Delhi District Court
State vs . : 1) Shekhar Kapasia on 28 August, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No: 549/2017
FIR No. : 360/17
U/s : 302/147/149/174A IPC
P.S. : Mukherjee Nagar
State Vs. : 1) Shekhar Kapasia
son of Sh. Sohanveer
r/o Vill.Jiwana PS
Mansurpur,
Distt.Muzzafarnagar
(UP)
2) Mehul Dedha
son of Sh.Jitender
r/o H.No.248, Gali no.5
Jahangir Puri, Delhi.
3) Atul Dahiya
son of Sh.Satish Dahiya
r/o Khasra no.1001, Gali
no.6, Behind new
Choupal,Jagatpur
Village, Delhi.
4) Nitin son of Sh.Ajit
r/o H.No.170, Gali no.5
Jagatpur Vill.Delhi
5) Anuj son of Sh.Ajeet
Singh
r/o H.No.269, gali no.6
Jagatpur Vill.Delhi
6) Ankit
son of Sh.Rajender
r/o H.No.316, gali no.6
Vill.Jagatpur, Delhi.
State Vs. Shekhar Kapasia etc. SC NO:549/2017
1
7) Ankit son of Sh.Sanjay
R/o H.no.171, Gali no.6
Jagatpur Vill.Delhi
8) Anuj @ Honey
son of Sh.Bijender
r/o Gali no.5, Jagatpur
Vill.Delhi
9) Dabbu @ Tikal
son of Shiv Raj
r/o gali no.5, Jagatpur
Village, Delhi.
10) Arvind @ Manglu
son of Sh. Devraj
r/o gali no.6, Jagatpur
Village, Delhi
Offence complained of : 302/147/149/174A IPC
Plea of accused : Pleaded not guilty
Final Order : Arvind and Anuj @
Honey convicted under
Sec.174 A IPC.
Remaining accused
persons acquitted.
Date of committal : 18.09.2017
Date of Judgment : 28.08.2018
JUDGMENT
1. On 27.05.17 at about 1 or 1.30 PM near GTB Metro Station, gate no.4, Mukerji Nagar, two boys, one of them State Vs. Shekhar Kapasia etc. SC NO:549/2017 2 tall wearing t-shirt having stripes design and blue jeans and other were wearing blue shirt carrying one bag on his back came there. The taller boy was having beer can in his hand. At that time Mohd.Arif, Rvinder, Ashok, Akhilesh and Suresh were taking lunch while sitting in Wagon R Car. Those two boys threw the beer can near Shulabh Shauchalya and start urinating on the wall. Ravinder asked them not to urinate there. On which they started arguing and also abused Ravinder. Ravinder said, " tere kaan nikal ke naak pe kaga dunga." On this the taller boy said, "shaam ko aayenge kaan naak par lagwayenge". Ashok intervened and thereafter both boys went away saying that they will see to it. On the same day at about 8.30 PM while Manoj was making the passenger to sit in e-rickshaw at GTB Metro station, gate no.4, some boys came there and caught hold of Ravinder @ Tindu and started beating him. One of those boys put one concrete stone in the white gamchha which was earlier around his neck. He also hit Ravinder many times with that stone which he had put in the gamchha. One of those boys also slapped Manoj and Manoj went away to call the family members of Ravinder. He came back along with Vijender but by that time those boys had already gone away after beating Ravinder. They State Vs. Shekhar Kapasia etc. SC NO:549/2017 3 put Ravinder in the rickshaw of Nadeem and started taking move towards hospital. When they reached in front of Hans Raj College, Ravinder said that he is feeling well and asked them to take him home. At home Ravinder took water and frooty thereafter he started vomiting. They took Ravinder to the hospital. Doctor examined him and declared him dead. On the statement of Manoj, FIR was registered. Investigation was carried out. During investigation it was revealed that those boys were dropped by another e- rickshaw driver at the gate of Kirori Mal College. CCTV footage of the area was also checked. In the CCTV footage Shekhar Kapasia was identified by the witnesses as the person, who had quarreled with Ravinder and assaulted him. One Juvenile 'R' was also apprehended, against whom the charge sheet was filed before Juvenile Justice Board. Initially only Shekhar, Mehul and Atul were apprehended and charge sheet against them was filed. Ld.MM after complying with the provisions of Sec.208 Cr.PC committed the case to the Sessions Court. The other accused persons could not be arrested by that time. These three accused persons were charged for the offences punishable under Sec.147, 302 read with 149 IPC.
2. Later on accused Nitin son of Ajeet, Anuj son of State Vs. Shekhar Kapasia etc. SC NO:549/2017 4 Ajeet, Ankit son of Rajender and Ankit son of Sanjay were apprehended and charge sheet against them was filed. Ld.MM after complying with the provisions of Sec.208 Cr.PC committed the case to the Sessions Court. The other accused persons could not be arrested by that time. These three accused persons were charged for the offences punishable under Sec.147, 302 read with 149 IPC.
3. Later on accused Daboo, Arvind and Anuj @ Honey were arrested. Charge sheet against them was also filed. Ld.MM after complying with the provisions of Sec.208 Cr.PC committed the case to the Sessions Court. The other accused persons could not be arrested by that time. These three accused persons were charged for the offences punishable under Sec.147, 302 read with 149 IPC. They were also charged for the offences punishable under sec.174 A IPC. All the accused persons pleaded not guilty and claimed trial. In this case as the accused persons were arrested at different time and separately charge sheets were filed, therefore, witnesses have to be recalled twice.
4. Dr. Utkarsh Goel was examined as PW-1. He deposed that on 27.05.2017 at 10:20 pm he was working as CMO in Hindu Rao Hospital. At that time Ravinder S/o Sh. Surender aged-32 years male was brought by his State Vs. Shekhar Kapasia etc. SC NO:549/2017 5 brother Chhotu in unconscious state. He examined the patient and declared him brought dead at the time of arrival i.e. at 10:20 pm vide MLC Ex.PW1/A.
5. During cross examination on behalf of accused Atul Dahiya he stated that IO did not seek opinion about the nature of injuries found on the dead body. Police reached the hospital after the injured had already been declared dead. The noting on the MLC by the IO was made later on which is encircled in red. Police asked him to mention the alleged history on the MLC but he told them that MLC had already been prepared he will not mention the same. He denied that it is mandatory to mention the alleged history in the MLC.
6. During cross examination for accused Mehul. He admitted that all the columns mentioned in the MLC are required to be filled. He denied the suggestion that he had not personally examined the patient or that he prepared the MLC without examining the patient. He himself did not inform the police about the fact that a person had been brought dead. The duty constable informed the police.
7. During cross examination for accused Shekhar Kapasia he stated that he did not mention about the injuries in the MLC as the person was brought dead. No person told State Vs. Shekhar Kapasia etc. SC NO:549/2017 6 him as to how the deceased sustained injuries.
8. In reply to a court question he stated that no one told him as to how the injured sustained injuries.
9. Dr. Utkarsh was recalled after the arrest of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay. He deposed on the same lines. No question was put to the witness on behalf of counsel appearing for the accused persons. The witness was again called after the arrest of accused Anuj @ Honey, Dabbu and Arvind. He deposed on the same lines and again no question was put to the witness.
10. Dr. Ajiya Manjoor was examined as PW-2. He conducted the post mortem on the body of Ravinder. He found a contusion circular in shape reddish blue in colour measuring 10x8 cm present on the front aspect of right side chest wall around the nipple 18 cm below mid point of right clavical along with the mid clavicular line. He found multiple abraded contusions over an area of 6x5 cm varrying in size from 1x1 cm to 1x 0.5 cm present on the lower one third of the back. 12 cm above and 7 cm away from right side posterior iliac spine.
11. In the internal examination in the abdomen he found 1600 ml of blood and 300 gm of blood clots. In the liver he State Vs. Shekhar Kapasia etc. SC NO:549/2017 7 found a laceration obliquely placed measuring 5.5 x 3 cm on the anterior (front surface of right lobe of liver) cut section was pale. There was fracture of right side rib of 5th and 6th on anterior chest wall along with mid clavicular line associated with contusions.
12. He opined that deceased died due to hemorrhagic shock as a result of ante mortem injury to the liver produced by blunt force impact. Time since death is about 36 hours prior to post mortem examination. He proved the post mortem report as Ex.PW2/A. After the post mortem dried blood gauze preserved and handed over to the IO. Clothes of deceased preserved, packed and handed over to the IO. After sealing the same with the seal of FMH along with the sample seal. Nothing material came to dis-credit the witness during lengthy cross examination on behalf of accused persons. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj and he deposed on the same lines. The testimony remained unchallenged.
13. The witness was not recalled after arrest of Nitin, Anuj, Ankit son of Rajender and Ankit son of Sanjay as the accused persons did not want the witness to be recalled after they were charged.
14. HC Sanjeev Sharma was examined as PW-3. He State Vs. Shekhar Kapasia etc. SC NO:549/2017 8 deposed that on 28.05.2017 he was working as duty officer. At 12:05 am Ct. Surender brought the rukka sent by ASI Kuldeep. He got the rukka entered in the computer through W/Ct. Kavita. He made endorsement Ex.PW3/A on the rukka regarding registration of FIR. He proved the computer generated copy of FIR as Ex.PW3/B. The certificates u/s 65B Evidence Act is Ex.PW3/C. He handed over the copy of FIR and original rukka to Ct. Surender to hand over the same to Inspector C.P. Bhardwaj. He also sent the copies of FIR to Senior police officials and area Magistrate through special messenger Ct. Kapil and recorded DD No.4A Ex.PW3/D in this regard. He also recorded DD No.3A regarding receiving of rukka and registration of FIR. Nothing material came during the lengthy cross examination by the defence counsels to dis-credit the witness. This witness was not required to be recalled by other accused persons after their arrest.
15. ASI Hawa Singh was examined as PW-4. He was working as duty officer on 27.05.2017 in PS: Mukherjee Nagar. He deposed that on that day at 10:10 pm wireless operator informed him on intercom that one boy has been beaten by someone at Gate No.4 Metro Station GTB Nagar and the caller had taken him to Hindu Rao Hospital. He State Vs. Shekhar Kapasia etc. SC NO:549/2017 9 recorded DD No.47A on this information and told HC Satish on telephone to take necessary action. He proved the copy of DD No.47A as Ex.PW4/A. On the same day at about 10:20 pm duty Ct. Manoj from Hindu Rao Hospital informed on telephone that Ravinder s/o Sh. Surender aged-32 years r/o Jhuggi No.10 Kishor market, Kingsway camp who was admitted by his brother Chhotu in the hospital vide MLC No.3039/17 has been declared brought dead by the doctor. He recorded DD No.48A on this information and passed on this information to SI Kuldeep and Ct. Surender who left for the hospital. He proved the copy of DD No.48A as Ex.PW4/B. The information about this DD was also given to Inspector C.P. Bhardwaj SHO Mukherjee Nagar who along with Ct. Vijay Pal went to the hospital in Govt. Vehicle.
16. During cross examination for accused Atul Dahiya he stated that he has not come to know about the telephone number of the caller while recording DD No.47A. HC Satish was already attending another call and was out of the police station after making departure entry. He denied the suggestion that HC Satish was not entrusted to inquire about this DD. The same cross examination was adopted for accused Atul Dahiya. Nothing material came to discreit the witness during cross examination for accused Shekhar. State Vs. Shekhar Kapasia etc. SC NO:549/2017 10
17. The witness was recalled after the arrest of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay. He deposed on the same lines as deposed earlier and the testimony remained unchallenged and uncontroverted. The witness was again recalled after the arrest of accused Dabbu, Anuj @ Honey and Arvind. He deposed on the same lines, as deposed earlier and testimony remained unchallenged and uncontroverted.
18. Ct. Ram Avtar was examined as PW-5. He was posted as photographer in the mobile crime team. On 28.05.2017 at about 12:40 am he along with Incharge SI Sajjan and the mobile crime team reached at Camp chowk, GTB Nagar Metro station gate No.4. Local police staff and senior pollice officers met them. He took 26 photographs of scene of crime from different angles. He proved the photographs as Ex.PW5/A1 to A26. He proved the certificate u/s 65B Evidence Act as Ex.PW5/B.
19. During cross examination on behalf of accused Atul Dahiya he deposed that Inspector C.P. Bhardwaj met them on the spot. He does not remember the name of the other police officials present on the spot. There were some e- rickshaws standing at the metro station on the spot. Those e-rickshaws are visible in four photographs. He does not State Vs. Shekhar Kapasia etc. SC NO:549/2017 11 remember if any brick, stone or pieces of bricks were lying on the spot. He does not remember the date on which he handed over the photographs and to whom. The same cross examination was adopted on behalf of accused Mehul.
20. During cross examination on behalf of accused Shekhar he stated that he did not make any departure entry while leaving the office. No witness met them on the spot. He denied the suggestion that the photographs are not of the scene of crime.
21. The witness was recalled after the arrest of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay and deposed on the same lines as deposed earlier.
22. During cross examination on behalf of accused persons he stated that they reached at the spot at about 12:50 am. He denied the suggestion that he did not visit the spot on 27/28.05.2017 or that he did not click the photographs. He denied the suggestion that he is not competent person to issue certificate u/s 65B Evidence Act.
23. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines as deposed earlier. The testimony of the witness has gone unchallenged and uncontroverted with respect to State Vs. Shekhar Kapasia etc. SC NO:549/2017 12 these accused persons.
