Delhi District Court
State vs . Chetan Chaudhary Etc - Sc No.528 Of 2012 ... on 13 April, 2017
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURTS: DELHI
SC2110.16 in Sessions Case No. 52/2011
FIR No. 475/2011
U/s. 302/307/34 IPC
PS : Govindpuri
State
Vs.
Chetan Chaudhary
S/o Sh. Jagvir Singh
R/o H. No. 14
Shankar Vihar Colony
Ramghat Road
Aligah, UP
and also at
House No. 108, Plot No. 31,
Sector10, Dwarka,
New Delhi
Vijay Virdhi
S/o Inderjit Singh
R/o VPO Alawal Pur, PS Adampur
District Jalandhar, Punjab.
Instituted on : 24.02.2012
Committed on : 16.03.2012
Argued on : 06.04.2017
Decided on : 13.04.2017
J U D G M E N T
1 Accused Chetan Chaudhary and Vijay Virdhi have been sent up to face
trial for the offence under sections 302/307/34 IPC by the SHO, Police Station
Govindpuri, New Delhi.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 1/84
2 Brief facts of the prosecution are that on 28.11.2011 at around 04:45
AM, at Gurudwara Chowk, in front of Gali No. 1, Fruit Market, Ratia Marg,
Govindpuri, New Delhi, a quarrel and taken place between the accused persons and
Sh. Shailesh Ray and Siddharth with fist and dandas at the tea stall of Radharaman
and in the said quarrel Siddharth had sustained injuries on the right side of his
forehead and right eye and Shailesh Ray had died due to the injuries sustained by
him in the said incident at the hands of the accused persons.
Initially DD No. 71B dated 28.11.2011 was registered in this regard which
was assigned to SI Sita Ram. However, later on, DD No. 75B dated 28.11.2011 was
also registered at PS Govindpuri regarding the said incident, which was assigned to
SI Kulbir, who upon receipt of the said DD had reached at the spot with Ct. Samay
Singh and since the injured persons were stated to have already been sent to
AIIMS, Traume Centre, he had left Ct. Samay Singh at the spot. SI Sita Ram
alongwith Ct. Sujeet were already found present there. Since the injured persons
had already been removed to AIIMS, SI Kulbir Singh alongwith Ct. Samay Singh
had reached at AIIMS and collected MLCs of the injured persons. In the MLC of
Shailesh he was recorded "brought dead" and in the MLC of injured Siddharth, he
was declared "unfit to make statement". Thereafter, he came back to the spot. SI
Seeta Ram handed over him DD No. 71B and thereafter he had prepared rukka
and got the case FIR registered by sending Ct. Samay Singh to PS Govindpuri.
After registration of FIR, further investigation of this case was taken over by
the Insp. Raj Kumar Khatana, SHO, PS Govinduri. During investigation, IO had
reached at the spot and prepared site plan. He had also lifted different exhibits
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 2/84
from the spot, i.e. one mobile phone mark Black Berry, Bamboo Stick, one cigarette
case, one steel lighter, one bunch of keys on which plaza was written, one coca cola
600 ml. Plastic bottle, one broken frame of spectacles, one glass lens and had kept
them in separate pullandas with seal of SK and had seized the same vide separate
memos. He had also lifted blood sample from the santro car bearing No. DL3CAQ
4228, blood from the spot and blood stained soil from the spot and had seized them
vide separate memos. He had also taken into police possession, the said car
alongwith two keys vide a separate seizure memo. Crime Team was also summoned
at the spot. IO had obtained the detailed report from Crime Team Incharge SI
Jitender.
During the course of investigation, the IO had arrested both the accused
persons and had recorded statement of the witnesses at different stages of
investigation and after completion of the investigation, charge sheet for the
aforesaid offences was filed by the SHO, PS: Govindpuri against both the accused
persons, before the Court of the concerned MM on 24.02.2012.
3 Ld. Magistrate after compliance of the provisions of Section 207 Cr.PC
had committed the case to the Sessions Court vide his order dated 16.03.2012.
4 On 27.3.2012 the case was received by allocation on committal to
Sessions Court.
5 Vide order dated 17.11.2012, Ld. Predecessor of this Court had
framed the charge for the offences punishable under sections 302/307/34 IPC
against the aforesaid accused persons to which they had pleaded not guilty and had
claimed trial.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 3/84
6 The prosecution was directed to lead its evidence to prove the charges
against the accused persons beyond shadow of any reasonable doubt, and
prosecution had examined 25 witnesses in all in support of its case.
7 PW1 Subhash Roy was the father of deceased Shailesh Roy. He had
reached at Trauma Center Mortuary, AIIMS on 28.11.2011, upon receipt of an
information regarding death of his son. He had identified the dead body vide an
identification memo, which had been placed on record as Ex. PW1/A. He had
received the dead body of the deceased vide memo Ex. PW1/B for cremation.
In his crossexamination conducted on behalf of the accused persons, he had
stated that he had received the information at about 8.00 AM and had reached
Trauma Centre, AIIMS at around 11.30/1200 am. The witness was also shown the
death report prepared by the IO and after seeing the same, he could not tell as to
when he had signed the same. He had seen the injuries on the head of the dead
body of his son. He had further stated that he had received the information
regarding death of his son in West Bengal and he had come alone from West Bengal
to Delhi. He had stated voluntarily that his relatives were already present in the
Trauma Centre, AIIMS.
8 PW2 Ashok Chauhan, was the family friend of the deceased
Shailesh Roy. He had also identified the dead body of Shailesh Roy in the Trauma
Centre AIIMS vide identification memo which was placed on record as Ex. PW2/A.
In his crossexamination conducted on behalf of the accused persons, he had
stated further that he had reached the mortuary upon receipt of an information
from his cobrother Sh. Rana and he had signed the memo Ex. PW2/A in the
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 4/84
mortuary.
9 Similarly, PW3 Rubal Gupta had also identified the dead body of
deceased Shailesh Roy on 28.11.2011 at Mortuary and had received the dead body
of the deceased alongwith PW1, vide identification memo Ex. PW1/A and receipt
memo Ex. PW1/B.
In his crossexamination conducted on behalf of the accused persons, this
witness had stated further that he had received the information of death of decease
at around 8.009.00 AM and PW1 Subhash Roy had met him in the mortuary, who
had come from Kolkatta.
10 PW4 Sriniwas S/o Khem Singh had stated that he was doing the
work of selling of building material at B356, Transit Camp, near Madina Masjid,
Govindpuri. He could not tell the exact date or month, but it was the year 2012,
when, as usual he got up for the morning walk and as he had reached near
Gurduwara, Gali No. 1, Govindpuri, he had heard the shrieks of a boy "bachao
bachao". He had turned back and saw that one boy was lying on the road and the
other boy was bleeding from his head and other boy was trying to lift the boy who
was lying but he was unable to get up (usko utha raha tha, baar baar gir raha tha).
It was stated further by PW4 that he had then informed the police at 100 number
from his mobile phone No. 9717281478 and thereafter within ten minutes, police
had arrived at the spot and had removed the injured and thereafter he had also left
the spot and had proceeded for his morning walk.
This witness was declared hostile by Ld. Addl. PP and was examined under
Section 154 Indian Evidence Act after obtaining necessary permission from the
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 5/84
court, related to the date of incident.
During his crossexamination conducted by Ld. Addl. PP, this witness had
stated further that police might have recorded the date correctly as 28.11.2011
regarding his making of a call at 100 number from his aforesaid mobile number.
In his crossexamination conducted on behalf of the accused persons, PW4
had stated he had informed the police on 28.11.2011, but he had not noted down
the date and he had informed the police what he had seen at the spot. Three police
officials had arrived in the PCR van. Either of the injured boys had not talked to
him. He had remained at the spot for about 15 minutes. He had stated further that
apart from the injured, he had not seen anything else and his immediate concern
was to save the life of injured persons and hence he had made a call at 100 number
to the police and his statement recorded by the police in this case under section 161
CrPC Ex. PW4/A was correct from portion A to A and the said statement had been
read over to him by the police.
This witness had not deposed anything incriminating against either of the
accused persons.
11 PW5 Sh. V S Rao, Administrative Officer, Admn . Branch, Acharya
Narendra Dev College, Govindpuri, New Delhi had deposed that he had given the
coloured photocopy of admission form related to accused Chetan Chaudhary an ex
student of his college to the police, which was Ex. PW5/A. The witness had also
brought the original admission form, which was seen and returned to the witness.
In his crossexamination conducted on behalf of accused Chetan Chaudhary,
the witness had stated that notice dated 7/12/2011 u/s 91 CrPC regarding
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 6/84
production/furnishing the aforesaid paper was issued by the police in the name of
the Principal and at that time accused Chetan Chaudhary was not studying in the
said college and he was an exstudent of the college when the said notice was
received by them in the college.
12 PW6 Sh. Radha Raman, was the alleged eye witness of the incident.
Though he could not remember the exact date of incident in question, but it was
stated to be in the year 2011, during winter season, when one day at about 04:30
am, he was present at his tea stall alongwith his brother Kamal and Ishanshu, at
that time two persons had come in a black colour Santro Car and they had taken
tea at his tea stall. Thereafter, two more boys namely Vijay Virdhi and Chetan also
came there on a three wheeler scooter. They also had tea at his tea stall. He already
knew Chetan as he used to meet him near the gate of Acharya Narender Dev
College and he had come to know the name of Vijay Virdhi through him.
It was stated further by him that outside the tea stall, an argument (behas)
had taken place between those two boys, who had come in the black colour Santro
and Vijay Virdhi. Thereafter, they had started talking in English. Thereafter, Vijay
Virdhi and Chetan had left his tea stall and those boys, who had come in black
colour Santro had remained there outside his tea stall.
It was stated further by the witness that after sometime, at about 05:00 am,
Vijay Virdhi and Chetan again came at his tea stall. They again consumed tea at his
tea stall. Viajy Virdhi told Chetan in his presence that "in dono ladko ko sabak
sikhana padega" (a lesson will have to be taught to these two boys). Thereafter,
Vijay Virdhi picked up a 'danda' (wooden stick) from the adjoining fruit shop and
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 7/84
thereafter, Vijay Virdhi asked those two persons, who had come in black Santro as
to why they had abused him "tumne mujhe gali kyon di'.
Thereafter, a scuffle had taken place between them (mara pitti hone lagi).
Chetan had tried to save those two boys. Vijay Virdhi firstly hit a danda on the head
of one person, who had come in black Santro due to which he had fallen down and
thereafter, he could not get up. Thereafter, Vijay Virdhi had also hit the danda on
the one side of face of the other person, who had come in black Santro. He was
bleeding.
PW6 had stated further that thereafter, being afraid of the quarrel, he had
left the tea stall after closing it and went to his house. Thereafter, he could not tell
as to what had happened.
It was stated further that at about 01:00/01:15 PM, police had come to his
residence and made inquiries from him about the incident and he had narrated the
police about whatever he had seen. Police had recorded his statement. He had told
the police that one boy namely Chetan Chaudhary was studying in Acharya
Narender College. He had also accompanied the IO and SHO to the said College.
He had seen the photograph of Chetan Chaudhary and had identified him and
through whom, Vijay Virdhi was apprehended by the police. He had accompanied
the police in search of Chetan Chaudhary as well.
Initially, he had gone with the police to gali no. 10, Govind Puri and
thereafter, to Gali No. 5. Chetan Chaudhary was seen by him in the Gali No. 5 and
he had told the police about the same. Police had, then, arrested him vide arrest
memo (Ex.PW6/A), which bears his signature at pointA. Police had also inquired
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 8/84
from Chetan Chaudhary about the whereabouts of Vijay Virdhi. Chetan Chaudhary
told the police about the address of Vijay Virdhi. Thereafter, he alongwith the
police went to the 3rd Floor in a house no. 900 something from where Vijay Virdhi
was arrested by the police vide his arrest memo (Ex.PW6/B).
He had stated further that he had also given his statement Ex. PW6/C before
Ld. MM. Sh. Deepak Sehrawat. He had correctly identified both the accused persons
in the court.
This witness was crossexamined by the Ld. Addl. PP for the State under
Section 154 Indian Evidence Act in the question answer form which is
reproduced as under with some spelling and grammatical corrections:
"Q. I put it to you that in your statement u/s 161 Cr.P.C. recorded by the police
you had stated that "pehle ladka jisne topi pehna tha, usne dande se maarna shuru
kar diya aur dusre ladke ne dusre ladke ko pakad rakha tha" and today you have
stated that first boy was Vijay Virdhi, who had hit with the danda and the second
boy i.e. Chetan was trying to save them. What you have to say?
Ans. First boy, who was wearing the cap was Vijay Virdhi. It is correct that second
boy i.e. Chetan Chaudhary had caught hold of the other boy. "Chetan ne usko pakda
tha bachane ke chakar mein" (Chetan had caught hold of him in order to save the
other boy).
Q. How can you say that "Chetan ne usko pakda tha bachane ke chakar mein".
Ans. Vijay Virdhi had hit the danda on the head of first boy, who had fallen down
and became unconscious. Thereafter, Vijay Virdhi was hitting the other boy with
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 9/84
the danda. Then, Chetan had caught hold of other boy to save him.
Q. Whether you had told the police that in order to save the other boy, Chetan
had caught hold of him?
Ans. Yes.
(Confronted with the statement u/s 161 Cr.P.C. (Ex.PW6/D), portion A to A',
where this fact is not so recorded).
Court Q. In your statement given to the magistrate u/s 164 Cr.P.C. (Ex.PW6/C)
dated 21.01.2012, you had stated that Chetan Chaudhary had caught hold of one
boy in the Santro Car and Anoop Chaudhary had attacked several times on the
head of that boy. In that statement to the magistrate you have not stated that
Chetan had caught hold of other boy to save him.
Ans. It is correct.
Court Q. Who is Anoop Chaudhary?
Ans. At that time, I did not know the name of Vijay Virdhi. Other persons,
who were present in the Gali were calling Vijay Virdhi as Anoop Chaudhary. After
the police had apprehended Vijay Virdhi at the instance of Chetan Chaudhary, then
I came to know about his correct name as Vijay Virdhi.
In his crossexamination conducted by Ld. Defence Counsels Sh. Uday Gupta
and Sh. Sanjeev Sharma for accused Vijay Virdhi, the witness had stated that he
was running the tea stall since last three years and MCD Office was near to his tea
stall, but he had denied the suggestion as incorrect that his substantial sale of tea
was because of the MCD Office. Ordinarily he used to close his tea stall at 11:30
PM. The remaining tea, sugar and water remained at the tea stall, whereas he used
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 10/84
to keep remaining milk in the fridge at the tea stall itself. There was no water tap
installed in his tea stall. He used to procure water from the tap installed outside the
Gurudwara. His tea stall was situated s across Gurudawara. He used to open his
tea stall at 04:00 A.M in the morning.
He did not know the names of two persons, who had come in the black
Santro. He had stated further that he had not even come to know about their
names during investigation as well. The Santro Car was parked at a distance of
about 10 feet from his Shop. All the articles like water, milk etc. were available at
his tea stall, when two persons, who had come in black Santro had asked for tea.
