Delhi District Court
State vs . Titu Sharma & Ors. on 16 October, 2020
IN THE COURT OF SH. VISHAL SINGH, ADDITIONAL SESSIONS
JUDGE-03: WEST DISTRICT, THC, DELHI.
SC No. 58012/2016
State Vs. Titu Sharma & Ors.
FIR No. 244/2011
U/s. 302/323/427/34 IPC.
PS: Tilak Nagar
JUDGMENT
1. Sr. No. of the case : 58012/2016
2. Date of Committal to Sessions : 15.12.2011
3. Name of the complainant : Sh. Mohit Bhutani.
4. Date of Commission of Offence : 28/07/2011 at about 11:30pm.
5. Name and Parentage of Accused : 1. Titu Sharma
: 2. Ravi Dutt Sharma
both S/o. Sh. Madan Lal Sharma,
R/o. A16, DDA Market,
Chaukhandi, Tilak Nagar, Delhi.
: 3. Gurmeet Singh @ Monti @
Tailor S/o. Sh. Paramjeet Singh,
R/o. WZ105, Sant Nagar Extn.,
Tilak Nagar, Delhi.
: 4. Dhiraj @ Pakau
S/o. Sh. Bharat Singh, R/o. A82,
J.J. Colony, Chaukhandi, Tilak
Nagar, Delhi.
6. Offence complained of : U/s. 302/323/427/34 IPC.
FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.1/66
PS: Tilak Nagar
7. Offence Charged : U/s. 302/323/427/34 IPC.
8. Plea of Guilt : Not guilty.
9. Final Order : Acquitted.
10. Date on which Order Reserved : 03.10.2020.
11. Date on which Order Announced : 16.10.2020.
BRIEF FACTS AND REASONS FOR DECISION:
1. The accused persons have been tried for murdering Rakesh Chauhan, causing simple injuries to Mohit Bhutani and for damaging their cars in furtherance of their common intention on 28/07/2011 at around 11:30 PM in gali in front of H. No. E-21 Mukhram Garden, Tilak Nagar, Delhi.
2. Upon investigation, police filed chargesheet for the offence U/s.
302/323/427/34 IPC against the accused persons. On completion of necessary formalities, chargesheet was committed for trial to this Court. Arguments were heard on charge and all the accused persons were charged for the offence U/s. 302/323/427/34 IPC, to which they claimed trial.
3. (a) To prove its case the prosecution has examined 31 witnesses. PW3 Mohit Bhutani is one of the victims as well as an eye witness to the incident. He deposed that he is a property dealer by profession at Om Vihar. He deposed FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.2/66 PS: Tilak Nagar that in the night of 28/07/2011 he met deceased Rakesh Chauhan at Chaukhandi, Tilak Nagar, from where they together went to Rajouri Garden in his car no. DL4CS6865 at 09:30pm and returned to Chaukhandi at about 11:30pm. He deposed that the car no. 8818 of deceased was parked at Chaukhandi near Raj Cinema at that time. He deposed that when he and Rakesh were easing themselves in a gali, around 45 persons having base bats, lathi (stick), bricks and stones came towards them while shouting "MARO MARO" and attacked them. In order to escape, they ran towards their cars. He deposed that when the offenders attacked them, it was darkness in gali. He deposed that one of the assailants was Sardar (Sikh) having Patka (small turban). He deposed that he could not identify any of the assailants because there was darkness at that time and being in drunken condition he was running to escape from the attack. He deposed that he was attacked by that Sardar, whereas, the other assailants attacked Rakesh Chauhan. He deposed that the offenders also attacked their cars with lathi, base bats and bricks, and damaged them by breaking window glass of driving side of his car and front glass of the car of Rakesh Chauhan. He deposed that the accused persons might have been amongst the assailants but he was not sure. He deposed that he knew accused Titu Sharma present in the Court. He voluntarily stated that he came to know FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.3/66 PS: Tilak Nagar of his name during investigation. He deposed that he somehow escaped from there and hid himself in a gali, from where he made a call at 100 number upon which PCR reached within five minutes. On being asked by police officials, he came near to the cars at the spot and saw that deceased Rakesh Chauhan was lying there in pool of blood. He deposed that, in the meantime, Jitender @ Sanju younger brother of Rakesh Chauhan also reached the spot. He stated that he and Rakesh Chauhan were taken to DDU hospital. He deposed that the condition of Rakesh Chauhan was serious at that time, while he was given first aid and police recorded his statement Ex.PW3/A in the night itself. He deposed that in the hospital brother of Rakesh Chauhan told him about involvement of accused Titu Sharma in the incident stating that his brother Rakesh and accused Titu Sharma had previous quarrel and accused Titu had threatened that he would damage the face of Rakesh Chauhan in the same manner in which Rakesh damaged face of accused Titu. He deposed that Jitender @ Sanju suspected that accused Titu Sharma and his friends might have planned the present incident to kill his brother Rakesh Chauhan. He deposed that he told this fact to police officials in his statement Ex.PW3/A.
3. (b) PW3 stated that he had handed over his blood stained checkdar (chequered) FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.4/66 PS: Tilak Nagar multi colour shirt having brand 'untouched' to the police officials which was converted into a parcel with white cloth, sealed with the seal of SK and was seized vide seizure memo Ex.PW3/B. He deposed that the assailants caused him head injury. The police took into possession his as well as Rakesh Chauhan's car. He deposed that after medical examination, police took him to the spot and prepared site plan Ex. PW3/C at his instance. He deposed that he did not identify any of the accused persons before police officials after their arrest. He identified accused Pakau before the Magistrate during TIP; however, he could not identify accused Pakau @ Deeraj in the Court. He identified his signatures at point X on TIP proceedings Ex. PW3/D during which he had identified accused Dheeraj @ Pakau. He produced his car no. DL4CS6865, Ex. P1, in court which he obtained on superdari. Five parcels bearing no.4, 5, 10, 12 and 15, all sealed with the seal of FSL, were produced and opened in Court.
Parcel No.4 was found containing a lathi. PW3 stated that he could not say if the same was used by assailants during the incident.
Parcels No.5 and 12 were found containing broken wooden pieces of baseball bat. PW3 identified the wooden pieces vide Ex. P2 and Ex. P3 stating FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.5/66 PS: Tilak Nagar that the same were parts of baseball bat used by assailants to cause injuries in the incident.
Parcel No.10 was found containing a plastic container containing a broken brick. PW3 identified the same vide Ex. P4 as similar to the brick used by assailants in the incident.
Parcel No.15 was found containing blood stained checkdar torn shirt. PW3 identified the same vide Ex. P5 as the one he wore at the time of incident.
3. (c) PW3 was cross examined by Ld. Addl. PP for State as he resiled from his previous statement. In cross examination conducted by Ld. Addl. PP, PW3 admitted that on 22/10/2011 he came to Tis Hazari Courts, where accused Ravi Dutt Sharma and Titu Sharma were produced in Room No.145 in the Court of Sh. Rajesh Kumar, Ld. MM, and he identified accused Titu Sharma only as one of the assailants before the IO. He admitted that accused Gurmeet Singh was also produced in the same Court of Ld. MM on 24/10/2011, however, he did not identify accused Gurmeet Singh as one of the assailants. The contents of statement Ex. PW3/E were read over to PW3, however he denied to having made any such statement to police. He denied the suggestion that he deliberately did not identify accused Titu Sharma, Ravi Dutt Sharma and Gurmeet Singh @ Monti being won over by them. He further denied the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.6/66 PS: Tilak Nagar suggestion that he also deliberately did not identify accused Dheeraj @ Pakau in Court, whom he already identified before Ld. MM during TIP proceedings, being won over by him. He denied the suggestion that he deliberately did not identify the lathi used by the assailants in the incident. He denied the suggestion that the accused persons are the same offenders who alongwith their other two associates attacked him and deceased Rakesh Chauhan with lathi, baseball bat and bricks with intent to kill them, or that the offenders also damaged their cars.
3. (d) In cross examination by Ld. defence counsels, PW3 replied that he became friend of deceased one year prior to the present incident and he did not know what business the deceased used to do exactly, however, as per his knowledge, the deceased did finance business as he had constructed one property on behalf of the deceased. He replied that whatever he stated in his statement Ex. PW3/A to police, had deposed the same in Court that when he and deceased Rakesh Chauhan were easing themselves in the gali, some persons came towards them while shouting 'MAROMARO'. He replied that he also told to police that one Sardar person had attacked him, while other persons were attacking Rakesh Chauhan. (he was confronted with his statement Ex. PW3/A where it was no so recorded). He replied that he called police at 100 number at 12:00 midnight FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.7/66 PS: Tilak Nagar and reached DDU Hospital between 12:15am and 12:30am. He replied that no public person was present at the spot when PCR reached there. He replied that he saw the weapons used in the incident by offenders lying at PS in unsealed condition. He replied that he handed over his shirt to IO at PS, who, thereafter sealed and seized the same. He admitted that he did not see any blood stains on baseball bat Ex. P3. He replied that he came to know about arrest of accused Titu Sharma about one and a half month after the incident. He replied that he visited Tis Hazari Courts for four times prior to his deposition in court in connection of this case. He admitted that he came to know about accused Titu Sharma immediately after the incident. He admitted that he named accused Titu Sharma at the instance of Jitender @ Sanju. He admitted that he did not identify accused Titu Sharma, Ravi Dutt Sharma, Gurmeet Singh and Dheeraj @ Pakau as the assailants. He admitted that he did know any person by the name of Dheeraj @ Pakau.