24. ASI Sangram Singh was examined as PW-6. He was working as MHC(M) and proved the entries in register No.19 as Ex.PW6/A to Ex.PW6/C. He also deposed that on 14.07.2017 he sent 3 sealed parcels and 2 sample seals to FSL through Ct. Sachin vide RC No:91/21/17. He proved the photocopy of the RC as Ex.PW6/D. On the same day Ct. Sachin came back and handed over the acknowledgment of the FSL to him. He proved the photocopy of acknowledgment as Ex.PW6/E. Nothing material came during cross examination by the defence counsel to dis-credit the witness.
25. The witness was recalled after the arrest of accused Nitin, Anuj, Ankit S/o Sh. Rajnder and Ankit S/o Sh. Sanjay. He deposed on the same lines as deposed earlier.
26. During cross examination by the defence counsel for these accused persons he denied the suggestion that entries in register No.19 and 21 are manipulated and fabricated.
27. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines. Nothing material came on record to dis-credit the witness during the cross examination by the defence State Vs. Shekhar Kapasia etc. SC NO:549/2017 13 counsels.
28. SI Sajjan Kumar was examined as PW-7. He was posted as Incharge Mobile Crime team. He deposed that on 28.05.2017 at 12:40 am he along with Ct. Ram Avtar, ASI Surender Saini and other staff reached at Camp chowk, GTB Nagar Metro Station Gate No.4. Local police staff and senior police officials met them. He inspected the scene of crime. The photographer took the photographs. They remained at the spot from 12:50 am to 2:00 am. He gave the mobile crime team report Ex.PW7/A.
29. During cross examination on behalf of the accused persons he stated that he did not make any departure entry while leaving for the spot. In his presence no exhibit was lifted from the spot. He did not sign any document on the spot except his report Ex.PW7/A. He denied the suggestion that he prepared the report while sitting in the office. He got the information on wireless set from control room at about 12:30 am and reached the spot at about 1:00 am. Public persons were also present on the spot. He admitted that he had not mentioned FIR number in his report and only DD Number is mentioned.
30. The witness was recalled after the arrest of accused Dabbu, Anuj and Arvind and he deposed on the same lines. State Vs. Shekhar Kapasia etc. SC NO:549/2017 14 Nothing material came to dis-credit the witness during cross examination by the defence counsels.
31. Kalu Ram was examined as PW-8. He deposed that he is selling Ice cream on the rehri put outside gate No.4 Metro station GTB Nagar. On that night about 20-25 boys gathered on the road in front of his rehri. When he went to the road to find out as as to what had happened those boys fled away in two opposite directions. While those boys were running he saw that out of them one boy was carrying angocha in his hand which he was moving. He also saw Tindu lying on the road. Someone had beaten Tindu and fled away. The elder brother of Tindu namely Chhotu came there and removed Tindu from the spot. Thereafter, he returned to his rehri. He stated that those boys including the boy having Angocha in his hand are not present in the court.
32. The witness was cross examined by Ld. APP wherein he had admitted that police has made inquiries from him and recorded his statement. He admitted that one boy was carrying Angocha containing something in that Angocha. Those boys were in the age group of 20 to 25 years and height was around 5 ft to 6 ft. strong built. He admitted that he can identify those boys if produced before State Vs. Shekhar Kapasia etc. SC NO:549/2017 15 him. He denied the suggestion that on 27.05.2017 at about 8:30 pm about 5-7 boys came from the side of camp, red light signal or that they started beating Ravinder @ Tunda who was already standing near the gate. The boy who was carrying gamcha containing something in it started beating Ravinder or that the other boy also started giving kick and fist blows to Ravinder. The witness was confronted with his statement Ex.PW8/A.
33. He denied the suggestion that on 03.06.2017 at about 6 pm IO along with other staff produced one boy whom he identified as the person who was roaming near his rehri or that the same boy was standing with one of his associate at some distance where Ravinder was beaten. He denied the suggestion that he identified accused Shekhar S/o Sh. Sohanvir as the said boy who was among the boy who gave beatings to Ravinder @ Tunda. He also denied that on 09.06.2017 he identified accused Mehul Dedha who was with Shekhar and other associates when Ravinder was beaten. The witness was confronted with his statement Ex.PW8/C. He also denied the suggestion that on 19.06.2017 he identified Atul who gave beatings to Ravinder @ Tinda. He was confronted with his statement Ex.PW8/D. He denied the suggestion that on 13.09.2017 State Vs. Shekhar Kapasia etc. SC NO:549/2017 16 during TIP proceedings he could not see the faces of the persons participating in the TIP proceedings due to reflection of light. The witness was confronted with his statement Ex.PW8/E wherein it is so recorded. He denied the suggestion that on 14.09.2017 he identified Anuj S/o Sh. Ajit, Ankit S/o Sh. Rajender, Nitin S/o Sh. Ajit and Ankit S/o Sh. Sanjay as the person who gave beatings to Ravinder @ Tinda. He was confronted with his statement Ex.PW8/F. He denied the suggestion that on 27.05.2017 at about 8:00 or 8:30 pm the above named accused persons gave beatings to Ravinder @ Tinda or that he had witnessed the incident. No question was put to the witness on behalf of the defence.
34. The witness was recalled after the arrest of accused persons Dabbu, Arvind and Anuj @ Honey and he deposed on the same lines as deposed earlier. He was cross examined by Ld. APP. The witness denied the suggestion that on 27.05.2017 the accused persons namely Dabbu, Arvind and Anuj @ Honey along with their associates gave beatings to Ravinder @ Tinda. He denied the suggestion that on 09.03.2018 he along with the police officials went to Tihar Jail for identification of accused persons or that he could not identify those boys due to fear and the confusion. State Vs. Shekhar Kapasia etc. SC NO:549/2017 17 He denied the suggestion that when he came out side Tihar Jail in the parking he saw two boys whose names were revealed as Dabbu and Arvind and he identified those two persons as the same persons who gave beatings to Ravinder on 27.05.2017 by giving kicks and fist blows or that he narrated these facts to Inspector C.P. Bhardwaj. He was confronted with his statement Ex.PW8/G. The accused persons were also pointed out to him. But he could not identify them. He denied the suggestion that on 12.12.2017 he along with police officials went to Tihar Jail for identification of accused Anuj @ Honey but due to fear and confusion he could not identify him and when he came outside the jail in the parking he saw the boy and identified him as the person who gave beatings to Ravinder. He was confronted with his statement Ex.PW8/H. No question was put to the witness on behalf of Ld. Defence counsels.
35. Mohd. Arif was examined as PW-9. He deposed that in the month of May 2017 at about 1:00 / 1:30 pm Smt. Rani wife of Ravinder (deceased) gave him tiffin box containing lunch to deliver the same to Ravinder at gate No.4 Metro Station GTB Nagar at e-rickshaws stand. Ravinder used to arrange e-rickshaws in a que for taking passengers of metro. Ashok @ Parmod also reached there State Vs. Shekhar Kapasia etc. SC NO:549/2017 18 in his wagonR car and parked the same near the metro station gate No.4. He along with Ravinder @ Tundu, Ashok @ Parmod and two other friends sat in the car and started taking lunch. At the same time Shekhar and his one friend reached at Gate No.4. They both sat in e-rickshaws and started drinking beer / liquor. After drinking the beer Shekhar dropped the bottle on the road near the foot path where e-rickshaws was parked. Thereafter, Shekhar along with his friend got down and started urinating on the wall adjacent to gate No.4 Metro Station. He along with Ashok, Ravinder and two other friends of Ashok got down from WagonR car and asked Shekhar and his friends "Yahan mat mutoo", Shekhar and his friends who were under the influence of liqour started "tu tadaak". Ashok intervened and pacified them and Ravinder said to them "tere kaan teri naak pe laga doonga". Then Shekhar said to Ravinder "shaam ko ayaenge apne kaan naak pe lagwane". Thereafter, Shekhar and his friends left the said place by sitting in e-rickshaws. He also left for his house and Ashok left in his e-rickshaws. Ravinder @ Tindu remained there at his e-rickshaw. At about 8:00/8:15 pm on the same day while he was standing outside his house Manoj came towards him and told that Tindu bhai ki ladai ho gayee. He State Vs. Shekhar Kapasia etc. SC NO:549/2017 19 along with brother of Tindu and other friends who were present there rushed to e-rickshaws stand. Bijender elder brother of Ravinder also reached there. They saw Ravinder lying on the road. He with the help of Vijender and Azad took Ravinder to Hindu Rao Hospital. While they were taking him towards Hindu Rao Hospital and reached near Hans Raj College Ravinder said that he is alright and that he be taken to home. Thereafter, they returned home in the same e-rickshaw. Ravinder was taken to the house and he along with others was standing outside the house of Ravinder. After 10-15 minutes Azad came out of the house and informed Vijender that the condition of Ravinder is bad. He along with Azad went to e-rickshaw stand and came back to the house of Ravinder in the e-rickshaw of Nadeem. They took Ravinder to Hindu Rao hospital. In Hindu Rao Hospital doctor checked and examined Ravinder and told him that he had expired. He informed Chhotu @ Vijender that in the noon time a quarrel has taken place with Tundu @ Ravinder and Shekhar with his friends. The witness has correctly identified Shekhar and Mehul Dedha as the person with whom Ravinder had quarreled during day time on the incident of urination.
36. During cross examination on behalf of accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 20 Mehul Dedha he stated that his statement was recorded by the police three times but he does not remember the dates. There was gap of 3-4 days in each statement. He was using mobile phone No.7053142040 at the relevant time and still using the same. At that time he was studying in 10th class. His house is opposite to the house of Ravinder. He does not know if there was any criminal case against Ravinder, however some time quarrel had taken place in the basti wherein Ravinder was involved. He does not know if Ravinder was Booked Criminal of the area or that he had enmity with many persons. He used to meet him in the evening only and sometime used to carry tiffin at noon time for Ravinder whenever he used to be on leave from the school. He stated that today he has reached the court at 10:15 am and have gone through his one statement. Witness pointed out the statement recorded u/s 161 Cr.PC dt. 28.05.2017 Ex.PW9/DB which he had gone through. He had not tried to go through any other statement. He denied the suggestion that he was not on the spot on 27.05.2017 or that he had not seen any person urinating on the spot. He denied the suggestion that he has wrongly identified Mehul Dedha at the behest of brother of deceased and being family friend of the deceased. He denied the State Vs. Shekhar Kapasia etc. SC NO:549/2017 21 suggestion that he had not taken Ravinder with other persons to hospital in e-rickshaw.
37. During cross examination for accused Shekhar Kapasia he stated that he told the police in his statement that he had gone to deliver the tiffin. He was confronted with his statement where it was not found mentioned that he has gone to deliver the tiffin box to Ravinder on the asking of Rani w/o Sh. Ravinder. He does not know who was the owner of e-rickshaw in which the accused drank bear. He was confronted with his statement where it was not mentioned that accused persons went away in e- rickshaw. Witness stated that one of the accused has to take examination in Kirori Mal college and i.e. why whey went away in e-rickshaw. Milan who drove that e-rickshaw told him that he has dropped them at Kirori Mal College. This fact was told to him by Milan next day in the morning after CCTV footage from the beer shop collected and seen. Milan told him this fact and CCTV footage was also seen before his statement was recorded by the police. In a question by the defence counsel he stated that accused persons were not taking bear from the bottle but they were drinking from the cane and he did not hand over those canes to the police. He admitted that both the accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 22 persons whom he identified today were also visible in the CCTV footage of liquor shop. Vijender elder brother of Ravinder was Pradhan of e-rickshaw stand and he asked Ravinder to make all the e-rickshaw stand in the que. Ravinder used to charge Rs.20/- per day from e-rickshaw drivers to stand in the que. He does not know if Ravinder and Vijender were having any animosity with many e- rickshaw drivers and many other interested persons on the issue of charging money.
38. Ld. Counsel asked the question is it correct that Ravinder was murdered by some other gundas other than Shekhar Kapasia? And he answered I do not know as I was not present there at the time Ravinder was beaten.
39. During cross examination on behalf of Nitin, Anuj, Ankit S/o Sh. Rajinder and Ankit S/o Sh. Sanjay. He stated that today he has come to the court second time. Both the times he came to the court along with Vijender. He denied the suggestion that on 27.05.2017 at about 1:00 or 1:30 pm he did not visit GTB Nagar metro station gate no.4 or that he did not met Ravinder, Ashok @ Parmod, Akhilesh @ Suresh and Milan or that they did not take lunch there.
40. During cross examination on behalf of accused Atul Dahiya. He stated that he did not inform the police or any State Vs. Shekhar Kapasia etc. SC NO:549/2017 23 one else about the incident which took place at 1:00 or 1:30 pm. He denied the suggestion that he did not inform as he was not present there. They made the call at 100 number after reaching the hospital. He does not know who made the call at 100 number but be did not make a call to the police. He signed his statement recorded in the police station on 28.05.2017 same is Ex.PW9/DX. Ravinder used to drink liquor daily but within limits. He admitted that Ravinder suffered with Jaundice about six months prior to the incident. He does not know the registration number of the vehicle in which they took the lunch.
41. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey and he deposed on the same lines. The testimony of the witness has gone unchallenged and uncontroverted.
42. Sh. Rajesh kumar was examined as PW-10. He deposed that in the night of 27.05.2017 he came to know about death of his younger brother Ravinder @ Tindu. On 29.05.2017 he along with his relatives went to Hindu Rao hospital where he identified the dead body of Ravinder Kumar @ Tindu in the mortuary. He proved his statement Ex.PW10/A in this regard. After the post mortem the dead body was handed over to them vide memo Ex.PW10/B. The State Vs. Shekhar Kapasia etc. SC NO:549/2017 24 testimony of the witness has gone unchallenged and uncontroverted.
43. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey and he deposed on the same lines as deposed earlier. The testimony of the witness has gone unchallenged and uncontroverted.