He had thereafter sent Ishanshu Tripathi for bringing water, although there was
some water left in the can lying at the tea stall. He had used LPG Gas for cooking
tea. Two persons, who had come in black Santro were drinking tea while standing
outside their Car, whereas Chetan Chaudhary and Vijay Virdhi were drinking tea
while standing near the back side of the Santro Car.
PW6 had admitted the suggestion of the Defence as correct that Vijay Virdhi
and Chetan Chaudhary had initially left his tea stall after they had an argument
with those two boys. It was stated further by him that they had left his tea stall at
about 04:30 am and thereafter they had come back again within 510 minutes.
During this period, those two boys, who had come in Santro Car were talking to
each other while standing near the Car.
When Vijay Virdhi and Chetan Chaudhary had again come at his tea stall,
thereafter, they were again drinking tea. At that time, one person, who had come in
the black Santro had asked Vijay Virdhi as to why he was staring at him (kyon
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 11/84
ghoor rahe ho). He had stated further that for the first time, Vijay Virdhi and Chetan
Chaudhary had come on a three wheeler scooter, but at the second time, they had
come on foot. There was an electric pole near "Shauchalya" (Public Toilet). The
electric light on the electric pole was on (light jal rahi thi). Vijay Virdhi and Chetan
Chaudhary again had a verbal argument with those two boys, who had come in the
Santro.
It was stated further by the witness during further crossexamination that
since they were arguing in English, therefore, he could not say as to what was the
subject matter of argument between them. A scuffle (hatha pai) had taken place
between them. Those persons had also beaten the accused.
The witness had admitted the defence suggestion as correct that initially
those two boys, who had come in the Santro Car had slapped Chetan Chaudhary
and Vijay Virdhi before they had left the spot for the first time. Second time, when
they had returned at the spot, then Vijay Virdhi had initially hit them (those two
persons, who had come in the Santro Car).
To a specific question of the Ld. Defence Counsel as to which of these boys
was wearing a cap and who was the second boy, the witness had answered that
boy, who was wearing the cap was Vijay Virdhi and the second boy, who had
caught hold of the other boy was Chetan Chaudhary.
It was also admitted by him as correct that he had told the police that the
boy, who was wearing Cap had hit a danda on the head of the boy, who was caught
hold, due to which his head got fractured (jiska sir fat gaya). It was also admitted
by him as correct that the first boy, who had sustained injuries on his head had
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 12/84
fallen down. The other boy had sustained injury on his forehead and face. It was
denied by him as wrong that Chetan Chaudhary had caught hold of the boy, who
had received injuries on the head i.e. first injured person.
To the specific question put to him by the Ld. Defence Counsel as
as to which exact portion of his body (the first boy, who had fell down, after
sustaining injury), he had sustained injuries, the witness had stated that he had
sustained injuries in the middle of his head. He could not say as to whether apart
from the head, that boy had also sustained injury at any other portion of his body.
He had stated further that the second person, who had also received injuries
had not fallen down and was conscious.
The witness had stated further that he had closed his tea shop on the day of
incident at about 07:00 am and the PCR had also arrived there before he had closed
the tea stall. Police had lifted the person, who had fallen down in the Gypsy. The
other boy was also lifted and put in the PCR Van. At the time of incident, no other
person apart from him, Ishanshu Tripathi and Kamal Maheshwari had passed that
way. PCR people had also not inquired from him anything about the incident.
The Ld. Defence Counsel after having read over his entire statement u/s 164
Cr.P.C. (Ex.PW6/C) to the witness had asked him as to who was Anoop Chaudhary,
to which the witness had answered that the so called Anoop Chaudhary mentioned
in the said statement was accused Vijay Virdhi. He could not tell after how many
days of recording of his statement by the police, his said statement was recorded by
the Magistrate.
He had also admitted the suggestion of the Ld. Defence Counsel as correct
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 13/84
that he had come to know the correct name of the second person, who was
accompanying Chetan Chaudahry as Vijay Virdhi at the time of arrest of Vijay
Virdhi and prior to the incident, he did not know Vijay Virdhi or his name.
When the Ld. Defence Counsel had asked the witness to explain the reasons
as to how in his statement made to the police, he had mentioned the names of the
accused persons as Chetan Chaudhary and Vijay Virdhi, whereas in the statement
given to the Magistrate he had mentioned their names as Chetan and Anoop
Chaudhary, the witness had answered this query/discrepancy in the above two
statements, saying that "Muh se nikal gaya tha (it was a slip of tongue).
It was stated further that police had not recorded his supplementary
statement, after his statement dated 21.1.2012 was recorded by the Magistrate.
Accused Chetan Chaudhary was stated to have caught hold of the other boy from
behind.
The Ld. Defence Counsel had put a specific suggestion to the witness that on
28.11.2011, he was not present at his shop, to which he had replied as under:
"Ans. I do not remember dates, therefore, I cannot say whether I was
present at my shop or not. Voln. I remained at my shop every day from 04:00am to
07:00pm and after 07:00pm my brother Kallu remains at the shop till its closer."
The other formal suggestions were also denied by the witnesses as incorrect.
PW6 during his crossexamination conducted by Sh. U. S. Sharma, Ld.
Counsel for accused Chetan Chaudhary, he had stated that distance between his
house and the tea stall was of one hour walk but he could not tell the distance
between the PS and his house or the tea stall.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 14/84
It was stated further by him that Ichanushu Tripathi was residing at
Tughlakabad, but he had not seen his residence. Apart from tea, cold drinks, paan
bidi, biscuit etc. were also available at his tea stall. He was not selling 'Daru'
(liquor) at his tea stall. PW6 could not tell the registration number of Santro Car.
He had admitted the suggestion of the defence as correct that two boys, who had
come in the Santro Car were under the influence of liquor. Those two boys were
though able to walk properly. None of them had bought any cigarette from his tea
stall and they taken tea only.
In his further crossexamination conducted on behalf of accused Chetan
Chaudhary, the witness had stated that on the day of incident, he had not remained
at his tea stall for the entire period of his stay since 04:00 am till 07:00 am. He had
voluntarily stated that "Ghatna ke baad band karke bhag liye tha". (After the
incident, he had closed his shop and ran away to his residence and had not opened
the tea stall, the whole day).
It was stated further that accused Chetan Chaudhary used to come to his tea
stall for taking tea on every third or fourth day. He used to talk to him but he was
not knowing his place of residence at that time.
PW6 had admitted the suggestion of the defence as correct that accused
Chetan Chaudhary had not given any beatings to those two boys. Accused Chetan
Chaudhary had caught hold of second boy from the behind, before he had sustained
injury. Thereafter, that second boy was hit with the danda. After he started
bleeding from his face, he had moved alongside the bonnet of the Santro Car and
then, he kept his face alongside the front wind screen of the Car, due to which the
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 15/84
wind screen had got some blood stains.
The witness had stated further that he was illiterate and could not read or
write. He could only sign in Hindi. He had admitted the defence suggestion as
correct that he had not read the documents on which police had obtained his
signatures. He was only read over those documents by the police.
It was stated further by this witness that he had told the police that accused
Chetan Chaudhary was trying to save the other boy after he was arrested by the
police. He had voluntarily stated that "Vo Vijay Virdhi ke saath mein that isliye police
ne pakad liya usko". (since he was accompanying Vijay Virdhi, therefore, police had
arrested him).
He could not tell the place where those two boys, who had come in Santro
Car, had consumed liquor. No landline telephone was installed at his tea stall. He
was also not having any mobile phone. His younger brother Kamal had a mobile
phone at the time of incident and Kamal was present inside the Shop.
To a specific question of the Defence that had he seen anything else at the
place of incident, he had repleid that he had not seen anything else except the
incident.
He had reached Acharya Narender Dev College in the police vehicle from his
residence within five minutes and had remained in the college for twofour minutes
and thereafter, he had accompanied the police in Gali No. 10, Govind Puri and after
obtaining the address of Chetan Chaudhary, they had reached at Gali No. 5.
However, he could not tell the exact time, when he had reached alongwith the
police at the residence of Chetan. Thereafter, he had gone to his house and police
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 16/84
had gone back to the Police Station. All other formal suggestions were denied by
him as incorrect.
13 PW7 Ct. Jaiveer Singh had stated that on 28.11.2011, he was
posted at Mobile Crime Team, Pushp Vihar. Upon receiving the call, he along with
SI Jitender, Incharge crime team had reached at Gurudwara Chowk, Govind Puri,
where SI Sita Ram was also found present along with other local police staff. He
had stated further that at the spot some blood was found scattered. Upon the
directions of SI Sita Ram, he had taken 13 photographs of the spot from various
angles. He had placed on record the photographs Ex.PW7/P1 to P13 and their
negatives Ex.PW7/P 14 to P26.
During his cross examination conducted by Sh. U.S. Sharma, Ld. counsel for
the accused Chetan Chaudhary, the witness had stated that he was not given any
information in writing and the information was received only through wireless. He
had taken photographs of all the articles lying at the spot. Number of car was
visible in the photographs and the number of car was DL3CAQ4228. He had
denied the suggestion of the Ld. Defence counsel as incorrect that the number of
car lying at the spot was DL3CAQ4248. There was one bunch of keys. The blood
was lying mainly at one spot in bulk quantity and there was some blood at other
spot also. There was no blood lying at any other place except the aforesaid spots.
It was stated further by the witness that he was given directions by SI Sita
Ram at the spot and not by the IO/Inspector Khatana, as IO Inspector Khatana was
not present at the spot at that time. He remained at the spot between 6.30 am and
7.30 am. No shop was found opened at that time. He had not found any
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 17/84
"chaiwala" at the spot. In fact, he was only concerned with the spot. He had left
the spot at about 7.30 am.
The witness had stated further that he was again called at the spot by
Inspector Khatana at about 10.00 am. Mr. Khatana had not informed him as to at
what particular place, the blood and other articles were lying at the spot. He had
only inquired from him about the work done by him. It was stated further by this
witness that since his machine was out of order, hence, he could not develop the
photographs. The photographs were got developed by the SI Sita Ram. He had not
informed about this fact to the IO in his statement made before him. There was no
difference between the negatives and the photographs. All other formal
suggestions put to him were denied by him as incorrect.
In his crossexamination conducted by Sh. Udai Gupta, Ld. counsel for the
accused Vijay Virdi, the witness had stated further that he had handed over the
negatives to SI Sita Ram on 14.12.2011. He could not show from the photographs
that the same were taken at R.D. Marg Gurudwara Chowk, Govind Puri.
14 PW8 Inspector Jitender Kumar had stated that he was posted as
SubInspector Crime Branch, Pushp Vihar, New Delhi on 28.11.2011. He had
received a call from the control room following which, he had gone to Gurudwara
Chowk, R.D. Marg, opposite Gali No.1 along with Ct. Jaiveer, Photographer and the
finger print expert/Ct. Anand.
He had stated further that at the spot, he had found Inspector R.K. Khatana,
SI Sita Ram and other officials already present there. There was a black colour car
(Santro) no. DL3CAQ4228. Some blood was also found at the spot. A bunch of
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 18/84
keys was also lying at the spot apart from a cocacola bottle.
It was stated further that Ct. Jaiveer had taken photographs of the spot. The
expert had inspected the car and had lifted 7 chance prints from the santro car. He
had prepared report of the scene of crime, which was placed on record as
Ex.PW8/A. The SOC report was handed over to SI Sita Ram.
In his crossexamination conducted by Sh. U.S. Sharma, Ld. counsel for
the accused Chetan Chaudhary, the witness had stated that the report Ex.PW8/A
was prepared by him at the spot in his own handwriting. The number of the car
was mentioned therein which was DL3CAD4228. There was no light at the spot.
In his report, he had suggested that the PM on the dead body be got conducted and
that eye witnesses be also examined.
He had stated further that he had remained at the spot between 6.30 to
7.30 am. He had not inspected any other place apart from the scene of crime at the
spot. He had submitted the report to the IO. His statement was however recorded
by the IO, later on, on 28.11.2011 itself, at about 10.00 am. They had made an
entry in the SOC register maintained by the Incharge, Crime Team. However, he
had not filed the copy thereof on record. Apart from himself, Ct. Jaiveer
(photographer), Ct. Anand (Proficient) and driver were also there in the crime
team. He was unable to recollect if any liquor bottle was also found available at the
spot at the time of inspection.
In his crossexaminaiton conducted by Sh. Udai Gupta, Ld. counsel for
the accused Vijay Virdi, the witness had stated that instructions to Ct. Jaiveer to
take photographs of spot were given by him and the SHO Inspector R.K. Khatana.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 19/84
He had stated further that injured was not present when he had reached at
the spot. The names of the injured were revealed to him by SI Sita Ram and other
police officials.
15 PW9 Ct.Ranjeet Singh had stated that on 28.11.2011, he was
posted at PS Govind Puri. On that day, he alongwith IO had reached at Trauma
Center, AIIMS, where S. P. Rana and Sh. Subhash Ray had identified the dead body
Shailesh Ray and after the postmortem, dead body was handed over to his father
Sh. Subhash Ray and he had signed on the identification memo (Ex.PW1/A) at
pointC and handing over memo (Ex.PW2/A) of dead body, at pointB.
He had stated further that IO had handed over him sealed parcel containing
exhibits after preparing seizure memo Ex.PW9/A and later on he had deposited the
same in the Malkhana. He had signed the seizure memo of "Card Numa Article", at
point A, which was Ex.PW9/B. He had also signed a seizure memo of viscera,
blood in gauze, one undergarment and one sample seal, which was Ex.PW9/C at
point A. IO had recorded his statement in that regard.
He was crossexamined by Sh. U. S. Sharma, Counsel for accused Chetan
Chaudhary, wherein he had stated that he could not remember the time, when he
had left for Hospital from the Police Station and the time when he had actually
reached at the Hospital. He had stated that he was not alone and had accompanied
SI Sita Ram from the Police Station.
He had admitted it to be correct that the documents described as "Digar
Kagzat" had not been identified by him in his statement. He had voluntarily stated
that he had signed only those documents, which had been exhibited during his
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 20/84
statement recorded in the Court. He was unable to tell as to whether the documents
Ex.PW9/A to Ex.PW9/C were signed by him in the Hospital or at the Police Station.
Those documents were prepared by IO Sita Ram in this case and he had signed
them. The exhibits were handed over to IO by Doctor in the Hospital and IO had
handed over the same to him, which he had handed over to the IO after his return
to the Police Station and then exhibits were deposited in the Malkhana by the IO.
He was unable to say if he had got an entry made in the DD register or not.
It was stated further by this witness that he had not made a DD entry of his
arrival from Hospital. He could not even tell the number of parcels, which were
allegedly handed over to him by the IO in the Hospital. He had stated that he was a
witness to the seizure memo regarding the seizure of exhibits prepared by the IO,
but he could not tell if he had signed those parcels as well or not.
He was not crossexamined by Sh. Uday Gupta, Counsel for accused Vijay
Virdhi despite availing an opportunity in that regard.
16 PW10 Ct. Rambir had stated that on 28.11.2011, he was posted at PS
Govind Puri and on that day, he was handed over the computerized copy of FIR No.