4. PW1 Gyanwati, mother of deceased, deposed that accused Titu Sharma and Ravi Dutt were friends of her elder son Rakesh Chauhan. She deposed that around two years ago before the present incident accused Titu Sharma and her deceased son had a quarrel regarding repayment of some money, taken by FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.8/66 PS: Tilak Nagar accused Titu Sharma from her son. Accused Titu Sharma did not return the money to her son even after lapse of six months. She deposed that in the evening of 19/05/2011 when she was returning to her home from the park, accused Ravi Dutt met her on the way. He held her hand and accompanied her to her home. He threatened her to kill her son stating that he was in company of bad elements of Khyala. She deposed that she did not take the words of accused Ravi Dutt seriously as he was in drunken condition at that time. She deposed that on 28/07/2011 on receipt of information about the incident between accused Titu Sharma, Ravi Dutt Sharma and her son Rakesh Chauhan, she reached DDU Hospital, where she came to know that due to serious condition, her son was shifted to Jaipur Golden Hospital, where he succumbed to the injuries sustained in the incident. She deposed that she had also seen blood stains at the place of incident where her son was attacked by the accused persons.
In cross examination, PW1 replied that she knew the family of accused persons for about 28 years. She admitted that there was no dispute between her and the family of accused persons for the last two years and they had cordial relations with each other. She admitted that during incident, in the month of FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.9/66 PS: Tilak Nagar November, accused Titu Sharma had sustained injuries. She voluntarily stated that her son did not cause any injury to accused Titu Sharma. She admitted that FIR No. 519 dated 28/12/2010, U/s. 325/34 IPC was registered at PS Hari Nagar, wherein her son was an accused. She replied that she did not know if accused Titu Sharma was complainant in the said case. She replied that her statement was recorded at DDU Hospital on the day of incident. Again said, her statement was recorded at police station but she did not remember the date. She admitted that she had not seen the quarrel taking place between the accused persons and her son around two years ago before the present incident. She replied that on 28/07/2011 she came to know about the incident from her younger son Sanju as her elder son Rakesh had telephoned Sanju about the incident at his mobile phone. She replied that she reached the place of incident first, and then to DDU Hospital. She replied that her younger son Sanju met her at the spot, whereas her husband had accompanied her deceased son in PCR to DDU Hospital. She replied that she did not notice if public persons were present at the spot. She admitted that her son was shifted to Jaipur Golden Hospital at their instance. She voluntarily stated that they wanted quick treatment for her son but the doctors at DDU Hospital said that her son would be operated on next day. She replied that she did not notice if any police FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.10/66 PS: Tilak Nagar official had reached the DDU Hospital. She replied that her son remained in Jaipur Golden Hospital for 67 days and, thereafter, succumbed to the injuries.
5. (a) PW2 Smt. Geeta Chauhan, wife of deceased Rakesh Chauhan, deposed that her husband was in the business of Tour and Travels. She deposed that accused Titu Sharma and Ravi Dutt were friends of her husband, whereas, accused Dheeraj @ Pakau was an employee of accused Ravi Dutt. She deposed that accused Titu Sharma had visited Bangkok twice with her husband in the year 2010. She deposed that accused Titu Sharma had borrowed Rs.50,000/ from her husband on the occasion of name ceremony of his son. She deposed that despite demands accused Titu Sharma did not repay the money to her husband resulting which quarrel took place between them. She deposed that since accused Titu had sustained injuries on his cheek in the scuffle, he got an FIR registered against her husband in November, 2010.
5. (b) PW2 deposed that in June, 2011, accused Ravi Dutt telephoned her husband, abused him and asked him to reach Najafgarh. Accused Ravi also threatened her husband; however, since accused Ravi appeared to be drunk at that time, they ignored the telephone call. She deposed that her husband FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.11/66 PS: Tilak Nagar received the said call in her presence. She deposed that her brotherinlaw Jitender @ Sanju told her that on 28/07/2011 at about 11:40pm, when he was present outside the home, accused Titu Sharma threatened him that "AAJ TERE BHAI KA KYA HAAL HONE WALA HAI, TU SOCH BHI NAHI SAKTA". Jitender @ Sanju told this fact to his brother i.e. deceased Rakesh Chauhan on telephone, however, Rakesh ignored the same as the accused was in drunken condition at that time. She deposed that at about 12:00 midnight she received a telephone call from her brotherinlaw Jitender @ Sanju that accused Titu Sharma, Ravi Dutt and Pakau alongwith other persons had attacked on her husband near Raj Cinema, Chaukhandi, Tilak Nagar, and he was admitted in DDU Hospital in injured condition. From DDU Hospital, injured was shifted to Jaipur Golden Hospital, where he remained in ICU on ventilator for about seven days and, thereafter, succumbed to the injuries. She deposed that she took car no. DL4CAB8818 of her husband on superdari. She deposed that the car was blood stained and its front and rear glasses were broken. She deposed that she could produce the car before the Court. She identified the car through photographs Ex. X1 to X4. Ld. defence counsel raised no objection in production of the car as the same was not in movable condition, as deposed by PW2.
FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.12/66 PS: Tilak Nagar
5. (c) In cross examination, PW2 replied that in the intervening night of 28 29/07/2011 between 12:00 midnight and 12:30am she came to know that her husband was brought to DDU Hospital. She replied that till the time she remained in DDU Hospital and Jaipur Golden Hospital, police made no inquiry from her. She voluntarily stated that once a police official had visited the hospital to record statement of her husband, however, her husband was not fit for statement at that time. She replied that she did not know the name of police official who had visited Jaipur Golden Hospital in the evening hours of 02/08/2011 for recording the statement of her husband. She replied that till the time she remained in hospital, neither any enquiry was made from anybody nor any statement was recorded by police. She replied that Inspector Chatar Singh recorded her statement on the day of death of her husband. Again said, her statement was recorded at PS but she did not know the time. She replied that she could not tell the exact date and time when her husband had given Rs.50,000/ to accused Titu Sharma. She replied that the said amount was not given in her presence; however, she gave the money to her husband to give the same to accused Titu Sharma. She stated that her husband also told her that he gave the money to accused Titu Sharma. She replied that in her statement U/s. 161 CrPC she told police that despite demands by her husband, accused Titu FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.13/66 PS: Tilak Nagar Sharma had not returned the borrowed money (she was confronted with her statement Ex. PW2/DA, where the said fact was not recorded). She replied that in her statement U/s. 161 CrPC she told police that she received a telephone call at about 12:00 midnight from her brotherinlaw Jitender @ Sanju that her husband had been attacked by accused Titu Sharma, Ravi and Pakau alongwith other persons near Raj Cinema, Chaukhandi, near Tilak Nagar (she was confronted with her statement Ex. PW2/DA, where the said fact was not recorded). She admitted that no money transaction ever took place between her husband and accused Titu Sharma in her presence. She admitted that the family of her inlaws and the family of accused persons had visiting terms with each other. She further admitted that even after registration of case at PS Hari Nagar against her deceased husband and his friend, both the families had visiting terms with each other. She admitted that nobody told her as to how her husband had sustained injuries. She replied that she did not go through her statement Ex. PW2/DA when it was being recorded. She replied that till the time she remained in hospital, her husband was not in a position to speak, being unconscious. She admitted that till the time her husband remained alive, he was unconscious and did not tell any fact with regard to sustaining injuries to anybody. She replied that she did not know as to what work accused FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.14/66 PS: Tilak Nagar Dheeraj @ Pakau used to do. She replied that she never saw accused Dheeraj @ Pakau meeting her husband. She replied that she did not know accused Dheeraj @ Pakau prior to the incident.
6. PW4 ASI Rambir, Duty Officer, deposed that in the intervening night of 28 29/07/2011 he was posted as Duty Officer at PS Tilak Nagar from 12:00 midnight to 08:00am. He deposed that at about 01:20am, he received an information regarding quarrel near Raj Cinema, Chaukhandi Extn., Tilak Nagar, which he reduced into writing vide DD No.5A. On the same night at about 1.45 am, he again received a call from DDU hospital regarding admission of injured Mohit and Rakesh which he recorded vide DD No. 6A. He handed over the copy of DD No.5A and 6A to SI Surender through Ct. Daya Ram. He further deposed that in the intervening night of 0304/08/2011 he was again working as Duty Officer from 12:00 midnight to 08:50am and at about 08:15am he received information regarding death of injured Rakesh Chauhan from Dr. Ravi, Jaipur Golden Hospital, Rohini. He recorded the said information vide DD No.15A and marked the same to SI Surender. He produced the original DD register containing DD No.5A and 6A dated 29/07/2011 and DD No.15A dated 04/08/2011. Copy of DD No.5A is Ex. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.15/66 PS: Tilak Nagar PW4/A, DD No.6A is Ex. PW4/B and DD No.15 is Ex. PW4/C. He further deposed that on 29/07/2011 at about 04:10 am, on receipt of rukka from Ct. Sunil Kumar sent by SI Surender Singh, he got recorded a formal FIR No. 244/2011, under Section 323/308/427/34 IPC, computerized copy of which is Ex. PW4/D. He endorsed the rukka Ex. PW4/E and also recorded Kayami vide DD No.8A, copy of which is Ex. PW4/F.
7. (a) PW5 Jitender Chauhan @ Sanju, younger brother of deceased Rakesh Chauhan, deposed that he knew accused Titu Sharma and Ravi Sharma, being friends of his deceased brother Rakesh Chauhan) and accused Dheeraj @ Pakau being his neighbour. He deposed that before the present incident a hot exchange of words had taken place between his brother and accused Titu Sharma. He deposed that he did not know if anybody had sustained injury or any case was registered due to said incident. He deposed that on 28/07/2011 at about 10:00pm, when he was standing outside his house, somebody informed him that Rakesh had sustained injuries. He told that fact to his father and reached near Raj Cinema at Chaukhandi, near Tilak Nagar, where he found his brother Rakesh in injured condition and his face was smeared with blood. He deposed that Honda City car of his brother bearing no.8818 was also lying FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.16/66 PS: Tilak Nagar there. He deposed that police gypsy had already reached there and his father accompanied Rakesh in gypsy to DDU hospital. He followed them on his motorcycle. He deposed that since his brother's condition was not improving at DDU Hospital, his father got him admitted in Jaipur Golden Hospital, where he expired on 04/08/2011. He deposed that he did not remember what clothes his brother wore at the time of incident. He deposed that the incident did not occur in his presence.