44. Vijender Kumar was examined as PW-11. He deposed that on 27.05.2017 at about 8:00 pm he was present at his house. He used to ply e-rickshaw at gate No.4 of metro station GTB Nagar, Delhi. Manoj came to his house and asked him to accompany him to gate no.4, GTB Nagar Metro station where Ravinder @ Tindu had quarrel with some boys. He along with Manoj and some other boys of their locality reached there. The boys who had given beatings to his brother Ravinder @ Tindu had already run away. His brother was lying on the road. His brother Ravinder @ Tindu informed that maar ke chale gaye. He and other boys lifted his brother Ravinder @ Tindu and laid him in the e-rickshaw of Nadeem. Ravinder was being taken towards Hindu Rao hospital. On the way at Hansraj hostel, Ravinder insisted that he be taken home as he is feeling well. On the insistence of Ravinder they brought him to home. Ravinder was feeling thursty and asked for water. State Vs. Shekhar Kapasia etc. SC NO:549/2017 25 Ravinder was given frooty and he took two sips. After two minutes Ravinder vomitted. His brother Azad asked him to take Ravinder to the hospital as his condition is bad. They took Ravinder @ Tindu in the e-rickshaw of Nadeem to Hindu Rao Hospital. On the way he was shifted in a van. In the hospital doctor checked him and declared him dead. Police reached the hospital. He came to know that his brother Ravinder had quarreled with some boys including Shekhar on the issue of urination at public place near gate No.4 of metro station GTB nagar. That quarrel took place in the noon hours.
45. During cross examination for accused Atul Dahiya he stated that they reached the hospital at about 9:00/ 9:30 pm. He did not make any call at 100 number. He cannot tell the name of the boy who made the call at 100 number. Police made inquiries from him and recorded his statement in the police station. By the time his statement was recorded he was not knowing that Shekhar Kapasia and some other persons had quarreled with his brother in noon hours and therefore he could tell this fact to the police. He denied the suggestion that he has told the fact of quarrel with Shekhar Kapasia and others with his brother Ravinder at the instance of police. His brother suffered Jaundice State Vs. Shekhar Kapasia etc. SC NO:549/2017 26 about 3 months prior to his death. His brother used to have quarrel on the issue of making que of e-rickshaws at gate no.4 GTB Nagar Metro station. Jagra koi nahi hota tha e- rickshawlon se, line todney ke bare main "tu tu main main"
ho jati thi. There was no criminal case pending against his brother Ravinder.
46. During cross-examination for accused Mehul Dedha he admitted that the news of murder of his brother was extensively covered by the media on the TV channels. He admitted that leaders of BJP, AAP and MCD visited their house after the incident. Venkaya Naidu cabinet minister visited their house. He admitted that there was pressure on the police to solve the case. He denied the suggestion that Mehul Dedha was falsely implicated in the present case in order to solve the case. Wife of the deceased got the Govt. service after the murder of his brother. No question was put to the witness on behalf of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit s/o s/o Sanjay.
47. No question was put on behalf of accused Shekhar Kapasia.
48. The witness was recalled on the application u/s 311 Cr.PC on behalf of accused Shekhar Kapasia wherein he was confronted with his statement where it was not found State Vs. Shekhar Kapasia etc. SC NO:549/2017 27 mentioned that his brother Ravinder had quarreled with Shekhar Kapasia and his friends on the issue of urination. Police officers told him in the police station that his brother had quarreled with Shekhar Kapasia on the issue of urination.; he denied the suggestion that Shekhar Kapasia was never involved in the present case. The witness was recalled after the arrest of accused Dabbu, Anuj @ Honey and Arvind and he deposed on the same lines as deposed earlier. The testimony of witness has gone unchallenged and uncontroverted.
49. Ct. Sachin was examined as PW-12. He deposed that on 28.05.2017 at about 1:15 am duty officer handed over him envelopes containing FIR to him for delivering the same to the senior police officers and the area MM. He left the police station on Govt. Motorcycle No.DL 1S AA 3903 and delivered the envelopes to the senior police officials and the area MM.
50. On 08.06.2017 at about 6:30 or 7:00 pm Mehul was brought to the police station by his family members. IO interrogated Mehul and arrested him vide arrest memo Ex.PW12/A. His personal search was conducted vide memo Ex.PW12/B. On 09.06.2017 IO handed over the custody of accused to him. Accused was brought to Rohini State Vs. Shekhar Kapasia etc. SC NO:549/2017 28 Court complex and his two days custody remand was taken. Accused pointed out the place of occurrence vide pointing out memo Ex.PW12/C. At the time of pointing out Nadeem, Rizwan, Manoj and Kalu were called.
51. On 17.06.2017 he along with IO in ERV reached village Jagatpur and searched for the accused persons who were absconding. IO got the information that Atul is at home. Rahul brother of Atul produced him before the IO. IO interrogated him and arrested him vide memo Ex.PW12/D. His personal search was conducted vide memo Ex.PW12/E. On 19.06.2017 Atul pointed out the place of occurrence vide pointing out memo Ex.PW12/F. Witnesses Nadeem, Rizwan, Manoj and Kalu also came there.
52. On 14.07.2017 he collected three sealed parcels and one sample seal from MHC(M) vide RC No.90/21/17 for depositing the same at FSL. He deposited the parcels at FSL and obtained the acknowledgment. He returned to the police station and handed over the acknowledgment to the MHC(M). No one tampered with the case property till the same remained in his custody. The witness has correctly identified accused Mehul Dedha and Atul Dahiya. Ld. APP put one leading question to the witness and in response to that he agreed that accused persons Mehul Dedha and State Vs. Shekhar Kapasia etc. SC NO:549/2017 29 Atul Dahiya made the disclosure statements Ex.PW12/G and Ex.PW12/H. No question was put to the witness on behalf of accused Shekhar Kapasia.
53. During cross examination on behalf of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay he denied the suggestion that he did not deliver the copies of FIR to the senior police officers and the area MM. He did not sign register No.19 at the time of receiving the exhibits. He signed the register No.21. He denied the suggestion that case property was tampered with.
54. During cross examination for accused Mehul Dedha.
He denied the suggestion that accused Mehul Dedha did not make any disclosure statement or that he did not point out the place of incident. He does not know if incident was widely covered by the media and the spot of incident was also shown in the news telecast. He admitted that he and IO were aware of the spot where offence was committed. He denied the suggestion that before 28.05.2017 he was knowing about the place of incident. He had seen the place of incident in the evening of 28.05.2017 as that place falls in his beat. He visited the place of incident with IO and Mehul first time on 09.06.2017. Between 27.05.2017 to 09.06.2017 he did not visit the scene of crime with the IO. State Vs. Shekhar Kapasia etc. SC NO:549/2017 30
55. During cross examination on behalf of accused Atul Dahiya he stated that he had not gone in search of accused Atul before 17.06.2017. He does not know if IO had gone in search of Atul before 17.06.2017. He was not having any photograph of the accused. He does not know if IO was having any photograph of the accused. IO had not joined on the way to Jagat Pur from police station, any person who can recognize Atul. IO was perhaps knowing the address of accused Atul but he was not knowing the address. Rahul produced Atul before the IO at the residence. No other family member or neighbour came in the room where they sat in the house of Atul. Only the arrest memo and personal search memo were prepared at the house of Atul. From the house of Atul they went to the hospital where they were medically examined. From the hospital they reached the police station at 12:00 midnight. On 19.06.2017 accused was taken to the court where application for TIP was moved. The accused refused to join TIP. On 19.06.2017 accused led them to the place of occurrence from the police station. IO called witness Nadeem, Rizwan, Manoj and Kalu on the spot. These persons were called after the accused was already pointed out the place of occurrence. IO was preparing the pointing State Vs. Shekhar Kapasia etc. SC NO:549/2017 31 out memo when these witnesses reached. IO also prepared the site plan of the place of occurrence. He stated that he is not sure if Ex.PW12/DX is the site plan which was prepared by the IO in his presence. IO did not obtain the signature of Nadeem, Rizwan, Manoj and Kalu on any document on the spot on 19.06.2017. Ld. Counsel asked why have you taken Atul to the place of occurrence when you and IO were already knowing the place of occurrence and he answered that they had not taken the accused to the place of occurrence, accused led them to the place of occurrence. Accused was kept mufflled face when he led them to the place of occurrence, hospital and then to the court.
56. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines as deposed earlier. No question was put to the witness on behalf of any of the accused this time.
57. HC Prashant was examined as PW-13. He deposed that on 30.05.12017 he along with Inspector C.P. Bhardwaj, HC Ajay and Ct. Anil reached village Bahadurpur, Distt. Mujjaffar Nagar, UP at the house of Juvenile 'R' who was identified in the CCTV footage and by other sources also. The parents of Juvenile 'R' and other persons met them at the house of Juvenile. The parents told that on the day of State Vs. Shekhar Kapasia etc. SC NO:549/2017 32 incident Juvenile told about the incident and that he and his friends had a quarrel. He told this fact after seeing the news on the TV. Thereafter, they along with Juvenile came to the village and sent Juvenile to the house of maternal uncle. Juvenile was called who reached there at 7:00 am on 31.08.2017. On inquiry Juvenile told them that many boys were involved in the incident with him and one of them was Shekhar r/o Village Jeewna. Father of accused Shekhar Kapasia is Pradhan of the village. They reached village Jeewana along with Juvenile. Sohanvir Pradhan of the village met them who is father of accused Shekhar. IO made inquiries from Sohanvir who told that Shekhar had gone to the house of his maternal uncle at Baghpat. Sohanvir told that he along with Shekhar will reach police station and thereafter they along with Juvenile and his father returned to Delhi. At about 3:30 pm Sohan vir along with his son Shekhar reached PS Mukherjee Nagar. IO interrogated Shekhar and arrested him vide arrest memo Ex.PW13/A his personal search was conducted vide memo Ex.PW13/B. Custody of Shekhar was handed over to Ct. Anil. Shekhar also made the disclosure statement Ex.PW13/C. Witness has correctly identified accused Shekhar.
State Vs. Shekhar Kapasia etc. SC NO:549/2017 33
58. During cross examination on behalf of accused Shekhar he stated that he cannot tell the exact time but it was in the evening of 30.05.2017 when they left for Bahadurpur Mujjafarnagar. He does not know if IO had taken the permission for going out station. They reached village Bahadurpur at about 11:00 pm. They reached PS:
Mansoorpur at about 8:30 or 9:00 am on 31.05.2017. They reached Delhi at 1:00 pm on 31.05.2017. IO did not make any arrival entry in his presence. He denied the suggestion that JCL did not tell about accused Shekhar or that Shekhar has been falsely implicated.
59. During cross examination on behalf of counsels for accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay he denied the suggestion that Shekhar did not make any disclosure statement or that signature of Shekhar were obtained on blank papers. No question was put to the witness on behalf of accused Atul Dahiya.
60. HC Prashant was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines as deposed earlier. The testimony of the witness has gone unchallenged and unconvtroverted.
61. HC Anil Kumar was examined as PW-14. He corroborated the testimony of PW-13 regarding the juvenile State Vs. Shekhar Kapasia etc. SC NO:549/2017 34 and then arrest of Shekhar and making disclosure statement by Shekhar.
62. During cross examination for accused Shekhar he deposed that they left the police station at 9:00 pm on 30.05.2017. They reached Bahadurpur, Mujjaffarnagar at about 11 pm. They reached Mansoor pur police station at about 9 or 10 am on 31.05.2017. He does not know if IO made any arrival entry in police station Mansoor pur. Three local police officials accompanied them to the village of Shekhar. At about 1 pm on 31.05.2017 they reached PS:
Mukherjee Nagar. He denied the suggestion that accused Shekhar did not make any disclosure statement or that all the documents were prepared while sitting in PS:
Mukherjee Nagar. He denied the suggestion that JCL did not tell about accused Shekhar.
63. During cross examination for accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay he denied the suggestion that accused Shekhar did not make any disclosure statement or that signature of Shekhar were obtained forcibly on blank papers in order to falsely implicate accused persons. No question was put to the the witness on behalf of accused Atul Dahiya.
64. HC Anil Kumar was recalled after arrest of accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 35 Dabbu, Anuj @ Honey and Arvind and he deposed on the same lines as deposed earlier.
65. During cross examination by the defence counsel for accused persons, he denied the suggestion that Shekhar Kapasia did not make any disclosure statement or that he was forced to make signatures on blank papers in order to falsely implicate the co-accused persons.
66. Inspector Manohar lal was examined as PW-15. On 04.07.2017 he visited the scene of crime along with IO. He took measurements and prepared rough notes. On 05.07.2017 he prepared the scaled site plan Ex.PW15/A. After preparing the scaled site plan he destroyed the rough notes and the measurements taken by him on the spot.
67. During cross examination for accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay he denied the suggestion that he did not visit the spot or that he did not prepared the scaled site plan. He denied the suggestion that he prepared the site plan while sitting in the police station on the asking of the IO. No question was put to the witness on behalf of the remaining accused persons.
68. The witness was recalled after the arrest of accused Anuj @ Honey, Dabbu and Arvind. He deposed on the same lines as deposed earlier.
State Vs. Shekhar Kapasia etc. SC NO:549/2017 36
69. During cross examination on behalf of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay, Dabbu and Arvind he denied the suggestion that he did not visit the spot or that he prepared the site plan while sitting in the police station on the asking of IO. No question was put to the witness on behalf of accused Anuj @ Honey.
