Delhi District Court
State vs . Upender Gupta Etc. on 22 November, 2019
IN THE COURT OF MS. NIRJA BHATIA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
UID No. 4/2016
FIR No. 242/13
U/S 392/397/411/34 IPC
PS Paschim Vihar
State Vs. Upender Gupta etc.
JUDGMENT
1 Sl. No. of the case 4/2016
2 Date of Committal to Sessions 16.01.2014
3 Name of the complainant Smt. Vijaya Solanki
4 Date of commission of 20.08.2013
offence
5 Name and Parentage of 1. Upender Gupta, S/o Satender
accused Parkash, R/o D36, Sudershan
Park, Moti Nagar, Delhi.
2. Shahbaj Ahmed, S/o Sh.
Khursheed Ahmad, R/o WZ936,
near Masjid, Basai Darapur, Moti
Nagar, Delhi.
3. Gautam Koli @ Jony, S/o Sh.
Nav Rattan Koli, R/o D2/B,
Basai Darapur, Moti Nagar, Delhi
6 Offence complained of Under Section 392/397/411/34
IPC
7 Offence charged Under Section 392/397/411/34
IPC
8 Plea of guilt Pleaded Not Guilty
9 Final order Accused persons namely Shahbaz
FIR no. 242/2013 State Vs. Upender Gupta etc. 1 of 37
Ahmed and Gautam Koli @ Jony
are acquitted.
Accused Upender Gupta is
acquitted u/s 392/394/397 IPC but
convicted u/s 411 IPC
10 Date on which order reserved 22.11.2019
11 Date on which order 22.11.2019
announced
STORY OF PROSECUTION
1. Brief facts in the present case as revealed by prosecution are that on 20.08.2013 on receipt of DD No. 25A, ASI Kalam Singh reached at B7/64, Second Floor, Paschim Vihar (the spot) where complainant Smt. Vijaya Solanki w/o Sh. K.P. Solanki made her statement detailing that on 20.08.2013 being Raksha Bandhan, her sister in law and her husband had visited her house and at about 02.45 pm, her husband and son went to drop the guests at A4 Paschim Vihar. The main door was open, when, at about 03.00 pm, three youth entered inside the house, out of which, two were holding guns. The boys having guns in their hands pointed it on their neck. Two boys who had put gun on her neck was muffled face and got her to remove her worn FIR no. 242/2013 State Vs. Upender Gupta etc. 2 of 37 gold kada and four rings and two finger rings of gold of her daughter. Thereafter, they took the keys of locker and removed the entire jewellery and cash of 10,00015,000/ which was then put by him in black and orange school bag of her son. The perfumes and chocolates kept at home were also taken away. The age of the boys was between 2030 years. She gave their physical description and stated that she can identify them if they are produced before her. She further stated that while the accused were leaving, her husband also reached who also witnessed them leaving. At her statement, FIR u/s 392/397/34 IPC was registered.
2. The information was received by IO on 19.10.2013 about arrest of accused Upender Gupta, Shehbaj Ahmad and Gautam Koli in connection with FIR No. 462/13 of PS Netaji Subhash Place where after, on 22.10.2013 with the order of Ld. MM, he obtained production warrants for 24.10.2013 on which date, after taking permission, the accused were interrogated and formally arrested. The application for TIP of accused persons was moved which was then fixed before Ld. Link MM. They FIR no. 242/2013 State Vs. Upender Gupta etc. 3 of 37 were produced in muffled face and refused TIP. The PC remand of accused was obtained at the instance of accused. The recovery of jewellery articles was made on 25.10.2013 from the shop owned by one Sumit Lalwani at Jawahar Nagar, Jaipur, Rajasthan who also produced one "Girvinama" signed by the accused. The accused then pointed out the spot of occurrence. Subsequent application for TIP of case property was moved by ASI Ishwar Singh which was carried out before Ld. Sh. Naresh Kumar Laka. Since the complainant identified the jewellery on directions of the court, same was released on 20.11.2013 against superdari and the photographs of the jewellery were taken where after it was released. After conclusion of investigation, IO filed the charge sheet.
3. Since the offences in this case was found to be sessions triable, vide order dated 16.01.2014 the matter was committed. The charge against the accused persons was framed vide order dated. 22.07.2014 u/s 392/394/397/411/34 IPC.
4. Prosecution in all examined twenty two witnesses.
5. PW 1 Krishan Pratap Solanki narrated that though he did not FIR no. 242/2013 State Vs. Upender Gupta etc. 4 of 37 remember the date and month of the occurrence, the incident took place on Raksha Bandhan of 2013 while at about 03.15 pm, he was climbing the stairs of his home at second floor and when he had reached at first floor, he saw three boys descending from stairs and one of the boys who was in front, had his face muffled with handkerchief. They greeted him "Ok Uncle, bye See you", however he did not reply as none of them appeared to be known to his son. At this stage he heard the cries of his wife and chased and ran behind them. However, accused fled in Innova car.