7. (b) PW5 was cross examined by Ld. Addl. PP for State as he resiled from his previous statement given to police. In cross examination by Ld. Addl. PP, PW5 admitted that there used to be transaction of money between accused Titu and his deceased brother. He admitted that a quarrel took place between accused Titu and his deceased brother in November 2010 but he did not know if accused Titu had sustained injuries in that incident and he also did not tell this fact to police (he was confronted with his statement Ex. PW5/A from portion A to A where it was so recorded). He admitted that due to said incident a case was registered at PS Hari Nagar and an enmity had started between accused Titu Sharma and his brother. He admitted that on 28/07/2011 at about 11:00pm, he was standing in front of Shiv Mandir, Chaukhandi near FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.17/66 PS: Tilak Nagar Kanwarwalas. He denied that all four accused persons had asked him about whereabouts of his brother Rakesh. He voluntarily stated that only accused Titu Sharma asked him about whereabouts of his brother Rakesh but he did not tell this fact to police (he was confronted with his statement Ex. PW5/A from portion B to B where names of all the accused persons were mentioned). He denied the suggestion that he asked accused Titu as to why he was asking about his deceased brother. He denied the suggestion that accused Titu asked him that he would teach a lesson to Rakesh. He denied the suggestion that accused Titu abused in the name of deceased and when he asked accused Titu as to why he was speaking in such a manner about his brother, the accused also threatened him due to which he did not state so to the police (he was confronted with his statement Ex. PW5/A from portion C to C where it was so recorded). He admitted that he called at his brother's mobile no. 9213819081 from his mobile phone no. 9210612011, after accused Titu Sharma asked him about his brother's whereabouts. He admitted that Rakesh was screaming while making telephone call to him at his mobile at about 12:00 midnight but denied the suggestion that deceased had told him that all the accused persons were beating him up near Raj Cinema and he did not tell this fact to police (he was confronted with his statement Ex. PW5/A from portion E to E where it FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.18/66 PS: Tilak Nagar was so recorded). He denied the suggestion that when he alongwith his father reached near Raj Cinema on motorcycle, they saw that all the accused persons were beating deceased and on seeing them all the offenders fled from there in a long car and scooter, and he did not tell this fact to the police (he was confronted with his statement Ex. PW5/A from portion F to F where it was so recorded). He admitted that Santro car of one of the friend of his brother namely Mohit was found parked with broken glasses near the car of deceased and that both doors of car of deceased on driving side were blood stained, and lots of blood was lying on the road near the car. He replied that he had not seen any blood stained broken baseball bat near the car of deceased and he did not tell such fact to the police (he was confronted with his statement Ex. PW5/A from portion G to G where it was so recorded). He admitted that blood stained Tshirt, baniyan (vest), underwear, handkerchief, jeans, belt, socks and shoe of deceased were converted into parcel with white polythene and cloth and he signed the seizure memo of parcel Ex.PW5/B but he did not know whether the said parcel was sealed with the seal of SK. He denied the suggestions that he had seen all the accused persons when they were beating his deceased brother Rakesh. He denied the suggestion that he deliberately did not depose against the accused persons due to fear or being won over by them. He identified the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.19/66 PS: Tilak Nagar clothes, shoes, belt, shocks etc., vide Ex.P1 collectively as belonged to his brother.
7. (c) In cross examination by Ld. defence counsels, PW5 admitted that he and his brother had friendly terms with accused Titu Sharma and Ravi Dutt Sharma and they used to live together and play together in their childhood. He replied that even after registration of case at PS Hari Nagar in which accused Titu sustained injuries, they had friendly terms with each other. He replied that no money transaction ever took place between accused Titu and his brother Rakesh in his presence. He replied that the police only made enquiries from him and not recorded his statement. He replied that he did not remember when and where he signed the documents at the instance of police.
8. PW6 HC Suresh Kumar, Duty Officer, deposed about receipt of rukka on 28/12/2010 at 10:40am from HC Ved Pal and registration of formal FIR No. 519/2010, U/s. 325/34 IPC. He produced the original FIR in court, copy of which is Ex.PW6/A.
9. PW7 ASI Azad Singh deposed that on 29/07/2011 he alongwith photographer FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.20/66 PS: Tilak Nagar HC Devender and finger print expert ASI Dharambir visited the place of incident, where they found two cars - one silver colour Honda City Car No. DL4CAB8818 with broken front and rear glasses and a piece of brick was lying on its front seat. The other was a black colour Santro Car bearing No. DL4CS6865 and a stone was lying on the seat. Both the cars were blood stained and a soft baseball bat in broken condition was lying near them. They inspected the spot, took the photographs and prepared the report Ex. PW7/A. In cross examination, PW7 replied that till the time he remained at the spot the brick lying in Honda City Car and stone lying in Santro Car were not seized by IO. He replied that he did not know if IO seized the baseball bat from the spot at that time. He replied that he could not say if there were public persons at the spot. He replied that he prepared the report Ex.PW7/A and handed it over to the IO. He replied that he did not know how many photographs were taken. He admitted that he prepared the report after inspecting the vehicles as well as the spot. He denied the suggestion that he had not visited the spot and gave the report Ex. PW7/A on the instructions of IO. He denied the suggestion that he prepared the report Ex. PW7/A at the instance of IO while sitting in his office. He replied that no chance print or FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.21/66 PS: Tilak Nagar finger prints were developed at the spot due to moisture of rain.
10.PW8 Ram Chander Chauhan, father of deceased Rakesh Chauhan, deposed that he knew accused Titu Sharma and Ravi Sharma being residents of same locality. He deposed that he did not know about any financial transaction between his deceased son Rakesh and accused Titu Sharma. He deposed that in the intervening night of 2829/07/2011 on receipt of call from his son Jitender @ Sanju regarding quarrel, he alongwith Sanju reached the spot, where he found his son Rakesh lying in injured condition. They shifted Rakesh to DDU hospital and, later on, to Jaipur Golden hospital. He deposed that his son remained in coma and expired in hospital on 04/08/2011. He deposed that he identified dead body of his son vide statement Ex.PW8/A during inquest proceedings and after postmortem, the body was handed over to them vide receipt Ex.PW8/B. He deposed that he did not see anyone beating his son.
PW8 was cross examined by Ld. Addl. PP for State, as he resiled from his previous statement recorded U/s. 161 CrPC. In cross examination by Ld. Addl. PP, the statement Ex. PW8/A was read over to PW8, which he denied stating that he never made the said statement to police. He denied the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.22/66 PS: Tilak Nagar suggestion that he knew about the quarrel between his deceased son and accused Titu Sharma on the issue of money transaction. He denied the suggestion that on 28/07/2011, at about 12:00 midnight, his son Sanju informed him that Rakesh had telephoned him and told that accused Titu Sharma, Ravi Sharma, Dheeraj, Tailor and one Sikh boy were beating him. He denied the suggestion that when he accompanied his son Sanju on his motorcycle to the spot, he saw that the above named accused persons were beating his son Rakesh and on seeing them all the offenders fled from there. He replied that he did not tell the aforesaid facts to police during his statement U/s. 161 CrPC (he was confronted his statement Ex. PW8/C wherein all the aforesaid facts were recorded). He denied the suggestion that he deliberately did not depose against the accused persons due to their fear or being won over by them. He denied the suggestion that due to financial settlement he did not identify the accused persons.
11. PW9 Dr. Manoj Kumar Singh, Senior Resident Casualty, DDU Hospital, deposed that on 29/07/2011 at about 01:20am, patient Rakesh Kumar, aged 31 years male, was brought to aforesaid hospital by HC Gopal Lal with alleged history of assault. He examined patient Rakesh, who had sustained injuries FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.23/66 PS: Tilak Nagar over forehead, upper lip, over right eye and over nose and prepared MLC Ex.PW9/A. He deposed that HC Baljeet Singh moved an application for permission to record statement of injured, however, he opined that the injured was not fit for statement vide endorsement Ex. PW9/B on the application. Thereafter, he referred the patient to concerned departments.
In cross examination, PW9 admitted his handwriting from portion A to A on MLC Ex. PW9/A stating that he had prepared that portion after examining the patient. He admitted that the words 'smell of alcohol' at point B on MLC Ex. PW9/A meant that the patient was under influence of liquor. He replied that he could not tell to what extent the patient was under influence of liquor. He replied that till the time the patient remained under his supervision he was not in a position to give any statement due to alleged incident. He replied that the patient himself verbally told him about the assault which he recorded in MLC. He denied the suggestion that patient was not in a position to say anything or that he had mentioned the alleged history of assault at the instigation of police officials.
12. PW10 Dr. Yogesh Tyagi, Assistant Professor, Forensic Medicine, PGIMER, FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.24/66 PS: Tilak Nagar Dr. RML Hospital, deposed that on 04/08/2011 he conducted postmortem on the body of one Rakesh Chauhan, aged 31 years, and prepared his detailed postmortem report Ex. PW10/A. He deposed that he observed external injuries as well as internal injuries as mentioned in his report. He opined that the cause of death was coma due to cranio cerebral injury caused by blunt force impact and all the injuries were antemortem in nature. Time since death was eight hours. He deposed that, later on, request was received from IO for subsequent opinion regarding weapon of offence. He deposed that five sealed parcels with the seal of SK were received in the hospital having exhibit nos. 12, 5, 10, 11 and 4. He deposed that police asked him if the injuries mentioned in post mortem report could have been caused by the recovered weapons or otherwise. He deposed that exhibit 12 was found containing one broken golden colour baseball bat without handle, exhibit 5 was found containing one broken handle of baseball bat, exhibit 10 was found containing one broken piece of red brick triangular in shape, exhibit 11 was found containing one concrete slab and exhibit 4 was found containing one bamboo stick (lathi). He examined the exhibits and had given detailed description, measurement and weight to the exhibits in his report. After examining the exhibit articles and the injuries mentioned in PM report, he opined that:
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PS: Tilak Nagar
a) All injuries mentioned in the PM report were produced by blunt force.
b) Injury No. 1(a) was possibly caused by Exhibit, 1, 3 and 4 i.e., baseball bat, brick and concrete slab.
c) Injuries 1(b) to 1(h) were possibly caused by any of the weapons mentioned above.
d) Injury mentioned as no. 2 was possibly caused due to friction with rough surfaces. Possibilities of being inflicted by the given weapons were rare.
e) Injury mentioned as no. 3 were possible by any of the given weapons except injury no.3(i) which is more probable with weapon mentioned in the exhibit no. 5 i.e. Lathi. All the injuries mentioned in the PM report were ante mortem in nature. Injury No. 1 (a) was individually and collectively sufficient to cause death in ordinary course of nature. The exhibits examined by him were re sealed with the seal of DDU DFMT and were given to IO alongwith his subsequent opinion Ex. PW10/B. In cross examination, PW10 replied that he did not remember when he prepared the postmortem report, however, he usually prepared the same on the subsequent day. He admitted that his PM report Ex.PW10/A did not bear date of its preparation. He denied the suggestion that he prepared the postmortem FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.26/66 PS: Tilak Nagar report Ex.PW10/A, and gave his subsequent opinion Ex.PW10/B at the instance of IO to manipulate the investigation.
