the case property i.e. jewellary weighing 3 kg was got done but TIP of remaining could not be done.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini CHARGE
3. (i) Charges under section 120B and section 395 and 397 read with section 120B are settled against the accused no. 1 and 2 for dacoity of 13 kg of jewellary items, Rs. 60,000/ cash and mobile phones of Harish Saini and Pragati Sharma and for using knife and butt of pistol for causing injury to PW20.
(ii) Charges under section 397 IPC for using revolver, u/s 25 Arms Act for possession of the revolver, 412 IPC for receiving Rs. 8 lakhs and 3.469 kg of gold jewelery against the accused no. 1.
(iii) Charge under section 412 IPC for receiving Rs. 7.98 lacs as proceed of the gold jewellary against the accused no. 2.
(iv) Charge under section 414 IPC for assisting the accused no. 2 in disposing of the jewellry for Rs. 8 lakhs against the accused no. 3.
(v) Charge under section 414 IPC for assisting the accused no. 1 in disposing of 700 gm of gold jewellery to the accused no. 7 for Rs.11 lacs and receiving Rs.2 lacs.
(vi) Charge under section 414 IPC for assisting the accused no. 2, Rahul and Paramjeet in concealing the gold jewellary against the accused no.
5.
(vii) Charges under section 414 IPC for purchasing 600700 gm of gold Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini from the accused no. 1 to the tune of Rs. 1213 lakhs which he manufactured the jewellary of that gold after melting the same and sold the same in routine to customers; and u/s 412 IPC for receiving 600 700 gm of gold jewellary against the accused no. 6.
(viii) Charge under section 414 IPC for purchasing 592 gm of gold from the accused no. 1 to the tune of Rs. 6 lakhs which he manufactured the jewellary of that gold after melting the same and sold the same in routine to customers; and u/s 412 IPC for receiving 592 gm of gold jewellary against the accused no. 7.
PUBLIC WITNESSES
4. PW3 Harish Saini (the complainant) deposed that on 22.06.2012, he was working as the account assistant with Muthoot Finance. That day, he was assigned the duty at Sector7, Rohini. That day at 12.00 noon, when he was present in the branch, four persons entered the office, out of which two were in muffled face and two were without muffled face. When they knocked the door of the office, PW20 asked them to remove the cloth from their faces. On that one person removed the cloth, but another refused to do so. PW3 failed to disclose which accused removed the cloth from the face and which refused. Out of them, one person snatched the gun of PW20 but he could not identify the person who snatched the gun. Thereafter, those persons dragged PW20 inside the office and hit him with the butt of the gun or with knife. One of the associates of the accused persons dragged him to remove the hard disk installed in the CCTV camera. However, he showed his inability to remove the same on the pretext that he was not aware where Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini the hard disk was. Thereafter, the said person hit on his head with the butt of the pistol. Thereafter, he tried to unplug the wire of CCTV camera. However, in the said process, one of the person assaulted on his head and asked to do it in hurry. PW18 was sitting in the cabin of the Branch Manager. She got up and kept packets of the gold which she was having at that time in the strong room in the office. Once she was locking the strong room, one of the associates forcibly opened the strong room and started keeping the gold packets in their bag, which they were carrying. Then, the person who overpowered PW18 and the person who came in the strong room kept the packet of gold in their bag. Other two persons took PW20 and PW23 in the kitchen of the office and locked them. The accused took his mobile phone no.8800774455 and 9811637521 and mobile phone of PW18 and thereafter locked them in the toilet of the office. 23 minutes thereafter, he noticed that everything was calm in the office. Then, he forcibly pushed the door of the toilet and consequently, the lock got opened and he and PW18 came out. Thereafter, he unbolted the door of kitchen and consequently, PW20 and PW23 came out. PW20 lifted his gun and he along with PW23 went outside the office and PW20 fired two shots in the air. PW23 noticed that three persons were going on the wrong side on a motorcycle towards Vishram Chowk. Thereafter, he informed the Regional Manager. PW20 called at phone no.100. Police came at the spot and recorded their statements. He proved his statement Ex. PW3/A. He also deposed that after about four months, the accused persons were apprehended and the looted gold was recovered. He took part in the judicial TIP of the recovered articles and identified the gold. According to him, 13.5 kg gold was looted from their office, out of which 3½ kg gold was recovered. He proved the judicial TIP of the case property Ex. PX7. He identified one Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini gold bangle having cut mark of Muthoot Finance Ex. P1 and showed his inability to identify the remaining gold articles on the ground that the gold jewellery were almost similar. He identified the accused no.1 and 2 in the court.
5. In his crossexamination, PW3 admitted one suggestion that whatever gold was mortgaged with Muthoot Finance, they used to put unique identification mark on the same which was easily visible by naked eye. He admitted that the looted jewellery was not mortgaged in his presence and he did not know to whom the same belonged to nor he could give the particulars of the jewellery as they were in packets. He did not know the owner of the looted jewellery. He admitted that when he joined the TIP of the case property, the mark put by the office on those articles was visible and was not covered. He deposed that when he was called in the office of Special Staff, Pitam Pura, PW20 was also present. In response to a question, he deposed that on the direction of Special Staff, he and his Manager reached the said office on 10.10.2012 where PW20 was also present and the jewellery was shown to the Manager. The accused no.1 was present there but he could not identify him as an assailant involved in the incident dated 22.06.2012 in the office. It was PW20 who recognized the accused no.1 and conveyed the same to him. The entire jewellery was shown to the Manager in his presence who conveyed him that a part of the looted jewellery had been recovered. He admitted one suggestion that as they saw the accused no.1 in the Special Staff on 10.10.2012 and PW20 pointed out towards him that's why he identified him in the Court that day.
6. PW3 in his crossexamination also deposed that he got a call from Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini PW31 one day prior to 09.10.2012 who informed that he was called in the office of Special Staff, Pitam Pura. Accordingly, he visited the office of Special Staff on 08.10.2012. That day, PW18 and PW23 were also there and told him that some persons were shown to them. He could not tell whether the accused no.1 was shown to them or not. Again, he was called at 4.00 p.m. on 09.10.2012 in the office of Special Staff, Pitam Pura at about 11.00 a.m.. That day, PW20 was with him and Branch Manager alongwith the account staff, the audit team and Regional Manager came there. He admitted that he did not identify the accused no.1 at his own and it was PW20, who pointed out the accused no.1 to him, when he was walking down into the office of Special Staff, after getting off from the vehicle. Regarding judicial TIP of the jewellery, he deposed that that time, the jewellery was lying before the Magistrate in open condition mixed with other jewellery and he identified the same on the basis of identification mark put by the company as the same had not been covered. He admitted that before the judicial TIP, he did not tell PW31 about the details and particulars of the jewellery. They had the total weight of the jewelery on the packet. He admitted that there were other offices and shops in the complex where the office was situated and were opened at the time of incident and had some Guards engaged by the mall owners and shop owners. At the time of incident, no customer was present in the office. There were two keys of the strong room, one master which remained with the Branch Manager and second key with the Accountant. He admitted one suggestion that the strong room could not be opened in the absence of the one of the keys. The whole incident took place within 1520 minutes. He admitted that when the robbers left the office, PW20 fired a shot and the public persons & owners of the shops were present there. He could not tell the make and colour of the Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini motorcycle used by the robbers when the police recorded his statement after 8.00 p.m. on the date of incident. After that, the police did not record his any other statement. He deposed that PW20 told him about the identity of the assailants. Again stated that he identified the accused no.1 & 2 in the court at his own because they resembled the assailants who had come to the office on the date of incident.
