Delhi District Court
State vs Naresh Kumar @ Kalu on 9 May, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 27721/2016)
FIR No. 187/2015
Police Station Kashmere Gate
Charge-sheet filed under Sections Sec. 302/34 IPC.
Charges framed against accused Sec. 302/34 IPC.
persons.
State Versus 1. Naresh Kumar @ Kalu
S/o Sh. Raghunath,
R/o H. No. 3141/20, Shahnaz
Building, Mori Gate, Delhi.
Permanent Address:-
Vill. Mathepur, PS Wazirganj,
District Ghonda,
Uttar Pradesh.
2. Diwan Singh @ Darban Singh,
S/o Sh. Jaman Singh,
R/o H. No. 3141/20, Shahnaz
Building, Mori Gate, Delhi.
Permanent address:-
Village Galai, PS Baijnath,
District Bageshwar,
Uttrakhand.
...Accused Persons.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 1 of 68
State Vs. Naresh Kumar @ Kalu & Anr.
Date of Institution of case 22.07.2015
Date of Arguments 06.05.2025 & 07.05.2025
Judgment reserved on 07.05.2025
Judgment pronounced on 09.05.2025
Decision Convicted
JUDGMENT
1. Accused persons namely Naresh Kumar @ Kalu and Diwan Singh @ Darban Singh are facing trial for the offence punishable under Sec. 302/34 IPC. The case of the prosecution is that on 16.04.2015 between 08:45 am to 09:30 am, at Shop No. 3141/20, Shahnaz Building, Mori Gate, Delhi, both the aforesaid accused persons in furtherance of their common intention committed murder of Sh. Guddu.
2. The brief facts which are borne out from the record of the case are that on 16.04.2015, at about 10:05 am, on receiving DD No. 15A, Ex. PW-1/X, regarding quarrel at 3141/20, Mori Gate, Delhi, PW-6 ASI Satbir Singh along with PW-14 Ct. Kishan Lal went to the spot of incident i.e. Shehnaz Building, 3141/20, Mori Gate, Delhi where caller/complainant PW-2 Sh. Rajesh Kumar met them and on entering in the building, in the first room, a dead body of male, aged about 22-23 years, was found lying on the ground in the pool of blood, having deep wound on the right cheek. A blood stained stone was also lying near the dead body. Two empty beer bottles, other stones and one blood stained shirt was found in the second room. The name of deceased was FIR No. 187/2015, PS: Kashmere Gate, Page No. 2 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
revealed as Guddu who was working in the abovesaid Shehnaz building. PCR Van was also present at the spot which flashed message to Control Room and thereafter PW-18/IO ACP Anil Kumar Panday (then Inspector) reached at the spot of incident. Thereafter IO got inspected the spot of incident through Mobile Crime Team and recorded the statement of caller of 100 number/complainant PW-2 Sh. Rajesh Kumar, Ex. PW-2/A. Thereafter IO prepared rukka, Ex. PW-18/A and handed over the same to PW-14 Ct. Kishan Lal for registration of FIR at PS Kashmere Gate. During investigation, IO prepared site plan, Ex. PW-18/B at instance of complainant and seized the exhibits i.e. one blood stained shirt of deceased, earth control, blood stained earth control, two empty beer bottles, blood stained mattress, two blankets, two empty plastic gunny bags, one blood stained empty jute bag, three blood stained stone pieces and two mobile phones from spot of incident vide seizure memos Ex. PW-2/B to Ex. PW-2/G. During investigation, IO recorded statements of co- workers namely Ravi, Urmila and Hema. IO got dead body preserved at Subzi Manid Mortuary.
3. During investigation, on 17.04.2015, accused Naresh @ Kalu was apprehended from Tanga Stand, Madrasi Colony, Mori Gate on the basis of secret information. Thereafter IO arrested him, conducted his personal search and recorded his disclosure statement. Thereafter further investigation of present case was entrusted to PW-25 Inspector Bharat Ratan (then SI) and thereafter IO went to the mortuary Subzi Mandi and got FIR No. 187/2015, PS: Kashmere Gate, Page No. 3 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
conducted postmortem on the body of deceased, seized the exhibits i.e. viscera and blood sample of deceased, recorded dead body identification statements of witnesses and handed over the dead body to relative of deceased. Thereafter further investigation of the present case was entrusted to PW-28 ACP Jagminder Singh (then Inspector). During investigation, on 08.05.2015, accused Diwan Singh was also apprehended from Agarasen Park, Mori Gate, Delhi on the basis of secret information and thereafter IO arrested him in the present case, conducted his personal search and recorded his disclosure statement. During investigation, IO obtained postmortem report of deceased, obtained subsequent opinion regarding weapon of offence, got prepared scaled site plan and sent the exhibits to FSL Rohini. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO. After obtaining FSL result, supplementary charge-sheet was also filed before the court.