13. PW11, HC Devender Kumar, deposed that he was posted with Mobile Crime Team as photographer alongwith ASI Azad Singh, finger print expert ASI Dharambir and driver Ct. Sunil Kumar. He deposed in sync with PW7 ASI Azad Singh with regard to inspection of spot and cars of victims. He further deposed that one broken baseball stick was lying at a distance of 15 feet from the spot and he took 16 photographs from different angles on the instructions of police officials present there. The photographs are Ex.PW11/A1 to Ex.PW11/A16 and produced negatives are Ex.PW11/B1 to Ex.PW11/B16.
In cross examination, PW11 replied that he took the photographs at the instructions of IO and Incharge Crime Team. He replied that he did not remember to whom the said photo roll was handed over after its use on that day. He replied that he could not tell whether the same was handed over after 10 days, 15 days or afterwards, however, the same was handed over to the Government Colour Lab, Kamla Market. He replied that he did not know if any handing over memo of the said roll was prepared. He voluntarily stated FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.27/66 PS: Tilak Nagar that the same was prepared by office staff. He denied the suggestions that he deposed falsely and the roll was tempered with. He denied the suggestion that he did not visit the spot.
14.PW12 ASI Jangir Singh deposed that on 04/08/2011 he was deputed to report to hospital for getting the postmortem of deceased conducted as IO SI Surender Singh was busy in TIP proceedings. He deposed that he reached DDU Hospital, conducted inquest proceedings, prepared Form 25.35 Ex.PW12/A and recorded statement of witnesses who had identified the dead body. He deposed that he requested autopsy surgeon to conduct postmortem of deceased Rakesh vide request Ex. PW12/B. He deposed that after post mortem the body was handed over to its relatives vide receipt Ex.PW8/B. He deposed that the concerned doctor handed over to him sealed pullandas which he seized vide memo Ex.PW12/C and deposited in Malkhana. He deposed that till the parcels remained in his possession the same were not tempered with. He handed over the documents of the present case to the IO.
In cross examination, PW12 replied that SHO verbally directed him to get the inquest proceedings conducted. He denied the suggestion that he deposed falsely at the instance of IO.
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15.PW13 HC Baljit Singh deposed that on 28/07/2011 when he was on emergency duty between 08:00pm to 08:00am at DDU hospital, one Rakesh was admitted in the hospital vide MLC No.15192/11 in unconscious condition. He deposed that he moved an application Ex.PW9/B for recording statement of Rakesh but the patient was declared unfit for statement and he handed over the application to SI Surender.
In cross examination, PW13 replied that IO did not record his statement in that regard. He admitted that except moving the application Ex.PW9/B, he did not join the investigation of present case. He replied that on being asked by SI Surender Kumar over telephone, he moved the said application. He replied that no relative of injured Rakesh met him in the hospital. He denied the suggestions that no such application was moved on that day and the same was endorsed by doctor later on.
16.PW14 Inspector Mahesh Kumar, Draftsman, Crime Branch, deposed that on 21/08/2011 on request of Inspector Chattar Singh, ATO, PS Tilak Nagar, he alongwith Inspector Chattar Singh and SI Surender Kumar visited the place of incident, i.e., near Raj Cinema, Chaukhandi, where he, at the instance of SI FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.29/66 PS: Tilak Nagar Surender Kumar, took rough notes and measurements of the spot, and on its basis he prepared scaled site plan Ex. PW14/A. After preparation of scaled site plan, he destroyed the rough notes and handed over copy of scaled site plan to IO on 21/09/2011.
17.PW15 WCt. Sunita deposed that on 29/07/2011, she was posted at CPCR PHQ from 08:00pm to 08:00am and her duty was on channel no.138. She deposed that she received information from mobile phone no. 9871151769 regarding quarrel near Raj Cinema, Chaukhandi Extension, Tilak Nagar. She recorded the said information and passed it on to Communication Branch. She produced the computerized PCR Form Ex.PW15/A.
18.PW16 HC Gopal Lal deposed that in the intervening night of 2829/07/2011, he was posted at PCR, West Zone and his duty was on Power 41. He deposed that at about 12:52am, on receipt of information regarding quarrel near Raj Cinema, Chaukhandi Extension, he reached there. He found two cars - one Honda City car bearing no. DL4CAB8818 and the other Santro car bearing no. DL4CS6865 at the spot with broken window panes and blood was lying on the road. He deposed that driver Rakesh Chauhan was unconscious, FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.30/66 PS: Tilak Nagar whereas, Mohit was conscious. He deposed that brother and father of Rakesh Chauhan were present at the spot, who told him that Mohit and Rakesh were beaten by 810 boys. He deposed that he took Rakesh Chauhan and Mohit to DDU hospital and got them admitted there. Father of Rakesh accompanied PW16 to the hospital. IO recorded his statement.
19. PW17 Ct. Jagdish Prasad deposed that on 02/09/2011 at the instruction of SHO he got the face of accused Ravi Dutt Sharma muffled with piece of cloth and conducted his personal search, however, no incriminating article was recovered from his possession. He interrogated accused Ravi, recorded his disclosure statement Ex. PW17/A, arrested and personally searched him vide memos Ex. PW17/B and Ex. PW17/C respectively. He deposed that on 16/09/2011, on receipt of secret information, he alongwith other staff apprehended accused Gurmeet Singh, who was wanted in the present case, from Messi Scooter Wala, opposite Aggarwal Sweets, Vishnu Garden. He deposed that before apprehension of accused he shared the secret information with SHO and entry against DD No.22A was made in Rojnamcha in that regard. Accused Gurmeet Singh was arrested and personally searched vide memos Ex.PW17/D and Ex.PW17/E respectively. He denied having visited the place of occurrence but FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.31/66 PS: Tilak Nagar again said he visited the place of occurrence alongwith accused persons where pointing out memos Ex.PW17/F and Ex.PW17/G were prepared.
In cross examination, PW17 replied that he did not remember if he had signed the arrest as well as personal search memos of accused Ravi Dutt Sharma. He replied that he did not know the name of other police officials who conducted cursory search of accused Ravi Dutt Sharma. He replied that accused Ravi Dutt Sharma was taken to the spot in muffled face. He denied the suggestion that accused Ravi Sharma was not taken to the spot in muffled face. He denied the suggestion that accused Ravi was arrested from his home. He admitted that the Messi Scooter Wala was situated in a busy and crowded area, where 1520 persons were coming and going at that time and 34 persons were present. He deposed that IO requested those 34 persons to join investigation but they refused. He deposed that IO neither recorded their particulars nor served any notice upon them. He denied the suggestion that no public person was asked to join investigation. He denied the suggestion that accused Gurmeet Singh was not arrested in the manner as told by him.
20.PW18 Ct. Subhash Chand deposed that on 11/08/2011 accused Titu Sharma FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.32/66 PS: Tilak Nagar got recovered a black colour Reliance mobile phone having a SIM and battery from ground floor of his home. Accused Titu Sharma also got recovered his t shirt having a chit on it written with "BENETTON TO YOU TOO" and picture of a lady on its front portion with one closed eye. The accused also got recovered one pant which he wore on the day of incident. A pullanda of recovered clothes was prepared, sealed with the seal of CSB and was seized vide seizure memo Ex.PW18/A. The recovered mobile phone was taken into possession and was seized vide seizure memo Ex.PW18/B. The case property was deposited in Malkhana. He identified the produced Reliance mobile phone vide Ex. P7. An envelope sealed with the seal of FSL was produced by MHC(M), which found contained one tshirt and pant, and the same were identified by PW18 vide Ex. P8 (colly.) as the same recovered from the house of accused Titu Sharma at his instance.
In cross examination, PW18 denied the suggestion that 'BENETTON TO YOU TOO' was not written on the tshirt Ex. P8. He replied that he did not remember the exact time when they reached the house of accused Titu but it might be between 01:00 PM and 02:00 PM. He replied that he did not know the exact area where house of accused Titu was located and upto how many storeys it was built up but the articles were recovered from ground floor of the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.33/66 PS: Tilak Nagar house. He replied that he did not remember how many rooms were built on the ground floor of house of accused and even he could not tell from which room the recovery of cloths was affected. He replied that the area where house of accused was situated was a thickly populated and there were houses of many people, and when they reached there, 57 persons gathered outside the house of accused but IO did not ask them to join investigation neither he noted their names and whereabouts of those persons. He replied that he did not know if the house of deceased was also situated near the house of accused Titu. He replied that only one lady was present when they reached the house of accused Titu but IO did not ask her to join investigation, in his presence. He admitted that the clothes Ex.P8 (colly.) were easily available in the market. He replied that maker of mobile phone Ex.P7 was Samsung which was sealed by IO in his presence. He admitted that the mobile phone shown to him was in unsealed condition. He denied the suggestion that he had not visited the house of accused alongwith IO and accused Titu Sharma on 11/08/2011. He denied the suggestion that no such recovery was affected in his presence. He further denied the suggestion that he had not joined investigation of present case at any point of time.