70. Kamal Kumar Nodal Officer, Reliance Jio was examined as PW-16. He brought the record of mobile No.8630670298. As per the record this number was issued in the name of Shekhar Kapasia s/o Sh. Sohanvir R/o 248 Jeevan Bhudana, Mujjafar Nagar UP. He proved the photocopy of the customer application form as Ex.PW16/A. The call detail record of this number from 25.05.2017 to 30.05.2017 is proved as Ex.PW16/B. The certificate u/s 65B Evidence Act is proved as Ex.PW16/C. The cell ID chart is proved as Ex.PW16/D. He stated that mobile phone number 7455089090 is not of Reliance Jio. No question was put to the witness on behalf of the defence counsels. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines as deposed earlier. No question was put to the witness on behalf on behalf of accused persons.
71. Sh. Chander Shekhar Nodal officer Bharti Airtel was State Vs. Shekhar Kapasia etc. SC NO:549/2017 37 examined as PW-17. He brought the record of mobile phone No.8512018096. As per the record this number was issued in the name of Rahul S/o Sh. Suraj R/o 100 Mukherjee Nagar, Delhi. He proved the photocopy of the customer application form as Ex.PW17/A. Aadhar card Ex.PW17/B was attached with the customer application form. Call detail record of this number from 25.05.2017 to 30.05,2017 is proved as Ex.PW17/C.
72. He has also brought the record of mobile phone No.8882626110 this mobile number was issued in the name of Anuj Dedha S/o Sh. Bijender Chaudhary R/o 248, Street No.5 MCD Scholol Sant Nagar Jagat Pur Burari. Photocopy of application form is proved as Ex.PW17/D. The photocopy of Aadhar card annexed with the customer application form is Ex.PW17/E. The call detail record of this number from 25.05.2017 to 30.05.2017 is proved as Ex.PW17/F. He has also brought the record of mobile phone number 9555410628. as per record this number was issued in the name of Atul Dahiya S/o Sh. Satish Kumar R/o 95/36, street No.5 near Hanuman chowk, Jagatpur Extension Burari. The photocopy of the customer application form is proved as Ex.PW17/G. Aadhar card annexed with the customer application form is proved as State Vs. Shekhar Kapasia etc. SC NO:549/2017 38 Ex.PW17/H. The call detail record of the number from 25.05.2017 to 30.05.2017 is proved as Ex.PW17/I.
73. He has also brought the record of mobile phone No.9911885584. As per record this mobile phone number was issued in the name of Mehul Dedha S/o Sh. Jitender R/o H.No.248 Street No.5 Jagat Pur Delhi. The photocopy of the customer application form is Ex.PW17/J. Driving license attached with the customer application form is ExPW17/K. The call detail record of this number from 25.05.2017 to 30.05.2017 is proved as Ex.PW17/L. The cell ID chart is proved as Ex.PW17/M. The certificate u/s 65B Evidence Act of all the call detail records is proved as Ex.PW17/N.
74. During cross examination on behalf of accused Mehul Dedha. He stated that the server of the company is located at Noida, if the server is down due to any reason they receive the intimation on mail. Ld. Counsel asked whether he received any email during the relevant period the witness stated that the server never fails, if the server is down for maintenance the back up server continue to work and hence there is no possibility of any error in maintaining the data. He stated that every tower is having different range and there is no fix range of any tower. The tower State Vs. Shekhar Kapasia etc. SC NO:549/2017 39 range vary from 300 meters to 3 kms. The data produced by him is correct.
75. During cross examination for accused Atul Dahiya he stated that one cell tower is having 3 or more ID's reflected by the digits. The cell tower range moves in all directions creating a sphere. He cannot tell how many towers of their company are there covering the GTB Metro station. He cannot tell which is the nearest tower of the company near metro station. A cell phone may be in the range of 4-5 towers simultaneously in the living scenario but in CDR there will be only two towers reflected one where the call was generated and the second where the call was terminated. The range of the tower may be overlapping some where and there may be some gap in between range of two towers. He has not brought the documentary proof to show that tower is installed at the place as reflected in the Cell ID chart Ex.PW17/M. He denied the suggestion that cell ID chart Ex.PW17/M is wrong and is not reflecting the correct site. He denied the suggestion that call detail record Ex.PW17/I is manipulated.
76. No question was put to the witness on behalf of accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay.
State Vs. Shekhar Kapasia etc. SC NO:549/2017 40
77. The witness was re-called after the arrest of accused Dabbu, Anuj @ Honey and Arvind. He deposed on the same lines and proved the same documents. He has also brought the record of mobile No. 9999478547. As per record this number was issued in the name of Ankit S/o Sh. Rajender. He proved the photocopy of the customer application form as Ex.PW17/O. The photocopy of the Aadhar card attached with the customer application form is proved as Ex.PW17/P. The call detail record of the number from 25.05.2017 to 30.05.2017 is proved as Ex.PW17/Q. The certificate u/s 65 B Evidence Act is proved as Ex.PW17/R.
78. During cross examination on behalf of accused Dabbu, Arvind, Nitin, Ankit S/o sh. Rajender, Ankit S/o Sh. Sanjay and Anuj he denied the suggestion that he has furnished false and fabricated CDR. His computer is connected with the main server and the computer is protected with password. No question was put to the witness on behalf of Shekhar Kapasia, Mehul Dedha, Anuj @ Honey and Atul Dahiya.
79. Israr Babu alternate Nodal Officer Vodafone Mobile phone services Ltd. was examined as PW-18. He brought the record of mobile No.9999436837 as per record this State Vs. Shekhar Kapasia etc. SC NO:549/2017 41 number was issued in the name of Nitin Chaudhary S/o Sh. Ajit Singh R/o h.No170, Street No.5. Jagat Puri, Burari. He proved the photocopy of customer application form as Ex.PW18/A. Aadhar card annexed with the customer application form is proved as Ex.PW18/B. The call detail record of this number from 25.05.2017 to 30.05.2017 is proved as Ex.PW18/C. The cell ID cart is proved as Ex.PW18/D. The certificate u/s 65B Evidence Act is proved as Ex.PW18/E. All the documents were supplied to the police vide covering letter Ex.PW18/F.
80. During cross examination for accused Nitin, Anuj,Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay he deposed that he does not remember the date on which the application moved by the IO was received by them. He does not remember the date when he generated the CDR of the aforesaid mobile phone number, however, the same is reflected in the CDR. He does not know the date when he delivered the documents to the IO. He denied the suggestion that he is intentionally not telling the dates or he is intentionally not telling the range of the towers. No question was put on behalf of accused persons Atul Dahiya, Mehul Dedha and Shekhar Kapasia.
81. The witness was recalled after the arrest of accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 42 Anuj, Dabbu and Arvind. He deposed on the same line. He also stated that mobile phone No.9999478547 was quoted out to Airtel and phone No.9716838780 does not belong to Vodafone.
82. During cross examination on behalf of accused Dabbu and Arvind. Nothing material came to dis-credit the witness. No question was put to the witness on behalf of accused Anuj @ Honey.
83. Jeet Singh Alternate Nodal Officer Idea Cellular Limited was examined as PW-19. He has brought the record of mobile phone No.8750872483. As per record this number was issued in the name of Shivraj S/o Rupa R/oStreet No.5, H.No.227, Jagat pur Delhi. He proved the copy of the customer application form as Ex.PW19/A. The copy of the ration card attached with the customer application form is proved as Ex.PW19/B. He has also proved the call detail record of this number from 25.05.2017 to 30.05.2017 running into three pages as Ex.PW19/C. The cell ID chart of this mobile phone number is proved as Ex.PW19/D.
84. He has also proved the record of mobile phone number 9639380797. As per the record this number was issued in the name of Vineet Kumar S/o Sh. Sushil R/o State Vs. Shekhar Kapasia etc. SC NO:549/2017 43 Geevana Mujjaffar Nagar, UP. He proved the photocopy of the customer application form as Ex.PW19/E. The photocopy of Aadhar card annexed with customer application form is proved as Ex.PW19/F. The call detail record of this number form 25.05.2017 to 30.05.2017 is proved as Ex.PW19/G. The cell ID chart of this number is Ex.PW19/H. The certificate u/s 65B Evidence Act of both the call detail records is proved as Ex.PW19/I. No question was put to the witness on behalf of the accused persons.
85. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj@ Honey. He deposed on the same lines.
86. During cross examination on behalf of accused Dabbu, Arvind and Anuj@ Honey he denied the suggestion that he has not taken the print out of the CDRs or that the CDRs are manipulated and manufactured at the instance of IO. He denied the suggestion that he issued false certificate u/s 65B Evidence Act.
87. Ct. Devender was examined as PW-20. He deposed that on 03.09.2017 he along with Inspector C.P. Bhardwaj left the police station in ERV at about 11:00 am and reached the house of accused Nitin at 12:30 pm. Nitin was produced by his relatives. IO interrogated him and arrested State Vs. Shekhar Kapasia etc. SC NO:549/2017 44 him vide arrest memo Ex.PW20/A. The personal search of the accused was conducted vide memo Ex.PW20/B. Accused was brought to the police station. IO interrogated him and accused made the disclosure statement Ex.PW20/C.
88. On 10.092017 he along with Ct. Kuldeep IO and the other staff left in ERV at about 11 am and reached the house of Nitin. Nitin met them. Thereafter, they along with Nitin reached at village Jagatpur. One vehicle having UP registration Number passed on the road of Jagatpur. That vehicle was stopped. Three boys and their relatives were found sitting in that car. Accused Ankit S/o Sh. Rajender, Anuj and Ankit S/o Sh. Sanjay were apprehended. IO interrogated them. Accused Ankit S/o Sh. Rajender was arrested vide arrest memo Ex.PW20/D. His personal search was conducted vide memo Ex.PW20/E. Accused Anuj was arrested vide arrest memo Ex.PW20/F. His personal search was conducted vide memo Ex.PW20/F. Accused Ankit S/o Sh. Sanjay was arrested vide arrest memo Ex.PW20/F and his personal search was conducted vide memo Ex.PW20/I. They made the disclosure statements. Disclosure statement of accused Ankit S/o Sh. Rajender is Ex.PW20/J that of Anuj is Ex.PW20/K and of State Vs. Shekhar Kapasia etc. SC NO:549/2017 45 Ankit S/o Sanjay is Ex.PW20/L.
89. On 14.09.17 he joined the investigation with IO and other staff. Accused Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay and Anuj and Nitin were on police custody remand. They were taken to BJRM Hospital. All the four accused pointed out the place of occurrence vide pointing out memo Ex.PW20/M. On 15.09.2017 accused Ankit S/o Sh. Sanjay Chaudhary made supplementary disclosure statement Ex.PW20/N. He identified all the accused persons except Nitin. With the permission of the court on the pointing out of the addl. PP he also identified Nitin.
90. During cross examination by the defence counsel on behalf of accused Nitin, Anuj , Ankit S/o Rajender and Ankit S/o Sh. Sanjay he stated that he cannot tell the address of accused Nitin. No family members or neighbours of accused Nitin was joined at the time of arrest. The accused was arrested at about 1:15 pm. At the time of arrest of accused Nitin S/o Sh. Ajit he himself, Inspector C.P. Bhardwaj and driver of ERV were present. He does not know the name of the driver of the ERV. The driver of ERV was not cited as a witness. He does not know in how many pages the disclosure statement of accused Nitin S/o Ajit was recorded. He denied the suggestion that Nitin did not State Vs. Shekhar Kapasia etc. SC NO:549/2017 46 make any disclosure statement.
91. The vehicle having UP registration number was not seized by the IO. He denied the suggestion that accused persons were called to the police station for making inquiry and later on falsely arrested in the present case. He denied the suggestion that none of the accused make disclosure statement or pointed out the place of occurrence. No question was put to the witness on behalf of accused Atul Dahiya, Mehul Dedha and Shekhar Kapasia.
92. Witness was recalled after the arrest of accused Anuj @ Honey, Dabbu @ Trikal and Arvind and he deposed on the same lines and identified all the accused persons. Nothing material came on record to discredit the witness during cross examination on behalf of accused Dabbu, Arvind and Anuj @ Honey.
93. Ramjit was examined as PW-21. He deposed that he is working on wine shop situated at 140 GTB Nagar, mall road Delhi. He handle the cash counter of the shop. One day police came and seized the DVR / CCTV installed at the wine shop vide seizure memo Ex.PW21/A. He does not remember the date, or month when DVR was seized. He cannot identify the DVR. The witness was cross-examined by Ld. APP wherein he admitted that the DVR and the hard State Vs. Shekhar Kapasia etc. SC NO:549/2017 47 disc were seized on 03.06.2017. DVR was shown to the witness which was produced by the MHC(M) but even after seeing the same he stated that he cannot identify the DVR. He denied the suggestion that he handed over DVR H-264 Digitil video recorder black colour to the police or that he is deliberately and intentionally not identifying the DVR. No qeustion was put to the witness on behalf of accused Shekhar Kapasia, Mehul Dedha, Atul Dahiya, Nitin, Anuj , Ankit S/o Sh. Rajender and Ankit S/o Sanjay.
94. Witness was recalled after the arrest of accused Dabbu, Arvind and Anuj@ Honey and he deposed on the same lines.No question was put to the witness on behalf of accused Dabbu, Arvind and Anuj@ Honey.
95. Rizwan was examined as PW-22. He deposed that he is plying e-rickshaw from Kingsway camp to Malkaganj route. Ravinder @ Tindu and Manoj and other e-rickshaw driver used to park their e-rickshaw at gate no.4 in front metro station GTB Nagar. He stated that he does not know anything about this case.