4. Vide order dated 1 6 . 0 7 . 2 0 1 5 copy of the charge-sheet was supplied to accused persons under Section 207 Cr.P.C was and v i d e order dated 20.07.2015 the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 14.12.2015, the Ld. Predecessor Court was pleased to frame charges under Sec 302/34 IPC against both the accused persons to which they pleaded not guilty and claimed trial.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 4 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
6. To prove its case, prosecution has examined 28 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW-1 WSI Saroj Devi, was the duty officer who proved copy of DD No. 15A, Ex. PW-1/X regarding information of quarrel at 3141/20, Mori Gate, Delhi. She also proved copy of present FIR, endorsement on rukka and certificate under Section 65B Evidence Act with respect to the the above-said FIR as Ex. PW-1/A to Ex. PW-1/C. In her cross-examination, she denied the suggestion that FIR was ante-time and ante-dated.
8. PW-2 Sh. Rajesh Kumar, was the complainant in the present case. He deposed that he was doing business of assembling of lights at Shop No. 3141/20, Shahnaz Building, Mori Gate Delhi. He further deposed that on his abovementioned shop, three boys namely Guddu (since deceased), Diwan and Naresh and three ladies namely Smt. Urmila, Hema and Shashi were working. He further deposed that Guddu and Diwan used to sleep at his shop in the night and Naresh occasionally used to sleep there. He further deposed that on 16.04.2015 at about 09:25 am, he was present at his house at Bharat Nagar and at about 09:30 am, he received a phone call of his worker Urmila on his mobile phone and she informed him that a quarrel had taken place between Diwan, Naresh and Guddu and blood was oozing out from the person of Guddu. He further deposed that he made call at 100 number and he along with his friend Jasbir Kohli reached at the spot i.e. abovementioned shop and saw that Guddu FIR No. 187/2015, PS: Kashmere Gate, Page No. 5 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
was lying in a pool of blood in injured condition. He further deposed that accused Naresh and Diwan were missing from the spot. He further deposed that Inspector Anil Kumar from PS Kashmere Gate called the Crime Team who inspected the spot as well as dead body and took photographs from different angles. He also deposed that IO recorded his statement as Ex. PW-2/A. He narrated about proceedings conducted by IO at the spot and proved seizure memos of exhibits i.e. one blood stained shirt of deceased, earth control, blood stained earth control, two empty beer bottles, blood stained mattress, two blankets, two empty plastic gunny bags, one blood stained empty jute bag, three blood stained stone pieces, two mobile phones from spot of incident vide seizure memos Ex. PW-2/B to Ex. PW-2/G. He further deposed that on 17.04.2015, he again joined the investigation in the present case along with IO and narrated about apprehension of accused Naresh @ Kalu on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-2/H to Ex. PW-2/K. He also deposed that on 08.05.2015, he again joined the investigation in the present case along with IO/Inspector Jagminder Singh and narrated about apprehension of accused Diwan Singh on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-2/L to Ex. PW-2/N. On putting a leading question by Ld. Addl. PP for the State, he admitted that when Urmila made a phone call to him at his house and she informed him that when she along with her son had reached at the spot, she had seen that accused Diwan was FIR No. 187/2015, PS: Kashmere Gate, Page No. 6 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
carrying a stone in his hand and the other boy namely accused Naresh cried by exhorting 'Aunty aa gayi bhag'. This witness has correctly identified both the accused persons as well as case properties during his deposition in the court. This witness was not cross-examined on behalf of accused Diwan Singh @ Darban Singh despite opportunity given to him. In his cross-examination on behalf of accused Naresh Kumar @ Kalu he deposed that Urmila was standing outside the shop when they reached there and Shashi and Hema had come thereafter. He also deposed that Ravi had come after the police had inspected the spot and Ravi had taken out mobile phone after searching the racks in the shop. He admitted that Madrasi Colony was a crowded place. He denied the suggestion that there was no place known as Tanga Stand in the vicinity of Mori Gate. He also denied the suggestion that accused Naresh never slept in his shop. Volunteered he deposed that accused Naresh was having his own room near Madrasi Colony, Tanga Stand but on the date of incident, he slept in his shop on the previous night. He also denied the suggestion that accused did not sleep in his shop on the night of incident or that Urmila did not inform him on telephone that accused Naresh was present at the spot or she ever saw accused Naresh while exhorting 'Aunty aa gayi bhag'. He also denied the suggestion that accused did not make any disclosure statement or that no stone was seized in his presence from the spot.