7. PW18 Pragati Sharma deposed that on 22.06.2012, she was working as the account assistant with Muthoot Finance. That day at about 12.00 noon, PW3, PW20 and PW23 were also present in the office. No customer was present in the office. That time, she went into the office of Branch Manager to take the gold and noticed that some persons were quarreling with PW20 at the main gate. She took the gold from the Branch Manager's office and kept the same in the strong room of the office. The moment she closed the door of the strong room, the accused no.1 who had covered his face that time, came to her having a gun and forced her to open the door of the strong room. He was accompanied with other persons and kept 200300 packets in the bag which they carried. Another person also joined him. They brought PW3 in the strong room and assaulted him. Thereafter, she and PW3 were locked in the toilet. After some time, they felt that the robbers had fled away. Accordingly, PW3 opened the door and came out and broke the door of the kitchen where PW20 and PW23 were locked. The robbers took away her mobile phone and mobile phone of PW3. Police came to the office and case was registered. Those persons also took away Rs.1,30,000/. She showed her inability to identify the accused persons on the ground of passage of time. She failed to identify the accused persons even after specifically pointing out towards them. In her crossexamination by Ld. Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini Addl. PP, she again showed her inability to identify the accused no.1 & 2 and deposed that due to passage of time, she could not identify them. She admitted that the robbers had caused the injury to PW20 and PW23. She denied that she made the statement Ex. PW18/PX1 to the police.
8. In her crossexamination by counsel for the accused, PW18 deposed that she along with PW23 went to the office of Special Staff, Pitam Pura. PW3 and PW20 had also come there that day. She admitted a suggestion that on 08.10.2012, she and PW23 were taken to the office of the Special Staff, Pitam Pura and that their Manager, Senior Manager and PW3 also went in the office of Special Staff where the jewellery was shown to them by the police. She and PW3 could not identify the boys shown to them in the said office as the robbers. She admitted one suggestion that PW31 instructed her to state that the accused no.1 had covered his face. She deposed that she had no personal knowledge whether the accused no.1 took part in the incident or not. She had not given the description of the assailants to the police. She admitted one suggestion that she could not identify the assailants because she was perplexed and could not properly notice their description. She could not tell the description of the jewellery, which was kept in the office. She admitted one suggestion that from the date of incident and till date of deposition, she had no threat from any of the accused.
9. PW20 Rajeev Mishra (the Guard) deposed that on 22.06.2012 at about 11.45 a.m., four persons entered the office and the tallest person amongst them gave beatings to him. One of the assailants gave knife blow on his head and on his thigh. He and PW23 were confined in the Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini kitchen which was later on opened by PW3 and they came out. He fired shot in the air and noticed that the assailants were running on a motorcycle. Police came at the spot. His shirt and vest were seized vide seizure memo Ex. PW11/D. He deposed that he could not identify the accused persons. He identified his shirt and vest as Ex. P6. In his crossexamination by Ld. Addl. PP, he denied having made the statement Ex. PW20/DX1. He showed his inability to identify the accused persons despite being pointed out by the Ld. Addl. PP.
10. In his crossexamination by counsel for the accused, PW20 deposed that he could not tell whether the police seized the hard disc of the CCTV, but admitted that CCTV was installed in the branch and was in the working condition. He also deposed that on 10.10.2012 at about 11.00 a.m. or 11.30 a.m., he along with PW3 reached the office of Special Staff, where a boy was shown to him, but he could not identify him. PW3 also could not identify him. Later on, the Manager and PW3 were taken inside the office, but he did not know what they did there. He admitted that he had not given the description of the robbers who committed the dacoity on 22.06.2012 to the police.
11. PW23 Prem Prakash (the Office Boy) deposed that on 22.06.2012 at 12.00 noon, he was in the office and there was no customer. Four persons entered there and two of them had covered their faces with handkerchiefs. Once, PW20 asked them to remove the same, they took out a pistol and overpowered PW3, PW18 and PW20. On being asked, PW18 due to fear, opened the cash counter and those persons took out the gold from there. In his crossexamination conducted by the Ld. Addl. PP, he showed his inability to identify the accused persons, despite Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini being pointed out by the Ld. Addl. PP. In his crossexamination conducted by the Ld. Counsel for the accused, he deposed that on 09.10.2012, he alongwith PW18 visited the office of Special Staff, where one boy was shown to them. Police disclosed his name as Kaushal Chauhan i.e. the accused no.1, but they did not identify him as the person involved in the said robbery. He and PW18 made it clear to the police that the person namely Kaushal Chauhan present in the said office was not involved in the incident.
12. PW18 Sumant Kumar deposed that he was working as a broker in sell and purchase of the gold on commission basis. Some days prior to 19.10.2012, the accused no.3 approached him to get sold the gold ornaments. He got sold the same two times i.e. 10 gms. approx each time. He was not aware whether the gold was part and parcel of the dacoity. In his crossexamination by counsel for the accused no.3, he deposed that he could identify Subhash who handed over the gold to him but stated that he was not present in the Court. The witness was afforded opportunity to identify the accused no. 3 among the persons present in the Court. However, he deposed that the accused no.3 was not present in the Court. He even failed to identify the accused no.3 after being specifically pointed out by the prosecution and stated that the said person was of heavy weight. In his crossexamination by the Ld. Addl. PP, he denied the suggestion that he was won over by the accused no.3.
13. PW9 Amit Kumar deposed that he was known to the accused no.1. He had purchased a second hand Tata Safari car bearing no.HR51Y 6459 (hereinafter referred to as the "safari car") which was registered in his name. He showed his ignorance whether the said vehicle was used Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini by the accused no.1. He deposed that on one occasion, the accused no.1 approached him and requested to give his vehicle to ply in Delhi. Later on, he came to know that the same was seized by the police. He got the safari car Ex. P2 released on superdari. In his crossexamination by counsel for the accused no.1, he deposed that he could not tell the date, month or the year, when the accused no.1 asked him to hand over the vehicle to him.