6. He was told by his wife that the three boys had come and looted valuables at gun point. His daughter had already made complaint to police and in the meanwhile police also reached the spot and conducted investigation including taking finger prints and statement of his wife and daughter.
7. CCTV cameras were installed outside the house of his neighbour. Police saw the same and took away the CD. He, his wife and his daughter also saw the CCTV footage, however he claimed that since the footage was not clear, he cannot identify FIR no. 242/2013 State Vs. Upender Gupta etc. 5 of 37 the accused persons as he had seen them only for a moment.
8. He was cross examined by Ld. Addl.PP wherein he admitted that though the pointing out memo Ex.PW 1/A was bearing his signatures, he was not present when the same was prepared by the police officers. He was unable to detail that accused persons were brought to his house. He did not remember having gone through the contents of Ex.PW 1/A before signing the same or the same being read over to him by police officers. He further denied that he was making false deposition regarding identity of accused and signing of pointing out memo.
9. He was not cross examined by accused Gautam Kohli and Upender however, in cross by Sh. Ashok Soni for accused Shahbaj, he admitted that police obtained his signatures on blank papers.
10.PW 2 Ms. Radhika Solanki narrated that on the day of Raksha Bandhan in 2013, at about 03.00 pm while she was at her home with her mother, suddenly three persons entered the house, out of them two were holding guns which they pointed on her and her mother and asked for handing over whatever gold they were FIR no. 242/2013 State Vs. Upender Gupta etc. 6 of 37 wearing. She was wearing two gold rings which she handed over to the boys and her mother handed over one gold Kada and four rings to those boys. They also took away the keys of almira from her mother and removed all articles lying in the locker alongwith cash about Rs. 10,00015,000/. They took away all these articles in a school bag of his brother and also took away the perfumes and chocolates lying where after they left.
11.She made a call to police and in the meanwhile, her mother went to balcony and informed of the occurrence to the father who was on staircase. Her father ran behind the boys but could not apprehend them as they ran away in a vehicle.
12.Police came to the spot and conducted investigation. Her statement was recorded. She was shown CCTV footage which she stated was not clear as it was raining outside and the faces of the accused were not clear in footage.
13.In cross examination by Sh. Ashok Soni for accused Shahbaz, she stated that she cannot identify the accused. No cross examination was conducted by other accused.
14.PW 3 Smt. Vijya Solanki narrated that on 20.08.2013, at about FIR no. 242/2013 State Vs. Upender Gupta etc. 7 of 37 03.00 pm, she was with her daughter at her home when three boys came inside, one of whom had his face covered and rest two caught hold of them from behind and pointed a gun on their temple asking to hand over whatever gold articles they were wearing. She was wearing one gold Kada, one diamond solitaire ring and one gold ring while her daughter was wearing one gold ring which all articles were given to the accused where after they demanded keys of almira and the boy who was wearing the mask, took out articles and after emptying the books from school bag of her son, kept all robbed articles i.e. chocolate, perfumes goggles and other articles where after they left.
15.While going down the stairs, her husband was coming and he saw the three boys and they uttered 'Bye Bye' to her husband. She shouted and told her husband about the boys having robbed them where after her husband chased them but they fled in a vehicle. Police was called by her daughter. She exhibited her statement to police as Ex.PW 3/A. She had given description of accused to police and list of stolen articles. The entire jewellery was recovered in the month of October and was released to her FIR no. 242/2013 State Vs. Upender Gupta etc. 8 of 37 on superdari which she exhibited as Ex. PW 3/C. She had participated in TIP of gold articles which articles she collectively exhibited as 'PX'. She was asked about the identity where she failed to detail the same and was cross examined by Ld. Addl.PP and admitted that though the CCTV footage installed in the neighbourhood was seen by her. The faces of the boys were not clear and only on the basis of their physical description, she had detailed them to police. She could not identify the accused present in the court to be he same involved in the occurrence.
16.PW 4 Ct. Mahavir Singh participated in investigation on 20.08.2013 alongwith IO ASI Kalam Singh after receiving of DD No. 25A as they both went to the spot i.e. BG7/64, Second Floor, Paschim Vihar, where he witnessed household articles scattered, almira opened, crime team being called by IO where after IO prepared rukka which he took to the PS for registration of FIR and came back alongwith copy of FIR, original rukka and IO SI Shri Krishan. In his presence, IO SI Shri Krishan prepared site plan and took CCTV footage. He detailed in cross FIR no. 242/2013 State Vs. Upender Gupta etc. 9 of 37 examination that crime team remained present at the spot for about 30 minutes.
17.PW 5 Retd. SI Dablu Oraon was duty officer on 20.08.2013 and on rukka brought by Ct. Mahavir sent by ASI Kalam Singh, at about 06.20 pm, he registered FIR Ex.PW 5/A. The endorsement on the rukka was Ex.PW 5/B and the certificate u/s 65B was Ex.PW 5/C.