96. The witness was cross-examined by Ld. APP wherein he admitted that on 27.05.2017 at about 8:30 pm he along with his e-rickshaw was standing near gate no.4 metro station GTB Nagar. The e-rickshaw of Ravinder was State Vs. Shekhar Kapasia etc. SC NO:549/2017 48 behind his e-rickshaw and Nadeem asked Lovely contractor for eating Faluda Ice-cream. He came to know that Ravinder @ Tindu had died in Hindu Rao Hospital. He denied the suggestion that Ravinder and Manoj were talking with each other and suddenly many boys came from the side of gate No.4 and started beating Ravinder. He denied the suggestion that Manoj tried to save Ravinder or one of the boy slapped Manoj. He denied the suggestion that one of those boys who was medium built was having a gamcha in his hand containing some heavy object or that the said boy repeatedly hit on the chest and back of Ravinder with the said heavy object tied in the gamcha or that Ravinder fell down on the ground and the other boys gave kick and fist blows to Ravinder and thereafter those boys ran away in the different directions. After beating Ravinder @ Tindu. He was confronted with his statement Ex.PW22/A. He denied the suggestion that Ravinder @ Tindu was taken to Hindu Rao Hospital in the e-rickshaw by his brother Chhotu and other persons. He denied the suggestion that on 09.06.2017 at about 6:00 pm police brought one boy at GTB Nagar at gate No.4 metro station where he identified those boys who gave kick and fist blows to Ravinder @ Tindu on 27.05.17 and the name of that boy State Vs. Shekhar Kapasia etc. SC NO:549/2017 49 was Mehul S/o Sh. Jitender. The witness was confronted with his statement Ex.PW22/B. He denied the suggestion that on 19.06.2017 at about 12:00 noon police brought one boy at GTB Nagar Gate No.4 metro station where he identified the boy as the same who gave kick and fist blows to Ravinder and Tindu on 27.05.2017. The name of that boy was Atul S/o Sh. Satish. He was confronted with his statement Ex.PW22/C. He admitted that on 13.09.17 he went to Jail for identifying the accused persons but he denied the suggestion that due to reflection of light or that he was perplexed or hurriedly could not identify those boys. He also could not tell those facts to Judge Saheb and he narrated those facts to Inspector C.P. Bhardwaj on 13.09.2017 who recorded his statement Ex.PW22/D. Witness was confronted with his statement Ex.PW22/D. He denied the suggestion that on 14.09.2017 at about 7 pm police brought four boys at GTB Nagar, Gate No.4 Metro station where he identified those boys as the same who gave kicks and fist blows to Ravinder @ Tindu on 27.05.2017 at about 8:00 or 8:30 pm. The names of those boys were told to him as Anuj S/o Sh. Ajit, Ankit S/o Sh. Rajender. Nitin S/o Sh. Ajit and Ankit S/o Sh. Sanjay all resident of Jagat pur. The witness was confronted with State Vs. Shekhar Kapasia etc. SC NO:549/2017 50 statement Ex.PW22/E. He also denied the suggestion that he identified Ankit son of Sanjay as the person who was having Gamcha in which he had tied some concrete stone and repeatedly hit on the body of Ravinder @ Tindu. The accused persons Mehul @ Dedha, Atul Dahiya, Anuj@ Sajid, Ankit S/o Sh. Rajender, Ankit S/o Sh. Sanjay and Nitin S/o Sh. Ajit were pointed out to the witness but he failed to identify them. No question was put to the witness on behalf of the accused persons Shekhar Kapasia, Mehul @ Dedha, Atul Dahiya, Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay.
97. The witness was recalled after the arrest of accused Dabbu, Anuj @ Honey and Arvind. He deposed on the same lines. He was cross-examined by Ld. APP for the State. He denied that he witnessed the incident or that he identified the accused persons. He admitted that on 09.02.2018 he went to Tihar Jail for the purposes of Test Identification Parade of accused persons. He denied the suggestion that he told the IO during the TIP proceedings that he got confused and he inadvertently stated to the Ld. Judge that he could not identify the offender due to fear. He denied the suggestion that after the TIP while he was present in the parking area he identified accused Dabbu State Vs. Shekhar Kapasia etc. SC NO:549/2017 51 and Arvind or that they also assaulted Ravinder with legs and fist blows. He was confronted with his statement Ex.PW22/F. He denied the suggestion that on 19.12.17 while he was present at GTB Nagar metro station. He had seen accused Anuj @ Honey in the custody of the police and identified him as one of the assailants who assaulted Ravinder @ Tindu. The witness was confronted with his statement Ex.XPW22/G. Accused persons namely Dabbu, Anuj@ Honey and Arvind pointed out to the witness but he still failed to identify them. No question was put to the witness on behalf of any of the accused persons.
98. Sh. Nadeem was examined as PW-23. He is plying e-rickshaw from GTB Nagar to Malka Ganj. About 8-9 months ago in the summer season at about 8/8.30 PM when he reached at gate no.4 GTB Nagar Metro station, he found the gathering of public persons. Ravinder @ Tindu was lying on the ground. Chhotu elder brother of Ravinder reached there. They put Ravinder in his e-rickshaw for going to Hindu Rao hospital. When they reached near Hans Raj college, Ravinder got stopped the e-rickshaw and asked them to take him to his house. Ravinder also said that he is feeling better. They reached home. Mother of Ravinder gave frooty to him. After about 15 minutes State Vs. Shekhar Kapasia etc. SC NO:549/2017 52 Ravinder started crying in pain. He along with Chhotu and Ashok took Ravinder to Hindu Rao hospital. Ravinder was examined by the doctor and declared him brought dead. Police accompanied them to the spot where photographs were taken. He had not seen the persons, who gave beatings to Ravinder @ Tindu. The witness was cross examined by Ld. APP as he resiled from his earlier statement.
99. During cross examination by Ld. APP, he denied the suggestion that Ravinder @ Tindu and Manoj were talking with each other or that his e-rickshaw was parked behind e- rickshaw of Rizwan. He denied the suggestion that suddenly many boys in two groups came from the side of gate no.4 and started beating Ravinder or that when Manoj tried to save Ravinder, one boy slapped Manoj, who was medium built having a gamchha in his hand in which there was some heavy object or that the said boy repeatedly hit on the chest and back of Ravinder @ Tindu with that heavy object which was tied in the gamchha. He denied the suggestion that due to the beatings given Ravinder fell down or that the other boys gave kick and fists blows to Ravinder or that they all fled away after giving beatings to Ravinder. He denied the suggestion that he picked up the State Vs. Shekhar Kapasia etc. SC NO:549/2017 53 stone and handed over to the police which was seized by the police. He denied the suggestion that the incident was witnessed by him, Manoj, Lovely, Kalu and Rizwan. He was confronted with his statement Ex.PW-23/B where all these facts were found mentioned.
100. He denied the suggestion that on 09.06.17 at about 6 PM police brought one boy at GTB Nagar Metro Station, gate no.4 and he identified that boy who gave kick and fist blows to Ravinder on 27.05.17 at about 8 PM or that he came to know that boy as Mehul son of Jitender. He was confronted with his statement Ex.PW-23/B where this fact was found mentioned.
101. He denied the suggestion that on 19.06.17 at about 12 noon police brought one boy at GTB Nagar Metro station, gate no.4 or that he identified that boy who gave kick and fist blows to Ravinder @ Tindu on 27.05.17 or that he came to know the name of that boy as Atul son of Satish. He denied the suggestion that he made any such statement to the police. He was confronted with his statement Ex.PW-23/C.
102. He admitted that on 13.09.17 he went to jail for identifying the accused persons. He denied the suggestion that due to reflection of light or that he was purplexed or State Vs. Shekhar Kapasia etc. SC NO:549/2017 54 hurriedly could not identify those boys and also could not tell these facts to the Ld.Judge. He denied the fact that on 13.09.17 he told all these facts to Inspector C.P.Bhardwaj. He was confronted with his statement Ex.PW-23/D wherein it was found mentioned.
103. He denied the suggestion that on 14.09.17 at about 7 PM police brought 4 boys at GTB Nagar Metro station, gate no.4 or that he identified those boys as the same who gave kick and fist blows to Ravinder on 27.05.17 at about 8/8.30 PM or that he came to know their names as Anuj son of Ajeet, Ankit son of Rajender, Nitin son of Ajeet and Ankit son of Sanjay. He also denied the suggestion that he identified Ankit son of Sanjay as the person who was having gamchha in his hand in which he tied a concrete stone and repeatedly hit on the body of Ravinder @ Tindu and thereafter that concrete stone fell on the ground from the gamchha. He stated that he did not all these facts to Inspector C.P.Bhardwaj. He was confronted with his statement Ex.PW-23/E. The stone was also shown to him which was produced in a sealed parcel and after seeing the same, he stated that he had not handed over any stone to the police. No question was put to the witness during cross examination by the defence counsel.
State Vs. Shekhar Kapasia etc. SC NO:549/2017 55
104. Nadeem was recalled. After the arrest of accused Dabboo, Anuj @ Honey and Arvind. He deposed on the same lines as deposed earlier. He was cross examined by Ld. APP as he resiled from his earlier statement given to the police. He admitted that on 09.02.18 he went to Tihar Jail for judicial TIP of accused persons. He denied the suggestion that he got confused during TIP proceedings or that he had inadvertently stated to be Ld. Judge that he could not identify the offender due to fear. He denied the suggestion that after TIP while he was present in the parking area, he identified accused Dabboo and Arvind as the persons, who were amongst the assailants, who assaulted Ravinder on 27.05.17 and gave kick and fist blows. He denied that he gave any such statement to the police. He was confronted with his statement Ex.PW-23/F.
105. He denied the suggestion that on 19.12.17 he saw accused Anuj @ Honey in the custody of police or that he identified him as the person , who was amongst the assailants who assaulted Ravinder on 27.05.17. He denied the suggestion that he made any such statement to the police. He was confronted with his statement Ex.PW-23/G. Accused persons were also pointed out to him but he did not identify the accused persons. No question was put to State Vs. Shekhar Kapasia etc. SC NO:549/2017 56 the witness by the defence counsel.
106. Sh. Milan was examined as PW-24. He deposed that he is plying e-rickshaw from GTB Nagar to Malka Ganj. About 8-9 months ago in the noon hours during summer season, 5 persons boarded his rickshaw, whom he dropped at Kirori Mal Colleged, Delhi University and returned to GTB Nagar Metro station stand. He also came to know that some altercation had taken place. In the evening hours again a quarrel took place. In the night hours Ravinder was taken to the hospital by his brother and friends. He was also with them in the e-rickshaw of Nadeem and then in a van to Hindu Rao Hospital. Doctor examined Ravinder and declared him dead. He had not seen who had given beatings to Ravinder. He had not witnessed the incident. The witness was cross examined by Ld. APP as he resiled from his earlier statement.
107. During cross examination by Ld. APP, he denied the suggestion that on 27.05.17 at about 1.30/2 PM he was present at GTB Nagar Metro station, gate no.4 or that one boy was urinating on the wall near metro station, Ravinder objected to his urinating on the wall and the said boy along with his friend started abusing Ravinder by saying that, "uska kaan todkar naak per lagayega" on that Ravinder and State Vs. Shekhar Kapasia etc. SC NO:549/2017 57 those two boys grappled with each other or that thereafter those boys came to his e-rickshaw and also told to drop him at Kirori Mal College as they have to appear in examination. He denied the suggestion that he dropped those boys at the gate of Kirori Mal college and charged Rs.10/-. He denied the suggestion that he told all these facts to the police in his statement. He was confronted with his statement Ex.PW-24/A.
108. He denied the suggestion that on 27.05.17 at about 8.30/9 PM he reached e-rickshaw stand where many persons were present or that he saw the boys running here and there or that Ravinder was lying in injured condition or that Ravinder informed them that,"uske saath maar peet kerne wale vohi ladke they jinse din mai uska jhagra hua tha". He denied the suggestion that he told all these facts to the IO. He was confronted with his statement Ex.PW-24/A.
109. He denied the suggestion that on 03.06.17 at about 6 PM police brought one boy at gate no.4, GTB Nagar Metro station or that he identified the said boy, who said "Kaan naak per lagvayega" or threatened Ravinder @ Tindu or that he is the same boy whom he dropped at Kirori Mal College. He denied the suggestion that he came to know the name of that boy as Shekhar son of Sohanvir. He State Vs. Shekhar Kapasia etc. SC NO:549/2017 58 denied the suggestion that he made such statement to the police. He was confronted with his statement Ex.PW-24/B.
110. He denied the suggestion that on 09.06.17 at about 6 PM police brought one boy at gate no.4 of GTB Metro station or that he identified that boy who gave kick and fist blows to Ravinder on 27.05.17 at 8 PM or that he came to know the name of the boy as Mehul son of Jitender. He denied having made any such statement to the police. He was confronted with his statement Ex.PW-24/C.
111. He denied the suggestion on 19.06.17 at about 12 noon police one boy at gate no.4 of GTB Nagar Metro Station or that he identified the boy who gave beatings to Ravinder @ Tindu, whose name he came to know as Atul son of Satish. He denied having made any such statement to the police. He was confronted with his statement Ex.PW- 24/D.
112. The accused persons Shekhar Kapasia, Mehul @ Dedha and Atul Dahiya were pointed out to the witness, but he stated that he had not seen those boys on that date, time and place as he had not seen the incident of beating. No question was put to the witness by the defence counsels.
113. This witness was recalled after the arrest of accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 59 Daboo, Anuj @ Honey and Arvind. He deposed on the same lines as deposed earlier. He was cross examined by the Ld. APP as he resiled from his earlier statement.
114. During cross examination by Ld.APP, he was confronted with his earlier statements but he did not support the prosecution case at all. The testimony of witness has gone unchallengedand uncontroverted.