14. PW10 Babita deposed that the accused no.1 was his brotherin law. Her father gave a motorcycle registration no. UP14X5113 Ex. P3 (hereinafter referred to as the "motorcycle") to her in her marriage. She had three brothersinlaw and anyone of them could use the motorcycle. Later on, she came to know that the accused no.1 used the motorcycle in the present case. She got it released on superdari. In her cross examination by counsels for the accused, she admitted that she could not tell as and when the motorcycle was taken by the accused no.1.
15. PW15 Sunil Bhardwaj deposed that he was employed as Manager Legal with Muthoot Finance and proved the superdarinama Ex. PW15/A, vide which the case property was released to Raja Imam, Chief Manager on superdari.
POLICE WITNESSES
16. PW11 Inspector Vinay Malik deposed that on 22.06.2012 at about 12.00 noon, on receipt of information, he reached at the spot where other police officials were also present. SI Kishan Chand recorded the statement of PW3, prepared the rukka and got the case registered.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini Thereafter, the investigation was handed over to him. He prepared the site plan Ex.PW11/A and lifted the blood samples vide memo Ex.PW11/B. He lifted four empty cartridges of .12 bore from the spot and took into possession vide memo Ex.PW11/C. He also seized the blood stained clothes of PW20 vide memo Ex.PW11/D. Later on, investigation was assigned to SI Kishan Chand. He identified the blood samples by way of cotton soaked with blood Ex.P4, four empty cartridges Ex.P5 and one shirt and vest Ex.P6.
17. PW2 W/HC Pushpa proved copy of DD no. 17A Ex.PW2/A, copy of DD no. 18A Ex.PW2/B, copy of FIR no. 181/12 Ex.PW2/C (OSR) and endorsement on Rukka Ex.PW2/D.
18. PW1 HC Rajeev proved the relevant entries in Register no. 19 Ex.PW1/A to Ex.PW1/H. He also proved the relevant entries in Register no. 21 Ex.PW1/I and copy of FSL receipt Ex.PW1/J.
19. PW13 Ct. Pape Gowda relied upon Ex.PW1/I and Ex.PW1/J.
20. PW5 HC Angad Singh deposed that on 10.10.2012, SI Rajeev Ranjan deposited three sealed parcels and one motorcycle bearing registration no. UP 11 X 5113 and one Safari car HR 51Y6459 and proved the relevant entries in Register no. 19 Ex.PW5/A. He also deposed that on 10.11.2012, case property was transferred to PS Rohini to link up the chain evidence of recovery and proved copy of RC no. 97/21 Ex.PW5/B (OSR).
21. PW6 ASI Jai Prakash deposed that on 10.10.2012, Inspector Lalit Kumar deposited two sealed parcels vide DD no. 4 and the articles of Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini personal search of the accused no. 2 and Rahul. He made relevant entries in the malkhana register. On 04.12.2012, he handed over the same to IO in terms of order dated 16.11.2012 Ex.PW6/A.
22. PW22 SI Rajeev Ranjan, Special Staff, NorthWest deposed that on 10.10.2012, at about 4.00 pm, a secret information was received that one boy involved in the incident was coming to Pitam Pura Metro Station in Tata Safari bearing no. HR 51Y6459 to meet somebody. Raiding party was constituted and they left the office at about 4.15 pm. At about 5.00 pm, Tata Safaari stopped near Aggarwal Sweets. On the pointing out of secret informer, the person sitting on the driver seat, was apprehended. On interrogation, he disclosed his name as Kaushal Chauhan. On search of the vehicle, they found some jewelery and the accused no. 1 could not give the satisfactory answer to that effect. Thereafter, they brought the accused no. 1 alongwith the vehicle and beg containing the jewelery to the Special Staff Office. On interrogation, he disclosed his involvement in the present case. Accordingly, he was arrested u/s 41.1 b (a) and (d) Cr.PC. vide Kalandra Ex.PW22/A. He proved the arrest memo Ex.PW22/B, personal search Ex.PW22/C, disclosure statement Ex.PW22/D and the pointing out memo Ex.PW22/F. of the accused no.1. Weight of the jewelery was 3.469 gm and the same was seized vide memo Ex.PW22/E. Accused no. 1 led them to his house no. 350. Rithala village and got recovered Rs. 8,00,000/ in denomination of Rs. 500/, and 16 packets which were seized vide seizure memo Ex.PW22/G. The motorcycle no. UP 11X5113 standing in front of his house was also seized vide memo Ex.PW22/H. Safarri Car was seized vide memo Ex.PW22/I. He identified the accused no. 1 in the court. He also Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini identified Safaari car Ex.P2, motorcycle Ex.P3 and jewelery Ex.P6. In his crossexamination, he denied the suggestion that the recovered jewelery was shown to PW3, S.P. Jain and other officers of Muthut Finance on 10.10.2012 in the office. He denied the suggestion that the accused no. 1 did not get recovered the currency notes and the motor bike. He denied the suggestion that the accused no. 1 was illegally detained in the office of Special Staff since 08.10.2012 where he was shown to many persons including PW3, PW18, PW23 and S.P. Jain on 09.10.2012 and 10.10.2012.
23. PW25 HC Dharamveer deposed about the arrest of the accused no. 1 and recovery made at his instance on the same line as deposed by PW22. He also denied the suggestion given to PW22 as to the arrest of accused no. 1 and recovery made at his instance.
24. PW17 P/Inspector Lalit Kumar deposed that in the intervening night of 10/11.10.2012, he along with his staff was on patrolling duty in the official vehicle. When he was going to Khardi Mor towards Bond and had hardly crossed about one acre, he found shadow of two persons near an abandoned house and stopped the vehicle. He went towards that room and found two boys sitting outside the room near the wall and he asked their name and address. On inquiry, he got suspicion. On further interrogation, they disclosed their name as Amit (the accused no.