18. PW 6 Ramesh Madan narrated that he was known to Upender Gupta, accused herein who was studying with his niece and thus addressed him as 'Mama'. He was used to meet him at the house of his sister at Mansarovar Garden.
19.The accused visited Jaipur once or twice in connection with some marriage and met him during his visits to Jaipur. In the month of August, 2013, he came to meet him with gold jewellery and expressed his urgent need for money. He inquired from accused as why he did not take loan from Delhi itself, on which accused told that interest rates in Delhi were very high. He asked for Rs. 810 Lakhs qua which, the witness expressed his inability and in term took him to one Lalwani who was FIR no. 242/2013 State Vs. Upender Gupta etc. 10 of 37 having jewellery shop in Jaipur where accused showed him the jewellery and in presence of witness, same was weighed at the rate of 350 grms against which, Mr. Lalwani offered Rs. 7.5 Lakh at interest rate of 2% per month and from the amount of Rs. 7.5 Lakh, 25,000/ were deducted as interest and amount of Rs. 7.35 Lakh was given to accused Upender Gupta. One document regarding hypothication was prepared which he signed and exhibited as Ex.PW 6/A bearing his signature at point A.
20. Police officers came to him on 25.10.2013 and seized the gold articles which were hypothicated by Upender Gupta to Lalwani against memo Ex. PW 6/B. He identified accused Upender Gupta correctly during his court statement.
21.In cross examination, he stated that Upender Gupta had met him only once before the incident. The suggestion that no jewellery was handed over by Upender Gupta to Lalwani and no money in lieu of jewellery was given, was denied. He specifically stated that money was given in the evening of August 2013 Though he did not remember the date and some documents FIR no. 242/2013 State Vs. Upender Gupta etc. 11 of 37 were executed at the time of hypothication of jewellery. In his further cross examination, he specifically denied having not met accused Upender Gupta or knowing him through his sister's daughter earlier to the occurrence and or seeing him for the first time during court proceedings on 15.12.2014 and or him being a planted witness.
22. In further cross examination by accused Gautam Kohli, he narrated that he made the statement to police, the contents of which were explained to him and the copy was also given. He was then shown statement mark A wherein the execution of documents between Lalwani and Upender Gupta was not mentioned. No cross examination was conducted by accused Shahbaz.
23.PW 7 SI Shri Krishan went to the place of occurrence on 20.08.2013 and inspected the spot as the investigation of this case was marked to him after registration of FIR. He prepared the site plan Ex.PW 7/A bearing his signatures at point A and recorded the statements of witnesses. On 23.08.2013, the list of stolen articles Ex.PW 3/B was received by him. FIR no. 242/2013 State Vs. Upender Gupta etc. 12 of 37
24. PW 8 HC Balram had received case property on 25.10.2013 while him being posted as MHC(M) by SI Charan Singh against which, he made entry no. 4236 in register no. 19 on 16.11.2013. The case property was taken to the court of Sh. Naresh Kumar Laka, Ld. MM, THC for TIP purposes by ASI Ishwar Singh and was deposited by ASI Ishwar Singh. On 22.11.2013, the case property was released against superdari which entry 4236 he exhibited as Ex.PW 8/A. The entry of handing over to ASI Ishwar Singh was Ex.PW 8/B and depositing the same by ASI Ishwar Singh was Ex.PW 8/C. The entry in regard of release was Ex.PW 8/D.
25.PW 9 Sumit Lalwani narrated that on 21.08.2013, his old customer Ramesh Madan came at his jewellery shop at Jaipur with Upender Gupta and one Koli who both he stated were present and identified by him during the court statement.
26. Sh. Ramesh Madan ran a Panasonic showroom near his shop. Upender Gupta was introduced to him by Ramesh Madan as his nephew and when he asked about Koli from Upender Gupta, he was informed that he was a friend.
FIR no. 242/2013 State Vs. Upender Gupta etc. 13 of 37
27.Accused Upender Gupta showed him some gold jewellery including necklace, bangles, ear rings, chain, mangalsutra etc. Ramesh Madan then told him that Upender Gupta was in need of money and wanted to hypothicate the jewellery with him. He weighed the jewellery and found it to be about 350 grms. He also checked the purity of jewellery items and paid sum of Rs. 7.35 Lakh for counting who was sitting with Upender Gupta. Two percent interest was deducted and Ramesh Madan handed over Rs. 7.35 Lakh to Upender Gupta who kept the amount in a polythene bag. Hypothication deed and receipt (raseed girvinama zevar) Ex.PW 6/A was executed which he signed, alongwith him, Ramesh Madan, Mr. Koli and accused Upender Gupta also signed the same. Mr. Koli signed as a witness while he signed at point B where after all left his shop.