475/11 u/s 302/307 IPC and vide DD entry No. 4A, he had gone to the Court of
concerned Magistrate and Senior Police Officers i.e. ACP & Addl. CP and had
handed over the copy of FIR to them in an envelope.
In his crossexamination conducted by Sh. U. S. Sharma, Counsel for
accused Chetan Chaudhary the witness had stated that he had left the Police
Station at about 10:25 am. He had not obtained any receipts in token of having
delivered the copy of FIR in the Court and to the Senior Police Officer. In all there
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 21/84
were three envelopes.
He was not crossexamined by Sh. Uday Gupta, Counsel for accused
Vijay Virdhi despite availing an opportunity in that regard.
17 PW11 Ct. Mahender Singh had stated that on 28.11.2011, he was
posted at CPCR, PHQ, New Delhi and on that day, at about 04:53 am, he had
received a call to the effect that "two boys are lying unconscious at Naya
Gurduwara, Govind Puri, main road Kalkaji". Upon receipt of the said call, he had
recorded the information and had sent the information to CAT and also to the
concerned District Net. He had filled up the Control Room Form, computerized
copy of which was placed on record as Ex.PW11/A.
In his crossexamination conducted by Sh. U. S. Sharma, Counsel for
accused Chetan Chaudhary, the witness had stated that it was a matter of record
that in PCR form (Ex. PW11/A), it was noted that "do ladke injured mile hai jinhe
lekar hosp ja rahe hai baki detail baad me denge 28.11.2011 06:28:09 Siddharth s/o
Ratan Rai age 27 yrs r/o F11/64 C. R Park ne bataya ki apne saathi Sailesh age
28/30 yrs. Baki aur kuchh nahi bata raha hai ke saath above jagaha par tea peene ke
liye aaya tha to call se 10 min. Pahle 3/4 uk (unknown) ladke huliya uk (unknown)
aaye aur dono ko dando se marne lage dono injured they, hospital laye they, Sailesh
ko Dr. ne dead declear kar diya hai Siddharth ko hosh me. D/Ct. T/Center ke hawale
kiya hai 28/11/2011 06:28:20. Accident nahi hua tha 28/11/2011 06:29:09 SHO
with staff T/Center me aa gaye hai 28/11/2011 06:36:31 on call from police station
and Command Room informed."
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 22/84
This witness was not crossexamined by Sh. Uday Gupta, Counsel for
accused Vijay Virdhi despite availing an opportunity in that regard.
18 PW12 Kamal Maheshwari was another alleged eye witness of the
incident. He had stated that he alongwith his brother Raman was running a tea stall
at Gurudwara Chowk in fornt of Gali No. 1, Fruit Market, Ratia Marg, Govindpuri.
He alongwith his brother had opened the tea stall at about 04:00 am on
28.11.2011. Ichanshu, who was working at the tea stall, was also present there.
After five minutes of opening of the tea stall, two boys had come there for drinking
tea in a black colour santro car. Tea was provided to them. They were sipping tea
near the santro car, which was parked near the tea stall.
He had further stated that in the meantime, two more boys came there on
foot. They had also asked for tea. They were also served with tea and they were
also sipping tea near the tea stall.
He had further stated that all four of them had some verbal altercation and
hot words were exchanged between them. (who English mein baat kar rahe the aur
garma garmi ho gai thi).
It was stated further by him that those two boys who had come on foot, had
gone away whereas the remaining two boys who had come in a santro car
remained there near the santro car in front of the tea shall.
After sometime, the two boys who had come on foot, again, came at the tea
stall. They again took tea, consumed the tea and thereafter they had thrown away
the cups of the tea and had asked the other two boys, who were standing alongside
the santro car as to why they were staring at them.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 23/84
First of all, Vijay Virdhi, whose name was revealed later on from the police,
had hit the other boy with his hand, who was standing near santro car. Then the
other boy who was standing near santro car had caught hold of collar of the other
boy (Chetan) and in turn, he also caught hold of his collar. Thereafter, a fight
ensued between them.
He had stated further that first of all, an argument and scuffle had taken
place between both sets of boys. Both the parties were hitting each other with
hands. Thereafter, one person (Vijay Virdhi) lifted a 'danda' from the adjourning
fruit shop and had hit one of those boys , who were standing near the santro car.
The 'danda' blow was inflected on the head, as a result of which the injured boy had
fallen down and blood started oozing from his head.
It was further stated by him that the other boy, Chetan, whose name was
also revealed later on from police, who used to often visit their tea stall, had caught
hold of the boy who had hit a boy with 'danda'. When accused Vijay Virdhi was
about to hit 'danda' to the victim, then accused Chetan had caught hold of victim
and had pulled the victim.
When he was asked by the Court the manner in which Chetan had caught
hold of the boy, the witness, had explained that he was not knowing whether he
was trying to save him or had caught hold of him, but it appeared to him as if
Chetan was trying to save the victim. ( mujhe aisa laga ki who use bacha raha tha,
peeche khinch raha tha, aur kah raha tha ki chalo yahan se. Doosre lakde ke danda
maarete hi, usne (Chetan) kaha ki chalo yahan se, yeh mar chuka hai).
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 24/84
PW12 had stated further that victim had fallen down in a single bow on his
head. Vijay Virdhi was more stout than Chetan. Vijay Virdhi had caught hold of one
boy and had hit his head with the santro car and he started bleeding and had also
hit the other boy with the 'danda', who had fallen down and started bleeding. After
the incident, Chetan and Vijay ran away from the spot, leaving the 'danda' at the
spot. He had correctly identified both the accused persons.
He had stated further that his statement regarding this incident was recorded
by the Magistrate. Carbon copy of the same was placed on record which was Ex.
PW12/A. His statement was also recorded by the police and name of deceased
Shailesh was revealed to him later on. He could not recollect the name of the
injured boy.
During his crossexamination conducted by Sh. Uday Gupta, Ld. Counsel for
accused Vijay Virdhi, the witness had stated that he was 9 th pass and could read
Hindi language. He had stated further that they were two brothers, i.e. he himself
and Raman. He had also admitted that his mother Beena also used to work with
them at the tea stall. They used to close the shop at 11.30PM and open it at 4.00
AM and all three of them, he himself, his brother Raman and his mother Beena,
used to stay in the shop itself after closing the same at 11.30PM up to 4.00 AM in
the morning. The MCD office was adjoining to their tea stall. They used to keep the
milk and tea leaves in the shop alongwith water at night after closing the shop.
Sometimes, they used to keep the milk in the fridge. They used to purchase milk
from the mother dairy and the distance between their shop and the mother dairy
was about two minutes walk. He was also called by the name of Kallu by his
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 25/84
relatives.
During his further crossexamination, PW12 had further stated that on
28.11.2011, he, Raman, Ichchanshu and his mother were present at the tea stall.
He had also admitted the suggestion of the defence to be correct that apart from
the accused persons and the victims including deceased, in all, they were four
persons, who were present at the tea stall.
Every day, he used to go to his house No. 1196, Gali No. 13, Govind Puri at
08:00 am. He had voluntarily stated that he used to go to his house after finishing
work. Sometimes, he used to go at about 09:00 am or 10:00 am. He and his
mother used go to their house in the morning and Raman & Ichchanshu used to
remain at the tea stall. Only three of them, i.e. Raman, he and his mother used to
stay in House No. 1196, Gali No. 13, Govind Puri.
During further crossexamination, the witness had stated further that the
shop was closed after some time of the occurrence of incident i.e at about
5:30/6:00 am. Police had come at the spot before the shop was shut.
Initially after the incident, one police man had come on his motorcycle who
was on patrolling duty. Thereafter, PCR van had come. He had also admitted it to
be correct that he had appeared before the Magistrate and Ld. Magistrate had
recorded his statement, but he was unable to tell the date when his said statement
was recorded and had stated further that it must have been recorded approximately
after one month of the date of the incident.
He had further admitted the suggestion of the defence to be correct that the
deceased Shailesh Roy was standing near the Santro car when he was hit with the
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 26/84
danda. He could not tell if Shailesh Roy was hit with danda only once or more than
once.
He had stated further that Chetan Chaudhary had caught hold of the
deceased when he was being hit by his associate i.e coaccused Vijay Virdi and he
had stated the true facts in the Court.
The witness was confronted with his statement recorded u/s 164 Cr.P.C (Ex
PW12/A), wherein it was recorded that more than one blow was given. He had
explained that at the time when he had made statement to Magistrate, he was in a
disturbed state of mind. He had seen accused Vijay Virdi giving one blow on the
head. He had not seen Vijay Virdi giving more than one blow to one victim. The
other victim was inflicted injury with the hand and by banging him against the car.
The witness had stated further during his crossexamination that he had no
mobile phone at that time. The incident had taken place about 15 paces from the
Tea Stall. He was unable to tell the number of the Santro Car and had stated
further that he had not given the Santro Car Number to the Police.
PW12 had also stated that accused Chetan Chaudhary had not given beating
to anyone. He had not caught hold of anyone. He could not say, if anyone of them
was drunk as he had not observed the same.
The two boys, who had come in the Santro Car had not taken any bottle
from the tea stall. (Voluntarily stated that they might have taken bottle from
somewhere else.) He could not tell even from where they had brought the bottles
on the spot.
He had been inquired by the Police several times in this case. He could tell
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 27/84
exactly as to how many times, the police had inquired him in this case.
During his further crossexamination conducted on 12.9.2013 on behalf of
accused Vijay Virdhi, the witness had stated further that on that day of his
deposition, he was in perfect mental state. He knew the meaning of oath, which
required him to speak true facts.
He had admitted the suggestion of the defence to be correct that accused
Chetan Chaudhary was known to him prior to the incident by his name. He did not
know accused Vijay Virdhi prior to the incident. He had never seen accused Vijay
Virdhi with accused Chetan Chaudhary at his shop prior to the incident.
After some days, when his statement was recorded by the police at his house,
he was informed that the name of the other accused was Vijay Virdhi.
At about 05:00 am, one police person had come on his motorcycle for
patrolling duty, who was also called upon by him and he had also responded to his
call. The said policeman had sent a wireless message stating that a murder was
committed at the scene of occurrence. Thereafter, within few minutes PCR Van had
also come. The injured were put in the PCR Van, the policeman Suresh, who was on
patrolling duty, after removal of the injured to hospital had left the spot for his
duty.
The witness had stated further that the cleaning of their shop used to take
place at about 10:00 am every day and if the work used to finish early, then they
also used to clean the shop either before closing it or once they got up in the
morning. At 04:00 am, when they used to open the shop, his brother Ichhanshu
Tripathi used to go to fetch water and his other brother used to prepare the tea. His
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 28/84
mother used to stay with them at the shop. He had also admitted the suggestion of
the defence as correct that at their shop, different types of paranthas were made
and the same were prepared by his mother and his brother Radha Raman. They did
not keep the shop opened after 11:30 pm, as the police would not have allowed
them to do so.
He had denied the suggestion of the defence as incorrect that paranthas etc.
were available at their shop even after midnight.
He had admitted the further suggestion of the defence as correct that he, his
mother, and his brother Radha Raman and even Ichhanshu Tripathi used to sleep at
the shop at the time of incident. Ichhanshu Tripathi had already left the shop on the
date of his deposition before the court. He had denied the suggestion as incorrect
that after closing the shop at 11:30 pm, they had opened the shop at 06:00 am. He
could not tell the date when police had recorded his statement at his residence, as
to whether it was recorded after five days or ten days of the incident or his
statement was recorded by the police before recording his statement by the
Magistrate.
He had admitted the further suggestion of the defence to be correct that the
name of accused Vijay Virdhi was known to him prior to recording of his statement
by the Magistrate as his name was disclosed to him by the police. He had seen him
for the first time at the time of incident.
Attention of the witness was also drawn towards his statement u/s 164 Cr. P.
C (Ex. PW12/A) and thereafter certain questions were put to him which were duly
replied by him and these questions answers are reproduced herein, for the purpose
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 29/84
of clarity:
"Q1 I put it to you that in your statement (Ex. PW12/A) you had
mentioned the name of one of the assailant as Vijay Bhati several times. Why you
had named him as Vijay Bhati and not Vijay Virdhi?
Ans. Police had told me name of assailant as Vijay Virdhi but
mistakenly, I had named him as Vijay Bhati.
Statement (Ex. PW12/A) bear my signatures at points A. I had read the
statement but since I had forgotten his proper name, therefore, I had not pointed
out any correction in the name before signing.
Q2. In your statement recorded on 06.07.2013, you had stated that you
were in a disturbed state of mind at the time of recording of your statement before
the Magistrate recorded on 21.01.2012. What was the reason of your being in a
disturbed state of mind?
Ans. Since police officials as well as media persons were visiting our
house again and again in connection with the case, therefore, I was in a disturbed
state of mind. There was no pressure of any kind on me for having my statement
recorded before the Magistrate.
Q3. In your statement dated 06.07.2013 recorded before the Court, you
had stated "Chetan Chaudhary had caught hold the deceased, when he was being hit
by his associate i.e. coaccused Vijay Virdhi. What I am deposing in the Court are the
true facts". In your statement dated 11.09.2013, you had stated that "accused
Chetan Chaudhary had not given beating to anyone. He had not caught hold of
anyone". Clarify. Which of the two statements is correct.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 30/84
Ans. Chetan Chaudhary bich bachav karva raha tha aur isliye pakda tha.
Aur usne pitwane ke liye nahi pakda tha (Chetan Chaudhary was intervening,
therefore, he had caught hold of and he had not caught hold, so that the deceased
would be beaten by Vijay Virdhi).
I do not know English, but I had still signed my statement in the Court on
11.09.2013 as it was read over to me.
Q4. Today clearly state before the Court whether Chetan Chaudhary had
not caught hold of deceased or had caught hold of the deceased to intervene or
caught hold the deceased in order to facilitate Vijay Virdhi to beat him?
Ans. He had caught hold of the deceased in order to save him.
The witness was also put a court question. The court question and the answer of
the witness to the same is also reproduced as under:
Court Question: How can you say that Chetan Chaudhary had caught
hold of the deceased in order to save him?
Ans. The manner in which Chetan Chaudhary was intervening. If a persons
tries to help the associate so that he is beaten then the manner in which he will
assist would be different, when the manner in which he intervenes to separate them
and to calm down two persons, who are fighting, then the manner would be
different, therefore, I observed from the manner of intervening by Chetan
Chaudhary that he was trying to save the deceased and not facilitating accused
Vijay Virdhi."
The witness had stated further that he had told the Police that Chetan
Chaudhary had caught hold of the deceased, however, he had not told that he had
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 31/84
caught hold of the deceased to save him.
He had admitted the suggestion of the defence to be correct that he was not
aware about the manner in which Chetan Chaudhary was intervening at the time
when Ld. Magistrate had recorded his statement on 21.01.2012.
He had stated further that Ld. Magistrate had not even asked such questions
from him, which could have given him an opportunity to explain the same.
"Q. On 06.07.2013, you had deposed during cross examination that the
other victim was inflicted injury with the use of hand and by banging him against
the Car by accused Vijay Virdhi. At this stage, attention of the witness is drawn to
his statement u/s 164 Cr.P.C. (Ex.PW12/A) recorded on 21.01.2012, you had not
stated that said facts?