2) and Rahul (JCL). On their search, one purse was recovered from the pant of Rahul and the same contained two necklace of golden metal, one chain, one kara, three bangles, three rings, one mang teeka, two ear rings, one kara of sikh, two bracelet and one more chain all of yellow colour. Rahul could not give any satisfactory answer from where he got Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini the same. He weighed all the articles and seized them vide memo Ex.PW17/A. Accused no. 2 was carrying a bag having one polythene containing cash of Rs. 7,98,000/ and on being asked, he could not give satisfactory answer from where he got the same. He seized the same vide seizure memo Ex.PW17/B. He prepared the kalandra u/s 102 Cr.PC Ex.PW12/A and arrested both the accused. He proved the personal search memo of accused Rahul Ex.PW17/C1 and that of accused no. 2 Ex.PW17/C2; and their disclosure statement Ex.PW17/D1 and Ex.PW17/D2. Both were put in lock up. Case property was deposited in the malkhana. Necessary information was given to the family of the accused and also to PS Vijay Vihar and PS North Rohini. IO recorded his statement on 19.10.2012. He identified the accused no. 2 in the court. Court observed that the jewelery articles related to accused Rahul need not be exhibited because he was juvenile and had expired. He proved the photographs of currency notes Ex.PW17/E. In his crossexamination, he deposed that they left the office of Special Staff on 10.10.2012 around 10.30 pm and they did not go for patrolling in routine. They reached Khardi Mor at about 12.30 am (midnight). The abandoned room was hardly about 810 steps from the road and they boys were behind the room. He noticed the movement of boys when he saw the shadow and movement as if somebody had moved behind the wall of the room because they were at very low speed at that time. He denied the suggestion that there could have been no shadow on that night as it was a dark winter night. He deposed that all the proceedings took at that place and he deposited the case property in PS Kalanore at 3.00 am. He denied the suggestion that on account of previous criminal record of Rahul, he was falsely implicated in the present case and the accused no. 2, being his friend, was lifted from his Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini residence and was implicated in the present case.
25. PW21 also deposed about the arrest of accused no. 2 and accused Rahul on similar lines as deposed by PW17. He deposed that he noticed an abandoned house and some shadows near it. They stopped the vehicle and went near the house where they found two boys sitting on the wall which was hardly 3 1/2- 4 feet high. PW17 made inquiries from them. He also deposed about the recovery made from them. In his crossexamination, he deposed that the distance of Khardi Mor from their office was about 2025 kilometer and they left the office of Special Staff at about 10.3011.00 pm on 10.10.2012 and reached there at 12.30 am (midnight). They directly go to that place. He admitted that Khardi Mor was a residential area and residential houses were built on both sides of the road. He admitted that there was a petrol pump after about 20 meter ahead from Khardi Mor towards Bhiwani but deposed that there was no one. He deposed that it was moonlit night and they saw the shadow in the head light of the vehicle.
26. PW12 Narender Kumar, Reader, DDPO, Rohtak Haryana proved the proceedings u/s 102 and 109 Cr.PC against the accused no. 2 and Rahul Ex.PW12/A (OSR).
27. PW24 deposed that on 17.10.2012, he joined the investigation and went to Bhiwani where IO interrogated the accused no. 3 who was available in his house. Thereafter, the accused no. 3 was arrested vide memo Ex.PW24/A, his personal search memo Ex.PW24/B and disclosure statement Ex.PW24/C. On 19.10.2012, he again joined the investigation and went to village Dhaulana, District Hapur, UP in search of the accused no. 4. At first instance, he wrongly identified the accused Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini no. 1 as the accused no. 4 in the court. Subsequently, he identified the accused no. 4 and gave an explanation that since the accused no. 1 had grown beard, he got confused. Accused no. 4 was present in his shop and was arrested vide memo Ex.PW24/D. PW24 proved his personal search memo Ex.PW24/E. He denied the suggestion that the accused no. 4 was falsely implicated in the present case and signature of the accused no. 3 were obtained on blank papers.
28. PW29 HC Dinesh Chander deposed that on 16.10.2012, he joined the investigation and the accused no. 2 and Rahul (JCL) took them to place of incident and got prepared pointing out memo Ex.PW29/A. He also deposed about the arrest of the accused no. 3 and 4 as deposed by PW24.
29. PW28 Ct. Ashok Kumar deposed that on 18.10.2012, the accused no. 1 led them to his factory and opened the bolt of a room situated inside the factory and got recovered the revolver and PW31 prepared the sketch of revolver Ex.PW22/A and seized vide memo Ex.PW28/B. He identified the revolver Ex.P7. In his crossexamination, he admitted one suggestion that at the time when they reached the spot, factory of the accused no. 1 was not locked and latch was opened and anybody could enter. No site plan of the factory was prepared by the IO in his presence. He denied the suggestion that pistol was planted upon accused no. 1.
30. PW26 HC Deepak deposed that on 22.10.2012, he joined the investigation and he alongwith the accused no. 4 went to Gulawati, Distt. Hapur, UP where the accused no. 4 pointed out his shop vide pointing out memo Ex.PW26/A. Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini
31. PW27 SI Satish Kumar deposed that on 23.03.2013, the accused no. 5 was arrested vide memo Ex.PW27/A and proved his disclosure statement Ex.PW27/B.
32. PW7 proved the arrest memo of the accused no. 5 Ex.PW7/A and his personal search memo Ex.PW7/B.
33. PW30 ASI Satyavir Singh deposed that on 09.05.2013, further investigation was handed over to him and he obtained the sanction u/s 39 of Arms Act. On 07.06.2013, he filed the supplementary charge sheet against accused no. 5 and 6.
34. PW14 M.A. Rizvi, Addl. DCP, Outer District proved the sanction u/s 39 Arms Act Ex.PW14/A. In his crossexamination, he deposed that fire arm was not in working order as per FSL Report.
35. PW31 SI Kishan Chander (IO) deposed that on 22.06.2012, he recorded the statement of PW3, prepared the rukka and got the FIR registered. On his directions, the crime team inspected the spot and lifted the exhibits. PW20 and PW23 received the injury in the incident were taken to BSA Hospital for their examination. Blood stained shirt and vest of PW20 were seized. On 11.10.2012, further investigation was entrusted to him vide DD no. 29A Ex.PW31/C which revealed that the accused no. 1 was arrested by Special Staff. Thereafter, following the due process, the accused no. 1 was arrested in the present case vide arrest memo Ex.PW31/B and proved his disclosure statement Ex.PW31/E. Accused no. 1 refused to join TIP proceeding. On Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini 18.10.2012, the accused no. 1 got recovered the revolver from his factory. He prepared the sketch of the same Ex.PW28/A and took the same in possession vide memo Ex.PW28/B. On 13.10.2012, he got information about arrest of the accused no. 2 and Rahul and on 15.10.2012, he formally arrested the accused no. 2 vide memo Ex.PW31/F and proved his disclosure statement Ex.PW31/G. Both the said the accused refused to participate in TIP. On 16.10.2012, he took the accused no. 2 and Rahul to place of incident where he got prepared pointing out memo Ex.PW29/A. He also deposed about arrest of the accused no. 3 on 17.10.2012 and the accused no. 4 on 19.10.2012 as deposed by PW24. He deposed that he recorded the disclosure statement of the accused no. 4 Ex.PW31/H. On 22.10.2012, he took the accused no. 4 to Gulawti where he pointed out a shop and he prepared pointing out memo Ex.PW26/A. On 02.11.2012, the accused no. 5 surrendered in the police station and was arrested vide memo Ex.PW7/A and made his disclosure statement Ex.PW31/I. During investigation, the accused no. 6 got anticipatory bail and was formally arrested vide memo Ex.PW31/J. His personal search memo Ex.PW31/K and his disclosure statement Ex.PW31/L. On 18.12.2012, TIP of case property was conducted. On 09.01.2013, he collected three cartridges of .38 bore to know the working of revolver recovered at the instance of accused no. 1 vide memo Ex.PW31/M. After TIP, case property was released on superdari to the complainant in pursuance to the order of concerned MM vide punchnama Ex.PW31/N. On 19.10.2012, the accused no. 1 took them to village Jatu Lahori, Distt. Bhiwani and pointed out the shop of jeweler namely Pawan Jeweler and he prepared the pointing out memo Ex.PW31/O. He collected the attendance register of Muthut Finance vide memo Ex.PW31/P. He identified the accused no. 1 to 4 and Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini the revolver Ex.P7 in the court.
