Prashant Gupta v. State (NCT of Delhi)

1. The appellants have filed the present appeal impugning a judgment dated 30.09.2016, whereby they have been convicted of the offence under Section 392 of the Indian Penal Code, 1860 (IPC) for robbing the complainant (PW-1) of a sum of ₹ 20 lakhs and for snatching a motor cycle from a passerby (PW-2). The appellants have also been convicted of the offence under Section 120B of the IPC.

2. The appellants have also impugned separate orders dated 18.10.2016, respectively sentencing them to serve Rigorous Imprisonment of seven years and a fine of ₹10,000/- each for the offences under Sections 392/120B of the IPC for robbing the complainant (PW 1). The appellants were also sentenced to Rigorous Imprisonment for three years and to pay a fine of ₹5000/- each for the offences under Sections 392/120B of the IPC on account of snatching a motorcycle from PW 2. The appellants have also been separately sentenced to serve one year of rigorous imprisonment for an offence under Section 120B of the IPC and to pay a fine of ₹1,000 each. It was further directed that the appellants would undergo a further period of simple imprisonment for a period of six months on failure to pay the fine of ₹ 10,000/-, for a period of three months on failure to pay the fine of ₹5,000/-, and for a period of one month on failure to pay the fine of ₹1,000/- as imposed for offences under Sections 392/120B, 392/120-B and Section 120B of the IPC respectively.

3. The impugned judgment was rendered in connection with a case arising from FIR No. 378/2009, registered with P.S. Mandawali. The said FIR was lodged at the instance of one Mohammad Arif (who deposed as PW 1). He had reported that he had arrived at Vijaya Bank, Patparganj for withdrawing ₹ 20 lakhs from the account of his brother (Mohammad Riyasuddin) for making certain payments. He had stated that he was working with his brother in the meat business and the said amount was required to make payments to the market. He stated that he arrived at the Vijaya Bank on 17.08.2009 at about 11:30-11:45 a.m. in a Santro car, which was being driven by his driver named Akram. On reaching the bank, he presented the cheque for encashing and was informed that the same would take time and was requested to wait in the bank. It is reported that since the withdrawal of the amount was taking time, he had proceeded to a nearby mosque to offer prayers (Namaz). He returned back to the bank at about 2.25 p.m. and at about

2.30 p.m., he collected the amount of ₹20 lakhs from the bank officials. He had stated that on coming out of bank, he found that there was a Scorpio car parked on the road. He reported that three boys had come from behind the said vehicle and one of them caught his collar and had held a katta (country made pistol) to his temple, another boy pointed a katta at his chest and the third boy had demanded that he be handed over the bag containing currency and had threatened to shoot him if he refused. He had reported that the boys had snatched the bag and walked away while pointing the weapons (katta) to him. He had returned back to the bank and informed the public about the incident. He had stated that one boy (Nadim), who was also an accused, was known to him had called the police from the mobile phone.

4. One Mr Kuldeep (PW 2), son of Sh Prakash Singh, had also reported that on the said date at about 2.30 p.m., he was riding his motorcycle on the way to report for duty at Hasanpur Depot when he saw three boys running from the front. He stated that two of them were armed with kattas and one of them had a red color bag on his shoulder. He stated that they had forced him to leave the motorcycle and one of them had placed a katta to his temple another boy had placed a katta on his back and had demanded that he leave his motorcycle. He yielded to their demands and one of the boys who had placed a katta on his temple had started the said motorcycle and all the boys had ridden away on his motorcycle. He had called the police and had informed the PCR about the incident.

5. The prosecution had examined eleven witnesses including seven police officials. The Trial Court had evaluated the evidence available and had found the appellants guilty of the offences for which they were charged. In addition to the appellants, there were two other accused including one Nadeem who was present in the Bank and was known to the complainant (PW 1). Nadeem was acquitted of the offences as there was no evidence of his involvement in the crime. The other accused was not apprehended.

6. The appellants have challenged the impugned judgment on the ground that there are alleged inconsistencies in the evidence of the police witnesses and the evidence available on the cases did not establish that they had committed any offence, beyond reasonable doubt. It is also contended on behalf of the appellants that testimony of PW 4 (SI Lokender) was not reliable and thus, the alleged recoveries made were planted by the police officials. It is contended that PW 4 was not involved in the investigation of the said case and yet had proceeded to make alleged recoveries without informing the Investigating Officer (IO).