9. PW-3 Smt. Urmila, was the co-worker of deceased at shop of complainant. She deposed that on 16.04.2015, when she went FIR No. 187/2015, PS: Kashmere Gate, Page No. 7 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
to the spot at around 09:00-09:15 am, she saw that accused Naresh was standing at the door and he called up Diwan and uttered 'Diwan, aunty aa gayi, aunty aa gayi'. She also deposed that Naresh ran away from the shop after opening the gate and when she entered inside the shop, she saw Diwan who was in the process of keeping the stone on side. She also deposed that after keeping the stone there, accused Diwan buttoned t-shirt and he too ran away from the shop. She further deposed that she saw that someone was lying on the floor and a blanket was spread on him whereas blood was flowing from inside the said blanket. She also deposed that there was a foul smell in the shop and she had seen the blood and hence she did not stay in the room. She further deposed that she made a telephonic call to Diwan but it did not get connected and thereafter she made call to Naresh who told her that there was a quarrel between Guddu and Diwan and Guddu had sustained injuries and he asked her to take Guddu to the hospital. She also deposed that she immediately made a telephone call to the owner namely Rajesh and narrated the incident to him who came there after 15-20 minutes. She also deposed that there was a love affair between Hema and Diwan and they used to sit together and talk to each other in the shop and godown. She also deposed that Guddu jokingly used to call Hema as Bhabhi and Diwan did not like it. She also deposed that she did not know that as to on what issue Diwan and Guddu had quarreled on the date of incident. This witness was cross- examined by Ld. Addl. PP for the State in which she admitted that in her statement to the police she stated that whenever Diwan FIR No. 187/2015, PS: Kashmere Gate, Page No. 8 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
used to see Guddu having fun with Hema on their relationship, he did not like it and used to say that he will see Guddu and she used to pacify them. She also admitted that she stated that when she entered the shop and she saw Diwan having slab like stone in his hand and Naresh standing with him on which Naresh said 'Aunty aa gayi bhago' and in the meantime Naresh picked up one utensil (Bhagona) and went from there. She also admitted that she stated to the police that Diwan had kept the stone at the side of other room adjacent to the shop and there was blood on the wearing shirt of Diwan which he started changing in the other room. She denied the suggestion that she had stated to the police that Naresh had told her on the phone that he and Diwan had finished Guddu and asked him to take him to the hospital. She denied the suggestion that she had been won over by accused Naresh due to which she had not stated that she was sure about the fact that Guddu was murdered by Diwan and Naresh. This witness has correctly identified both the accused persons during her deposition in the court. In her cross-examination, she deposed that she did not make a call to the police at 100 number. She also deposed that she did not call any neighbour to report about the incident nor she raised an alarm. She also deposed that Rajesh did not make any phone call to the police at 100 number in her presence. She also deposed that she was not aware as to what proceedings were conducted by the Police. She also deposed that she did not see Ravi around the place on the date of occurrence as he had gone to the factory after having a bath. She also deposed that she had pointed the stone which was in the hand of FIR No. 187/2015, PS: Kashmere Gate, Page No. 9 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Diwan to the police. She denied the suggestion that on 16.04.2015, she did not visit the shop or that she did not make any call to Rajesh or did not inform him about the incident. She also denied the suggestion that accused Naresh was not present at the shop.
10. PW-4 Dr. Akash Jhanjee, Specialist Forensic Medicines, has proved the detailed postmortem report of deceased Guddu as Ex. PW-4/A. He also opined about caused of death as 'crenio cerebral damage as a result of blunt force impact to the head which was sufficient to cause death in ordinary court of nature'. He also proved his detailed subsequent opinion regarding weapon of offence as Ex. PW-4/B. In his cross-examination, he denied the suggestion that such type of injury was possible by simple falling. He denied the suggestion that he did not conduct the postmortem or did not provide the subsequent opinion or that reports had been prepared at the instance of IO in a cyclo-style manner.