28. On 25.10.2013, some police officials also visited him with Ramesh Madan, Mr. Koli and Upender Gupta and one more person inquired from him about these persons to which he narrated that he did not know the accused except the one who was tall where after the police officials asked him for FIR no. 242/2013 State Vs. Upender Gupta etc. 14 of 37 production of jewellery hypothicated by accused Upender Gupta which he then handed over alongwith hypotication deed to police officials and narrated the entire incident. The police took into possession the jewellery through seizure memo Ex.PW 6/B bearing his signatures at point B at which stage, he also identified accused Shahbaz Ahmad by pointing towards him.
29.In cross examination, he admitted that police had brought accused Shahbaj on 25.10.2013 and before that day he had not seen accused Shahbaj Ahmad on any date including the day when the jewellery was hypothicated with him. In further cross examination, he stated that in his statement he mentioned that one person Koli also came. He stated that he did not remember that in his statement before police, he mentioned that he had inquired about Mr. Koli where after he was introduced as a friend by Upender Gupta.
30. He stated that he does not deal in sale and purchase of old gold jewellery. He had not disclosed that hypothication deed Ex.PW 6/A was signed by Koli as witness. He stated that he has no FIR no. 242/2013 State Vs. Upender Gupta etc. 15 of 37 license of money landing and taking jewellery in lieu of money. The "Girvinama" is been stated to be handwritten by him. The contrary suggestions that the said document was not made on 21.08.2013 and/or was not bearing the signatures of Mr. Koli, was denied.
31.He clarified that he did not ask for the receipt/ownership proof of jewellery of Upender Gupta since Upender Gupta was introduced by Sh. Ramesh Madan. He stated that he did not show the amount of Rs. 7.35 Lakh in his Income Tax Return. He was given suggestions regarding the involvement of local police at the time of officials of Delhi police visiting him with accused and/or presence of public persons and about handing over the CCTV footage as the cameras were installed in his shop, which he denied. He denied that he was a planted witness.
32.PW 10 SI Pradeep Kumar had secret information on 16.10.2013 during his posting at PS Subash Place about persons involved in house robbery of 12.10.2013 and their availability near Govt. Boys Sr. Secondary School, Basai Darapur which information he shared with SHO and a raiding team comprising FIR no. 242/2013 State Vs. Upender Gupta etc. 16 of 37 him, ASI Sushil, SI Vikas, HC Suresh, Ct. Somvir and Ct. Halwant, which team proceeded to the suggested place with secret informer and saw the Innova car, the number of which, was narrated by secret informer as DL4CAE8743 and on citing the same, intercepted the car and apprehended accused Upender Kumar, Shahbaj Ahmad and Gautam Koli @ Johny who were present inside the car where after the disclosure statements were recorded and at the instance of accused, case property of FIR No. 462/13 dated 12.10.2013 was recovered. The information was then conveyed to the SHO.
33.He exhibited the arrest memo of accused PW 10/A, Ex. PW 10/B and Ex. PW 10/C. Their personal search memos as Ex. PW10/D, Ex. PW 10/E and Ex. PW 10/F. The disclosure statements as Ex.PW 10/G, Ex.P/W 10/H and Ex.PW 10/I bearing signatures of accused persons. The car was also seized against Ex.PW 10/J. He identified the accused correctly during his deposition. During cross examination, the suggestions given to him regarding recovery of car no. DL4CAE8743 arrest of accused, seizure and disclosures were denied. FIR no. 242/2013 State Vs. Upender Gupta etc. 17 of 37
34.PW 11 HC Gajender Singh joined investigation with IO on 25.10.2013 and accompanied him with accused who were on PC remand to obtain stolen property. He alongwith SI Charan Singh, SI Manoj Kumar, HC Sunil, HC Kirori, HC Shashi Kant and accused persons went to Jaipur where they were led by accused to a jewellery shop at Jawahar Nagar road where they found the shopkeeper Sumit Lalwani and the accused narrated to have sold the jewellery to Sumit Lalwani on 21.08.2013.
35.Sumit Lalwani identified the accused Upender Gupta and Koli having visited his shop on 21.08.2013 alongwith his old customer Ramesh Madan. Sumit Lalwani then called Ramesh Madan at his shop through telephone and produced the potli of jewellery and receipt / "Girvinama". The weight of potli of jewellery was about 350 grms. The jewellery was checked and pullanda of recovered jewellery was made and sealed with the seal of CSM bearing Ex.PW 6/B.
36.During interrogation, accused informed that part of the robbed jewellery was sold at Ajmer thereafter they started for Ajmer, however, on the way, accused disclosed that they did not sell FIR no. 242/2013 State Vs. Upender Gupta etc. 18 of 37 any jewellery at Ajmer, on which the team returned to Delhi. The pointing out memo Ex.PW 1/A showing place of occurrence was made at the instance of accused.