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21.PW19 Dr. Rajeev Seth, Senior Consultant, Jaipur Golden Hospital, deposed that on 29/07/2011, patient Rakesh Chauhan, aged 38 years male, was admitted in Jaipur Golden Hospital vide CR No. 251843 and was treated in his supervision. He deposed that before coming to Jaipur Golden Hospital, the patient was treated in DDU hospital. He deposed that the patient had sustained head injuries with skull fracture and multiple blood clots in brain. He deposed that the patient was operated on 29/07/2011 for repair of skull fracture and blood clots and after surgery he was put on medicines and life support measures. He deposed that the condition of patient did not improve and progressively deteriorated, and he died on 04/08/2011. He deposed that the death summary dated 04/08/2011 Mark 'X' of deceased was prepared on his behalf by some other doctor.
In cross examination, PW19 admitted that the death summary Mark 'X' was neither in his handwriting nor bears his signatures but the same was prepared on 04/08/2011. He replied that he did not know the name of the doctor who prepared the death summery. He voluntarily stated that junior doctors came to hospital for short duration. He admitted that he had not opined the cause of death in the present case and he deposed on the basis of available record.
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22.PW20 D.K. Chhabra, Record Incharge, Jaipur Golden Hospital, deposed that he could identify the writing and signatures of Dr. Tarun Singh as he had seen him writing and signing during the course of his duties. He identified endorsement Ex. PW20A and Ex. PW20/B made by Dr. Tarun Singh on request letters dated 30/07/2011 and 02/08/2011 respectively of the IO for examining patient Rakesh Chauhan.
In cross examination, PW20 admitted that the endorsements Ex.PW20/A and Ex.PW20/B were not made by Dr. Tarun Singh in his presence. He denied the suggestion that he never saw Dr. Tarun Singh writing and signing in the course of his duties or that he wrongly identified the signatures and writing of Dr. Tarun Singh. He replied that he deposed on seeing the documents as same bear signatures of Dr. Tarun Singh.
23. (a) PW21 retired SI Surender Kumar deposed that in the intervening night of 2829/07/2011, between 08:00pm and 08:00am, on receipt of copy of DD No. 5A regarding quarrel at Chaukhandi Road, Mukhram Garden, Near Raj Cinema, he alongwith Ct. Sunil Kumar reached the spot, where he found one silver colour Honda City Car bearing No. DL4CAB8818. The front wind FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.36/66 PS: Tilak Nagar shield of the car was cracked, rear wind shield broken, right side front door window also in broken condition and blood on both the doors of right side. He also found a black colour Santro car bearing No. DL4C ____ (he did not remember the full registration no. of Santro car) behind the said Honda City car. The rear wind shield and window pane of the front right side door of both the cars were found in broken condition and both the vehicles were parked in front of J10, Mukhram Garden, Chaukhandi Road. He also found some blood and a broken baseball bat in front of H. No. E21, Mukhram Garden. The J and E Blocks were adjacent to each other. In Honda City car, he found a blood stained brick bat on front left side seat. He also found a piece of concrete on front left side seat in Santro car. He also found broken piece of aforesaid baseball bat and one blood stained cracked lathi (stick) in front of Shop No.10. He deposed that he tried to trace out eye witness of the incident but none was found. In the meantime, he received copy of DD No.6A through Ct. Dayaram regarding admission of injured Rakesh and Mohit at DDU Hospital. He left Ct. Sunil Kumar at the spot and reached DDU Hospital, where he met HC Baljeet Singh who intimated him regarding moving of application for recording of statement of injured Rakesh, on which it was endorsed by the concerned doctor that injured Rakesh was unfit for statement. HC Baljeet Singh handed over to FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.37/66 PS: Tilak Nagar him the application bearing doctor's endorsement. He deposed that he collected the MLC of both the injured persons. On MLC of injured Mohit, the doctor opined the nature of injury as simple, caused by some blunt object. He deposed that injured Mohit was fit for statement and, therefore, he inquired Mohit about the incident. Injured Mohit narrated the incident which he reduced into writing vide statement Ex. PW3/A. Injured Mohit also handed over his blood stained shirt to PW21. PW21 prepared a pullanda, sealed it with seal of SK and seized it vide memo Ex. PW3/B. He deposed that injured Mohit got discharged from the hospital and he alongwith Mohit returned to the spot. He endorsed the statement Ex. PW3/A and prepared rukka Ex. PW21/A, which he handed over to Ct. Sunil for getting the case registered. He prepared the site plan Ex. PW3/C at the instance of inured Mohit and recorded his supplementary statement. He deposed that the crime team was called at the spot, which inspected the spot. HC Devender Singh took photographs of the spot from different angles. He deposed that ASI Azad Singh, Incharge Crime Team, prepared the report and handed it over to him. He recorded statement of ASI Azad Singh and HC Devender Singh.
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23. (b) PW21 deposed that Ct. Sunil returned to the spot and handed over to him original rukka and copy of FIR. He deposed that he took blood sample from Honda City car, put it in an envelope and sealed the same with the seal of SK. The envelope was given Sr. No. 'O' and was seized vide memo Ex. PW21/B. He also took into possession the broken baseball bat in front of H. No. E21, Mukhram Garden, prepared a pullanda, sealed it with the seal of SK and seized the same vide seizure memo Ex. PW21/C. The said pullanda was given Sr. No.
1. The blood stained earth and earth control were taken into possession from the spot and were put in two plastic jars, which were sealed with the seal of SK, and were seized vide memo Ex. PW21/D. Thereafter, he collected earth control and blood stained earth control in front of Shop No. J10, Mukhram Garden and put them in two separate plastic jars, which were sealed with the seal of SK, and were seized vide memo Ex. PW21/E. He also took into possession broken pieces of window pane of Honda City car, which he put in a plastic jar, sealed the same with the seal of SK and seized vide memo Ex. PW21/F. In the same manner, he also took into possession broken pieces of window panes of Santro Car, which he put in a plastic jar, sealed the same with the seal of SK and seized vide memo Ex. PW21/G. The request for TIP of accused Titu Sharma and Gurmeet Singh are Ex. PW21/S and Ex. PW21/S1. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.39/66 PS: Tilak Nagar The case was further investigated by Inspector Chhatar Singh. In a leading question by Ld. Addl. PP, PW21 admitted that the registration of Santro Car was DL4CS6865. He identified Honda City Car bearing No. DL4CAB 8818 through photographs Ex. X1 to X4 and Santro Car bearing No. DL4CS 6865 through photographs Ex. P16 and Ex. P17. He also identified the case properties produced in parcel no. 2,3,4,5,6,7,8,9,10,11,12,14,15 and 16, all sealed with the Court seal. The parcels were opened separately.
Parcel No.2 was found containing some clothes and shoes [already Ex. P1 (colly.)], which were identified by PW21 as the same belonging to deceased Rakesh. Parcel No.3 was found containing an envelope, which was also found containing another envelope containing blood in gauze and the same was identified by PW21 vide Ex. P7. Parcel No.4 and 5 were empty envelopes to which MHC(M) produced DD No.66B dated 06/04/2016 regarding dilapidated condition of roof of malkhana at PS. Parcel No.6, 7, 11, 15 and 16 were found containing plastic jars, containing cemented pieces and the same were identified by PW21 vide Ex. P8, P9, P12, P13 and P14 (colly.), respectively. Parcel No.8 was found containing a plastic jar, having pieces of broken glass and the same were identified by PW21 vide Ex. P10 (colly.). Parcel No.9 was FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.40/66 PS: Tilak Nagar found containing a plastic jar, having pieces of broken glass and the same were identified by PW21 vide Ex. P11 (colly.). Parcel No.10 was produced in torn condition from one side with broken seal, which was found containing a plastic jar without cap, having a piece of brick and the same was identified by PW21 vide Ex. P4. Parcel No.12 was found containing a broken wooden piece which was identified by PW21 vide Ex. P3. Parcel No.14 was found containing one blood stained torn shirt and the same was identified by PW21 vide Ex. P5. MHC(M) also produced broken pieces of lathi and the same were identified by PW21 vide Ex. P15 (colly.).
23. (c) In cross examination by Ld. defence counsel, PW21 replied that the application Ex. PW21/D was not written by him. He admitted that the place of incident was a public area and public persons used to pass from there, however, he found no public person at the spot when he reached there. He replied that till the time he remained in DDU hospital, he made no inquiry from any public person except the injured persons. He replied that he did not remember if he had recorded statement of HC Baljeet Singh. He admitted that the site plan Ex. PW3/C did not bear his signature, however, his name and designation are there. He admitted that there was a cutting/overwriting at point FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.41/66 PS: Tilak Nagar X in Ex. PW3/C. He denied the suggestion that no photographs of the spot were taken. He admitted that the spot was surrounded by residential area. He replied that he inquired 34 public persons about the incident but no one informed anything. He denied the suggestion that the clothes and shoes of the deceased were not seized at DDU Hospital due to which signatures of DDU hospital staff were not obtained on seizure memo. He replied that during investigation he did not call owners of cars that he found at the spot. He replied that he could not say if the cars seized at the spot belonged to the accused. He admitted that he had not checked ownership documents of the cars. He replied that on 30/07/2011 at about 02:00pm he came to know that deceased had gone LAMA from DDU hospital and was admitted in Jaipur Golden Hospital. He denied the suggestion that accused Titu Sharma gave no disclosure statement and his signatures were taken on blank papers, which were converted into false and fabricated disclosure statement in order to falsely implicate him as well as remaining accused persons. He denied the suggestion that the photographs of the accused persons were already shown to the witnesses at police station and that is why they refused to participate in TIP proceedings. He denied the suggestion that he had not recorded statement of witnesses U/s. 161 CrPC. He denied the suggestion that the accused persons had not committed any offence FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.42/66 PS: Tilak Nagar and they have been falsely implicated. He denied the suggestion that no recovery has been affected from the accused persons; rather the same was planted upon them.