36. In his crossexamination, PW31 admitted that the accused no. 1 in his disclosure statement dated 10.10.2012 and 13.10.2012, did not disclose the fact of getting recovered the pistol from his factory. Once they reached there, house of the accused no. 1 was not closed. He admitted that CCTV Camera was installed in the office of Muthut Finance but deposed that it was not in working condition. He could not tell if any statement with regard to CCTV Camera not been functional was recorded or not because he did not conduct the further investigation, but he did not record the statement of any person to that effect. He did not seize the hard disk of CCTV camera. He denied the suggestion that he had not seized the CCTV footage deliberately.
MEDICAL EVIDENCE
37. PW4 Dr. Brijesh Patel, CMO, BSA Hospital proved the MLC of PW20 Ex.PW4/A and that of PW23 Ex.PW4/B and deposed that nature of their injury was simple.
FORENSIC EVIDENCE
38. PW19 V.R. Anand, Asst. Director Ballistic, FSL Rohini, proved his report 25.03.2.013 Ex.PW19/A. STATEMENT OF ACCUSED
39. After completing the prosecution evidence, statement of all the accused was recorded under Section 313 Code of Criminal Procedure, Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini 1973 in which all the incriminating evidence/material were put to them which they have denied. All the accused have stated that they are innocent and have been falsely implicated in this case.
DEFENCE EVIDENCE
40. The accused did not lead evidence in their defence despite given opportunity.
41. I have heard the Ld. Addl. PP for the State and counsels for the accused and have perused the material available on record including the written submissions.
IDENTITY OF THE ACCUSED PERSONS AND THEIR PRESENCE AT THE SCENE OF CRIME
42. Case of the prosecution is that the accused no.1 & 2 along with Rahul (JCL), Paramjeet (JCL), Jhullan and Matender committed the dacoity in the office of Muthoot Finance on 22.06.2012 at about 12.00 noon. Rahul (JCL) has already expired. Paramjeet (JCL) has been acquitted by JJB. Jhullan and Matender remained absconded. As such, out of the said six accused, the accused no.1 and 2 are facing trial before this Court. It is the own case of prosecution that the accused no.3 to 7 were not present at the scene of crime nor committed the said crime. However, the said accused persons either assisted the main accused in selling the gold jewellary against consideration or themselves received some jewellery as consideration.
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43. It is evident from the testimony of PW3, PW18, PW20 & PW23 that four persons entered the office and committed dacoity. According to the prosecution, out of those four persons, two were the accused no.1 & 2 and remaining two were Rahul and Paramjeet (both JCL). So far the accused Jhullan and Matender is concerned, they remained outside the office. According to PW3, PW18, PW20 & PW23, no customer was present in the office at the time of incident. As such, to prove the identity of the accused no.1 and 2 and their presence at the scene of crime, the prosecution examined PW3, PW18, PW20 & PW23 as the eye witnesses.
44. PW18, PW20 and PW23 failed to identify the accused no.1 and 2 before this court.
45. Now, the case of the prosecution is rested upon the testimony of PW3.
46. PW3 in his testimony identified the accused no.1 and 2 as two assailants who along with their two more associates committed the offence on the date of incident. PW3 in his examination in chief deposed that out of four persons, two were muffled face and two were without muffled face. Once, they knocked the door of the office, PW20 asked them to remove the clothes from their faces and one of the boy removed the cloth, while another refused to remove the cloth. However, he has failed to disclose which accused had removed the cloth from his face and which refused. Hence, the question arises as to how he identified the accused no.1 and 2 in the Court.
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47. In crossexamination conducted by counsel for the accused, PW3 in response to a specific question, admitted that on 10.10.2012, on the direction of the police of Special Staff, he along with Manager visited the office of Special Staff, Pitam Pura, where PW20 was also present and deposed that he could not identify the accused no.1 as the assailant involved in the incident dated 22.06.2012, but that time, PW20 recognized the accused no.1 and conveyed the same to him. He also admitted that since the accused no.1 was shown to him in the office of Special Staff on 10.10.2012 and PW20 pointed out towards him, he could identify the accused no.1 in the Court. He saw the accused no.1 in the office of Special Staff on 10.10.2012 at 11.00 a.m. and admitted that he did not identify the accused no.1 at his own. He further deposed that PW20 told him about the identity of the assailants. He identified both the accused in the court because they resembled the assailants who had come to their office at the time of incident. In view of the said testimony of PW3, it can be held that on 10.10.2012, at about 11.00 a.m., PW3 visited the office of Special Staff, Pitam Pura, where PW20 was also present and it was PW20 who disclosed the identity of the accused no.1 and 2 to him. PW20 specifically told PW3 that it was the accused no.1 who was involved in the said incident. In view thereof, it can be held that PW3 had not identified the accused no.1 and 2 as per his personal knowledge. Rather, he identified those two accused persons on the basis of the information given to him by PW20.
48. Now it is inevitable to discuss the stand of PW20 to this effect.
49. PW20 in his examination in chief failed to identify both the Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini accused in the court. In his crossexamination, he deposed that he and PW3 were called in Special Staff office on 10.10.2012 at about 11.00 a.m. and they reached there by that time. The Special Staff had shown a boy to him and he could not identify him. PW3 also could not identify him. He admitted that he had not given description of the robbers to the police. In view thereof, PW20 admitted his visit along with PW3 in the office of Special Staff on 10.10.2012 at about 11.00 a.m., but denied that he identified the accused no.1 that day. The said statement of PW20 is contrary to the statement of PW3 that it was PW20, who informed him about the identity of the accused no.1 on 10.10.2012 and this is a material contradiction in their statements. Further, regarding the identity of the accused no.2, PW3 deposed that it was PW20 who informed him about the identity of the assailants, but PW20 remained silent to that effect. Again, it is a material contradiction in their statements as to identity of both the accused no. 1 and 2.