37. During cross examination, he stated to have reached Jaipur on 25.10.2013 during evening time and having approached the local police station and the local staff for joining the investigation. Though he was not aware about the local official was being made as a witness of proceeding to IO. The shop from where the recoveries were effected, was disclosed at main Bazar Jaipur. He was unable to remember about the presence of public persons or customers in the shop. He narrated that they went to Jaipur on 25.10.2013 and came back on 27.10.2013 in the morning. The accused were lodged alongwith police officials at a private house. The suggestions that the recoveries were planted upon accused in connivance with the jeweller was denied besides the suggestion pertaining to Ex.PW 6/B and 1/A which were also denied by the witness.
38.PW 12 Sh. Vijay Sarin was neighbour of complainant Krishan Pratap Solanki and came to know about robbery having taken FIR no. 242/2013 State Vs. Upender Gupta etc. 19 of 37 place on the festival of Rakhi in 2013. He was having CCTV cameras in her house. He showed the CCTV footage whereafter the same was played and moments of the accused were witnessed. He handed over the 'pen drive' to police. He further narrated that incident took place on 20.08.2013 at about 03.00 pm.
39. PW 13 ASI Ishwar Singh visited Tis Haari Court alongwih SI Charan Singh on 24.10.2013 where after obtaining permission from Ld. MM, accused were interrogated and their disclosure statement Ex.PW 13/A to Ex. PW13/C was recorded. The arrest and personal search of accused was made against Ex.PW 13/D1 to Ex.PW 13/D6. The application for TIP of accused was moved by SI Charan Singh however all the accused refused to participate in the TIP. The PC remand of accused for three days was obtained where after SI Charan Singh went out of station with the accused. On 16.11.2013, TIP of case property was got conducted on his application Ex.PW 13/A and he collected the copy of TIP proceedings which he marked as Mark A. The contrary suggestions regarding disclosure were denied by FIR no. 242/2013 State Vs. Upender Gupta etc. 20 of 37 witness.
40. PW 14 Harish Nagpal narrated that on 20.08.2013, on festival of Rakhi a robbery took place at the house of his neighbour Krishan Pratap Solanki. There were CCTV cameras outside of his house which covered the entrance gate of colony in addition to his gate. He copied the footage which were handed over to police officials. In cross examination, he stated that there was no other footage in pen drive except the incident. The recording equipment of CCTV cameras through which he copied the footage in Pen drive was not taken by police in possession.
41. He narrated that the distance between his house to that of Krishan Pratap Solanki is about 30 meters and stated that faces of the culprits were not clear in the footage due to distance.
42.PW 15 ASI Kalam Singh narrated that on 20.08.2013 while he was posted at PS Paschim Vihar, DD NO. 25A was given to him by duty officer where after he alongwith Ct. Mahavir went to the spot and found articles scattered and the almira was found opened. When crime team was called by him in which while SHO reached the spot with other staff. He recorded the FIR no. 242/2013 State Vs. Upender Gupta etc. 21 of 37 statement of Smt. Vijaya Solanki complainant Ex.PW 3/A and prepared rukka Ex.PW 15/A which he then gave to Ct. Mahavir for registering of FIR and further investigation was assigned to SI Shri Krishan.
43.PW 16 HC Suresh Kumar was posted on 16.10.2013 at PS Subhash Nagar and was informed by SHO that the culprits who committed robbery at the house at Pritampura would come at Basai Darapur. On his direction, he alongwith SI Vikas, ASI Sushil Kumar, Ct. Halwant, Ct. Sombir reached near Rajkiya Kanya Vidhyala, Basai Dharapur alongwith IO of FIR no. 462/13, PS Subhash Palace. SI Pradeep who met with the secret informer and was told by him that robbers were sitting in Innova car no. DL4CAE 8743, golden color which was parked at a distance of about 150 meters away from Rajkiya Kanya Vidhyala where after they located the car and surrounded it. ASI Sushil opened the gate of driver side and the driver Shahbaz Ahmad, alongwith accused Upender Kumar and Gautam koli were taken out from the aforementioned Innova car. SI Pradeep interrogated the accused separately wherein they FIR no. 242/2013 State Vs. Upender Gupta etc. 22 of 37 confessed their guilt in the present case FIR no 242/13, PS Paschim Vihar and also disclosed their involvement in other case where after the accused were arrested, personally searched. The car was taken in possession which was belonging to accused Shabaz Ahmad. The photograph of the car was shown to the witness who exhibited it as Ex.PX. During cross, he narrated that the Innova car was registered in the name of father of accused Shahbaz Ahmad.