115. Manoj was examined as PW-25. He deposed that he used to ply e-rickshaw from GTB Nagar Metro station gate no.4. He did not tell the date but stated that at about 8/8.30 PM he was present at gate no.4 of GTB Metro station for taking passengers. Some boys came there and some one slapped on the back of his head. He could not see the face of that person. Those boys also gave beating to Ravinder @ Tindu. He went running to the house of Ravinder and met Chhotu, brother of Ravinder. He along with Chhotu came back at gate no.4 of GTB Nagar metro station. The other family members and friends of Ravinder also came there. They saw Ravinder lying in injured condition on the ground. He along with Chhotu and others took Ravinder in the e-rickshaw of Nadeem to the hospital. On the way to the hospital, when they reached near Hans Raj College, Ravinder said that he is feeling better and State Vs. Shekhar Kapasia etc. SC NO:549/2017 60 asked them to take him home. Thereafter they took Ravinder to his house. He went to his home. Lateron he came to know that Ravinder is again taken to the hospital. He also went to Hindu Rao Hospital where he came to know that Ravinder had expired. He had not seen the person/boy who gave beatings to Ravinder @ Tindu and also slapped him. The witness was cross examined by Ld.APP as he resiled from his earlier statement given to the police.
116. During cross examination by Ld. APP, he did not support the prosecution case at all. The accused persons were also pointed out to him but he did not identify them. He stated that he had not seen those boys on that day at the spot. The concrete stone was also shown to the witness, he stated that he had not seen any stone being given by Nadeem to the police. The testimony of the witness has gone unchallenged and uncontroverted.
117. The witness was recalled after the arrest of Daboo, Arvind and Anuj @ Honey. Witness deposed on the same lines as deposed earlier. He was cross examined by Ld.APP, but he did not support the prosecution case. The accused persons were also pointed out to him but he did not identify them and stated that he had not seen those State Vs. Shekhar Kapasia etc. SC NO:549/2017 61 boys. The testimony of the witness has gone unchallenged and uncontroverted.
118. Sh. Virender Singh, Ld. MM-II was examined as PW-26. He deposed that on 02.06.17 application for TIP of accused Shekhar Kapasia was assigned to him by his Ld.Link MM. Shekhar Kapasia was produced before him in muffled face. Accused stated that he does not want to join the TIP. He was warned that adverse inference may be drawn against him during trial, but he insisted not to joint the TIP. His statement is Ex.PW-26/A. The TIP proceedings are Ex.PW-26/B. The certificate appended to the proceeding is Ex.PW-26/C.Sh. Anurag Dass Ld. MM was examined as PW-27. On 17.06.2017 the application for TIP of accused Atul Dahiya Ex.PW27/A was assigned to him. Accused Atul Dahiya was produced before him in muffled face. He refused to join the TIP. He was warned that adverse inference may be drawn against him during trial if he refused to join TIP. The accused still persisted not to join TIP. His statement Ex.PW27/A was recorded. The TIP proceedings are proved as Ex.PW27/B. The certificate appended is Ex.PW27/C. IO moved application for getting copy of TIP proceedings which is Ex.PW27/D. The testimony of the witness has gone unchallenged and State Vs. Shekhar Kapasia etc. SC NO:549/2017 62 uncontroverted.
119. The TIP proceedings with respect to accused Nitin S/o Sh. Ajit, Ankit S/o Sh. Sanjay, Anuj S/o Sh. Sanjeev and Ankit S/o Sh. Rajender were admitted by the Ld. Defence counsel and the same are now Ex.PX1 to PX4.
120. Sh. Harish Chander Pathak, CPCR PHQ was examined as PW-28. On 04.07.2017 he took out the print out of PCR form No.28MAY 171070537 dt. 27.05.2017 landing time 22:02:32 dispatched time 22:04:46 received at extension No.107. He proved the computer generated copy of the same as Ex.PW28/A. The certificate u/s 65B Evidence Act is proved as Ex.PW28/B. The testimony of the witness has gone unchallenged and uncontroverted.
121. The witness was recalled after the arrest of accused Dabbu, Arvind and Anuj @ Honey. He deposed on the same lines and the testimony went unchallenged and uncontroverted.
122. The accused person Dabbu stated that he does not want to recall. The witnesses already examined i.e. Dr. Utkarsh Goel, ASI Hawa Singh, Sh. Rajesh Kumar, Ld. MM Sh. Virender Singh and he also admitted the TIP proceedings conducted by Ld. MM Ms. Kadambari Awasthi and Ld. MM Ms. Neha Gupta. Similar, statements were State Vs. Shekhar Kapasia etc. SC NO:549/2017 63 given by Arvind and Anuj @ Honey.
123. Ms. Sonali Pandey Asstt. Biology Forensic Lab FSL was examined as PW-29. She conducted the biological and DNA finger printing examination on the exhibits and proved her report as Ex.PW29/A. The testimony of the witness has gone unchallenged and uncontroverted.
124. Parmod Kumar was examined as PW-30. He deposed that he was knowing Ravinder @ Tindu for the last 5-6 years. Ravinder @ Tindu used to make que of e- rickshaw driver at GTB Nagar metro station gate No.4. In the last year (the witness was examined on 02.05.2018) at noon hours he along with his friend Akhilesh and Suresh reached GTB Metro Station gate No.4 and met Ravinder @ Tindu. They went to the side of Hudson lane where they all took lunch and beer. After taking meals Akhilesh and Suresh went to their houses and he went towards Hudson lane and thereafter to his house. He does not know what happened thereafter.
125. He was cross-examined by the Ld. Addl. PP as he was resiling from his earlier statement but he did not support the prosecution case at all. Accused persons were also pointed out to him but he stated that he cannot identify them. He denied the suggestion that he has been won over State Vs. Shekhar Kapasia etc. SC NO:549/2017 64 by the accused persons or deliberately not identifying them. The testimony of the witness has gone unchallenged and uncontroverted.
126. HC Vijay Pal was examined as PW-31. He deposed that on the intervening night of 27/28.05.2017 he was posted in PS: Mukherjee Nagar after receiving information regarding death of Ravinder in Hindu Roa Hospital he along with Inspector C.P. Bhardwaj reached the hospital where they met SI Kuldeep and Ct. Surender. SI Kuldeep recorded the statement of Manoj and prepared the rukka. Rukka was sent to the PS through Ct. Surender for registration of FIR. After registration of FIR the further investigation was conducted by Inspector C.P. Bhardwaj. The photographs of dead body were taken by the IO in his mobile camera. He along with SI Kuldeep and IO reached at GTB Nagar metro station gate no.4 in front of the toilet at about 1:20 am. Ct. Surender reached there and handed over copy of FIR to Inspector C.P. Bhardwaj. Crime team reached the spot and inspected the scene of crime and photographer took the photographs. Eye witness Nadeem met them on the spot. He pointed out the place of occurrence near the exit gate no.4 of the metro station on the main road one cemented concrete stone was lying. State Vs. Shekhar Kapasia etc. SC NO:549/2017 65 Nadeem picked up the stone and handed over the same to the IO. That with this stone after wrapping it in the gamchha Ravinder was beaten. The stone was wrapped in a piece of cloth, sealed with the seal of CPB and seized vide memo Ex.PW23/A. Efforts were made to search for the accused persons but no clue was found. The house of Raj Gujjar was not found in Sant Nagar Burari. They again reached at the spot at about 11 am where they met Parmod @ Ashok. They reached Narender Departmental wine shop. They checked the CCTV footage of 27.05.2017 of about 1 pm. In the said footage at 1:23 pm two boys were seen purchasing 2 beer bottles who were identified by Parmod @ Ashok as the persons who had quarreled with Ravinder @ Tindu. The copy of the footage was taken in pendrive. Another witness Milan was also called on the spot. Thereafter, he alongwith IO and witness Milan and Ashok went to Kirorimal college. They reached there at 12 noon and checked the CCTV footage of Kirorimal college. In that footage both the witnesses Milan and Ashok identified one person who quarreled with Ravinder @ Tindu. The IO came to know that said boy had appeared in exam of SOL open learning. They all reached the SOL office where they checked the forms of SOL students of Kirori Mal college. Photographs State Vs. Shekhar Kapasia etc. SC NO:549/2017 66 affixed on the forms were shown to the witnesses but they could not identify any boy from the photographs pasted on the forms of SOL open learning of Kirori Mal College. Thereafter, they returned to the police station. IO deposited the case property with the MHC(M).
127. During cross-examination for accused Nitin, Ankit S/o Sh. Sanjay, Anuj, Ankit S/o Sh. Rajender, Dabbu and Anuj @ Honey, he denied the suggestion that IO did not meet Nadeem or Nadeem did not point out the place or that he also did not produce any stone to the IO. He denied the suggestion that stone was planted. He also denied the suggestion that they did not check any CCTV footage or that no person was identified by any witness. He also denied the suggestion that they had not gone to the Kirori Mal college or that no CCTV footage was checked there. No other question was put to the witness on behalf of other accused persons.
128. SI Kuldeep Kumar was examined as PW-32. He deposed that in the intervening night of 27/28.05.2017 he was posted in PS: Mukherjee Nagar. On that day he received DD No.48A Ex.PW4/B regarding death of Ravinder in Hindu Rao Hospital. He along with Ct. Surender went to Hindu Rao Hospital. He collected the State Vs. Shekhar Kapasia etc. SC NO:549/2017 67 MLC of Ravinder. In the MLC alleged history was not found mentioned. At the same time Inspector C.P. Bhardwaj with Ct. Vijay and other staff reached and requested the doctor on duty to mention the alleged history but the doctor refused to mentioned the same. He met with the eye witness Manoj S/o Sh. Kaledin and recorded his statement Ex.PW5/A. He made his endorsement Ex.PW33/A and handed over the rukka to Ct. Surender to get the FIR registered. He also requested crime team to reach the spot. The further investigation was assigned to Inspector C.P. Bhardwaj. Inspector C.P. Bhardwaj took the photographs of the dead body in his mobile camera. He moved application for preserving the dead body of the deceased in the mortuary of Hindu Rao Hospital.
129. He along with Inspector C.P. Bhardwaj and Ct. Vijay reached near GTB Nagar metro station. He corroborated the testimony of PW-31 regarding the taking copy of the CCTV footage of the wine shop and also visit to the Kirori Mal College and checking of the forms.
130. He further stated that on 29.05.2017 he joined the investigation with IO and SI Bacchu Singh. They reached Hindu Rao Hospital where they met the family members of deceased namely Surender, Rajesh and Bijender. The dead State Vs. Shekhar Kapasia etc. SC NO:549/2017 68 body was identified by the relatives. IO prepared inquest papers and moved application for post mortem. After post mortem the dead body was handed over to the relatives. Autopsy surgeon handed over the exhibits and sample seal to the IO who seized the exhibits vide seizure memo Ex.PW32/B. Thereafter, they reached Kirori Mal college and IO collected the details and photographs of the students of SOL B.A Hons. Political Science 1st year who appeared in the examination on 27.05.2017 in the pendrive. Footage of the students appearing in the examination were shown to the invigilator who could not identify the said boy.
131. On 09.05.2018 he along with witness Nadeem, Manoj and Rizwan went to Tihar Jail No.5 for TIP of accused persons Dabbu and Arvind. Those proceedings have already been admitted by the accused persons. The witness has identified both the accused Dabbu and Arvind. The witness also stated that after the witnesses came out from the TIP proceedings they told that they were confused therefore, they could not identify the accused persons. The witnesses met them in the parking of Tihar Jail where they pointed out both the accused persons who were involved in the incident in giving beatings to Ravinder @ Tindu on 27.05.2017 and identified Dabbu as well as Arvind. He State Vs. Shekhar Kapasia etc. SC NO:549/2017 69 identified the concrete stone as Ex.PW23/Article1.
132. During cross-examination for accused Mehul Dedha, Anuj @ Honey, Dabbu, Arvind, Nitin, Ankit S/o Rajender and Ankit S/o Sanjay and Anuj he denied the suggestion that Manoj did not meet him in the hospital or that he did not record the statement. He asked duty officer to call the crime team on the spot. He denied the suggestion that he did not take any rukka or IO did not take the photographs of the dead body in his mobile phone. SI Sajjan was the incharge of the crime team which visited the scene of crime. He denied the suggestion that Nadeem did not point out the place of occurrence or that he did not hand over any stone to the IO. There was no blood stain on any stone lying near gate No.4. He denied the suggestion that stone was planted. He denied the suggestion that signatures of witnesses were taken on blank papers in police station. He admitted that there was a discussion among the public persons that one Raj Gujjar had killed Ravinder @ Tindu. He does not know who were those two boys who were visible in the CCTV footage. He did not seize the DVR of the CCTV of the Kirori Mal college. To his knowledge IO had not seized the DVR of the wine shop. He denied the suggestion that witnesses were planted to solve the present State Vs. Shekhar Kapasia etc. SC NO:549/2017 70 case or that accused persons have been planted.
133. The same cross-examination was adopted on behalf of accused Atul Dahiya. No question was put on behalf of accused Shekhar Kapasia to this witness.
134. SI Gaurav was examined as PW-33. He deposed that on 09.03.2018 he along with accused Dabbu and Arvind went to Tihar Jail No.5 for TIP. Both the accused were in muffled face. Witness Kalu Ram was brought to Tihar Jail No.5 by Ct. Devender. Ms. Neha Singh, Ld. MM conducted the TIP where accused Kalu Ram could not identify the accused persons. Ct. Devender along with witness Kalu Ram reached the parking of Tihar Jail where he along with both the accused was present. Witness told that he could not identify the accused in judicial TIP because he was confused after seeing many persons in the TIP. He along with Ct. Devender and witness Kalu Ram reached at PS: Mukherjee Nagar. He identified both the accused Arvind and Dabbu. The testimony of the witness has gone unchallenged and uncontroverted.