Ans. I had already stated that I was in a disturbed state of mind and I was
not asked about the details. I answered briefly."
He had stated further that nobody else was present, when his statement was
recorded by the Ld. Magistrate. PCR had come in his presence in the morning, but
immediately thereafter they had closed the shop and had gone to their home. There
were several people at the scene of occurrence, when PCR Van had arrived, but
none of them was able to tell them (PCR) about the incident as they had not
volunteered to make any statement to the police at the spot, but he had made the
statement to the police when police had come to his house. Police had come in the
evening of 28.11.2011 to make inquiries and subsequently his statement was
recorded at the Police Station. There were at least 1012 people who had gathered
at the spot but none of them was from their neighbouring shop.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 32/84
In his further crossexamination conducted on behalf of the accused on
25.2.2014, PW12 could not tell if the two boys, who had come in a Santro Car
were under the influence of liquor or not.
PW12 had denied the suggestion of the defence as incorrect that first of all,
his mother Smt. Beena had seen the injured on the road, before any other person.
He had also denied the suggestion of the defence as incorrect that his mother had
seen the two injured persons on the road or that she had informed him and his
brother Raman about it.
PW12 had stated further that they were called, after the incident, several
times by the police. He could not tell the number of times and duration of time
spent by him in the police station in this case. After closing the shop, they had gone
back to their house. They were questioned in the police station. He could not tell as
to whether after recording of his statement by Ld. Magistrate, any other statement
was recorded by the police or not. He had stated further that he had informed the
police that Vijay Virdhi had given only one blow by the danda to the deceased.
PW12 had explained the position and conduct of the accused persons. The
same were recorded in questionanswer form and are produced as under:
"Q. You have deposed that it appeared to you that Chetan was trying to
save the victim and that he was pulling him backside in order to save him. At that
point of time, where accused Vijay Virdhi was standing?
Ans. I cannot describe the exact position of accused Vijay Virdhi at that
point of time. He was standing near Santro car.
PW12 had stated further that he had seen that Vijay Virdhi had hit danda
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 33/84
forcibly from the front side of deceased (Shailesh Roy).
He had denied the suggestion of the defence as incorrect that he was not
present at his shop at the time of incident and/or he was sleeping in the shop when
incident had taken place and/or he had not seen the incident and/or he had
deposed in the Court due to pressure of police. All other formal suggestion were
also denied by him as incorrect.
19 PW13 Ichchanshu Tripathi @ Tilu had stated that at the time of
incident, he was working at the Tea Stall of Raman and Kamal at Gali No.1, Govind
Puri situated in front of Gurudwara. Generally, he used to reside in the tea stall.
He could not tell the date and month, but according to him, it was around
one and half year ago, (his statement was recorded in the court on 03.07.2013)
that the incident had occurred at about 05:00 am, when he had come out of the tea
stall in order to bring water from the tap installed outside the Gurudwara across the
road in front of the tea stall. Two boys had come in a Black Colour Santro Car and
they had stopped their vehicle a little behind the tea stall and Raman had served
tea to both of them. They were standing near their car and were drinking tea.
PW13 had stated further that when he was filling water in the can, he saw
that two more boys also came there at the tea stall on foot. He had seen a quarrel
between those two persons with the two boys, who had come in the Car. One boy,
who was taller in height, had raised the quarrel and the other boy was intervening.
Witness had pointed out towards the accused Vijay Virdhi (who was hitting 'jo
maar raha tha') and other accused Chetan Chaudhary (who was intervening to save
'jo chuda raha tha, khe raha tha hat ja').
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 34/84
He had stated further that accused Vijay Virdhi was giving beating with a
long danda to both the boys, who had come in the Car. The injured boys had fallen
on the road. Thereafter, both the accused persons ran away from the spot. After
sometime, police reached at the spot and made inquiries from him and he had
stated the facts to the police. Thereafter, the police had taken him to the Police
Station, where the police had recorded his statement. Police had also made
inquiries from Raman and Kamal Maheshwari, who were also present at the tea
stall at the time of incident.
This witness was also examined under section 154 CrPC by the Ld. Addl. PP
for the State regarding the role of accused Chetan Chadhaury.
In his crossexamination conducted on behalf of the Ld. Addl. PP for the
State, the witness had admitted the suggestion to be correct that accused Vijay
Virdhi was wearing a cap on his head at the time of incident. After verbal
altercation, accused persons present in the Court had gone away from the Tea Stall,
but they had come back after they had hardly moved for 1015 steps from the tea
stall and then the incident had taken place. He was filling water from the tap and
from there, he had seen the incident. Although, he could see that the danda was
being used Vijay Virdhi, but he could not see at which exact place of the body, the
danda had hit.
He had denied the suggestion of the Ld. Addl. PP for the State as incorrect
that accused Chetan Chaudhary present in the Court had caught hold of the person
to whom the injury was being inflicted by accused Vijay Virdhi. Vol. 'Vo usko chuda
raha tha'. All other formal suggestions put to him were also denied by him as
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 35/84
incorrect.
In his crossexamination conducted by Sh. U. S. Sharma, Counsel for
accused Chetan Chaudhary, the witness had stated further that he had started
working at the tea stall about 2425 days prior to the incident. Police Station
Govind Puri was stated to be at a walking distance of 10 minutes from the tea stall.
Police had reached at the place of occurrence after 1520 minutes. Police had taken
him as well as Kamal and Raman to the Police Station soon after its arrival at the
spot. He had voluntarily stated that police had made inquiries from them in the
vehicle as well. He was aware that two persons, who had come in Santro Car, had
taken tea from the tea stall and thereafter, he had gone to fill water. He was not
able to tell, if the persons, who had come in the Santro Car, were under the
influence of liquor or not. The mother of Raman was sleeping on the 'takhat' inside
the tea stall at the time of incident. He could not tell the registration number of the
Stanro Car.
PW13 had stated further that he was not knowing the family members of
Chetan. He had voluntarily stated further that when he had appeared in the Court
on the last date, then, Raman had told him that the sister of Chetan was present in
the Court. He had also admitted the suggestion of the defence to be correct that
accused Chetan had not beaten anybody and had stated voluntarily that he was
trying to separate them.
During his crossexamination conducted Sh. Uday Gupta with Sh.
Sanjeev Sharma, Counsels for accused Vijay Virdhi on 25.2.14, the witness had
stated further that he had studied till 8 th class and he was not related to Radha
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 36/84
Raman and Kamal Maheshwari and he had only worked at the tea shop of Radha
Raman and Kamal Maheshwari.
PW13 had also admitted the suggestion of the defence to be correct that
Smt. Beenamother of Radha Raman and Kamal Maheshwari, also used to work at
the tea stall. He had voluntarily stated that Smt. Beena used to come late at the
shop. They used to close the tea stall at about 10:30/11:00pm and used to open the
shop between 04:00 to 05:00am.
He had stated further that on the date of incident, he alongwith Kamal
Maheshwari (Kallu), Raman and their mother was present in the shop. Police had
come in his presence and at the time of incident he was filling the water. SI Kulbir
had made inquiries from him in this case. He had informed SI Kulbir that since he
was filling the water, hence, he had not properly seen as to what had happened,
but somebody was hitting with danda. Police had inquired about the incident from
him and from Kamal Maheshwari (Kallu). Thereafter, police had taken him and
Kamal Maheshwari (Kallu) to the police station in a black colour car. PCR had also
come at the spot, but SI Kulbir had taken him and Kamal Maheshwari (Kallu) in the
long black car. But he could not tell the time, when he was taken in the black car.
He had stated further that incident had taken place at about 05:00am. Police
had also taken Radha Raman and Kamal Maheshwari (Kallu) alongwith him. The
distance between the place from where PW13 was filling water and the place of
incident was approximately 50 feet. There was no light pole at the place where he
was filling the water. From the place where he was standing, he had not witnessed
the incident clearly. He had only seen that somebody had used the danda and had
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 37/84
given beatings to other person with danda. He was able to see the beatings. Danda
was a bamboo stick. It was about 5½ ft. in length. It was hot season when incident
had taken place. When they were taken to the police station, Smt. Beena was there
at the shop. He could not tell the time, when the shop was closed on the date of
incident. He also could not tell if after the incident, any police man had come on
patrolling duty on a motorcycle.
PW13 had stated further that when Vijay Virdhi was beating, Chetan
Chaudhary had come running to save the deceased. Vijay Virdhi had given one
danda blow to the deceased on his head and Chetan Chaudhary was trying to save
him. (Witness had pointed out in the center point of scalp.) He had admitted the
suggestion of the defence to be correct that two boys who came in the santro car
were under the influence of liquor. He had seen Vijay Virdhi hitting with danda
only once and thereafter, he went to the other side of the Santro Car, So he could
not see them. Chetan had then shouted "chod ke bhago".
He was not knowing Chetan Chaudhary and Vijay Virdhi prior to the
incident and name of accused Vijay Virdhi was revealed to him by the police. He
had not seen any photograph of accused Vijay Virdhi in any newspaper after the
incident. The injured were taken in the PCR Van before they were taken by SI
Kulbir in the long black car to the Police Station.
PW13 had admitted the suggestion of the defence as correct that apart from
tea and soft drinks, paranthas were also made at his shop, but he had denied the
further suggestion to be incorrect that on the fateful night, they had sold the tea
and parantha till 12:00/01:00 am (night). All other formal suggestions put to him
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 38/84
by the Ld. Defence Counels were denied by him as incorrect.
20 PW14 SI Dilip Singh had stated that on 28.11.2011, he was posted as
Duty Officer at PS Govind Puri and was on duty from 08:00 am to 04:00 pm.
During his duty hours, at about 09:55 am, Ct. Samay Singh had brought a rukka for
registration of FIR. Accordingly, on the basis of the said rukka, he had recorded the
present FIR by getting it typed through Computer operator. The typed copy of the
same was placed on record as Ex.PW14/A. He had also placed on record his
endorsement to this effect as Ex.PW14/B.
He had stated further that after registration of the FIR, copy of the same
alongwith the original rukka was given to the said Ct. Samay Singh for handing
over the same to SI Kulbir for further investigation. He had brought the original
record of FIR, which was seen and returned.
This witness was not cross examined by the Ld. Defence Counsels despite
availing an opportunity in that regard.
21 PW15 Sh. Siddharth who was one of the victims and a star witness
of the prosecution had stated that Shailesh (deceased) was his friend and was living
in his neighbourhood. In the intervening night of 27/28.11.2011, at about 11:30
pm, he alongwith Shailesh (deceased) had gone to 24 X 7 Store at MBlock Market,
GKII. There, they had remained till late night, say about 02/02:15 A.M. Thereafter,
Shailesh had told him that he was hungry and wanted to eat something and he had
suggested that they should go to Govind Puri near Subzi Mandi to eat something.
They had gone there around 02:35/02:40 am in his (PW's) Santro Car bearing No.
DL3CAQ4228. He had parked his car at a shop where the parantha and tea etc
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 39/84
were being sold. They had ordered for tea and parantha from the shopkeeper. The
shopkeeper had brought the tea and parantha and both of them were then eating
parantha and talking to each other. In the meantime, two boys who were standing
on the divider right opposite to the shop, appeared to be staring towards them.
Then one boy who was wearing cap (witness had identified the said boy as Vijay
Virdhi) had uttered that 'ghoor kya raha hai" (what are you staring). When they
realized that those boys were uttering towards them, then both of them had gone
near those two boys and had asked them as to what had happened. The other boy
had been identified by the witness as Chetan Chaudhary, who had told the witness
"sorry bhaiya issne thodi pi rakhi hai" (felt sorry and stated that he was high on
drink), but the other boy who was wearing cap i.e. Vijay Virdhi had kept on
uttering and abusing and had said that he was from Australia, upon which Shailesh
had also stated that what was the big deal, he had studied in UK. Accused Chetan
Chaudhary kept on saying sorry. Thereafter, he had told him that he should not say
sorry to him, but he should make his friend understand. Thereafter, both the
accused persons had left the spot saying "haan haan theek hai - theek hai".
It was stated further by the witness that thereafter for 57 minutes they had
stayed near the shop and when they were about to proceed and were in the process
of sitting in the car, then both the accused persons had again come back there and
had started beating them. Accused Chetan had given a danda blow on his head and
thereafter, several danda blows were inflicted on his forehead and right side of ribs.
While he was being beaten, he had seen that accused Vijay Virdhi was
simultaneously beating Shailesh with a danda. The witness had stated further that
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 40/84
he had fallen down and became unconscious.
He had stated further that when he regained consciousness after 57
minutes, he had seen that Shailesh was lying flat on the ground on the other side of
the Santro Car and was not moving at all. He thought that Shailesh had also
become unconscious like him. He caught hold of the collar of Shailesh and shook
him and shouted his name, but he was not responding.
After sometime, PCR Van had reached there and had taken them to AIIMS
Truama Center. Thereafter, he was shifted to Batra Hospital where he had
remained admitted for about 10 - 12 days. He had received stitches on his head
and forehead. Later on, he had come to know that Shailesh had expired.
As far as, he could recollect, two - three boys and one lady were present at
the shop from where they had taken parantha and tea. After twothree days, police
inquired from him at the Hospital and had recorded his statement after he was
declared fit to make statement by the Doctor.
PW15 had stated further that police had shown him one newspaper in the
Hospital, wherein the photographs of both the accused persons were published
alongwith their names and he had identified the photographs of both the accused
persons and he had then come to know about their names after seeing their
photographs. That was an English daily newspaper, but he could not remember the
name of the said newspaper. His car was taken by the police from the spot and still
as on the date of his deposition before the Court, it was lying in the Police Station.
This witness was put a court question, Whether at any point of time, he had
seen accused Chetan Chaudhary catching hold of Shailesh, the witness had replied
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 41/84
as under:
"I had not seen him catching hold of Shailesh till I fell down after being
beaten by accused Chetan Chaudhary and I do not know what had transpired after I
became unconscious."
During his crossexamination conducted by Sh. U. S. Sharma counsel for
accused Chetan Chaudhary, he had stated that his house was at a distance of
about 100 meters from the residence of Shailesh (deceased). MBlock market, G. K.
II was about 2½ km from his residence. He had stayed in M Block market for about
11½ hours. Shailesh was with him at that time. They had gone at the store called
24X7. It was a general store. Liquor was not available there. They had reached the
store at about 1:00/1:15am.
It was stated further by the witness that he was dealing in the business of
Bridal Wear at that time. Shailesh was not doing any business and was looking for a
job at that time. There was no specific purpose for which Shailesh was with him on
that night. He and Shailesh had not consumed alcohol at the time of incident.
When he had called Shailesh, he was not under the influence of liquor. He himself
had driven the car from the store 24X7 to the place of occurrence. None of them
had consumed liquor at the place of occurrence. He could not state if the liquor was
found in the blood of Shailesh (deceased) in his medical examination.