24.PW22 Dr. Neeraj Kumar Garg, Sr. Medical Officer, DDU Hospital, deposed that on 29/07/2011 he was on emergency duty as CMO. He deposed that Dr. Bharat Veer had left the services of DDU Hospital and his whereabouts were not known to the hospital. He identified the handwriting and signatures of Dr. Bharat Veer on MLC No.15102, Ex. PW22/A of injured Mohit. As per MLC, injured Mohit had sustained simple injury on left side of his head (parietal region) and abrasion on left knee joint.
In cross examination, PW22 admitted that neither injured Mohit was examined nor his MLC was prepared in his presence. He denied the suggestion that he never saw Dr. Bharat Veer writing and signing during course of his duties.
25.PW23 Sh. Murari Prasad Singh, Ld. Principal Magistrate, Juvenile Justice Board02, Delhi Gate, deposed that on 17/09/2011 Ld. ACMM (West), Tis Hazari Court, marked to him an application for conducting of TIP of accused FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.43/66 PS: Tilak Nagar Gurmeet Singh @ Monty @ Tailor. He deposed that accused Gurmeet Singh was produced before him in muffled face by IO of the case for conducting of his TIP vide his endorsement in that regard on application Ex. PW23/A. However, accused Gurmeet Singh refused to participate in TIP proceedings. He deposed that warned the accused that his refusal to take part in TIP proceedings could be used against him during trial and adverse inference could be drawn against him. However, despite warning, the accused submitted that he was not willing to participate in TIP proceedings. The statement of accused Gurmeet Singh regarding his refusal to participate in TIP proceedings is Ex. PW23/B. He deposed that, later on, IO moved application for supply of copy of TIP proceedings, which was allowed vide his endorsement on application Ex. PW23/C.
26.PW24 Manmohan Sharma, Executive Admin, Jaipur Golden Hospital, Sector 3, Rohini, deposed that Dr. Parijat Bharti had left the services of Jaipur Golden Hospital and his whereabouts were not known to the hospital. He deposed that he could identify the handwriting and signatures of Dr. Parijat Bharti as he had seen him writing and signing during course of his duties. He deposed that the application Ex. PW21/M1 moved by SI Surender was endorsed by Dr. Parijat FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.44/66 PS: Tilak Nagar Bharti vide Ex. PW24/A at point A, regarding unfit of patient Rakesh Chauhan for giving statement.
In cross examination, PW24 admitted that the endorsement Ex. PW24/A was not made by Dr. Parijat Bharti in his presence. He denied the suggestion that he never saw Dr. Parijat writing and signing any document during his duties.
27.PW25, HC Sunil Kumar, joined investigation of present case with IO SI Surender Kumar in the intervening night of 2829/07/2011 and deposed similar to IO SI Surender Kumar regarding proceedings conducted by the IO during investigation. Ld. defence counsel did not press for production of case properties as well as cars in question as the same were already exhibited during testimonies of PW21 and PW3.
In cross examination, PW25 replied that the IO made inquiry from one or two public persons who informed that injured persons had already been rushed to the hospital. They left without revealing their identity. He denied the suggestion that no recovery was affected from the place of incident. He denied the suggestion that he did not join investigation of the present case with the IO FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.45/66 PS: Tilak Nagar and proceedings were conducted by IO while sitting at PS.
28.PW26 Sh. Vijay Shankar (DHJS), Joint Registrar (Judicial), High Court of Delhi, deposed that on 06/08/2011 he was posted as Relieving Judge, West District, Tis Hazari Courts. He deposed that an application for conducting of TIP was moved by IO and the same was marked to him, which he fixed for TIP on 09/08/2011 and gave necessary directions to Jail Superintendent. The application of IO is Ex. PW26/A and order of PW26 in that regard is Ex. PW26/B. He deposed that on 09/08/2011 he reached Tihar Jail No.1, where accused Titu Sharma was produced before him and was identified by Asst. Jail Superintendent. He deposed that the accused refused to participate in TIP proceedings. He deposed that consequences of refusal of TIP was explained to accused Titu Sharma but the accused was still not willing to participate in TIP proceedings. Detailed TIP proceedings Ex. PW26/C was prepared and was also signed by Asst. Jail Superintendent, Jail No.1. The TIP proceedings were also signed by accused Titu Sharma at point C. The accused also appended his thumb impression at point D. He deposed that upon application Ex. PW26/D, copy of TIP proceedings were provided to IO and the original TIP proceedings were sent to concerned Court through Ld. CMM, West, in sealed envelope. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.46/66 PS: Tilak Nagar PW26 further deposed that an application for conducting TIP was moved by IO and the same was marked to him, which he fixed for TIP on 08/09/2011 and gave necessary directions to Jail Superintendent. The application of IO is Ex. PW26/E and order of PW26 in that regard is Ex. PW26/F. He deposed that on 08/09/2011 he reached Tihar Jail No.1, where accused Ravi Dutt Sharma was produced before him and was identified by Asst. Jail Superintendent. He deposed that the accused refused to participate in TIP proceedings. He deposed that consequences of refusal of TIP was explained to accused Ravi Dutt Sharma but the accused was still not willing to participate in TIP proceedings. Detailed TIP proceedings Ex. PW26/G was prepared and was also signed by Asst. Jail Superintendent, Jail No.1. The TIP proceedings were also signed by accused Ravi Dutt Sharma at point C. The accused also appended his thumb impression at point D. He deposed that upon application Ex. PW26/H, copy of TIP proceedings were provided to IO and the original TIP proceedings were sent to concerned Court through Ld. CMM, West, in sealed envelope.
29.(a) PW27 retired Inspector Chattar Singh deposed that on 05/08/2011 he was posted as AntiTerrorist Officer (ATO) at PS Tilak Nagar and, on that day, the present case was handed over to him by SI Surender for further investigation. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.47/66 PS: Tilak Nagar He deposed that on receipt of case file he arrested the accused persons U/s. 302 IPC on the directions of senior police officials and also gave the said information to concerned Ld. MM vide intimation Ex. PW27/A. On the same day i.e. 05/08/2011 he recorded statements U/s. 161 CrPC of wife and mother of deceased Rakesh Chauhan. He deposed that on 06/08/2011 he produced accused Titu Sharma, who was already arrested, before the Court in muffled face as his TIP was to be conducted and Ld. MM had fixed the TIP for 09/08/2011. He deposed that on 09/08/2011 accused Titu Sharma refused to participate in TIP proceedings at Tihar Jail. He collected copy of relevant document of TIP proceedings.
29. (b) PW27 deposed that on 10/08/2011 accused Titu Sharma led them to the house of associate Dheeraj @ Pakau at H. No. A82, DDA Flat, Chaukhandi, Delhi, however, Dheeraj @ Pakau was not found there and his father told that accused Dheeraj had not been residing there since long. He deposed that on the same day i.e. 10/08/2011 accused Titu Sharma, in pursuance of his disclosure statement, led them to the house of his other associate Gurmeet Singh @ Monti @ Tailor at H. No. WZ105, Sant Nagar, Tilak Nagar, Delhi, however, Gurmeet Singh was not found there. He deposed that mother of accused FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.48/66 PS: Tilak Nagar Gurmeet Singh told that he had not been residing there since long and she was not aware of his whereabouts. He deposed that on 11/08/2011 accused Titu Sharma led them to his house at A16, DDA Flat, Chaukhandi, Tilak Nagar, Delhi, and got recovered a Samsung mobile phone from the concrete slab/shelf from first floor of his house. Accused Titu Sharma also got recovered his blue colour Tshirt and blue colour jeans pant, that he wore on the day of incident, from the abovementioned slab of his house. He deposed that there were no blood stains on the recovered clothes as the same had already been washed by the accused. He prepared a pullanda of recovered clothes, sealed it with the seal of CSB and seized the same vide memo already Ex. PW18/A. The case properties were deposited in malkhana. He deposed that, later on, the scaled site plan was prepared by SI Mahesh Kumar (Draftsman) at the instance of SI Surender. He collected PCR form no.1 and collected postmortem report from DDU Hospital. He examined HC Gopal, Incharge PCR, who took the injured to hospital.
29. (c) PW27 deposed that on 02/09/2011 accused Ravi Dutt Sharma surrendered at PS. He interrogated and arrested accused Ravi Dutt Sharma. The disclosure statement of accused Ravi Dutt Sharma is Ex. PW17/A. He deposed that FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.49/66 PS: Tilak Nagar accused Ravi Dutt Sharma also pointed out the place of occurrence vide memo Ex. PW17/G. The arrest and personal search of accused Ravi Dutt Sharma are Ex. PW17B and Ex. PW17/C respectively. He deposed that accused Ravi Dutt Sharma was kept in muffled face as his TIP was to be conducted and he was produced before the Court. He deposed that he moved application for TIP of accused Ravi Dutt Sharma vide application Ex. PW27/B. However, accused Ravi Dutt Sharma refused to participate in TIP proceedings. He collected copy of relevant documents of TIP proceedings. He deposed that the weapon of offence/exhibits was sent to DDU Hospital for obtaining subsequent opinion. On 23/09/2011 he was transferred from PS Tilak Nagar and the case file was assigned to some other police official for further investigation. He deposed that Ct. Subhash qua accused Titu Sharma ,whereas, Ct. Jagdish qua accused Ravi Dutt Sharma had joined investigation alongwith him. He identified the case property/clothes already Ex. P8 (colly.). He also identified the Samsung mobile phone vide Ex. PX1 as the same that was recovered at the instance of accused Titu Sharma.