135. HC Mukesh was examined as PW-34. He deposed that on 19.11.2017 he received the process u/s 82 Cr.PC. For execution against accused Dabbu @ Trikal and Arvind @ Manglu both resident of village Jagatpur street No. 5 and State Vs. Shekhar Kapasia etc. SC NO:549/2017 71
6. He went to the above addresses. They were not found at their houses. He pasted the processes u/s 82 Cr.PC at the Chaupal of the village and one copy each was pasted on the notice board of the court concerned. He made his report on the processes u/s 82 Cr.PC which is Ex.CW1/A duly forwarded by the IO on 21.12.2017. The process u/s 82 Cr.PC was also published in the newspaper and the copy of the newspaper cutting is Ex.CW1/A2.
136. On 23.12.2017 he along with IO reached the Rohini courts complex where accused Dabbu appeared in muffled face with his counsel. Accused was interrogated and arrested vide arrest memo Ex.PW34/A. His personal search was conducted vide memo Ex.PW34/B. Accused made the disclosure statement Ex.PW34/C. IO moved application for TIP which was marked to Ld. MM and the TIP was fixed.
137. During cross-examination for accused Dabbu, Arvind, Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sh. Sanjay. The witness stated that Dabbu was interrogated for 30 to 45 minutes. He denied the suggestion that Dabbu did not make any disclosure statement or that his signatures were obtained on blank papers. When he went to the house of accused for execution of process u/s 82 Cr.PC he met parents and neighbours of accused but he is not able to State Vs. Shekhar Kapasia etc. SC NO:549/2017 72 recollect the names of neighbours from whom he made inquiries. DD entry was made when he left the police station and also when he arrived back but he does not remember the number. He did not take any photgogreaphs of the place I.e Chaupal where he pasted the process u/s 82 Cr.PC. He did not record the statement of family members and the neighbours of the accused person. He denied the suggestion that he did not execute the process u/s 82 Cr.PC against the accused persons or that he did not visit village Jagat pur or did not paste any process on Chaupal. He denied the suggestion that all the proceedings were conducted while sitting in the PS or that he gave false report u/s process u/s 82 Cr.PC. He denied the suggestion that accused was not muffled face when appeared in the court or that accused has been falsely implicated. No question was put to the witness on behalf of other accused persons.
138. ASI Subhash Chander was examined as PW-35. He deposed that on 12.07.2017 on the directions of IO /SHO he received one pullanda duly sealed with the seal of CPB from MHC(M) and took the same to the forensic department of Hindu Rao Hospital for subsequent opinion vide RC No.90/21/17. IO also handed over one application to him for State Vs. Shekhar Kapasia etc. SC NO:549/2017 73 obtaining opinion of Autopsy surgeon. He went to the mortuary where he was advised to first take the opinion of FSL and then they could give the opinion about weapon of offence. Therefore, he returned to the police station and deposited the sealed parcel with the MHC(M).
139. Nothing material came to dis-credit the witness during cross-examination by the defence counsels.
140. Inspector Chander Prakash Bhardwaj was examined as PW-36. He is the IO of the case. He deposed that on the intervening night of 27/28.05.2017 on receipt of information regarding death of Ravinder in Bara Hindu Rao Hospital he along with Ct. Vijay reached the hospital. SI Kuldeep and Ct. Surender met them. SI Kuldeep sent the rukka for registration of FIR on the statement of Manoj. After registration of FIR further investigation was conducted by him. He took the photographs of dead body in his mobile camera. He along with SI Kuldeep and Ct. Vijay reached GTB Nagar metro station gate no.4. He corroborated the testimony of PW-31 and PW-32 with respect to the proceedings conducted on the spot and also the taking of copy of CCTV footage from the wine shop and visit to the Kirori Mal college. He prepared site plan Ex.PW12/DX of the scene of crime. He also corroborated the testimony of State Vs. Shekhar Kapasia etc. SC NO:549/2017 74 PW-32 with respect to the visit to Hindu Rao Hospital on 29.05.2017. He moved application Ex.PW36/A for post mortem and prepared inquest document Ex.PW36/B. After post mortem dead body was handed over to the relatives and he seized the exhibits and sample seal vide memo Ex.PW32/B.
141. He deposed that on 30.05,2017 he along with HC Ajay and Ct. Anil reached village Bahadurpur, Distt. Mujjaffar Nagar, UP at the house of juvenile 'R' who was identified in CCTV footage and also by other sources and he corroborated the testimony of PW-13 with respect to the production of the juvenile and arrest of Shekhar and disclosure statement made by Shekhar. He moved application for TIP of accused Shekhar Kapasia but accused refused to join the TIP. He obtained 3 days police custody remand of accused. He also corroborated the testimony of PW-12 with respect to the arrest of accused Mehul who was produced in the police station on 08.06.2017 and then the pointing out by Mehul. He also corroborated the testimony of PW-12 regarding the arrest of accused Atul in the pointing out by him.
142. On 04.07.2017 he moved application for issuance of NBW against accused Nitin S/o Sh. Ajit, Ankit S/o Sh. State Vs. Shekhar Kapasia etc. SC NO:549/2017 75 Sanjay, Anuj @ Honey, Anuj S/o Sh. Ajit, Ankit S/o Sh. Rajender and the NBW were ordered to be issued by Ld. MM. He visited the scene of crime along with Inspector Manohar Lal. Inspector Manohar Lal took measurements and prepared rough notes at his instance.
143. On 12.07.2017 on his directions SI Subhash Chander took the case property from MHC(M) for taking subsequent opinion of the autopsy surgeon. But Head of the department advised to first obtain the opinion of the FSL.
144. On 14.07.2017 Ct. Sachin collected the case property from MHC(M) and deposited the same in the FSL. He identified the accused persons Mehul Dedha and Atul Dahiya.
145. On 15.07.2017 HC Manoj and Ct. Anil went to execute the NBW's got issued but they were not found. On 17.07.2017 he appeared before the court and submitted his report about the NBW's. The Ld. MM issued the process u/s 82 Cr.PC against the above named accused persons.
146. On 08.08.2017 he along with other staff went to the addresses for execution of process u/s 82 Cr.PC. He proved his report regarding execution of process u/s 82 Cr.PC against accused Anuj @ Honey as Ex.PW36/C. State Vs. Shekhar Kapasia etc. SC NO:549/2017 76 Section 147 and 149 IPC were added.
147. On 27.08.2017 he prepared charge sheet against accused Shekhar Kapasia, Mehul Dedha and Atul Dahiya and filed the same. He identified all the three accused persons.
148. He corroborated the testimony of PW-20 with respect to the arrest of accused Nitin S/o Sh. Ajit on 03.09.2017 who was produced by his relatives in the police station. On 05.09.2017 he moved application before Ld. MM for TIP of the accused which was listed for 13.09.2017. He also corroborated the testimony of PW-20 with respect to the arrest of accused Ankit S/o Sh. Rajender, Anuj and Ankit S/o Sh. Sanjay. He moved application for conducting TIP of these three accused persons. On 13.09.2017 he along with witnesses Nadeem, Rizwan and Kalu Ram reached Tihar Jail. The TIP of all the four accused was conducted by the Ld. MM wherein the witnesses were unable to identify the accused persons due to reflection of light and they were perplexed due to fear. He recorded the statement of witnesses. On 14.09.2017 he along with Ct. Devender and other staff appeared in the court of Ld. MM and moved application for police custody remand of four accused persons which was allowed. He corroborated the testimony State Vs. Shekhar Kapasia etc. SC NO:549/2017 77 of PW-20 with respect to the pointing out of place of occurrence by the accused persons. Thereafter, they went in search of accused Dabbu and Arvind but they were not found.
149. On 27.09.2017 he appeared in the court and obtained the NBW against accused Dabbu and Arvind. He prepared the supplementary charge sheet against accused Nitin, Anuj, Ankit S/o Sh. Rajender and Ankit S/o Sanjay and filed the same.
150. On 24.10.2017 he moved application before Ld. MM for issuance of process u/s 82 Cr.PC against accused Arvind and Dabbu. On 21.12.2017 the processes were executed vide report Ex.CW1/A. The process u/s 82 Cr.PC was also published in newspaper and its copy is Ex.CW1 and Ex.CW1/A1 and the copy in English news paper is Ex.CW1/A2. On 08.12.2017 accused Anuj @ Honey moved application for surrender. He along with ASI Sangram Singh appeared in the court. After taking permission from the court he interrogated the accused Anuj @ Honey and arrested him vide arrest memo Ex.PW36/D. Accused made the disclosure statement Ex.PW36/E. He moved application for TIP of the accused which was listed for 12.12.2017. On 12.12.2017 the accused participated in the TIP and witness State Vs. Shekhar Kapasia etc. SC NO:549/2017 78 was unable to identify him. He recorded the statement of witnesses. Witnesses told that they were perplexed and unable to identify the accused. Anticipatory bail was granted to accused Dabbu. He moved application for police custody remand of accused Anuj @ Honey.
151. During police custody remand accused pointed out the place of occurrence vide memo Ex.PW36/E. On 23.12.2017 Hon'ble High Court directed accused Arvind @ Manglu to join the investigation. Accused joined the investigation on 23.12.2017. On 23.12.2017 he recorded the disclosure statement of accused Dabbu which is Ex.PW36/C. On 09.02.2018 he along with the witnesses reached the Tihar jail where TIP of accused Arvind and Manglu @ Dabbu was fixed. The witnesses were unable to identify accused persons due to confusion and they were perplexed. He recorded the statement of witnesses. The accused persons Dabbu and Arvind pointed out the scene of crime vide pointing out memos Ex.PW36/G. On 07.03.2018 he moved another application for TIP of accused Dabbu and Arvind from witness Kalu Ram. Witness Kalu Ram was also not able to identify the accused in TIP.
152. During investigation he collected the customer State Vs. Shekhar Kapasia etc. SC NO:549/2017 79 application form and CDR of the relevant mobile numbers of the accused persons. On 08.03.2018 he prepared the supplementary charge sheet against accused Anuj, Dabbu and Arvind and file the same. The 9 photographs taken by him in his mobile camera of the dead body are Ex.PW- 36/H1 To H9. He identified the concrete stone as Ex.PW23/Article1.
153. During cross-examination on behalf of accused Shekhar Kapasia he stated that on 27.05.2017 he left the police station at 8:30 pm. He did not make any departure entry. He reached the hospital in the gypsy. He minutely examined the scene of crime. He admitted that the weapon of offence i.e. stone was not sent for subsequent opinion. He admitted that such types of stones are easily found on the roads. On 30.05.2017 he left the police station in the evening. He had not obtained any permission for going outstation. In the evening hours they reached village Bahadurpur, Mujjaffar Nagar UP in private vehicle. He does not remember the make and registration number of the car. They did not visit the local police station to inform them. He denied the suggestion that he has never gone to Mujjaffar Nagar as well as Manzoor pur. Or that no such disclosure was made by the Juvenile "R". They returned to PS:
State Vs. Shekhar Kapasia etc. SC NO:549/2017 80 Mukherjee Nagar on the next day morning. He denied the suggestion that he has not fairly investigated the case or that he has falsely implicated the accused Shekhar Kapasia.
154. During cross-examination for accused Nitin, Anuj, Ankit S/o Sh. Rajender, Ankit S/o Sh. Sanjay,. Dabbu, Arvind and Atul Dahiya. He denied the suggestion that witnesses Manoj, Rizwan, Kalu and Nadeem were planted or that they did not make any such statements. He denied the suggestion that he has falsely implicated the accused persons or that accused Shekhar Kapasia, Mehul Dedha and Atul Dahiya did not make any disclosure statement. He denied the suggestion that Manoj, Rizwan, Kalu and Nadeem did not identify any of the accused persons in the TIP as the accused were not involved in the commission of offence. He denied the suggestion that the witnesses did not given any supplementary statements after TIP of the accused persons.
155. He started his investigation at about 10:45. No chance prints were lifted from the spot. He did not record the statements of neighbours of accused regarding their non presence at their residential addresses. Proceedings u/s 82 Cr.PC were conducted through HC Mukesh. He does State Vs. Shekhar Kapasia etc. SC NO:549/2017 81 not know how many times HC Mukesh went to given address for execution of the process u/s 82 Cr.PC. He denied the suggestion that to create false evidence against accused persons process u/s 82 Cr.PC was initiated against them. He admitted that he did not cite and examined the neighbours of accused persons against whom process u/s 82 Cr.PC was initiated. He denied the suggestion that accused Atul Dahiya was not present at the spot at any point of time or that he has been falsely implicated.
156. During cross-examination for accused Mehul Dedha and Anuj @ Honey. He admitted that the case was covered by print media and electronic media for many days. He denied the suggestion that there was tremendous pressure on the police due to media hype and the political intervention. He did not deposit his mobile phone with which he took the photographs of the dead body in malkhana. He admitted that during investigation the name of one of the assailant appeared to be Raj Gujjar. They came to know that his full name is Juvenile "R". He denied the suggestion that none of the co-accused disclosed the name of Mehul Dedha and Aunj @ Honey. He denied the suggestion that Nadeem, Rizwan, Manoj and Kalu did not State Vs. Shekhar Kapasia etc. SC NO:549/2017 82 identify accused Anuj @ Honey. The proceedings u/s 82 Cr.PC were got conducted through process server, but he does not remember the name through whom he got executed the process u/s 82 Cr.PC against accused Anuj @ Honey. He does not know as to how many time process server went to given address for execution of process u/s 82 Cr.PC. He admitted that he did not cite and examined the neighbours of the accused persons against whom process u/s 82 Cr.PC were initiated. He admitted that the process server did not take any photographs of the proceedings u/s 82 Cr.PC.
157. A court question was put to the witness as to what prompted him to record the statements of witnesses after they failed to identify the accused persons in judicial TIP and he answered, witnesses said that they were hesitent and confused and there was reflection of light during TIP and i.e. they could not identify the accused persons and they said they can identify the accused persons again and i.e. why he recorded their statements after showing the accused persons.