50. According to PW22, Special Staff, Pitam Pura arrested the accused no.1 on 10.10.2012 vide arrest memo Ex. PW22/B at about 5.00 p.m. while he was travelling in the Safari car Ex. P2. PW25 also deposed to that effect. Perusal of the arrest memo Ex. PW22/B reveals that the accused no.1 was arrested at about 6.30 p.m.. Subsequently, the accused no.1 was arrested in this case on 11.10.2012. Now, the question arises, if the accused no.1 was arrested on 10.10.2012 at about 6.30 p.m., as mentioned in his arrest memo Ex. PW22/B, then how could he be shown to PW3 and PW20 in the office of Special Staff on 10.10.2012 at 11.00 am. The accused no.1 took a defence that he was illegally detained on 08.10.2012 and was kept in the office of Special Staff. In the given circumstances, either PW3 or PW20 made a false statement or the Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini arrest of the accused no.1 shown on 10.10.2012 at 6.30 pm is incorrect. Therefore, it can be held that the testimony of PW3 as to the identification of both the accused in the court is doubtful.
51. PW31 in his crossexamination admitted that CCTV camera was installed at the office of Muthoot Finance on the date of incident, but deposed that it was not in working condition. However, the prosecution has failed to lead any evidence to prove the same. Further, he deposed that he did not seize the hard disc of CCTV nor investigated the fact as to for how many days, CCTV was not functional or whether the company had made any complaint for repair of the same. This fact shows a material lapses on the part of PW31 whereby he had not looked for a vital piece of evidence i.e. CCTV footage despite the knowledge that it was very much installed in the said office.
52. PW20 in his crossexamination deposed that he could not tell whether the police seized the hard disc of CCTV camera, but admitted that it was installed in the branch and was in working order and recorded the presence of the persons coming in the branch. On the day of incident, it was in working order. As revealed from the said statement, the CCTV was not only installed in the branch but also was in working order. Further, the accused had not taken away the hard disc of the same. Firstly, the said statement is contrary to the statement of PW31 as to working of the CCTV camera on the date of incident. Secondly, if that was so, in that situation, PW20 would have mentioned the said fact to PW31 and had handed over the hard disc to him, but nothing was done. On the other hand, PW3 in his examination in chief deposed that one of the accused person asked him to remove the hard disc installed in CCTV Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini camera. He showed his inability to do the same. Once, a person who overpowered PW18 and another person who took out the hard disc from CCTV camera were in the strong room, they kept packet of gold in their bags. As such, according to PW3, one of the accused had taken out the hard disc from the CCTV camera. This fact is contrary to the statement of PW20. Further, if that was so, PW3 failed to explain the fact why he did not state the said fact to PW31. In crossexamination, PW16 deposed that on the date of incident CCTV was installed in the branch and he had not deposited the hard disk of CCTV footage in the police station. As such, there is a material contradiction in the statements of PW3, PW16 and PW20 as to the availability of hard disc of CCTV camera after the incident. Keeping in view the contradictions in the testimonies of PW3 and PW20 as to the identification of the accused persons, their testimonies to the effect that the CCTV camera was working on the date of incident is doubtful.
53. As per the site plan Ex. PW11/A and in view of the testimony of PW3, it can be held that the office, where the incident took place was situated in thickly populated area, having many other offices and shops. According to PW3, CCTV cameras were installed in various shops and also in the area. There was availability of other guards and shop owners. Despite that PW31 had not made any enquiry about availability of CCTV footage from any other source nor examined any public person including the guards as to the identity of the accused persons. PW31 has not given any plausible justification for such lapses. This is another instance where PW31 committed material lapse in the investigation. In view of the following discussions, it can be held that the identification of the accused no.1 & 2 by PW3 in the court does not inspire confidence of this Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini Court.
54. Regarding the identity of the accused no.3, the prosecution examined PW8 who deposed that prior to 19.10.2012, the accused no.3 approached him to get sold his solid gold which was in the shape of ornaments. He did the needful and took his commission. However, in his crossexamination, he deposed that the accused no.3 who was present in the Court, was not Subhash who actually visited him and handed over the gold to him for sale. He also gave the description of the said Subhash and stated that he was of heavy built. In the present case, the name of the accused no.3 came in light in the disclosure statement of the accused no.2. Firstly, the identity of the accused no.2 itself is doubtful. Secondly, the disclosure of the accused no.2 to this effect is inadmissible in the law. Thirdly, as discussed in later part of the judgment, no recovery was effected from the accused no.3. As such, the identity of the accused no.3 is doubtful.
55. In view of the foregoing discussions, it can be held that the prosecution has failed to prove beyond reasonable doubt the identity of the accused no. 1 to 3 and presence of the accused no. 1 and 2 at the scene of crime.
ARREST OF ACCUSED NO.1
56. According to the prosecution, the accused no.1 was arrested on 10.10.2012 at about 6.30 p.m. by Special Staff, NorthWest District, while he was travelling alone in Tata Safari. On search, gold articles of 3.469 kg were recovered from his car. Subsequently, he got recovered Rs.8 lacs from his house and a motorcycle, which was parked in front of Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini his house. Car and motorcycle were seized. PW31 deposed that on 11.10.2012, the accused no.1 was arrested in the present case and on 18.10.2012, he got recovered one revolver from his factory.
57. On the contrary, counsel for the accused stated that the accused no.1 was illegally detained on 08.10.2012 and thereafter, was falsely implicated in the present case. Recovery was planted upon him.
58. According to the prosecution, on 10.10.2012, Special Staff arrested the accused no.1. On 11.10.2012, the accused no.1 was arrested in the present case.
59. PW22 and PW25 in their testimonies deposed that they arrested the accused no.1 vide arrest memo Ex. PW22/B on 10.10.2012 at about 6.30 p.m. on the basis of secret information. As such, according to them, the accused no.1 was arrested on 10.10.2012 at about 6.30 p.m. by the Special Staff. However, PW3 in his crossexamination deposed that once he alongwith PW20 was called in the office of Special Staff on 10.10.2012, PW20 pointed out a particular person as the accused no.1. PW20 also deposed that on that day and particular time, he along with PW3 visited the office of Special Staff, Pitam Pura and was shown a boy, who stated that he could not identify him. The said fact has come in the crossexamination of PW3 and on that basis, he deposed that he could identify the accused no.1. The prosecution has not reexamined PW3 about the said visit and identification of the accused no.1 by him. As such, an adverse inference can be drawn against the prosecution. Now, the question arises, if the accused no.1 was present in the office of Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini Special Staff on 10.10.2012, at 11.00 a.m., then how could he be arrested on that day at 6.30 p.m. As such, it raises a doubt as to his arrest on 10.10.2012. For the same reason, a doubt arises as to the seizure of Safari car on that day.
ARREST OF ACCUSED NO.2
60. The accused no.2 and the accused Rahul were arrested in the intervening night of 10/11.10.2012. Subsequently, the accused no.2 was formally arrested in the present case.