During crossexamination of the witness the court had made observations
regarding alcohol found present in the blood of the witness and the deceased, as
per their MLCs, which are reproduced as under:
"Court Observations: As per MLC of Shailesh (deceased) as well as
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 42/84
MLC of witnessSiddharth, on record, breath alcohol is absent. As per the FSL
report, prepared by Sh.Amit Rawat, Senior Scientific Officer, Chemistry, FSL dated
25.06.2012, blood sample of Shailesh (deceased) was found to contain Ethyl
alcohol 58.7 mg/100 ml of blood."
The witness had stated further in his crossexamination conducted on behalf
of the accused that he had purchased one coke bottle of 500 ml. from 24X7 store.
It was stated further that the distance between M Block market and the place
of incident must be about 3/3 ½ km. The place of incident was already seen by
him. He had placed order of Tea and parantha to the person who was present at the
shop. But he could not tell the names of the persons present in the shop at that time
and the exact time as well.
It was stated further by the witness that it must have taken 1015 minutes in
serving the tea and parantha by the attendant of the shop. It had taken them about
15 minutes in reaching from 24X7 store to the place of incident because of the
police barriers on the way at night. He alongwith Shailesh (deceased) must have
reached at around 02:30am (night). The tea and parantha must be served to them
at about 02:45/02:50am (night).
The witness had denied the suggestion of the defence as incorrect that the
tea shop was not found opened at the time when they had reached there.
The witness had stated further that they had stayed at the tea stall for about
45 minutes or one hour.
To a specific question as up to what time, he had stayed at/outside the
dhaba, the witness had stated that before the incident, they had been there till
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 43/84
about 03:45am (night). Thereafter, incident started. He could not tell the exact
time since when he had become unconscious after the incident.
The santro car belonged to him. Police had recorded his statement after he
was declared fit by the doctor in the hospital. He could not tell the date, when
police had recorded his statement. He was discharged from the hospital after about
1012 days of the incident, but he could not tell the exact date of his discharge from
the hospital. He had not handed over his discharge slip to the police. His statement
was recorded by the police only once.
During further crossexamination of the witness, he had stated further that
he had not noticed any articles like, coke, lighter, cigarette etc., after he had gained
consciousness, soon after the incident. He had stated further that the place of
occurrence was surrounded by subzi/fruit market, which was made of bamboos,
which were seen by him and the articles like coke, lighter and cigarette were lying
in the car at the spot before the incident.
The witness had admitted the suggestion of the defence as correct that the
place of incident was a public place and some passersby were passing through the
street near the tea stall and when they were eating parantha, some other persons
were also coming on the tea stall. The witness had stated voluntarily that they were
very few, since it was night time.
PW15 could not tell if the paranthas were being cooked by a lady and/or
how many other people had placed order for parantha etc. He was conscious, when
he was being taken in the PCR van by two or three PCR police officials. PCR Police
officials had not made any inquiries from him in the vehicle. They had only asked
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 44/84
his parents' contact number, so that they could be contact by them. However, he
could not tell if police had written the contact number on any paper or not.
He had further stated that till the time, he was conscious, accused Chetan
Chaudhary had not caught hold of his waist. He also could not tell if he (accused
Chetan Chaudhary) had caught hold of the waist of Shailesh (deceased) during
incident. His lower portion of waist had swollen because of injuries suffered by him
in the incident. He had denied the suggestion of the defence to be incorrect that he
had not received any injury below the portion of his waist. All other formal
suggestions put to him by the defence were denied by him as incorrect.
He had, however, admitted it to be correct that at the inception of incident,
he and Shailesh were about to sit in the car.
The car was parked parallel to the shop and when he was about to sit in the
car, his face was in front of the car. The front of car was towards the road which led
to Govind Puri Metro Station.
He had admitted the further suggestion of the defence as correct that his face
was towards the road which led to Govind Puri Metro Station.
There were other shops surrounding the tea stall. Police had seized his blood
stained clothes from his parents, who had reached at the hospital on the day of
incident. He had explained the meaning of words "parents" - his mother, his mausi,
his sister and his brotherinlaw.
He could not tell the time when his parents had met him in the hospital after
the incident. He had met his relatives, who had reached at the hospital and had
recognized them. Relatives were concerned about his well being and had not
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 45/84
inquired from him as to how incident had occurred.
Attention of the witness was drawn by the Ld. Defence Counsel towards his
statement u/s 161 Cr. P. C. mark P15 wherein it was recorded that "topi wale ladke
ne chai ke dukaan ke pass baans ka danda utha kar mujhe wa Shailesh ko maarna
shuru kar diya. Topi wale ladke ke saathi ne Shailesh ko pakad liya. Mujhe baans ke
dande se sir pe chot lagne se main zameen par gir gaya aur behosh ho gaya". After
going through the said statement, the witness had stated that he had not made
aforesaid statement to the IO in these words.
It was stated by him further that it was a matter of record that the fact that
"Chetan Chaudhary had given a danda blow on his head" was not mentioned in his
statement recorded by the police. He could not tell if he had told the police that
Chetan Chaudhary had given a danda blow on his head. Voluntarily, he had stated
that he was in hospital and was not in a fit state of mind, hence was not aware
about the inquires made by the police.
He had denied the suggestion of the defence as incorrect that he was under
the influence of liquor at the time of incident and or that due to bhagdad
(stampede), he had sustained injuries. He had denied the further suggestion of the
defence as incorrect that due to crowded stampede, he could not see the incident.
He had, however, admitted the suggestion of the defence as correct that
police had recorded his statement after he was declared "fit for statement" by the
attending doctor.
All other formal suggestion put to him by Ld. Counsel for accused Chetan
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 46/84
Chaudhary, were denied by him as incorrect.
In his further crossexamination conducted on 24.07.2014 by Sh. Uday
Gupta with Sh. Sanjeev Sharma, Counsel for the accused Vijay Virdhi, the witness
had stated further that Shailesh used to reside in C. R. Park, New Delhi. House of
Shailesh was at a distance of less than 100 meters from his house. The distance
between 24X7 Store , M block GK II and his house was about 2 ½ km .
When he was asked by the Ld. Defence Counsel to tell as to which of his two
statements one made in the court on 26.2.2014, where he had stated that he had
gone to 24X7 Store at M Block, GKII alongwith Shailesh at about 11:30pm,
whereas, in his statement recorded u/s 161 Cr P. C dated 05.12.2011, he had stated
he had called Shailesh on phone at 11:50 pm was correct, the witness has stated
that at around 11:30pm or 11:50pm, he had called Shailesh telephonically and they
had met at around 01:15/01:20 am (night), thereafter, they had gone to 24X7
store, M Block , GKII.
He had admitted the suggestion of the defence as correct that he alongwith
Shailesh had not reached at 24X7 store M Block market at about 11:30pm.
He and Shailesh had spent about 1¼ hours at 24X7 store M Block market.
He had made a telephonic call to Shailesh from his mobile phone. They were sitting
out side 24X7 store M Block market during the period of 1¼ hours. He could not
tell the exact time, but according to him, they had reached at the place of incident
at about 02:35/2:40am (night).
It was stated further by him that the distance between the place where he
was standing alongwith Shailesh and two boys who were standing on the divider
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 47/84
was approximately 2030 meters. He and Shailesh had gone to speak to Vijay Virdhi
and the other boy, after they had uttered words "ghoor kya raha hai" (What are you
staring).
He had stated further that they had not consumed alcohol in the santro car.
He had stated voluntarily that he had not consumed alcohol but after reports, he
had come to know that Shailesh had consumed a little bit of alcohol. He had not
seen any report pertaining to Shailesh but he had learnt about it in the Court only
on the date of his previous deposition.
It was also admitted as correct by this witness that after he and Shailesh had
gone to Vijay Virdhi and the other accused, they had left the place of occurrence, at
the first instance. He had however voluntarily stated that this was after
considerable verbal argument between all of them.
Again he was asked by the Ld. Defence Counsel as to which of the
statements, i.e. one u/s 161 Cr.P.C. dated 05 th December, 2011, where he had
stated that he had reached alongwith Shailesh at 04:00 am at the Tea Shop,
whereas in his statement recorded in Court dated 26 th February, 2014, it had been
stated that he and Shailesh had reached at the tea shop at around 02:35 - 02:40
a.m. was correct, the witness had stated that the time i.e. 02:35 - 02:40 am (night)
of reaching at Tea Shop stated by him in the Court was correct.
He could not tell about the time of their reaching at Tea Shop in his
statement to the police, but they had ordered some 'Paranthas' and tea, when they
had reached at the Tea Shop. The bottle of coke was already there in his car, which
they had purchased from 24 X 7 store, MBlock Market, Greater KailashII. He
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 48/84
could not tell if accused Vijay Virdhi and other accused were already present there
at the tea shop or had come later.
He could not recollect as to when he and Shailesh had ordered for tea and
were drinking tea near the Car, however, after sometime two boys had come near
the divider but he could not tell if they had also started drinking tea or that those
boys had placed any order with the tea stall.
He had stated further that both the accused persons were having separate
'danda' in their hands and accused Vijay Virdhi had not inflicted any blow on any
part of his body either with hands or with a 'danda'.
It was stated further that on the second occasion, there was no verbal
altercation of him and Shailesh with the accused persons. He had not seen any of
the accused persons picking up the 'dandas', however, they were simultaneously
beating him and Shailesh with separate 'dandas'. Neither he nor Shailesh had
physically manhandled the accused persons.
Chetan Chaudhary had inflicted 'danda' blows upon him and he had
sustained injuries on his head, right side of forehead and near the right rib cage. He
was conscious at the time, when the police had taken him to the JPN Apex Trauma
Center. He had not informed the Doctor about the injuries sustained by him, but
the doctor himself had observed the injuries on his body. He had not informed the
Police in the PCR that three/four boys had given beating to them with 'danda'. He
could not tell as to how many people were there at the tea shop, however, some
people were there.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 49/84
When it was put to him by the Ld. Defence Counsel that in his statement u/s
161 Cr.PC dated 05th December, 2011, he had stated that after sometime at 04:30
am, the boy wearing the cap and his friend had come back to the tea shop and
again ordered for tea. The boy wearing the cap had thrown the tea and had told his
friend 'inko sabak sikhana padega'. The boy wearing the cap had started arguing
with them and then had picked up a bamboo 'danda' from a place near the tea shop
and had started beating him and Shailesh, the witness had stated that he had not
made any such statement to the police.
It was sated further by this witness that he had come to know about injuries
on his ribs only after about 2 or 3 days of the incident as he had felt pain there.
Accused persons were not known to him before the incident and had come to now
their names through the newspaper, which was also carrying the photographs of
the accused persons.
When it was put to the witness by the Ld. Defence Counsel that on the date
of occurrence, there were 3 or 4 persons at the tea shop and they had assaulted him
and Shailesh, but accused Vijay Virdhi was not a part of the Group, the witness had
stated that it was not correct that accused Vijay Virdhi was not a part of the group,
but there were only two persons and not 3 or 4 persons, as suggested by the Ld.
Defence Counsel.
He had denied the suggestion of the defence as incorrect that he could not
have identified the accused persons without seeing them in the newspaper and/or
that he was deposing falsely.
On the point of identity of the accused persons, the witness was also put up a
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 50/84
Court question. The court question and the reply of the witness is reproduced as
under:
"Court Q. Had you identified accused persons only on the basis of
the photographs and their names in the newspaper?
Ans. No. I could have identified them even without seeing their
photographs in newspaper as accused persons were the persons, who
were involved in the incident.
22 PW16 ASI Dal Singh had stated that on 27th November 2011, from
08:00pm to 08:00am of 28.11.2011, he was on duty on PCR Van K47, as incharge
in the area of Govind puri. During his duty hours, at about 05:00am, on
28.11.2011, he had received a call from Control Room to the effect that two boys
were lying unconscious at main road, Kalkaji, Naya Gurudwara, Govind Puri and
pursuant to sad call, he had reached at the spot and found two boys in an injured
condition. He had shifted those boys to AIIMS Trauma Center by PCR van.
He had stated further that when PCR van had reached at the hospital, one of
the injured boys had started speaking, whose name was revealed as Siddharth later
on. Injured Siddharth had disclosed the name of other unconscious boy as Shailesh.
Injured Siddharth had told him that he alongwith Shailesh had come to the Govind
Puri Chowk for taking tea, then, two boys had come there and had given them
beatings with dandas.
He had stated further that injured Shailesh was declared "brought dead" in
the hospital. On 09th December, 2011, IO had recorded his statement in this regard.
This witness was not crossexamined on behalf of the accused persons
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 51/84
despite availing an opportunity in that regard.
PW17 Dr. Thejaswi H. T., ASSISTANT PROFESSOR, FORENSIC
MEDICINE, DR. R. M. L. HOSPITAL, had stated that on 28th November, 2011, he
was posted as Senior Resident in the Department of Forensic Medicine in JPNATC,
AIIMS. He had received a request to perform medicolegal autopsy on the dead
body of Shailesh Roy s/o Sh. Subhash Roy aged about 28 years r/o E853, First
Floor, C. R. Park, New Delhi.
He had stated further that on external examination, it was found that rigor
mortis was present all over the body, postmortem staining was present and fixed on
back and dependent parts of the body except pressure points. No signs of
decomposition were found present.
He had stated the ante mortem external injuries which are reproduced as
under:
1.Laceration with abraded and contused margins measuring 5 cms x 0.8 cms x 1 cms was present on the back of the scalp, horizontally placed over the occipital region. It was situated 3 cms above the external occipital protuberance and the left end was present 3 cms behind the left parietal eminence and the right end was present 7 cms behind the right parietal eminence.
2. Laceration with abraded and contused margins measuring 2.1 cms x 0.8 cms x 0.5 cms, horizontally placed was present on the right eyebrow, the inner end is situated 7 cm from the midline.
3. Reddish colored abrasion measuring 2 cms x 1 cms was present on the back State Vs. Chetan Chaudhary etc - SC No.528 of 2012 52/84 of the middle aspect of the left wrist.
4. Reddish colored abrasion measuring 2 cms x 1.2 cms was present on the back of the knuckle of the left index finger.
5. Reddish colored abrasion measuring 1 cms x 1 cms was present on the right ulna, on the styloid process of the right upper limb.
The witness had also stated about the internal examination of Head and Neck of the deceased and his deposition in that regard is reproduced here as under: On internal examination of Head & Neck : about 100 ml of blood was present in the sub scalpel region. No skull fracture was present. Meninges was congested. Sub Arachnoid hemorrhage was present on the left frontal lobe and on the entire base of the brain. Blood clots were present in the both lateral ventricles of brain.
The witness had opined the cause of death in this case was the head injury and its complications due to blunt force impact.
He had stated further that he had prepared the postmortem report which was running into two pages and had placed the same on record which was Ex.PW17/A. This witness was again not crossexamined on behalf of the accused persons despite availing an opportunity in that regard. 23 PW18 Insp. Mahesh Kumar had stated that on 03rd January 2012, he was posted as SI/Draftsman at Crime Branch, Police HQ. On that day, he along with Inspector R. K. Khatana, SHO, PS Govind Puri and SI Kulbir Singh had visited State Vs. Chetan Chaudhary etc - SC No.528 of 2012 53/84 place of occurrence i.e. on road at Gurudwara Chowk, Govind Puri and had taken rough notes and measurement on the pointing out of Inspector R. K. Khatana. Thereafter, on the basis of those rough notes and measurement, he had prepared a scaled site plan Ex.PW18/A and after preparation of scaled site plan, rough notes and measurements were destroyed by him.