158. Thereafter, the prosecution evidence was closed. Statements of accused persons were recorded wherein they denied the entire evidence and stated that they have State Vs. Shekhar Kapasia etc. SC NO:549/2017 83 been falsely implicated. They did not wish to lead evidence in defence. The case was fixed for final arguments.
159. I have heard the Ld. APP for the State and Ld. Defence counsel for accused persons and perused the record.
160. On 09.06.17 application for TIP of accused Mehul Dedha was assigned to him by his Ld.Link MM. Mehul Dedha was produced before him in muffled face. Accused stated that he does not want to join the TIP. He was warned that adverse inference may be drawn against him during trial, but he insisted not to joint the TIP. His statement is Ex.PW-26/D. The TIP proceedings are Ex.PW-26/E. The certificate appended to the proceeding is Ex.PW-26/F. Testimony of the witness has gone unchallenged and uncontroverted.
161. The present case is based upon the ocular evidence as well as the circumstantial evidence. Firstly I take up the ocular evidence. The case of prosecution is that on 27.05.17 at about 1 or 1.30 PM accused Shekhar Kapasia was urinating on the wall near gate no.4 GTB Nagar Metro station. Ravinder @ Tindu objected to that which resulted into exchange of hot words between Shekhar Kapasia, his State Vs. Shekhar Kapasia etc. SC NO:549/2017 84 companion and Ravinder @ Tindu. Prosecution in order to prove this fact examined Mohd. Arif PW-9, Pramod PW-13. Mohd. Arif supported and deposed about this incident and also identified Shekhar Kapasia as well as Mehul Dedha. Pramod Kumar was examined as PW-13 but he failed to identify those persons. PW-9 also stated that Shekhar Kapasia went away saying, "shaam ko aayenge apna kaan apni naak pe lagwane". In this morning incident no beatings were given to any person and no one sustained injury. The case of prosecution is that in the evening some boys came and assaulted Ravinder. According to the story of prosecution the incident was witnessed by Manoj PW-25, Milan PW-24, Nadeem PW-23, Rizwan PW-22, Kalu Ram PW-8 and Pramod Kumar PW-13. PW-24 Milan is also a witness, who according to the story dropped the accused persons at Kirori Mal college after the incident. None of them supported the prosecution case. They all stated that they had not witnessed the incident except Manoj. They stated that they don't know who gave beatings to Ravinder. They all were cross examined by ld. APP but they did not support the prosecution case. Accused persons were also pointed out to them but he failed to identify the accused persons. Manoj was also assaulted when Ravinder was State Vs. Shekhar Kapasia etc. SC NO:549/2017 85 assaulted. Manoj stated that some boys came and some one slapped on his head from his back side. He could not see the face of that person and can not identify him. He also stated that some persons also gave beatings to Ravinder @ Tindu but he could not see their faces and can not identify them. There is no other eye witness except the above mentioned witnesses. None of them has identified any of the assailant. Keeping in view the testimony of PW- 8, PW-9, PW-22, PW-23, PW-24, PW-25 and PW-30, in my opinion the prosecution has not been able to link the accused persons with the commission of offence or established that the accused persons facing trial gave beatings to Ravinder @ Tindu, resulting into his death. There is also no evidence that any one of them was amongst those persons who assaulted Ravinder @ Tindu on 27.05.17 at about 8/8.30 PM near gate no.4, GTB Nagar metro station. Onus was on the prosecution to prove and establish this fact which the prosecution has failed.
162. The prosecution also alleges that there is circumstantial evidence against the accused persons to prove their guilt. It is settled law that a person can be held guilty even in the absence of ocular evidence provided all the circumstances are proved and established beyond State Vs. Shekhar Kapasia etc. SC NO:549/2017 86 doubt. The circumstances so proved and established points towards the guilt of the accused, the circumstances proved and established forms complete chain and are inconsistent with any hypothesis of innocence of accused. In the present case, prosecution intend to prove the guilt on the basis of the two circumstances.
1) Pointing out of the place of occurrence by the accused persons.
2) The call detail records.
Firstly I take up the circumstance of Pointing out of the place of occurrence by the accused persons. Pointing out of the place of occurrence by the accused persons.
163. The case of the prosecution is that the accused persons pointed out the place of occurrence which shows their special knowledge as they were involved in the commission of offence. In the present case as admitted by the witnesses the case was widely covered by the print media as well as electronic media. The place of occurrence was also shown in the electronic media, therefore, under the facts and circumstances of this case, no such inference can be drawn that they pointed out the place of occurrence only because that they have the special knowledge being State Vs. Shekhar Kapasia etc. SC NO:549/2017 87 involved in the commission of offence. This circumstance is even otherwise not inconsistent with any hypothesis of innocence of accused persons.
Call Detail record of the accused persons.
164. Prosecution has proved the call detail record of the mobile phone number 8630670298 which is in the name of Shekhar Kapasia as Ex.PW-16/B. The cell ID chart is proved as Ex.PW-16/D. Prosecution has also proved the call detail record of mobile phone no.8512018096 as Ex.PW-17/C. This mobile number is in the name of Rahul son of Suraj. Call detail record of mobile phone number 8882626110, which is in the name of Anuj Dheda son of Bijender Choudhary. Is proved as Ex.PW-17/F. Record of mobile phone no.9555410628, which is in the name of accused Atul Dahiya son of Satish is proved as Ex.PW- 17/I. The call detail record of mobile phone no.9911885584 in the name of Mehul Dedha is proved as Ex.PW-17/L and the cell ID chart is Ex.PW-17/L. The call detail record of mobile phone number 9999436837 in the name of accused Nitin son of Ajeet is proved as Ex.PW-18/C. The call detail record of mobile phone number 8750872483, which is in the name of Shiv Raj son of Sh.Ruka is proved as Ex.PW- 19/C. The call detail record of mobile phone State Vs. Shekhar Kapasia etc. SC NO:549/2017 88 no.9639380797, which is in the name of Vineet son of Sushil is proved as Ex.PW-19/G. The onus was upon the prosecution to show from the call detail record and cell ID chart that the accused persons were present at the spot but the call detail records and cell ID chart proved on the record does not establish that they were present on the spot or near the spot at the relevant time. The chart only shows their location within the range of that specific tower and not the presence at the spot. Prosecution has also not proved the call detail records of all the accused persons. The CDRs of the mobile phone of accused Shekhar Kapasia, Atul Dahiya, Mehul Dedha and Nitin son of Ajeet has been placed on record and as mentioned above their call detail record if read with location chart do not establish their presence on the spot. The call detail record of other numbers have also been placed on record but there is no evidence to show that these numbers were used by any of the accused. Keeping in view the above discussions, in my opinion, though the call detail records are proved but that do not point towards the guilt of the accused and are also not inconsistent with any hypothesis of innocence of accused persons.
165. Keeping in view the discussions on these two State Vs. Shekhar Kapasia etc. SC NO:549/2017 89 circumstances, it is clear that the circumstances are not established. These circumstances are not inconsistent with any hypothesis of innocence of the accused persons and the chain is also not complete.
166. In this case accused Anuj @ Honey, Daboo and Arvind were also charged for the offence punishable under Sec.174A IPC. Ld. APP submitted that in this case firstly the non bailable warrant were obtained against the accused persons but the non bailable warrants against Daboo and Arvind could not be executed and thereafter it was ordered that the process under Sec.82 Cr.PC be issued. The order was passed on 24.10.17. Processes under Sec.82 Cr.PC against accused Daboo and Arvind were executed. The report on the process under Sec.82 Cr.PC against Arvind is proved as Ex.CW-1/A. HC Mukesh Kumar PW-34 proved the report and deposed that he has gone to execute the process against Arvind. He also identified his signatures. The publication also appeared in the newspaper with respect to accused Daboo and Arvind which is Ex.CW-1 and Ex.CW-1/A-2. Ld. APP submitted that despite the publication appearing the leading newspaper i.e. Times of India and Punjab Kesri and also pasting it outside the notice board of the court at the Choupal and at the house of State Vs. Shekhar Kapasia etc. SC NO:549/2017 90 the accused, he did not put appearance. Ld.APP submitted that similarly, the process under Sec.82 Cr.PC against Daboo was also executed and it appeared in the newspaper. Ld. APP submitted that process under Sec.82 Cr.PC was executed by Inspector C.P.Bhardwaj and he proved his report as Ex.PW-36/C. Ld. APP submitted that despite service of process and publication in the newspaper the three accused persons did not appear before the court. The report regarding execution of process under Sec.82 Cr.PC against accused Honey is proved as Ex.CW-1/A. The photocopy of the publication appearing in newspaper Punjab Kesri and Times of India dt.26.08.17 has been proved on record as Ex.C-1 and C-2. Ld. APP submitted that by examining HC Mukesh, PW-34 and Inspector C.P.Bhardwaj PW-36, prosecution has proved the execution of process under Sec.82 Cr.PC against accused Daboo, Arvind and Anuj @ Honey. Record shows that despite the execution of this process, they did not put appearance before the court within a month. The onus which was on the prosecution has fully been discharged. It is prayed that accused persons be held guilty and convicted under Sec.174 A IPC.
167. Ld. counsel for accused Anuj @ Honey submitted State Vs. Shekhar Kapasia etc. SC NO:549/2017 91 that accused never absconded. He was always available at his house. The process under Sec.82 Cr.PC is not executed as required under law. Ld. Counsel submitted that when PW-36 appeared before ld.CMM, he deposed that he himself executed the process under Sec.82 Cr.PC against accused @ Honey but when we appeared in the witness box before this court, he stated that he got executed the process through some other police officials. This creates doubt regarding the trustworthiness and truthfulness of PW-
36. Ld. Counsel further submitted that PW-36 also did not examine any neighbor or family member of Anuj @ Honey that the process under Sec.82 Cr.PC was executed at their residence and at the Chaupal. The photographs were also not taken at the time of or after affixing the process under Sec.82 Cr.PC. Ld. Counsel submitted that the onus was upon the prosecution to prove and establish that process under Sec.82 Cr.PC was properly and rightly executed against accused Anuj @ Honey, which the prosecution has failed. It is prayed that benefit of the same be given to the accused and he be acquitted.
168. Ld. counsel for accused Arvind and Daboo also argued on the same lines. Ld. Counsel submitted that the process under Sec.82 Cr.PC not properly executed. Neither State Vs. Shekhar Kapasia etc. SC NO:549/2017 92 the neighbors nor the family members examined. Ld. Counsel submitted that in fact the police never visited the residence of the accused or executed any such process. The accused were never absconded and they always available at their respective houses. The onus which was on the prosecution has not been discharged. It is prayed that accused persons be acquitted.
169. After hearing the arguments and going through the record, particularly the reports, I found that the process under Sec.82 Cr.PC against accused Anuj @ Honey has been proved and established that it was executed properly. He also mentioned that Sh. Bijender Singh father of accused met him. The copy of process was pastied on his house. Proclamation was also made on the public address system. One copy of the process was pasted on the wall of Choupal of Jagat Pur village. Publication also appeared in the newspaper. Similarly, HC Mahesh PW-34 executed the processes against Arvind and Daboo. However so far as Daboo is concerned, there is no report regarding executing the process against him as on the back of the process under Sec.82 Cr.PC issued against Daboo, there is no report of HC Mahesh. There is also no mention in the report Ex.CW1/A that he has also gone to the house of accused State Vs. Shekhar Kapasia etc. SC NO:549/2017 93 Daboo for executing the process. However, the publication in the newspaper appeared for Daboo as well as Arvind in the newspaper Times of India and Punjab Kesri, copy of which has been placed on record. Similarly, publication with respect to accused Anuj @ Honey also appeared in the newspaper Times of India and Punjab Kesri. Ld. Counsel has taken the plea that PW-36 when he appeared before Ld.CMM he desposed that he himself executed the process but when he appeared in this court he deposed that he got executed the process through some process server, which clearly shows that he contradicted his earlier statement and does not reliable. It is important to note that the witness PW-36 was not cross examined in the light of Sec.145 Evidence Act in this regard and his attention was not drawn towards his statement recorded before ld.CMM, hence on this count no benefit can be given. As per the record, despite publication in the newspaper and also affixing the process at their respective houses, in the choupal and making proclamation, they did not appear, hence so far as accused Arvind and Anuj @ Honey are concerned, they are held guilty and convicted under Sec.174A IPC. But as prosecution has failed to prove and establish that process under Sec.82 Cr.PC with respect to Daboo was also affixed State Vs. Shekhar Kapasia etc. SC NO:549/2017 94 at the choupal and outside the court on the notice board and outside his house, therefore, he is acquitted under Sec.174 A IPC.
170. Keeping in view the above discussions and in view of the statements of the eye witnesses and the discussions on the circumstances and also the fact that on the weapon of offence which was allegedly recovered from the spot. The DNA was isolated but the same was found dissimilar with the DNA of deceased, therefore, in my opinion the prosecution has failed to prove and establish that accused persons formed any unlawful assembly or were members of unlawful assembly or they gave beatings to Ravinder, resulting into his death. Therefore, they are acquitted of the charges punishable under Sec.147, 302 read with 149 IPC. They be released on furnishing personal bond of Rs.20,000/- with one surety in the like amount under Sec.437 A Cr.PC. Convicts Arvind and Anuj @ Honey are taken in custody. They be heard on point of quantum of sentence on 31.08.2018. Digitally signed by VIRENDER VIRENDER KUMAR Announced in the open court KUMAR BANSAL BANSAL Date:
2018.08.28 today i.e. on 28.08.2018 16:48:51 +0530 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Shekhar Kapasia etc. SC NO:549/2017 95