61. According to PW17 and PW21, the accused no.2 and the Rahul (JCL) were arrested in the intervening night of 10/11.10.2012, when PW17 along with other staff was patrolling. They arrested them near an abandoned house, while they were going to Khardi Mod towards Bond. According to PW17, when he along with other staff was patrolling and was passing through that area, he noticed shadow of two persons near an abandoned house, then they reached there and made interrogation from them and on that basis, he arrested both the accused. According to their testimonies, they left the office of Special Cell, Pitam Pura at about 10.30 p.m. on 10.10.2012 and reached the place of their arrest at 12.30 a.m. (midnight). According to PW21, distance between the two places was 2025 kms and they directly reached that place from the office. It is hard to believe that they covered 2025 kms in about two hours, especially once they directly reached there. According to PW17, the abandoned room was hardly 810 steps from the road and the boys were behind the wall. He noticed the movement of the boys, when he saw the shadow and the movement, as if somebody had moved behind the Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini wall of the room, as they were at very low speed. Firstly, the prosecution has not filed the site plan to show the place of arrest, but from the said testimony of PW7, it can be held that when PW7 was moving in the vehicle on the road, the abandoned room was 810 steps off the road. It is nowhere the case of prosecution that there was any source of light, due to which shadows of the boys were formed and was noticed by PW17 and PW21. To this effect, PW21 deposed that they saw the shadow in the headlight of the vehicle. The said statement is not reliable because according to PW17, the place was 810 steps off the road and the boys were behind the wall of the room. Therefore, it is not understandable as to how the shadow would be formed by the headlight of the vehicle. Further, according to PW17, the said two boys were sitting outside the room near the wall while according to PW21, the boys were sitting on the wall, which was about 3½ feet of height. As such, there is material contradiction in the statement of PW17 and PW21, as to what they exactly noted that time and on what basis, they noticed the presence of the said two boys. Therefore, it raises doubt on the prosecution story.
62. According to PW24, on 17.10.2012, the accused no.3 was arrested from his house at Bhiwani. The accused no.4 was arrested on 19.10.2012 from his shop at Village Dhaulan, Hapur, UP.
63. The accused no. 5 had surrendered in the police station on 02.11.2012 and was arrested vide arrest memo Ex. PW7/A.
64. On 20.03.2013, the accused no.6 surrendered in the police station and was formally arrested vide memo Ex. PW27/A on 20.03.2013.
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65. The accused 7 was granted anticipatory bail and was formally arrested in the present case vide memo Ex. PW31/J on 04.02.2013.
IDENTITY OF GOLD JEWELERY
66. PW16 deposed that on the date of incident, he was employed as Branch Manager in the concerned branch of Muthoot Finance. On the date of incident 235 packets of gold jewelery weighing 11,672.50 kg. (net weight) were looted from the office and relied upon the audit list of jewelery Ex.PW16/A. The list Ex. Px. PW16/A is neither signed nor had seal of the Muthoot Finance. He also relied upon the attested copy of the said list Ex.PW16/B.
67. In his crossexamination, PW16 showed his ignorance whether he was called in the office of special staff on 08.10.2012 or 09.10.2012. He admitted that PW3, PW18, PW20 and PW23 were called in the office of Special Staff on 09.10.2012. He admitted that the police had shown jewelry to him and his senior officers in special staff on 09.10.2012. He deposed that he could identify the case property on the basis of identification mark.
68. From the testimony of PW3 and PW16, it is evident that once the gold was mortgaged with Muthoot Finance Company, they used to put unique identification mark on the said articles which was easily visible by necked eyes. In the present case, PW3 identified the case property on 18.12.2012. PW3 in his crossexamination admitted that he joined the TIP proceedings of jewelery and the identification mark put by the office Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini on the articles by the office was visible. In his testimony before this court, he could identify only one gold bangle having the cut mark of the company Ex.P1 and showed his inability to identify the remaining articles on the ground that they were almost similar in nature. Therefore, it can be held that PW3 identified the case property in TIP on the basis of the unique identification mark put up by the company on them.
69. Counsel for the accused pleaded that according to PW3 and PW16, the said jewelery articles were not mortgaged in the company in their presence; they were not aware of the person to whom they belonged to; the actual owners of the said jewelery were not examined by the prosecution for identification for the same; and the identification mark put on the jewelery was visible to PW3, therefore, the TIP of the said jewelery is of no consequence. As such, the prosecution failed to prove the said jewelery belonged to the company.
70. It is nowhere the case of the accused persons that the said jewelery belonged to them. As discussed above, the recovered jewelery had unique identification mark of Muthut Finance and the accused had failed to rebut the same. Therefore, it can be held that the said jewelery articles were in the possession of Muthut Finance on the date of incident. Therefore, non giving the description of the gold articles and names of the owners of the same and identification of the articles by the was of no consequence.
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71. According to the prosecution, the jewellery articles weighing 3.469 kg were recovered from the Safari car, which the accused no.1 was driving at the time of his arrest. Subsequently, the accused no.1 got recovered Rs.8 lacs cash from his house no.350, Rithala, Delhi, and the motorcycle parked in front of his house. On 18.10.2012, the accused no.1 also got recovered one revolver from his factory on 18.10.2012.
72. Ld. Addl. PP pleaded that the cash and the revolver were recovered on the basis of the disclosure statement of the accused no.1, hence, the same are valuable piece of evidence to link it with the present case.
73. Regarding recovery of the revolver, PW31 in his crossexamination deposed that the accused no.1 in his disclosure statements dated 10.10.2012 and 13.10.2012 had not disclosed any fact that he could get recovered the pistol from his factory. Hence, it can be held that the said pistol was not recovered at the instance of the accused no.1. Therefore, the same is inadmissible u/s.27 of Indian Evidence Act.
74. According to the prosecution, Rs.8 lacs were recovered from the house of the accused no.1, which was part of the robbed amount. It has come in the evidence that the place, where it was kept was accessible to all. Further, the recovery was made on 10.10.2012. The incident is dated 22.06.2012. According to the prosecution, the accused no.1 was arrested on 10.10.2012 and the recovery was made on 10.10.2012. It is highly improbable that the accused no.1 would keep the robbed articles at his Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini own place to give an opportunity to implicate himself.
75. Regarding the jewellery, according to the prosecution, the jewellery was recovered from the Safari car on 10.10.2012 at about 6.30 p.m.. According to the prosecution, the jewellery was shown to the officials of Muthoot Finance on 10.10.2012 itself. This raises a doubt as to the recovery of the jewellery from the accused no.1. However, as discussed above, seizure of the Safari car itself is doubtful, therefore, the jewellery recovered from that vehicle is also doubtful.
76. Case of the prosecution is that out of the robbed money, the accused no.1 purchased Safari car for Rs.6 lacs, belonging to the brother in law of his cousin. However, the prosecution has failed to prove the said fact.