This witness was also not crossexamined on behalf of the accused persons despite availing an opportunity in that regard.
24 PW19 HC Natthi Lal has deposed that on 28.11.2011, he was posted as Head Constable at PS Govindpuri and on that day he was working as Duty Officer from 12 night to 8:00AM. During his duty hours, on 28.11.2011, at about 5.00 AM, he had recorded DD No. 71B to the effect that "naya gurudwara, Govindpuri main raod, do aadmi behosh pade hain". Said DD was handed over to SI Sita Ram for further investigation. The said DD was placed on record which was Ex. PW19/A. He had stated further that on the same day, at about 6.20 AM, Ct. Jagbir had telephonically informed him from AIIMS hospital that one Shailesh s/o unknown who was admitted in the hospital in this case, had been declared "brought dead". He had reduced that information into writing vide DD No. 75B and had placed on record the same which was Ex. PW19/B. This witness was again not crossexamined on behalf of the accused persons despite availing an opportunity in that regard. 25 PW20 Dr. Sanjeev Kumar Kasana, had stated that on 28.11.2011, he was posted as Junior resident in Emergency, Trauma Center, AIIMS. On that State Vs. Chetan Chaudhary etc - SC No.528 of 2012 54/84 day, injured Siddharth s/o Ratan Roy was brought to Trauma Center, by HC Dal Singh for medical examination with alleged history of assault. He had medically examined the injured and found the following injuries:
(i) Laceration (CLW over left Parito occipital area 3x1x1 cm)
(ii) Laceration (over right eye 2x1x1 cm)
(iii)Laceration (over right side of forehead 2x1x1 cm) The NCCT of head of injured was prescribed by him. After conducting NCCT of head of injured, the injuries i.e. right frontal bone fracture and right ethomid bone were found with meosinos (blood in cavity) . He had also brought the discharge summary of injured running into three pages. The same was taken on record. He had also proved on record the MLC of injured prepared by him which was (Ex. PW20/A) and treatment record which was (Ex. PW20/B). The injury no. 2 and 3 were stated to be "grievous" in nature and all the injuries were stated to be caused with blunt object.
This witness was again not crossexamined on behalf of the accused persons despite availing an opportunity in that regard. 26 PW21 SI Kulbir had stated that on 28.11.2011, he was posted as SubInspector at PS Govind Puri and on that day, DD No. 75B, lodged at Police Station Govind Puri was marked to him for investigation. Upon receipt of said DD, he alongwith Ct. Samay Singh had reached at Gurudwara Chowk, Govind Puri. SI Seeta Ram alongwith Ct. Sujeet were alredy found present at the spot. One Santro Car bearing Registration No. DL3CAQ4228 was also found stationed. He had noticed that blood, one broken bamboo stick, one mobile phone with cover, State Vs. Chetan Chaudhary etc - SC No.528 of 2012 55/84 cigarette case, lighter, a bunch of keys, one broken spectacles were also lying there at the spot.
It was stated further that he had left SI Seeta Ram and Ct. Sujeet at the spot and he himself alongwith Ct. Samay Singh had reached Trauma Center at AIIMS Hospital and had collected two MLCs from Trauma Center. In the MLC of injured Shailesh, he was recorded as "brought dead". In the MLC of injured Siddharth, he was declared "unfit for statement". Thereafter, he alongwith Ct. Samay Singh had come back to the spot and SI Seeta Ram had handed over him DD No. 71B. Thereafter, he had prepared a rukka Ex. PW21/A on the DD No. 71B and had handed over the same to Ct. Samay Singh for registration of FIR. In the meanwhile, SHO had also reached there. Ct. Samay Singh had returned to the spot and he had handed over rukka and copy of computerized FIR to the SHO, as further investigation was assigned to the SHO.
Thereafter, SHO had deputed SI Seeta Ram to AIIMS Trauma Center to get the postmortem of deceased conducted and had also handed over some documents to SI Seeta Ram for doing the needful. The exhibits i.e. blood stained earth control, blood sample from the spot as well as from the Car, broken bamboo stick, mobile phone with cover, cigarette case, lighter, bunch of keys, broken spectacles with lenses were also lifted by the SHO from the spot and were sealed in separate sealed pullandas with the seal of 'SK' and were taken into possession through separate seizure memos which were placed on record as Ex.PW21/B, Ex.PW21/C, Ex.PW21/D, Ex.PW21/E, Ex.PW21/F and Ex.PW21/G. SHO had also seized one kada belonging to the deceased, which was State Vs. Chetan Chaudhary etc - SC No.528 of 2012 56/84 received by PW21 from the Duty Constable at the time of obtaining MLC of deceased, vide seizure memo Ex.PW21/H. The aforesaid Santro Car alongwith two keys was also seized vide seizure memo Ex.PW21/I One Coca cola plastic bottle containing some Coca cola was also seized from the spot vide seizure memo Ex.PW1/J. It was stated further that SHO had inquired from public persons there regarding the owner of Tea Shop, which was situated near the spot. The tea vendor's house number was disclosed as 1196/13, Govind Puri. Thereafter, the police team had reached his house. The tea vendor Radha Raman met them at the aforesaid address, who was interrogated by the SHO. Thereafter, he was joined in the investigation. He was also taken to Acharya Narender Dev College, Govind Puri. In the said college, Section Officer was also interrogated and the Section Officer had shown admission forms of students & exstudents to witness Radha Raman. The witness had identified one photograph on the form and had told the IO that he was the person, who was involved in the incident. SHO had then noted down the particulars of the said form, which was of Chetan Chaudhary. Thereafter, the police team alongwith Tea Vendor had reached at House No. 1104, Gali No. 10, Govind Puri. However, the landlord of the said premises had told IO that Chetan Chaudhary had vacated the rented premises from there and was stated to be residing at House No. 622, Gali No. 5A, Govind Puri. Thereafter, the police team had reached the said house, but in the Gali one person was found standing outside house No. 622 and on the pointing out of the Tea Vendor, accused Chetan Chaudhary was apprehended and he was taken into custody and interrogated. He State Vs. Chetan Chaudhary etc - SC No.528 of 2012 57/84 was arrested in the present case vide arrest memo already exhibited as Ex.PW6/A and his personal search memo was also prepared and his disclosure statement Ex.PW21/K was also recorded.
Thereafter, accused Chetan Chauhan was taken to the 3 rd Floor of House No.
622. One person had opened the door of the said flat. The tea vendor had identified him as the second coaccused involved in the incident. He was also taken into custody and interrogated and arrested in the present case vide his arrest memo already exhibited as Ex.PW6/B and his personal search memo was also prepared. The disclosure statement of second accused was also recorded which was Ex.PW21/L. Thereafter, IO had interrogated accused Chetan Chaudhary regarding his clothes which he was wearing at the time of incident. Accused had got recovered one pant of black colour and one shirt with light green and cream colour having strips of violet colour which were sealed with the seal of 'SK' and were seized by the IO through seizure memo Ex.PW21/M .
Thereafter, accused Vijay Virdhi was interrogated and he also got recovered one Jeans Pant of black colour, one linedar black shirt, one cap of light grey colour. The said clothes were also sealed in a pullanda with seal of 'SK' and were seized vide seizure memo Ex.PW21/N and seal of 'SK' after used was given to him by the IO.
Thereafter, accused Chetan Chaudhary had taken the police team to the place of occurrence and had pointed out the place of occurrence and pointing out memo Ex.PW21/O was prepared by the IO in that regard. Similarly, accused Vijay State Vs. Chetan Chaudhary etc - SC No.528 of 2012 58/84 Virdhi had also pointed out the place of incident vide memo Ex.PW21/P. SHO had also recorded statement of witnesses and thereafter, all of them had returned to the Police Station.
On 03.12.2011, he alognwith SHO, had reached Batra Hospital. Receptionist at the casualty had handed over one sealed pullanda and sample seal of injured Siddharth to the SHO and the same were seizued vide memo Ex.PW21/Q. On 07.12.2011, he had taken notice u/s 91 Cr.PC to serve the same to the Principal of Aacharya Narender Dev College. The said notice was received by Section Officer V. S. Rao. Section Officer V S Rao had handed over him copy of admission form (coloured copy) of accused Chetan Chaudhary, which was seized by him vide memo already exhibited as Ex.PW5/B. He had also recorded statement of Sh. V. S. Rao u/s 161 Cr.PC. Thereafter, he had returned to the PS and had handed over the form to the SHO.
On 03.01.2012, he alongwith SHO and SI Mahesh Kumar Darftsman had visited the place of occurrence. SI Mahesh Kumar had prepared rough notes after measuring the spot on his pointing out. SHO had recorded statement of witnesses.
On 21.01.2012, he had got recorded statement of two witnesses u/s 164 Cr.PC namely, Radha Raman and Kamal Maheshwari at Saket Court.
The witness had correctly identified the accused persons. He had also identified the case property as well, i.e. one black colour mobile phone make Blackberry with black colour leather cover as Ex.P1, one Bamboo Danda as Ex.P2, broken spectacles with one lens as Ex.P3, one 'kada as Ex.P4, one cap, one black shirt and one black colour jeans pant belonging to accused Vijay Virdhi, collectively State Vs. Chetan Chaudhary etc - SC No.528 of 2012 59/84 exhibited as Ex.P5, once pant of black colour and one shirt of light green, cream and violet strips belonging to accused Chetan Chaudhary, collectively Ex.P6, one cigarette lighter, one cigarette case alongwith some portion of cigarette, one bunch of three keys one of them was of big size of PLAZA, collectively Ex.P7, one photograph of Santro Car No. DL3CAQ4228 and other photograph of bottle of Coca Cola on the judicial file already exhibited as Ex.PW7/P4 and Ex.PW7/P5.
In his crossexamination conducted by Sh. Jitender Tyagi, Ld. Counsel for both the accused persons, the witness had stated that injured as well as the deceased had not meet them at the spot. He had also not come to know at the spot, as to who had shifted the injured as well as deceased to the Hospital. He had also not meet the injured in the Hospital. So far as deceased was concerned, he was declared "brought dead". Injured as well as deceased were brought at the Trauma Center of AIIMS Hospital. Further he could not find out any eye witness of the incident at the spot as well as in the Hospital.
He had sent rukka from the spot and tea vendor had not meet them prior to sending of rukka. There was no person present at the tea shop near the spot. The articles lifted from the spot, were lying on the road at about 10 - 15 feet's distance from the tea shop. There were residential houses across the road from the tea shop. There was a small MCD Booth at some distance from tea shop as well.
He could not tell whether the name of deceased was already mentioned as Sailesh in the MLC. The PCR officials had got the deceased admitted in the Trauma Center as was informed to him by the Duty Constable. He could not tell if PCR Officials were aware of the name of the deceased. The address of the tea State Vs. Chetan Chaudhary etc - SC No.528 of 2012 60/84 shopkeeper was not in his knowledge before sending rukka by him. Injured Siddharth was not conscious till the time he had remained IO in the present case.
DD No. 71B was regarding two persons lying unconscious at Gurudwara Chowk. He had remained as a member of investigating team lead by SHO at the spot, on the day of incident. He had voluntarily stated that had remained associated with SHO in the investigation only after sending of rukka. He had sent rukka from the spot at about 09:40 am.
He had narrated the whole facts of the case to the SHO at about 09:45 am, when he had reached at the spot and had met him. Thereafter, he alongwith SHO and other police team officials had remained present at the spot till 01:00 pm. No eye witness had met the police team till 01:00 pm. Tea shop owner had also not reached at the spot, by that time.
He could not tell when injured had regained consciousness, however, his statement was recorded on 05.12.2011. Statement of injured Siddharth was recorded by the IO in the Hospital and he was with him at that time.
On 28.11.2011, he alongwith the raiding team members including SHO and Tea vendor had reached Acharya Narender Dev College for knowing the involvement of accused persons. The tea vendor had met the Police Team at around 02:00 pm. He had denied the suggestion of the defence as incorrect that tea vendor had not accompanied them to the college nor he had identified accused Chetan Chaudhary from his photograph or that he had not accompanied them to get accused Chetan Chaudhary arrested.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 61/84 SHO had not recorded the statement of owner of premises, where accused Chetan Chaudhary had resided or was residing at the time of his arrest. The tea vendor had also signed the arrest memo of accused Chetan Chaudhary. The owner of said premises had not signed the arrest memo of Chetan Chaudhary. He had denied the suggestion of defence as incorrect that the signatures of tea vendor were obtained on the arrest memo of accused Chetan Chaudhary at the Police Station.
The proceedings regarding arrest of accused Chetan Chaudhary were conducted at House No. 622/5A, Govindpuri. He could not tell the number of storeys of the said house and the number of occupants residing in house No. 622/5A, Govind Puri. He had admitted it to be correct that no occupant of house No. 622/5A had signed any document concerning accused Chetan Chaudhary. He had denied the further suggestion of the defence as incorrect that accused Chetan Chaudhary was not arrested in the manner as deposed by him that is why no occupant of house No. 622//5A had signed any document or that accused Chetan Chaudhary had not made any disclosure statement or had not pointed out any place of occurrence and/or that blank papers were got signed from accused Chetan Chaudhary and the same were thereafter, converted into separate documents.
SHO had recorded statements of Radha Raman, Kamal Maheshwari, Icchanshu Tripathi and Sri Niwas. He had denied the further suggestion of the defence as incorrect that aforesaid witnesses had not made any statement to the IO and/or that IO himself had written the same of his own.
No document of accused Vijay Virdhi regarding his arrest, disclosure statement, pointing out memo were got signed from any of the witness from the State Vs. Chetan Chaudhary etc - SC No.528 of 2012 62/84 same house or from neighbourhood. The seizure memo of clothes of both the accused were not signed by any occupants of the said house or any person from the neighborhood. All other formal suggestions were denied by him as incorrect. He had denied the further suggestion of the defnece as incorrect that he had had threatened Radha Raman and Maheshwari to make statement against the accused persons before the Ld. MM u/s 164 Cr.PC, otherwise, they would be made accused in the present case.
27 Sh. Jitender Tyagi, Advocate, appearing for both the accused pesons had made a statement at Bar that accused persons would not challenge the TIP proceedings conducted by Sh. Vikrant Vaid or the statement u/s 164 Cr.PC recorded by Sh. Deepak Sherawat, Ld. MMs. Further the accused shall not dispute the correctness of the postmortem proceedings in which PWSI Seeta Ram had participated. Similarly, accused persons had also not disputed the proceedings conducted by SI Deep Chand and they would have no objection, if the aforesaid witnesses were dropped from the list of witnesses.