44.PW 17 W/Ct. Sunita had received a call at 03.25 pm on 20.08.2013 at CPCR PHQ regarding robbery at H. no. BG7/64, SF Block, GB7, Paschim Vihar which she transferred to consolenet. She exhibited PCR form no. 1 and certificate as Ex.PW 17/A and Ex.PW 17/B. She narrated that computer generated copy of PCR form was generated in her presence. However, the certificate u/s 65B Evidence Act was generated by Nodal Officer SI Devender Kumar and was not generated in her presence.
45. PW 18 HC Gajender was MHC(M) at PS Subhash Palace when on 17.10.2013 SI Pradeep deposited with him sealed FIR no. 242/2013 State Vs. Upender Gupta etc. 23 of 37 pullanda of pistol, live cartridge, a sealed pullanda of wrist watch make Rolax and Innova car DL4CAE 8743, four sealed pullanda of jewellery which entry he exhibited as Ex.PW 18/A. On 10.12.2013, Khursheed Ahmad, son of Abdul Kareem of WZ 936A/1, Basai Darapur got released the aforementioned Innova Car on superdari.
46.PW 19 ASI Raj Kumar was DD writer on 19.10.2013 when he was informed about arrest of accused Upender Gupta, Shshbaj Ahmad and Gautam Kohli by DO of Paschim Vihar through telephone which arrest was made by staff of PS Netaji Subash Palace in FIR No. 462/13, PS Subhash Palace which entry he exhibited as Ex.PW 19/A.
47.PW 20 Insp. Amrinder Kumar was posted with crime team on 20.08.2013 on which date, a PCR call regarding robbery at BG 7/64, Paschim Vihar was received where after he alongwith other staff went to the spot and found the door of the house in open condition. The articles were found scattered. HC Uddham Singh, finger print proficient developed chance prints at his direction from steel pot, chocolate box, almira and other FIR no. 242/2013 State Vs. Upender Gupta etc. 24 of 37 articles, while two chance prints were developed from steel pots. The photographs of the spot were got conducted from different angles and he prepared his detailed report Ex.PW 20/A which he then handed over to IO ASI Kalam Singh.
48.PW 21 Sh. Naresh Kumar Laka, narrated that while he was working as Link of MM Rajender Kumar on 24.10.2013, an application for conducting TIP of accused, was marked to him where after IO SI Charan Singh produced the accused in muffled face and identified them which statement he recorded as Ex.PW 21/A. He called the accused persons individually and explained to them the meaning, significance and potential consequences of TIP. After understanding the same, all accused refused to participate in TIP on which, he warned the accused that their non participation may be used against them despite which, he reiterated their refusal and statement of each accused was then recoded as Ex.PW 21/B to Ex.PW 21/B2 bearing his signatures at point A. The certificate regarding correctness of TIP proceeding was appended and exhibited as Ex.PW 21/C. The IO moved application for providing TIP proceedings which FIR no. 242/2013 State Vs. Upender Gupta etc. 25 of 37 he allowed against Ex.PW 21/D.
49.On 16.11.2013, another application of IO ASI Ishwar Singh was marked to him for TIP of case property. IO brought one pullanda in sealed condition with the seal of CSM. The witnesses Smt. Vijaya and Sh. K.P. Solanki also came to join the TIP. He then again called the IO in his chamber with case property which was mentioned in TIP proceedings Ex.PW 21/E. At that time, the witnesses were directed to stand outside his chamber. The pullanda was opened and was found containing gold jewellery. The gold articles were mixed with similar articles brought by IO where after IO was asked to go outside the chamber. The witnesses were called in and on asking, they identified their gold jewellery which proceedings were Ex.PW 21/F. The IO's application for providing the TIP proceeding was Ex.PW 21/G. During cross, he clarified that there was no requirement of giving minute description of articles brought for mixing by the IO as the articles were observed to be more or less having same characteristics. Both K.P. Solanki and Vijaya jointly came for identification and the number of sample articles FIR no. 242/2013 State Vs. Upender Gupta etc. 26 of 37 has not been mentioned in TIP proceedings, since they must have been in sufficient number to distinguish the case property from sample property. He did not ask about the source from where IO collected the sample property as was not required by law.
50. He further stated that he was not required to verify the authenticity of gold ornaments, sample and case property as he was not an expert witness on the examination and authenticity of articles. No videography and the photography of case property was got conduced as it was not requisited by law.
51.PW 22 Retd. SI Charan Singh stated that on 10.10.2013, further investigation of the present case was marked to him. On 19.10.2013, he received the information from PS Netaji Subhash Place regarding arrest of accused Shahbaz, Upender Gupta and Gautam Koli in case FIR No. 462/13 of PS Netaji Subhash Place and that all the above mentioned accused persons confessed their involvement in the present case.
52. On 21.10.2013, he went to Rohini Court and collected the relevant documents of the case FIR No. 462/13 from SI Pradeep FIR no. 242/2013 State Vs. Upender Gupta etc. 27 of 37 Kumar of PS Netaji Subhash Place.