7. The learned Additional Public Prosecutor appearing for the State has countered the aforesaid submission and submitted that there was no material inconsistency in the testimony of witnesses and the evidence led clearly established that the appellants were guilty of the offences for which they have been convicted. It is also submitted that it was not necessary to join public witnesses as there was sufficient credible evidence pointing to the guilt of the appellants in this case. Evidence

8. Before proceeding further, it is relevant to briefly examine the evidence led by various witnesses.

9. The complainant, Mohammad Arif – examined as PW 1 – deposed that on 17.08.2009, he had taken a cheque of an amount of ₹20 lakhs in the name of his brother, Mohd. Riyasuddin, for encashment to Vijaya Bank, Patparganj. PW[1] had come to bank in a Santro car which was driven by his driver, Akram. At about 11.30 am-

11.45 a.m., PW[1] reached the bank and went inside the bank with a red coloured bag. He was informed that the cheque encashment would take time and he went to offer namaz at 2.00 p.m. and came back to the bank by 2:25 pm. After ten minutes, he received the payment of ₹20 lakhs and kept the cash in the said bag. When he came out of the bank, he found a Scorpio car parked on the road and from behind it three boys came running. One of the three boys caught his collar and was dark complexioned. He placed a katta on his temple and another boy pointed the katta at his chest. The third boy demanded him to handover the bag and threatened to shoot him, should he refuse. The three boys snatched his bag and ran away while brandishing the katta. PW[1] knew one of the accused (Nadim), who called the police from PW1’s mobile phone.

10. In his examination in chief, PW[1] stated that on 26.08.2009, a Test Identification Parade (TIP) was held where PW[1] identified the accused Shadab (Ex. PW1/B). PW[1] also identified the accused Prashant in the TIP proceedings (Ex. PW1/C). Accused Shafi had refused to participate in the TIP proceedings. However, on 24.09.2010, PW[1] identified all three accused persons, Shadab, Shafi and Prashant Gupta, who were present in Court, as persons who had committed the alleged crime.

11. Kuldeep, the person whose motorcycle was snatched, was examined as PW[2]. He deposed that he was a driver for the Delhi Transport Corporation and on 17.08.2009, at about 2 p.m., he had started from his house on his motorcycle (DL 4S BL 2098) and at about 2.50 pm, he reached Panchsheel Apartment. On turning left towards Hasanpur Depot, he saw three boys coming from the front. Two of them were armed with a katta and one had a red coloured bag on his shoulder. They forced him to stop the motorcycle and one of them placed a katta on his temple and the other one placed a katta on his back. They threatened him to leave the motorcycle or they would kill him. Thereafter, he informed the police of the incident. He stated that the boy who had placed the katta on his temple was of a strong built and had wheatish complexion and was wearing a white t-shirt. On 07.03.2011, in his examination in chief, he identified Mohd. Shafi in Court. He stated that he could not identify the other two boys as they were by his side. PW[2] was not cross examined by the defence counsel on being provided the opportunity to do so.

12. Pawan Kumar, the taxi driver who had dropped the accused persons to Dasna and had been threatened by the accused persons, was examined as PW[3]. He deposed that he was driving an Indica car and on 17.08.2009, at about 03:15 pm, he was standing with his taxi at Mayur Vihar, Ph III, Taxi Stand, when one boy (pointed at Mohd. Shafi), along with another boy, who was thin and tall, came to him. The had come in a rickshaw and one of the accused had a red bag in his hand. They had booked a taxi for Dasna. The tall thin boy sat beside him while going to Dasna and Mohd. Shafi sat on the rear seat. The tall boy had 3-4 bullets. Mohd. Shafi threatened him from behind at gunpoint to drive fast. On reaching Dasna, he was paid ₹550 as fare and ₹100 as other expenses. PW[3] said that he could identify the other boy who was sitting beside him and was having bullets in his hand. On 07.03.2011, accused Shadab was absent and had been granted exemption from personal appearance on the ground that his identity was not disputed. PW[3] was not cross examined by the defence counsel on being provided the opportunity to do so.

13. SI Lokender was the Investigating Officer (IO) in FIR NO. 317/2009, under Section 25 of the Arms Act, 1959, registered at P.S. Seelampur. SI Lokender was examined as PW[4] and he deposed that on 23.08.2009, on receiving information, he arrested Mohd. Shafi. and Mohd. Shadab was also present and was driving the motorcycle and Shadab was riding pillion. PW[4] recovered one country made pistol and six live cartridges from the possession of the accused Mohd. Shafi and one country made pistol and two live cartridges were recovered from Mohd. Shadab (vide seizure memos - Ex. PW4/C). A separate case was registered against Shadab under Sections 25 of the Arms Act, 1959 vide FIR No. 318/2009 at P.S. Seelampur.