28 Sh. Anil Kumar, Ld. Addl. PP for the State, vide his separate statement on record had also dropped PWCt. Sujeet from the list of witnesses. 29 PW 22 ACP Raj Kumar Katana (earlier Inspector) was the IO of the case. He has stated that on 28.11.2011, he was posted as SHO PS Govind Puri. On that day, he was on petrolling in the area of PS Govind Puri. At around 06.30, he was informed by Duty Officer through telephone that two persons were brought in AIIMS Truma Centre in an injured condition and one of them, namely, Shailesh was declared as "brought dead". The other person, namely, Sidharth was stated to State Vs. Chetan Chaudhary etc - SC No.528 of 2012 63/84 be under treatment.
He had stated further that he had reached at the place of occurrence ie. Ravi Dass Marg, Gurudwara, where SI Sita Ram had met him. SI Sita Ram had informed him that DD no. 75B was marked to SI Kulbir, who had gone to AIIMS Truma Centre. SI Jitender Crime Team Incharge alongwith other staff of crime team had also met him at the spot.
After briefing SI Sita Ram, he had gone to hospital. In the hospital, he had come to know that dead body of Shailash was sent to mortuary, whereas Sidharth was declared "unfit for statement" by the doctors on duty. Thereafter, he had returned to the spot. SI Kulbir met him and SI Kulbir had already prepared a rukka and had sent Ct. Samay Singh for registration of FIR. SI Kulbir briefed him about the facts of the case. He had inspected the spot and had conducted the local inquiry. No eye witness met him at the spot. He had prepared rough site plan of the incident which was placed on record which was Ex. PW 22/A. At about 10.40am, Ct. Samay Singh had returned to the spot and had handed over original rukka and computerized FIR to him. Then he had deputed SI Sita Ram to get the postmortem of deceased Shailesh conducted at the hospital.
PW22 had stated further that he had lifted the different exhibits from the spot i.e. one mobile phone make black berry, Bamboo stick, one cigarette case, one steel lighter, one bunch of keys on which plaza was written, one coca cola 600 ml. plastic bottle, one broken frame of spectacles, one glass lens. The aforesaid articles were seized by him through seizure memos already exhibited as PW21/B, PW21/C, PW21/D, PW21/J and PW21/E through separate pulandas with the seal State Vs. Chetan Chaudhary etc - SC No.528 of 2012 64/84 of SK. He had also lifted blood sample from the Santro Car bearing registration no. DL3CAQ4228 and blood from the spot as well as blood stained soil vide different seizure memos already Ex PW21/G and Ex PW21/F. He had also seized aforesaid Santro car alongwith two keys vide seizure memo already Ex PW21/I. SI Kulbir had produced one yellow colour Kada which was stated to be recovered from the body of Shailesh by the doctor and he had seized the same through a sealed pulanda vide seizure memo Ex PW21/H. He had stated further that he had called MHC(M) at the spot and had handed over all the sealed pulandas to him for deposit in the Malkhana.
He had stated further that on local inquiry from a tea vendor, he had come to know that said tea stall was being run by Radha Raman, R/o H. no. 1196, Gali no. 13, Govindpuri, and it used to remain open throughout the night and the same was found closed at that time, hence, he alongwith staff had reached at the aforesaid house and met Radha Raman and he was joined in investigation. On interrogation, Radha Raman had narrated him the whole sequence of events pertaining to present incident. He had also informed him that two boys, who were involved in the incident, were frequent visitors at his shop whom he could have identified by faces as he was not familiar with their names. One of the said boys was stated to have been seen by him near Acharya Narendra Dev College on many occasions.
PW22 had further stated that at about 03.00 pm, he alongwith Radha Raman and his staff had reached Acharya Narender Dev College and met one Mr. V. S. Rao at the office and after apprising him with facts of the case, he had asked him State Vs. Chetan Chaudhary etc - SC No.528 of 2012 65/84 to provide him admission forms of all the students for the last 34 years and Mr. V. S. Rao had then provided them the record. Thereafter, Radha Raman had checked all those forms in depth and from the photographs affixed on the forms, Radha Raman had identified one of the boys involved in the incident. From the particulars mentioned in the form, the name of the boy was revealed as Chetan Chaudhary, r/o H. no. 1104, Gali no. 10, Govindpuri. Then, he had noted down the particulars of Chetan Chaudhary and had reached at his house alongwith Radha Raman and his staff. From there, he had come to know that Chetan Chaudhary had shifted his residence to H. No. 622, Gali no. 5, Govindpuri.
Thereafter, he alongwith Radha Raman and his staff had reached at Gali no . 5, Govindpuri in search of Chetan Chaudhary and on the pointing out of Radha Raman, accused Chetan Chaudhary was apprehended and interrogated and accused Chetan Chaudhary had confessed to his guilt and he had told the police that he alongwith his co accused Vijay Virdhi had gone to the shop of Radha Raman to have tea at about 4.00/4.15 am, where deceased Shailesh and Sidharth were already present with their Santro Car and were having their tea. Vijay Virdhi had asked Shailesh as to why he was staring at him. On that issue, heated arguments were exchanged between the parties. Thereafter, both accused persons had left the said shop. However, after 1015 minutes, accused Vijay Virdhi, had told Chetan that he was feeling insulated and humiliated, hence, both of them had again gone to said shop and started arguing with deceased and Sidharth. In that scuffle, Vijay Virdhi started beating deceased Shailesh with a Danda while accused Chetan Chaudhary held him (deceased) from his back. After interrogation of accused State Vs. Chetan Chaudhary etc - SC No.528 of 2012 66/84 Chetan Chaudhary, he was arrested vide arrest memo already Ex PW6/A and his personal search memo Ex PW6/C. Disclosure statement of accused Chetan was placed on record as Ex PW21/K. It was stated further by PW22 that accused Vijay Virdhi was stated to be living in a room at third floor of the same house bearing no. 622, Gali no. 5, Govindpuri. On the identification of Radha Raman, accused Vijay Virdhi was apprehended, interrogated and was arrested in this case vide arrest memo Ex PW6/B. His personal search memo memo was placed on record which was Ex PW6/D. Disclosure statement of accused Vijay Virdhi was placed on record which was Ex PW21/L. Accused Chetan Chaudhary had produced one shirt and pant from his room which were taken into possession through a sealed pulanda vide seizure memo Ex PW21/H Accused Vijay Virdhi had also produced one pant and shirt, one cap which he was wearing at the time of incident and the said clothes were seized vide siezure memo already Ex PW21/N. It was stated further by him that he had recorded statement of Radha Raman u/s 161 Cr. P. C and discharged him from investigation. He had also prepared pointing out memos which were already Ex PW21/O and Ex PW21/P of the place of incident at the instance of both the accused persons.
During the course of investigation, he had recorded statement of witnesses namely SI Kulbir, Ct. Samay Singh and Ct. Sujeet. He had also deputed SI Kulbir, Ct. Samay Singh, Ct. Sujeet to take the accused persons to Batra Hospital for their State Vs. Chetan Chaudhary etc - SC No.528 of 2012 67/84 medical examination. Thereafter he had again visited Gali No. 13 and had interrogated two persons namely, Kamal and Ichhanshu Tripathi. Thereafter, he had returned to police station and one Sri Niwas met him in the police station, who had made PCR call on 100. He had also recorded his statement u/s 161 Cr. P. C. After medical examination of accused persons, they were put in the lock up. He had deposited two sealed pulandas containing clothes of accused persons in the Malkhana.
On next day i.e. 29.11.2011, both the accused persons were produced in the court in muffled faces for the purpose of their judicial TIP, but the accused persons had refused to participate in the TIP Proceedings.
On 03.12.2011, he alongwith SI Kulbir had visited Batra Hospital to inquire about the health of injured Sidharth, who was still unfit for statement. Clothes of injured Sidharth were seized memo vide a memo already Ex PW21/Q. On 05.12.2011, he had again visited Batra Hospital for making inquiry regarding injured Sidharth. Since he was found fit for statement by the doctor, he had recorded his statement u/s 161 Cr. P. C regarding the incident.
On 07.12.2011, he had deputed SI Kulbir alongwith notice u/s 91 Cr. P. C to collect the admission form of accused Chetan Chaudhary, who had collected the admission form of accused Chetan Chaudhayr. On 09.12.2011, injured Sidharth was discharged from the hospital. He was asked to participate in the TIP proceedings of accused persons for which he had to visit the court. However, he had told him that he was unable to come to court due to his health condition. Therefore, he had shown him the newspaper (Times of India) dated 30.11.2011, in State Vs. Chetan Chaudhary etc - SC No.528 of 2012 68/84 which the photographs of both the accused persons were published alongwith news. Injured Sidharth had then identified both the accused persons from the photographs published in the newspaper. He had recorded his statement u/s 161 Cr. P. C. in that regard.
During investigation, he had obtained the final result on the MLC of injured Sidharth, collected the PM report of deceased Shailesh from AIIMS Mortuary. The exhibits of the present case were sent to FSL, Rohini through SI Deep Chand vide RC no. 150 & 151.
On 03.01.2012, he had called draftsman SI Mahesh to PS. He was taken to the spot by him as well as SI Kulbir. On his pointing out, SI Mahesh had prepared rough notes and measurements. He had recorded his statement u/s 161 Cr. P. C. Later on, SI Mahesh had handed over the scaled site plan to him.
The witness had stated further that witnesses namely Kamal Maheshwari, Ichhanshu Tripathi were sent to court alongwith SI Kulbir for getting their statements recorded u/s 164 Cr. P. C and their statements were recorded by the Ld. MM.
After completion of investigation, he had finalized the challan.He had correctly identified both the accused persons, arrested by him in this case. He had also identified the case property - one black colour mobile phone make Blackberry with black colour leather cover ( Ex.P1), one bamboo danda (Ex.P2), broken spectacles with one lens ( Ex.P3), 'kada'(Ex.P4), one cap, one black shirt and one black colour jeans pant collectively exhibited as (Ex.P5), one pant of black colour and one shirt of light green, cream and violet strips belonged to accused Chetan State Vs. Chetan Chaudhary etc - SC No.528 of 2012 69/84 Chaudhary, collectively exhibited as (Ex.P6) one cigarette lighter, one cigarette case alongwith some portion of cigarette, one bunch of three keys one of them is big in size of PLAZA, collectively exhibited as (Ex.P7). One photograph of Santro Car No. DL3CAQ4228 and other photograph of Coca Cola bottle on the judicial file already exhibited as Ex.PW7/P4 and Ex.PW7/P5 were also identified by the IO.
In his crossexamination conducted by Sh. Jitender Tyagi, Ld. Counsel for both the accused persons, IO had submitted that Sriniwas, who had made a PCR Call about the incident, had not revealed him the identity of assailants. He had not met any of the eye witnesses either at the spot or at the hospital.
He had admitted it to be correct that accused persons were arrested before recording of statements of Ichhanshu and Kamal Maheshwari and he was aware of the place of incident before the arrest of the accused persons. He had, however, denied the suggestion to be incorrect that he had cooked up a false story by keeping Radharaman in the center of the same and/or Radharaman had never accompanied police at any point of time or that he had not investigated the case fairly. All other formal suggestions were denied by him as incorrect.
To a court question, PW22 had stated further that it was only once that Sidhartha was asked to join TIP proceedings, i.e. on 9.12.2011. 30 PW 23 HC Shiv Singh, had stated that on 28.11.2011, when he was posted as MHC/M at PS Govindpuri, Insp. R K Khatana, had called him at the spot at about 1.15 PM and upon reaching there, he had handed over him the case property of this case in pullandas including the santro car and he had made necessary entries in this regard the malkhana register no. 19 at Sl. no. 1184 and State Vs. Chetan Chaudhary etc - SC No.528 of 2012 70/84 had kept those articles in his custody in the malkhana. He had placed on record the photocopy of the said entry which was Ex. PW23/A. He had further stated that on 3.12.2011, IO/Insp. R K Khatana had deposited with him one sealed pullanda and one sample seal and he had made entry in that regard at Sl. No. 1201, photocopy of which was placed on record as PW23/B. It was stated further by him that on 27.12.2011, he had handed over sealed pullandas to SI Deep Chand for depositing the same with FSL office vide RC Nos. 150/21/11 and 151/21/11 and their copies were also placed on record which were Ex. PW23/C and PW23/D respectively. He had stated further that so long as the case property had remained in his custody, no one had tampered the same.
In his crossexamination conducted by Sh. Jitnder Tyagi, Ld. Counsel for both the accused persons, the witness had stated further that the entries in the malkhana register were made by him at PS at about 2.30 PM, after his return from the spot. In his absence, Malkhana Munshi was looking after the affairs of malkhana and there were two munshies namely Ct. Vinod and Ct. Hari Mohan. He had admitted the suggestion of the defence as correct that he was not aware about the contents of the pullandas. All other formal suggestions were, however, denied by him as incorrect.
31 PW24 Sh. Amit Rawat, Assistant Director Chemistry, FSL, Delhi, had stated that on 27.12.2011, two sealed parcels, which were found properly intact and the seals of which were tallied as per forwarding authority's specimen seal, were received at their office and the same were marked to him for chemical State Vs. Chetan Chaudhary etc - SC No.528 of 2012 71/84 examination. On opening Parcel No. 1 viscera, blood and preservative samples were found therein, the same were marked by him as Ex.1A, Ex.1B, Ex.1C and Ex.1D for the purpose of their identification.
On opening Parcel No. 2, one bottle containing dark brown colour liquid stated to be of 'Cocacola' was found and the same was marked by him as Ex.2.
On chemical, Microscopic, TLC & GCHS examination, (i) Exhibits '1A', '1B' & '1C' were found containing 'Ethyl Alcohol'. (ii) Exhibt '1C' was found containing "Ethyl Alcohol' 58.7 mg/100 ml of Blood. (iii) Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits '1D' & '2'.
He had stated further that after the examination, the remnants of the exhibits were sealed with the seals of A.R, FSL, DELHI.
He had proved on record his detailed report which was Ex. Ex.PW24/A. This witness was again not crossexamined on behalf of the accused persons despite availing an opportunity in that regard.
PW25 Sh.Indresh Kumar Mishra, Assistant Director (Biology), FSL, Rohini, Delhi had stated that on 27.12.2011, 15 sealed parcels were received in their office and same were marked to him for examination and report. After examination, he had prepared his detailed report, which was placed on record as Ex.PW25/A, He had stated further that he had also conducted the Serological Test and had prepared the detailed report for blood grouping, which was placed on record which was Ex.PW25/B. In his crossexamination conducted by Sh. Jitender Tyagi, Ld. Counsel State Vs. Chetan Chaudhary etc - SC No.528 of 2012 72/84 for both the accused persons, the witness could not tell as to which of the articles examined by him including clothes belonged to accused or the victim respectively. He had stated voluntarily that the forwarding letter addressed to FSL office contained all such details.
32 After closure of the prosecution evidence by the Ld. Addl. PP for the State, statement of the accused persons was recorded under section 313 CrPC wherein each and every incriminating circumstance appearing against them on record was put to them in vernacular which they had denied in toto and had claimed to have been falsely implicated in this case by the police. Further they had also preferred to lead defence evidence to prove their innocence. 33 The accused persons had also examined two witnesses, namely DW1 Devender Kumar and DW2 Avinash in their defence.
34 DW1 had stated that accused Chetan was his college friend and Vijay was known to him being mutual friend. On 27.11.2011, both the accused persons were sharing the room with him in the same flat and were with him on 28.11.2011 till 8 or 8.30 AM.