29. (d) In cross examination, PW27 denied the suggestion that the photographs of accused persons were already shown to witnesses at PS and that is why they FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.50/66 PS: Tilak Nagar had refused to participate in TIP proceedings. He denied the suggestion that he had not recorded statements of witnesses U/s. 161 CrPC. He denied the suggestion that the accused persons did not commit the alleged offence and they were falsely implicated in the present case. He denied the suggestion that no recoveries were effected at the instance of accused persons, rather the same had been planted upon them.
30. (a) PW28 Inspector Sudesh Ranga deposed that on 07/10/2011 he was posted at PS Tilak Nagar as Inspector AntiTerrorist Officer (ATO) and the present case was assigned to him on that day for further investigation. He deposed that on 08/10/2011 SI Mahesh Kumar (Draftsman) handed over to him the scaled site plan of the place of incident. He deposed that on 13/10/2011 he visited DDU Hospital and collected subsequent opinion from Dr. Yogesh Tyagi, who also handed him over five exhibits in sealed condition alongwith sample seal of the hospital. The said exhibits were deposited in Malkhana at PS. He deposed that on 01/11/2011, on conclusion of investigation, he filed charge sheet before the Court. Till that time, the remaining accused persons were not apprehended. He deposed that on 11/11/2011 accused Dheeraj @ Pakau surrendered before the Court. The accused was interrogated and arrested with permission of the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.51/66 PS: Tilak Nagar Court and after conducting personal search he was sent to JC remand. He deposed that on 17/11/2011 application for TIP of accused Dheeraj was moved before the Court, which was fixed for 19/11/2011.
30. (b) PW28 deposed that on 19/11/2011 TIP of accused Dheeraj was conducted at Tihar Jail and during TIP proceedings he was identified by witness Sh. Mohit Bhutani. He collected relevant documents of TIP proceedings. On 18/11/2011 he moved application for issuing production warrants against accused Dheeraj. He deposed that on 19/11/2011 accused Dheeraj was produced before the Court and upon production warrants he interrogated him. He also moved application for PC remand of accused Dheeraj, which was allowed by the Court. He deposed that in pursuance of his disclosure statement, accused Dheeraj led them to place of incident and he prepared pointing memo in that regard. In pursuance of his disclosure statement, accused Dheeraj also led them to his house at DDA Flats, J.J. Colony, Khyala, Delhi, and got recovered his shirt and blue colour jean pant from a box lying in a room stating that the same were worn by him on the day of incident. He prepared a pullanda of recovered clothes, sealed it with the seal of DSC, seized the same vide memo Ex. PW28/A and, thereafter, deposited it in Malkhana at FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.52/66 PS: Tilak Nagar PS. He deposed that he searched for accused Sonu @ Sardar, who was also wanted in the present case, however, despite efforts, he could not be traced out. He deposed that the exhibits were sent to FSL through Ct. Kapil and he recorded statement of witnesses U/s. 161 CrPC.
30. (c) PW28 deposed that after filing supplementary charge sheet before the Court, he collected FSL result and filed the same on record. He deposed that he recorded disclosure statement Ex. PW28B of accused Dheeraj @ Pakau on 19/11/2011, prepared pointing out memo Ex. PW28/C, and arrested and personally searched him vide memos Ex. PW28/D and Ex. PW28/E respectively. The application for interrogation and arrest of accused Dheeraj moved before the Court is Ex. PW28/F, the application for issuing production warrants against accused Dheeraj is Ex. PW28/G, application for PC remand is Ex. PW28/H, application for conduction TIP of accused Dheeraj is Ex. PW28/J and application for supplying of copy of TIP proceedings is Ex. PW28/K. A parcel bearing no.17, sealed with the seal of FSL, was produced which found contained one jean and shirt. PW28 identified the clothes vide Ex. P17. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.53/66 PS: Tilak Nagar
30. (d) In cross examination, PW28 replied that he recorded statement of Mohit Bhutani but he did not remember the date when it was recorded by him before filing of main charge sheet. He denied the suggestion that he had not conducted any further investigation before filing the main charge sheet. He replied that he did not prepare any seizure memo with regard to receipt of five exhibits and sample seal of hospital from Dr. Yogesh Tyagi on 13/10/2011. He admitted that he also did not prepare any seizure memo of scaled site plan handed over to him by SI Mahesh Kumar (Draftsman) on 08/10/2011. He replied that he had not got issued any road certificate by which the exhibits were sent to FSL through Ct. Kapil. He voluntarily stated that the Malkhana Moharar got the same issued. He denied the suggestion that he did not conduct fair and proper investigation of the case.
31.PW29 Ms. L. Babyto Devi, Asstt. Director Biology, FSL, Rohini, deposed that on 27/01/2012, 17 parcels were received in connection with FIR No.244/2011, PS Tilak Nagar, and the same were marked to her for examination. She deposed that on biological examination, blood was detected on exhibits 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3, 5, 7, 12, 13, 14 and 16. On biological examination, blood could not be detected on exhibits 1a, 1b, 4, 6, 8, 9, 10, 11, 15, 17a and 17b. On FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.54/66 PS: Tilak Nagar serological examination, exhibits 2a, 2b, 2c, 2d, 2e, 2f, 2g, 3, 13, 14 were found to be human origins with 'B' blood group. On serological examination, exhibits 5 and 12 had no reaction. On serological examination, exhibit 7 was found to be of human origin but having no reaction in blood group. The remnants of exhibits were sealed with the seal of BD FSL, Delhi. She proved her detailed biological report Ex. PW29/A and serology report Ex. PW29/B.
32.PW30 HC Chandra Shekhar deposed that on 19/11/2011 Inspector Sudesh Ranga took one day PC remand of accused Dheeraj @ Pakau, recorded his disclosure statement Ex.PW28/B and, thereafter, accused Dheeraj led them to place of incident where pointing out memo Ex.PW28/C was prepared. He deposed that accused Dheeraj @ Pakau also led them to his house no. A82, Second floor, JJ Colony, Chaukhandi, and got recovered one blue colour pant and one full sleeve shirt which he wore at the time of incident. The recovered clothes were seized vide memo Ex. PW28/A. The case property was already exhibited during testimony of PW28.
33. PW31 HC Ishwar deposed that on 29/07/2011 SI Surender Kumar deposited sealed parcels in Malkhana and handed over copies of seizure memos which FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.55/66 PS: Tilak Nagar were entered in Register No.19 at serial no. 5460. On 04/08/2011 ASI Jangir Singh deposited one sealed parcel in Malkhana and handed over copies of seizure memo which was entered in Register No.19 at serial no. 5466. On 11/08/2011 Inspector Chattar Singh deposited one sealed parcel alongwith one mobile phone at Malkhana and handed over copies of seizure memo which were entered in Register No.19 at serial no. 5478. On 16/09/2011 SI Surender Singh again deposited personal search articles of accused Gurmeet Singh which were entered in Register No.19 at serial No. 5565. On 19/11/2011 Inspector Suresh Ranga again deposited one sealed parcel at Malkhana and handed over copies of seizure memo which were entered in Register No.19 at serial no. 5767. Copies of aforesaid entries are Ex. PW31/A (Colly.). He deposed that on 27/01/2012, on directions of IO, Ct. Kapil collected the sealed parcels from Malkhana vide RC No.7/21/12 and after depositing parcels to FSL, deposited the receipt of FSL with him. Copy of RC No.7/21/12 is Ex.PW31/B.
34.All the incriminating evidence that came on record in the deposition of prosecution witnesses was put in detail to the accused persons and their statements were recorded U/s. 313 CrPC. They denied all incriminating FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.56/66 PS: Tilak Nagar evidence and asserted that they were falsely implicated in the present case. The accused persons did not avail of the opportunity to lead evidence in defence. I have heard the elaborate final arguments from both sides.
35.Upon analysis of evidence, the conclusion is inevitable that prosecution has failed to bring home the charged offence against the accused persons, for following reasons:
(a) the key witnesses did volte face in their deposition; they did not identify the accused persons as offenders who assaulted and injured victim Rakesh Chauhan in the incident.
(b) the FIR was registered upon statement of injured Mohit Bhutani (PW3) who accompanied deceased Rakesh Chauhan at the time of incident. As per FIR, the offenders were not previously known to Mohit Bhutani. The family members of victim Rakesh Chauhan met Mohit Butani in the hospital, where Jitender (PW5), brother of Rakesh Chauhan, expressed his suspicion against accused Titu Sharma and his associates. During the trial too PW3 Mohit Bhutani deposed that he could not identify any of the assailants because there was darkness at the time of incident, whereas, he was in drunken condition and FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.57/66 PS: Tilak Nagar was running to escape from the attack. He deposed that he was not sure if accused persons were the assailants.
(c) PW3 Mohit Bhutani deposed that he did not identify any of the accused persons before police officials after their arrest. He identified accused Dheeraj @ Pakau before the Magistrate during TIP proceedings Ex.PW3/D; however, he could not identify accused Dheeraj @ Pakau in Court during his deposition.
PW3 was crossexamined as a hostile witness by Ld. Addl.PP but his cross examination did not yield any answer favourable to prosecution case. He denied the suggestion that the accused persons were the offenders who, alongwith two other associates, attacked him and deceased Rakesh Chauhan with lathi, baseball bat and bricks with intent to kill them and damaged their cars. He denied the suggestion that he deliberately did not identify accused Titu Sharma, Ravi Dutt Sharma and Gurmeet Singh @ Monti, being won over by them. He further denied the suggestion that he deliberately did not identify accused Dheeraj @ Pakau in Court, whom he already identified before Ld. MM during TIP proceedings, being won over by him.
(d) PW5 Jitendra Chauhan @ Sanju deposed that accused Titu Sharma and Ravi Sarma were brothers and were friends of his brother Rakesh Chauhan. He knew accused Dheeraj @ Pakau as he lived in his colony. He stated that some FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.58/66 PS: Tilak Nagar days prior to the incident there was hot exchange of words between his brother Rakesh Chauhan and accused Titu Sharma. On 28/07/2011 at around 10:00 pm, PW5 was standing outside his home. After sometime, someone informed him that Rakesh had sustained injuries. He along with his father went to the spot near Raj Cinema at Chaukhandi near Tilak Nagar and found Rakesh in injured condition with his face smeared in blood. In the meantime PCR also reached there. His father accompanied Rakesh in police gypsy to DDU hospital, whereas, he followed them in his motorcycle. He got no opportunity to talk to his brother Rakesh Chauhan in the hospital. He stated that the incident had not occurred in his presence.