53. On 22.10.2013, he moved an application for issuance of production warrants for 24.10.2013. On 24.10.2013, with the permission of court, he arrested and personally searched the accused persons which are exhibited as Ex.PW 13/D1 to Ex.PW 13/D6. The disclosure statements of accused persons are exhibited as Ex.PW 13/A to Ex.PW 13/C. He moved an application Ex.PW 22/B for conducting the TIP proceeding of the accused persons which was allowed by Ld. MM. The accused persons were produced before the court of Ld. Link MM Sh. Naresh Kumar Laka for conducting the TIP However, all the accused persons refused to participate in the TIP proceeding.
54. He moved an application for PC remand which was allowd by Ld. MM for three days vide application Ex.PW 22/C.
55. On 25.10.2013, the accused persons led them to Jaipur, to the shop of Ghanshyam Jewellers at Jawahar Nagar near Baraf khana, Jaipur stating that they pawned the robbed jewellery of present case. There, they identified the jeweller Sumit Lalwani FIR no. 242/2013 State Vs. Upender Gupta etc. 28 of 37 to whom they pawned the jewellery through one Ramesh Madan. Sumit Lalwani handed over him the receipt of Girwinama of jewellery vide receipt Ex.PW 6/A and a potli of jewellery. It was containing the jewellery articles weighing 350 grms approximately. The pullanda of the said potli of jewellery was prepared and sealed with the seal of CSM. He prepared the pointing out cum seizure memo Ex.PW 6/B
56. In pursuance to their disclosure statements, the accused persons lead them towards Ajmer on 26.10.2013. However, on the way, they disclosed that initially they falsely stated that they gave some of the booty at Ajmer to a person but actually, they gave all the booty/jewellery to Sumit Lalwani. Therefore, they returned at PS Paschim Vihar, Delhi. The case property was deposited in maalkhana.
57. On 27.10.2013, the accused persons pointed out the place of occurrence and he prepared the pointing out memo Ex.PW 1/A. On conclusion of investigation, charge sheet was prepared. The jewellery items were already got released on superdari by PW 3 Smt.Vijya Solanki.
FIR no. 242/2013 State Vs. Upender Gupta etc. 29 of 37
58. Statements of accused persons were recorded u/s 313 Cr.PC wherein the entire incriminating evidence were read over to them however they claimed false implication and denied the evidence put to them. Final arguments have been addressed by both sides which I have heard and perused the record.
59. From the narration, the prosecution was under burden to prove the occurrence of the house of complainant Vijaya Solanki wherein it was detailed that all the accused persons barged in her home i.e. spot bearing H. No. BG7/64, Paschim Vihar at 3.00 pm as the door of the house was opened since her husband had gone alongwith their son to drop the guests, taking advantage off which, accused, who were muffled face and carried guns pointed the same on the neck of PW 2 and PW 3 i.e. Radhika, daughter of complainant and complainant Vijaya Solanki where after they robbed them. All jewellery articles, perfume and chocolates etc. which they kept in the school bag of son of PW 3 and fled. While fleeing, the husband, PW 1 was ascending the stairs from where the accused were descending and while leaving, the greeted him by saying Bye Bye uncle. To FIR no. 242/2013 State Vs. Upender Gupta etc. 30 of 37 where after PW 3 also shouted about them having looted their home, on which PW 3 chased the accused but they fled in their Innova car.
60. Out of the aforesaid, though the narration of the events is supported by PW 1, PW 2 and PW 3, they all denied to recognize the accused namely Upender Gupta, Shahbaz Khan Ahmad and Gautam Koli to be the one who barged in the home and committed the act of robbery.
Identity of accused
61. On the point of identity of accused, PW 12 Sh. Vijay Sarin and PW 14 Sh. Harish Nagpal neighbours came forwards for their assistance and showed them the footage of CCTV cameras installed in their respective houses. The footages so shown to the aforesaid witnesses were handed over to the IO in pen drives. Surprisingly, from the aforesaid footage also, none of the witness claimed to have recognized the accused persons stating that the footages were blurred and due to rain outside, the clear footage could not be received. Thus, on the point of identity of accused persons, the accused could not be linked to the alleged FIR no. 242/2013 State Vs. Upender Gupta etc. 31 of 37 act.
No Recovery of weapon
62.The act of looting/robbery is stated to have been committed with the help of guns. The accused persons were arrested in connection with FIR NO. 462/13, u/s 392/397/34/411 IPC of PS Netaji Subhash Place from outside Rajkiya Kanya Vidyalaya, Basai Dharapur while they all were sitting inside Innova Car bearing no. DL4CAE 8743 belonging to one of the accused as the RC of the same was in the name of his father. No recovery at the time of arrest of any weapon is made from them. As per PW 22 Retd. SI Charan Singh who was the IO of aforesaid FIR, the disclosure of the accused persons Ex. PW 13/A, Ex.PW 13/B and Ex.PW 13/C were recorded in connection with FIR No. 462/14 of PS Netaji Subhash Place where after recovery of the stolen articles and gun was made at the instance of accused persons.