35 A similar statement was madeby DW2 Avinash.
36 Both these DWs were crossexamined by Ld. Addl. PP for the State and they could not produce any documentary proof to substantiate their version that both the accused persons were sharing the room with them and both the accused persons were in their company from the night of 27.11.2011 till 8 or 8.30 AM of 28.11.2011 37 I have heard Sh. Pravin Rahul, Ld. Addl. PP for the State as well as Sh.
State Vs. Chetan Chaudhary etc - SC No.528 of 2012 73/84 Jitender Tyagi, Ld. Counsel for the accused persons and have considered their rival contentions and have also gone through the entire evidence available on record. 38 Ld. Addl. PP for the State has argued that prosecution has successfully proved its case beyond shadow of any reasonable doubt qua the accused persons, as the version of the injured PW15 Siddharth has been duly corroborated on all the material facts by the testimony of all independent public witnesses examined in this case.
39 Sh. S.S. Bhatia, Ld. Counsel for the parokar of the deceased has also placed on record some salient points for consideration in the form of his written arguments in which it has been mentioned that all the public witnesses had unanimously deposed that two incidents had taken place on 28.11.2011, first one pertained to involvement of a verbal tiff between the deceased and the injured on the one hand and the accused persons on the other hand and in the second incident, involvement of physical beating to the deceased as well as the injured. 40 It has also been stated that the arguments raised by the Ld. Defence Counsel regarding the presence of 34 boys involved in the crime as was deposed by PW11 Ct. Mahender Singh, did not hold any water in it because PW15 Sidharth was not able to speak properly and those 34 boys actually were involved in the incident and included the deceased and the accused persons. Further, since author of Ex. PW11/A had just noted down an information, hence, it cannot be said to have given any benefit of doubt to the accused persons being a second hand information.
41 It has also been submitted that return of accused persons to the spot
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was clearly suggestive of their intention to inflict injury upon the injured and deceased thereby bringing the case within the definition of murder under section 302 IPC.
42 So far as the defence taken by accused Chetan Chaudhary that he had tried to save injured Sidharth from the onslaught of accused Vijay Virdhi is concerned, it has been stated that PW6 had deposed about accused Chetan Chaudhary that he had caught hold of the second boy from behind and if he had any intention to save injured Sidharth, then he would have stood between accused Vijay Virdhi and injured Sidharth but by catching injured from back side, thereby making him helpless, motionless so that he could not maneuverer his body to save himself from the onslaught of the assailant, it was clear that in fact, accused Chetan Chaudhary has facilitated accused Vijay Virdhi in commission of crime, therefore, shall be liable to be punished for sharing the common intention with his coaccused under section 34 IPC. Reliance in this regard has also been placed by Ld. Counsel for the parokar on "Ajit Singh Harnam Singh v. State of Maharashtra", 2011 (4) JCC 2482. However, with due respect to the Ld. Counsel for the parokar, I have no hesitation in holding that the citation relied upon by him is not applicable to the facts of the given case because the cited case is based upon circumstantial evidence, whereas in the case in hands, we had 3 independent eye witnesses belonging to public.
43 So far as the contention regarding role of coaccused Chetan Chaudhary is concerned, it is to be seen here that PW12 Kamal Maheshwari had categorically stated in his examinationinchief that accused Chetan Chaudhary had State Vs. Chetan Chaudhary etc - SC No.528 of 2012 75/84 caught hold of the boy from the back side who was to be hit by coaccused Vijay Virdhi and had pulled him on the back side so that he could have avoided the blow. Even in reply to the Court Question, he had stated that accused Chetan Chaudhary was trying to save the victim as he was dragging the person behind so he could have avoided the blow from accused Vijay Virdhi on his person. Reliance has also been placed by Sh. S. S. Bhatia, Ld. Cousnel appearing for the parokar of the deceased on the citations of (1) "Parveen v. State of Haryana", 1997 SCC (Cri.) 63, (2) "Sheikh Zakir v. State of Bihar", AIR 1983 SC 911 and (3) "Syad Akbar v. State of Karnataka", 1979 Crl. L.J, 1374. However, with all due respect to the submissions of Ld. Counsel, all these judgments deal with turning hostile of the witnesses, whereas in the present case, no witness had turned hostile on the material aspect of the case, hence, ratios of said judgments are not applicable to the facts of the present case.
44 On that other hand it has been submitted by Ld. Sh. Jitender Tyagi, Ld. Counsel for the accused persons that the prosecution has miserably failed to proved its case against the accused persons beyond shadow of reasonable doubt, as it is the own case of the prosecution itself that no eye witness had met them either at the place of occurrence or in the hospital and the prosecution has cooked up a false story and had introduced planted witnesses, namely, PW6 Radha Raman, PW 12 Kamal and PW3 Icchhanshu just to solve the present case and even PW15 was a tutored witness of the prosecution qua the accused persons, as the accused persons were deliberately and intentionally got identified by the prosecution from PW15 after showing the photographs and names of the accused persons published in the State Vs. Chetan Chaudhary etc - SC No.528 of 2012 76/84 new paper and no efforts were made to get the accused persons identified from PW15 injured Siddharth through judicial TIP and further there were inconsistencies in the depositions of the prosecution witnesses as well. Therefore, the accused persons deserved to be acquitted honourably.
45 It has been argued further by Sh. Jitender Tyagi, Ld. Counsel for the accused persons that police was informed about accused Chetan Chaudhary on 7.12.2011, but it was not clear as to what material was collected by the investigating agency against him between 28.11.2012 till 7.12.2011. However, I do not find any merits in this submission of the Ld. Defence Counse because accused Chetan Chaudhary was arrested on the very same day of the incident itself. 46 Delay in recording of statements of witnesses under section 164 CrPC has also been cited as a ground for acquittal of the accused persons. However, I have no hesitation in holding that once the IO was not crossexamined on this aspect, then, delay, if any, in this regard would not be considered as fatal for the case of the prosecution especially when it pertained to recording of statements of the witnesses by Ld. MM under section 164 CrPC.
47 Ld. Defence Counsel has also submitted that accused Vijay Virdhi was identified by different names by public witnesses. So far as PW6 is concerned, he had named the accused as Anoop Chaudhary, whereas PW12 had named him as Vijay Bhati. In the light of these differences it could be possible that some people with their actual names as Anoop Chaudhary and Vijay Bhati were also present at the spot and were instrumental in causing injury on the person of the deceased as well as on the person of injured, thereby the whole story of the prosecution has State Vs. Chetan Chaudhary etc - SC No.528 of 2012 77/84 become suspicious for which accused Vijay Virdhi is entitled to all the benefits arising out of the doubt so created in this case.
48 Ld. Defence Counsel has further stated that nonsubjection of both the accused persons to the judicial TIP was also fatal for the case of prosecution as it casted a serious shadow of doubt and suspicion regarding the authenticity of story set up by the investigating agency. However, I do not find any merits in this contention as it is the settled preposition of law that judicial TIP is got conducted by the IO only to ensure that investigation is being conducted by him in a right direction and against the right person suspected of commission of the crime. However, it is only the identification of a person by a witness in the court which is of great evidentiary value. Further, once the accused persons were identified by independent public eye witness at the time of their arrest, then, nonsubjecting them to judicial TIP cannot be held fatal for the case of prosecution. 49 However, I do not find any merits in this submission as well, because during crossexamination of the witnesses, this point was got clarified again and again and was also satisfactorily explained by the witnesses on which aspect they were never further crossexamined, related to identity of accused Vijay Virdhi. 50 For the sake of just decision of the case, apart from the deposition of PW15, testimonies of PW6, PW12 and PW13 are of importance as the remaining witnesses were formal in nature.
51 PW6 had categorically stated in his examinationinchief that accused Vijay Virdhi had picked up a wooden stick (danda) from the adjacent fruit shop and had hit the deceased only once with the said danda, whereas accused Chetan State Vs. Chetan Chaudhary etc - SC No.528 of 2012 78/84 Chaudhary was trying to save them. Not only this but also, as per this witness, it was accused Vijay Virdhi, who had also hit the injured Sidharth on one side of his face. Even in reply to the leading question put to him by Ld. Addl. PP for the State, this witness had remained firm on his version that coaccused Chetan Chaudhary was trying to save the person whom accused Vijay Virdhi was trying to assault with a danda. He had further clarified that accused Vijay Virdhi was being addressed by the people of the street (gali) as Anoop Choudhary, hence, he had perceived him as Anoop Chaudhary. It was also admitted by him that both the accused persons had initially left the tea stall after having arguments with the deceased as well as the injured. It was also admitted by him that even the accused persons were also slapped by the deceased and injured on their first visit to tea stall. He had admitted it further that he had told the police that accused Vijay Virthi had hit danda on the head of a boy whose head had got fractured and he had fallen down. He had denied the suggestion that accused Chetan Chaudhary had caught hold of the boy who had received the injuries on his head. It was stated further by this witness that he came to know about the correct name of accused Vijay Virdhi at the time of his arrest and prior to recording of his statement by the Ld. MM u/s 164 CrPC. However, he had named him as Anoop Chaudhary due to slip of tongue and on this aspect he was never crossexamined any further by the Defence. 52 This witness had also admitted that injured as well as the deceased were under the influence of liquor and accused Chetan Chaudhary had not given beating to those two boys.
53 Similarly, PW12 in his examinationinchief had also stated that
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accused Vijay Virdhi had given only one blow with danda to the deceased on his head before indulging into a scuffle with those people by hands and as per this witness, injured Sidharth was not hit with danda rather his face was banged on the car by accused Vijay Virdhi due to which he had started bleeding and in corroboration of the testimony of PW6, even this PW had also stated in reply to the court question that accused Chetan Chaudhary was only trying to save the injured by dragging him from behind and asking accused Vijay Virdhi to leave the spot immediately. He had also admitted the suggestion put to him on behalf of accused Vijay Virdhi as correct that deceased at the time of his being hit by a danda was standing near the Santro car.
54 It was further confirmed by this witness that he had seen accused Vijay Virdhi only giving one blow and had not seen him giving more blows to the injured and he had again specifically stated that accused Chetan Chaudhary had not given any beatings to any one nor he had caught hold of any one. 55 As per this witness, he had not seen either of the accused persons at the shop prior to the date of incident. During his crossexamination by Ld. Defence Counsel, he had admitted it to be correct that name of accused Vijay Virdhi was known to him prior to his recording of statement u/s 164 CrPC by the Ld. MM as disclosed to him by the police but he had further clarified it by saying that he had name Vijay Bhati instead of Vijay Virdhi. Again, he had categorically stated that accused Chetan Choudhary was only an intervener in the quarrel and he had never caught hold of the victim with an intention of subjecting him to beating by co accused and he had made this observation on the basis of manner of intervention State Vs. Chetan Chaudhary etc - SC No.528 of 2012 80/84 by accused Chetan Chaudhary that he was trying to save the deceased and not to facilitate his coaccused Vijay Virdhi to commit the crime. 56 Similarly, PW13 had also deposed that it was only accused Vijay Virdhi, who was seen giving beatings to both injured and the deceased with danda, whereas accused Chetan Chaudhary was trying to save them. In his cross examination by Ld. Addl. PP for the State, he had stated that he had only seen that a danda was being used by accused Vijay Virdhi, but he had not seen as to on which exact place of body it was hit by him. Danda was stated to be a bamboo stick by which beatings were given.
57 In his crossexamination by Ld. Defence Counsels, he had again corrobroated his earlier version that accused Vijay Virdhi had given only one danda blow on the head of the deceased, whereas accused Chetan Chaudhary was trying to save him. It was also admitted by him that name of accused Vijay Virdhi was disclosed to him by the police.
58 PW15 injured Sidharth Roy, despite claiming about the apologizing behaviour of accused Chetan Chaudhary to him and the deceased at initial stage had gone ahead with deposing that on second occasion, it was accused Chetan Chaudhary who was hitting him with danda, whereas accused Vijay Virdhi had hit the deceased with a danda.
59 This version of PW15 appears to be an improvement made by him before the court to somehow implicate accused Chetan Chaudhary, because his version regarding role of accused Chetan Chaudhary is entirely contrary to the version of 3 independent public eye witnesses. Not only this, but also, he had State Vs. Chetan Chaudhary etc - SC No.528 of 2012 81/84 admitted it clearly that as long as he was conscious, accused Chetan Chaudhary had neither caught hold of him nor the deceased and further he had gone to admit the fact as matter of record that he had never told the police that he was hit with a danda by accused Chetan Chaudhary. Even the investigating agency in its own case had talked about recovery of only one danda as weapon of offence, hence, his (PW 15's) story of use of two dandas is unbelievable.
60 From the aforesaid appreciation of the testimonies of the witnesses though with some discrepancies and minor contradictions which were quite natural to occur due to lapse of considerable time between the date of incident and respective dates of their depositions before the court, it becomes amply clear that presence of the accused persons alongwith the deceased and the injured at the place and time of incident and even occurrence of incident has also been duly proved by the prosecution beyond any reasonable doubt by examination of all its witnesses as well as from their crossexamination conducted by the Ld. Defence Counsels as their testimonies have remained intact and firm on material facts and substantial aspects of the prosecution's case.
61 Now, only question remains to be answered is determination of guilt of the accused persons as to whether they had committed any murder which is made punishable under section 302 IPC or some other offence. 62 Admittedly, there was no previous animosity between the parties which could have given a motive to the accused persons to have caused murder of the deceased. Further more, the fact that accused persons were not armed with any deadly weapon and had come back to the spot empty handed and accused Vijay State Vs. Chetan Chaudhary etc - SC No.528 of 2012 82/84 Virdhi had picked up a danda lying at the nearby fruit shop also negates the possibility of the accused persons either having any intention or motive to cause murder.
63 It is the case of the accused persons that prior to picking up of a danda from the nearby fruit shop by accused Vijay Virdhi, the parties again had a verbal altercation and scuffle using their hands and this fact further shows that the accused persons had neither any intention nor any motive to cause murder. 64 However, an established fact on record is that accused Vijay Virdhi had caused a danda blow on the head of the deceased and also on the face of the injured, which is sufficient enough to hold that while causing danda blow accused Vijay Virdhi had all the knowledge and reasons to believe that his aforesaid blow could have also proved fatal in respect of the person to whom it was administered. There is however no incriminating evidence available on record against accused Chetan Chaudhary.
65 Therefore, in view of the aforesaid observations, accused Chetan Chaudhary is hereby acquitted honourbly from the allegations and accused Vijay Virdhi is hereby held guilty and convicted for the offence under section 299 IPC for committing culpable homicide not amounting to murder which is punishable under section 304 part II r/w Section 308 IPC for committing an attempt to cause culpable homicide not amounting to murder in respect of injured Sidharth Roy. 66 The case property be confiscated to the state after expiry of period of appeal or revision, if any.
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67 Let convict Vijay Virdhi be now heard on quantum of sentence to be
awarded to him on 19/4/2017.
announced in the
open court on (LOKESH KUMAR SHARMA)
13rd April, 2017 Additional Sessions Judge04 & Spl. Judge (NDPS)
SouthEast, New Delhi
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