(e) Ld. Addl.PP crossexamined PW5 Jitendra Chauhan as a hostile witness but couldn't elicit a favourable reply. PW5 denied that on 28/07/2011 at about 11:00pm, when he was standing in front of Shiv Mandir, Chaukhandi near Kanwarwalas all four accused persons asked him about whereabouts of his brother Rakesh. He voluntarily stated that only accused Titu Sharma asked him about whereabouts of his brother Rakesh. He denied the suggestion that accused Titu told him that he would teach a lesson to Rakesh. He admitted that he called at his brother's mobile no. 9213819081 from his mobile phone no. 9210612011, after accused Titu Sharma asked him about his brother's FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.59/66 PS: Tilak Nagar whereabouts. He admitted that Rakesh was screaming while making telephone call to him at his mobile at about 12:00 midnight but denied the suggestion that deceased told him that all the accused persons were beating him up near Raj Cinema. He denied the suggestion that when he alongwith his father reached near Raj Cinema on motorcycle, they saw that all the accused persons were beating deceased and on seeing them all the offenders fled from there in a long car and scooter. He denied the suggestion that he saw all the accused persons beating his deceased brother Rakesh. He denied the suggestion that he deliberately did not depose against the accused persons due to fear or being won over by them. In cross examination conducted by accused persons, PW5 admitted that he and his deceased brother Rakesh had friendly terms with accused Titu Sarma and Ravi Dutt Sharma since their childhood.
(f) PW5 Jitendra Chauhan stated that upon receipt of information from someone about injury caused to his brother Rakesh, he along with his father went to the spot near Raj Cinema at Chaukhandi near Tilak Nagar and found Rakesh in injured condition with his face smeared in blood. In the meantime PCR also reached there. His father accompanied Rakesh in police gypsy to DDU hospital, whereas, he followed them in his motorcycle. PW8 Ram Chander Chauhan, father of deceased Rakesh Chauhan deposed that in the FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.60/66 PS: Tilak Nagar intervening night of 2829/07/2011 he alongwith Sanju reached the spot, where he found his son Rakesh lying in injured condition. They shifted Rakesh to DDU hospital and, later on, to Jaipur Golden hospital. He deposed that his son remained in coma and expired in hospital on 04/08/2011. He deposed that he had not seen anyone beating his son. PW8 was cross examined by Ld. Addl. PP for State, as he resiled from his previous statement recorded U/s. 161 CrPC. In cross examination by Ld. Addl. PP, the statement Ex. PW8/A was read over to PW8 to which he stated that he never gave the said statement to police. He denied the suggestion that he knew about the quarrel between his deceased son and accused Titu Sharma on the issue of money transaction. He denied the suggestion that on 28/07/2011, at about 12:00 midnight, his son Sanju informed him that Rakesh had telephoned him and told that accused Titu Sharma, Ravi Sharma, Dheeraj, Tailor and one Sikh boy were beating him. He denied the suggestion that when he and his son Sanju reached the spot he saw that the above named accused persons were beating his son Rakesh and on seeing them all the offenders fled from there. He replied that he did not tell the aforesaid facts to police during his statement U/s. 161 CrPC (he was confronted his statement Ex. PW8/C wherein all the aforesaid facts were recorded). He denied the suggestion that he deliberately did not depose against FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.61/66 PS: Tilak Nagar the accused persons due to their fear or having been won over by them. He denied the suggestion that due to financial settlement he did not identify the accused persons.
(g) PW1 Gyanwati, mother of deceased deposed about recent quarrel between deceased Rakesh Chauhan and accused Titu Sharma regarding repayment of money, taken by accused Titu Sharma from Rakesh. Rakesh had allegedly caused injury to Titu Sharma for which FIR No. 519 dated 28/12/2010, U/s. 325/34 IPC was registered at PS Hari Nagar against him. PW1 deposed that in the evening of 19/05/2011 when she was returning home from the park, accused Ravi Dutt met her on the way and threatened her to kill her son Rakesh. She deposed that she did not take the words of accused Ravi Dutt seriously as he was in drunken condition at that time. PW1 was not an eye witness to the incident dated 28/07/2011 in which Rakesh sustained fatal injuries.
(h) PW2 Smt. Geeta Chauhan, wife of deceased Rakesh Chauhan, deposed that accused Titu Sharma and Ravi Dutt were friends of her husband, whereas, accused Dheeraj @ Pakau was an employee of accused Ravi Dutt. She deposed that accused Titu Sharma had visited Bangkok twice with her husband in the year 2010. She deposed that accused Titu Sharma had borrowed Rs.50,000/ FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.62/66 PS: Tilak Nagar from her husband on the occasion of name ceremony of his son. She deposed that despite demands accused Titu Sharma did not repay the money to her husband resulting which quarrel took place between them. She deposed that since accused Titu had sustained injuries on his cheek in the scuffle, he got an FIR registered against her husband in November, 2010. PW2 deposed that in June, 2011, accused Ravi Dutt telephoned her husband, abused and threatened him; however, since accused Ravi appeared to be drunk at that time, they ignored the telephone call. She deposed that her brotherinlaw Jitender @ Sanju told her that on 28/07/2011 at about 11:40pm, when he was present outside the home, accused Titu Sharma threatened him that "AAJ TERE BHAI KA KYA HAAL HONE WALA HAI, TU SOCH BHI NAHI SAKTA" (you can't imagine what we will do to your brother today). Jitender @ Sanju also told this fact to his brother i.e. deceased Rakesh Chauhan on telephone, however, Rakesh ignored the same as the accused was in drunken condition at that time. She deposed that at about 12:00 midnight she received a telephone call from her brotherinlaw Jitender @ Sanju that accused Titu Sharma, Ravi Dutt and Pakau alongwith other persons had attacked her husband near Raj Cinema, Chaukhandi, Tilak Nagar, and he was admitted in DDU Hospital in injured condition. She replied that she could not tell the exact date and time FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.63/66 PS: Tilak Nagar when her husband had given Rs.50,000/ to accused Titu Sharma. She replied that the said amount was not given in her presence; however, she gave the money to her husband for giving the same to accused Titu Sharma. She replied that in her statement U/s. 161 CrPC she told police that she received a telephone call at about 12:00 midnight from her brotherinlaw Jitender @ Sanju that her husband had been attacked by accused Titu Sharma, Ravi and Pakau alongwith other persons near Raj Cinema, Chaukhandi, near Tilak Nagar (she was confronted with her statement Ex. PW2/DA, where the said fact was not recorded). She admitted that no money transaction ever took place between her husband and accused Titu Sharma in her presence. She admitted that the family of her inlaws and the family of accused persons had visiting terms with each other house. She further admitted that even after registration of case at PS Hari Nagar against her deceased husband and his friend, both the families had visiting terms with each other. She admitted that nobody told her as to how her husband had sustained injuries. She replied that till the time she remained in hospital, her husband was not in a position to speak being unconscious. She admitted that till the time her husband remained alive, he remained unconscious and did not tell about incident to anybody. FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.64/66 PS: Tilak Nagar
(i) The testimonies of PW1 Gyanwati and PW2 Smt. Geeta Chauhan are nothing more than expression of strong suspicion of involvement of accused persons in murder of Rakesh Chauhan. They deposed about recent enmity between Rakesh Chauhan and accused Titu Sharma as possible motive behind murder of Rakesh Chauhan. They were not eye witness to the incident. In fact, PW2 gave hearsay evidence that on 28/07/2011 at about 12:00 midnight she received a telephone call from her brotherinlaw Jitender @ Sanju (PW5) who told her that accused Titu Sharma, Ravi Dutt and Pakau alongwith other persons had attacked her husband near Raj Cinema, Chaukhandi, Tilak Nagar. PW5 Jitender was neither an eye witness to incident nor had any such information of incident that he could pass on to PW2 Geeta. Thus, the testimonies of PW1 Gyanwati and PW2 Smt. Geeta Chauhan carried no probative value in proof or disproof of charges against the accused.
(j) No incriminating material was recovered from possession of accused persons upon their arrest. No chance prints were developed from the weapons of offence recovered from the spot or from the damaged cars of victims Mohit Bhutani and Rakesh Chauhan that were found parked at the spot.
(k) PW5 Jitender and PW8 Ram Chander Chauhan were surely not eyewitness to the incident, for, if that were so, the FIR would have been registered upon FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.65/66 PS: Tilak Nagar their statement with details of incident and specific role of accused persons in commission of injury to victims. Anyhow, PW5 and PW8 denied having any knowledge of incident, except that soon before the incident accused Titu Sharma asked PW5 Jitender for whereabouts of deceased Rakesh Chauhan. PW3 Mohit Bhutani, the victim as well as an eyewitness to the incident was not sure if accused persons were the assailants, who caused fatal injuries to Rakesh Chauhan and damaged the cars in the incident. Regarding the simple injuries caused to him, PW3 Mohit stated that accused persons were not the assailants.
(l) In conclusion, it is observed that though the testimonies of witnesses lead to grave suspicion of involvement of accused persons in commission of fatal injuries to deceased Rakesh Chauhan, the evidence stepped short of legal proof of their guilt. Accused persons are rightly entitled to benefit of doubt and are acquitted of offence charged against them. However, they shall furnish fresh bail bonds under section 437A CrPC.
36.File be consigned to record room after completion of all necessary formalities.
Announced in the open court
dated: 16.10.2020 (VISHAL SINGH)
ASJ03, WEST/DELHI
FIR No. 244/2011 State Vs. Titu Sharma & Ors. Page No.66/66
PS: Tilak Nagar