63.PW 22 SI Charan Singh to whom the investigation of the present case was lastly entrusted, took the production warrants of accused persons by moving application on 22.10.2013 where FIR no. 242/2013 State Vs. Upender Gupta etc. 32 of 37 after the accused were produced before Ld. MM on 24.10.2013 from where their disclosure statements were recorded devoied of any possible recovery of weapon at their instance. The weapons were recovered in FIR No. 462/13 and seized by the earlier IO PW 10 SI Pradeep Kumar in its connection is not linked with the accused to have been used in this case. No such weapon at any stage was seized or scrutinized by IO who left a grave lacuna in this regard leading to failure of the linkage of the narration qua the offence. For this reason, the accused were not even charged for any provisions of arms act. CCTV footage
64.PW 12 and 14 namely Sh. Vijay Sarin and Sh. Harish Nagpal neighbours of complainant Vijaya Solanki provided the pen drives containing CCTV footage of the cameras installed in their respective homes wherein the culprits were shown to PW 1, PW 2 and PW 3 and to the police officials. Intriguingly enough none of the police official, came forward specifying about this fact. PW 9 had given the pen drive to the police officials, however, there is no seizure memo of the pen drive, so FIR no. 242/2013 State Vs. Upender Gupta etc. 33 of 37 received. Similar is the case of PW 12. Despite having witnessed the CCTV footage, the police official witnesses made no narration of the same. The IO did not even tendered the pen drive.
65.No recording of the aforesaid footages was exhibited and thus, the IO completely failed as he left a major lacuna in bringing the linking evidence to the act of the accused with the trial. The accused took advantage of the aforesaid as on the point of identity, the prosecution witnesses failed to favorably depose. Recovery of Jewellery
66. The recovery of jewellery and girvinama is Ex. 6/A. The prosecution detailed that the recovery of the jewellery articles have been made at the instance of accused Upender Gupta who took the jewellery to PW 8 Sumit Lalwani through PW 6 Ramesh Madan, his known and kept the same pawned against the amount of Rs. 7.35 Lakh. PW 8 identified accused Upender Gupta to be the person who brought the jewellery to him who after weighing the same gave cash of Rs. 7.35 Lakh to the accused Upender Gupta and a girvinama Ex.PW 6/A came to be FIR no. 242/2013 State Vs. Upender Gupta etc. 34 of 37 executed with witness of other accused Gautam Kohli. The said document was admitted and exhibited by PW 6 Ramesh Madan and PW 8 Sumit Lalwani who stated that the said document was in his handwriting and was prepared by him on the date when the accused brought jewellery to him. Both the witnesses identified accused Upender Gupta cogently and correctly.
67.However, the role assigned to accused Gautam Koli in this connection is that of a witness from this document. He is neither shown recipient of jewellery nor subsequent proceeds / i.e., cash and/or being benefited of the same by pawning the jewellery as the entire amount of 7.35 Lakh was received by accused Upender Gupta.
68.Qua accused Shahbaz, he was not even present at the time of the aforesaid and was seen for the first time when the recovery of jewelery was made at the instance of accused persons on 25.10.2013. In circumstances above, the only evidence available in connection with the recovery of the stolen articles, is the jewellery in this case which is collectively exhibited as Ex.PX and released on superdari to complainant, which superdarinama FIR no. 242/2013 State Vs. Upender Gupta etc. 35 of 37 is also subsequently recalled against the complainant on account of her tendering an indemnity bond and which had been duly identified by the complainant during TIP proceedings Mark A are no stacked claim of by any of the accused persons. In the absence of the claim, the accused were under duty to explain the recovery at their instance which is made on account of disclosure. The disclosure statement of accused Upender Gupta Ex. Ex. 13/A in this case, cannot be discarded as not admissible evidence and for the reason of his failure to explain the aforesaid, ingredients of section 411 IPC are satisfied qua him. As regards the other accused, the material at this stage does not seem sufficient and cogent as the investigation is flawed majorly on many vital aspects and thus is not sufficiently safe for reaching conviction. Hence, accused Upender Kumar, S/o Satender Prakash is acquitted under section 392/394/397 IPC and convicted under section 411 IPC and accused Shahbaj Ahmed, S/o Khursheed Ahmad and Gautam Koli @ Jony, S/o Nav Rattan Koli are acquitted u/s FIR no. 242/2013 State Vs. Upender Gupta etc. 36 of 37 392/394/397/411/34 IPC.
69. File be consigned to Record Room after completion of formalities.
Announced in the open court today i.e. 22.11.2019 (NIRJA BHATIA) ASJ03, WEST/DELHI 22.11.2019 FIR no. 242/2013 State Vs. Upender Gupta etc. 37 of 37