77. In view of the following discussions, it can be held that the recovery of the articles shown by the prosecution at the instance of the accused no.1 is doubtful. The prosecution has also failed to prove the utilisation of the amount by the accused no.1, as alleged against him.
RECOVERY FROM THE ACCUSED NO. 278. According to the prosecution, Rs.7,98,000/ in cash were recovered from the accused no.2 at the time of his arrest and the same was the part of the robbed amount. As held above, once the identity and arrest of the accused no.2 is doubtful, the recovery is also doubtful.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini ROLE OF THE ACCUSED NO. 3
79. Case of the prosecution is that the accused no. 3 assisted the accused no. 2 in disposing of the jewellry for Rs. 8 lakhs. The prosecution has relied upon the disclosure statement of the accused no.3 to this effect. Neither a fact was discovered nor any recovery was made on the basis of disclosure statement of the accused no.3. Hence, disclosure statement is inadmissible in evidence. Further, the prosecution has failed to prove the allegations beyond reasonable doubt levelled against the accused no.3.
ROLE OF THE ACCUSED NO. 480. Case of the prosecution is that the accused no. 4 assisted the accused no. 1 in disposing of 700 gm of gold jewellary and received Rs. 2 lakhs as commission. The prosecution has relied upon the disclosure statement of the accused no.4 to this effect. Neither a fact was discovered nor any recovery was made on the basis of disclosure statement of the accused no.4. Hence, disclosure statement is inadmissible in evidence. Further, the prosecution has failed to prove the allegations beyond reasonable doubt levelled against the accused no.4.
ROLE OF THE ACCUSED NO. 581. Case of the prosecution is that the accused no. 5 assisted the accused no. 2, Rahul and Paramjeet in concealing the gold jewellery. The prosecution has relied upon the disclosure statement of the accused no.5 to this effect. Neither a fact was discovered nor any recovery was Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini made on the basis of disclosure statement of the accused no.5. Hence, disclosure statement is inadmissible in evidence. Further, the prosecution has failed to prove the allegations beyond reasonable doubt levelled against the accused no.5.
ROLE OF THE ACCUSED NO. 682. Case of the prosecution is that the accused no. 6 purchased 600 700 gm of gold from the accused no. 1 to the tune of Rs. 1213 lakhs and manufactured the jewellery of that gold after melting the same and sold the same in routine to customers; and also received 600700 gm of gold jewellery. In view of the foregoing discussions, it is evident that the prosecution has failed to prove the charges levelled against the accused no.6 beyond reasonable doubt.
ROLE OF THE ACCUSED NO. 783. Case of the prosecution is that the accused no. purchased 592 gm of gold from the accused no. 1 to the tune of Rs. 6 lakhs and manufactured the jewellary of that gold after melting the same and sold the same in routine to customers; and also received 592 gm of gold jewellery. In view of the foregoing discussions, it is evident that the prosecution has failed to prove the charges levelled against the accused no.7 beyond reasonable doubt.
84. PW3 deposed that on the date of incident, PW18 was sitting in the cabin of Branch Manager and observing the situation. PW18 got up and kept the packets of the gold in the strong room in the office and once she Page no. 43/ 43 State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini was locking the strong room, immediately, one of the assailants forcibly opened the strong room of the office and started keeping the gold packets in the bag.
85. PW18 also deposed that the moment, she closed the door of the strong room, the person, who had covered his face namely Kaushal came to her having a gun and forcefully got opened the door of strong room and then they kept the packets in their bag.
86. PW3 in his cross examination deposed that there used to be two keys of the strong room, one remained with the Branch Manager and another with PW18. PW3 also deposed that the strong room could not be opened in absence of one of the keys. It implies that to open the strong room, both the keys had to be simultaneously put in the week to open the same and in absence thereof, it was not possible to open the locker with one of the keys. As held above, except PW3, PW18, PW20 and PW23, no one was present in the branch that day. It is not the case of the prosecution that anyone of them was enjoying the position of Branch Manager that day. Further, Branch Manager was not in the branch that time. It means that one of the keys, which remained in the custody of Branch Manager was not available that time to any one of them. PW18 had only one key relating to the strong room. Then the question arises as to how PW18 opened the strong room and then kept the gold packets in that and thereafter, locked the same and again, opened the same under the pressure exercised by the assailants. However, the prosecution completely failed to explain as to how the strong room was opened with one key only when combination of two keys was essential to open the same. This fact raises a doubt on the theory of the prosecution.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini SECTION 120B IPC AND SECTION 395 R/W. SECTION 120B IPC
87. Prosecution has failed to prove that the accused no.1 and 2 had conspired to commit the offence.As held above that the prosecution has failed to prove the identity of the accused no.1 and 2 and their presence at the scene of crime on the date of incident at the relevant time. Prosecution has failed to prove the recovery of the articles against them. Hence, it can be held that the accused No.1 & 2 cannot be held guilty of the offence u/s.120B IPC and u/s.395 r/w. Section 120B IPC.
SECTION 397 IPC AND SECTION 25 ARMS ACT
88. In view of the following discussions, it can be held that the prosecution has failed to prove beyond reasonable doubt that the accused no.1 possessed and used the revolver at the time of offence. Therefore, the accused no.1 is held not guilty u/s.397 IPC and u/s.25 Arms Act.
SECTION 412 IPC
89. As held above, the prosecution has failed to prove beyond reasonable doubt the recovery made from the accused no.1 & 2. As such, it can be held that the essential ingredients of section 412 IPC are not proved by the prosecution. Hence, the accused no.1 & 2 are held not guilty u/s.412 IPC.
Page no. 43/ 43State Vs Kaushal Chauhan etc. FIR no.181/12 PS: North Rohini SECTION 414 IPC
90. In view of the following discussions, it can be held that the prosecution has failed to prove the essential ingredients of section 414 IPC against the accused no.3 to 7. Accordingly, they are held not guilty for the offence u/s.414 IPC.
91. Accordingly, the accused no.1 and 2 are acquitted for the offences u/s.120B/395 r/w. Section 120B IPC and 412 IPC. Accused no.1 is also acquitted for the offences u/s.397 IPC and u/s. 25 Arms Act. Accused no.3 to 7 are acquitted for the offence u/s.414 IPC. Bail bond furnished by all the accused in the sum of Rs.25,000/ (each) with one surety (each) of the like amount is accepted and shall remain in force for a further period of 06 months in terms of section 437(A) Cr.P.C. Accused no.1 and 2 are in judicial custody. They be released immediately if not required in any other case.
92. File be consigned to the Record Room.
Announced in the open court
th
on this 16 day of July, 2016 (PANKAJ GUPTA)
ASJII, NORTHWEST
ROHINI: DELHI
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