11. PW-5 Ms. Hema, deposed that she used to work in the shop of Rajesh Kumar situated at Shahnaz Building. She further deposed that she and Diwan used to have talks with each other during the work and Guddu used to make fun of the same. She also deposed that on 15.04.2015, she had left the shop at about 07:00 pm and Deepak, Naresh and Guddu were left there. She also deposed that on the next day i.e. 16.04.2015 at about 10:15 am when she came to the shop, she came to know that quarrel had taken place between Diwan and Guddu and Diwan had ran FIR No. 187/2015, PS: Kashmere Gate, Page No. 10 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
away after killing Guddu. This witness was cross-examined by Ld. Addl. PP for the State in which she admitted that in her statement to the IO, she stated that Ravi who worked in the factory of Rajesh Kumar situated at Anand Parbad was also used to sleep in the shop of Rajesh Kumar bearing no. 3141/20, Shahnaz Building, Mori Gate. She denied that she had stated to the police that from last 4-5 years, she was in relationship with Diwan and after 07:00 pm, after the shop was closed, they used to meet in the godown of the shop and with the passage of time the other employees came to know about this fact. She admitted that Guddu used to call him Bhabhi as Diwan was already married, he did not like the same and on this issue, many times, altercation had taken place between Diwan and Guddu. She also admitted that whenever there used to altercation between Diwan and Guddu, Naresh used to take the side of Diwan. In her cross- examination, she admitted that there used to common talks of fun between them. She also admitted that there was no ugly talks between their group and she was not in relationship with the deceased Diwan. She also admitted that there was no major quarrel in between deceased and accused persons and in her presence, no altercation between deceased and accused persons had taken place.
12. PW-6 ASI Satbir Singh, deposed that on 16.04.2015, at about 10:05 am, on receiving DD No. 15A, Ex. PW-1/X, regarding quarrel at 3141/20, Mori Gate, Delhi, he along with PW-14 Ct. Kishan Lal went to the spot of incident i.e. Shehnaz FIR No. 187/2015, PS: Kashmere Gate, Page No. 11 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Building, 3141/20, Mori Gate, Delhi where caller Sh. Rajesh Kumar met them. He further deposed that on entering in the building, in the first room, a dead body of male, aged about 22- 23 years, was lying on the ground in the pool of blood, having deep wound on the right cheek and a blood stained stone was lying near that dead body. He further deposed that two empty beer bottles and other stones were lying in the second room and a blood stained shirt was also lying in the rack. He further deposed that the name of deceased was revealed as Guddu who was working in the abovesaid Shehnaz building. He further deposed that PCR Van was also present at the spot which flashed message to Control Room thereafter Inspector Anil Kumar Panday reached at the spot of incident. He narrated about the proceedings conducted by Inspector Anil Kumar Pandey viz. inspection of spot of incident by Mobile Crime Team, preparation of site plan at instance of complainant, recording of statement of caller of 100 number/complainant Sh. Rajesh Kumar, preparation of rukka and registration of present FIR through Ct. Kishan Lal for registration of FIR at PS Kashmere Gate. He also narrated about seizure of exhibits i.e. one blood stained shirt of deceased, earth control, blood stained earth control, two empty beer bottles, blood stained mattress, two blankets, two empty plastic gunny bags, one blood stained empty jute bag, three blood stained stone pieces, two mobile phones from spot of incident by the IO. He also narrated about recording of statements of co-workers namely Ravi, Urmila and Hema of deceased and recording of supplementary statement of complainant Sh. Rajesh Kumar. This FIR No. 187/2015, PS: Kashmere Gate, Page No. 12 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
witness was not cross-examined on behalf of accused persons despite opportunity given to them.
13. PW-7 Sh. Amit, deposed that he used to drop his mother Smt. Urmila Devi at her work place i.e. Hisun Auto Industries, 3141, Mori Gate, Ram Bazar, Delhi. He further deposed that on 16.04.2015 at about 09:00-09:15 am, when he along with his mother reached at the work place of his mother, he saw that firstly, accused Naresh was walking at the fast pace and thereafter accused Diwan Singh also walked alway at fast pace. He further deposed that he went inside the shop of his mother and he felt some strong foul smell like liquor and he said to his mother about the smell and he took his mother outside the said shop as his mother was Asthmatic. He further deposed that while he was coming out from the said shop, he noticed that the blood was scattered on the wall and one person was lying under the blanket, in the adjoining room of the said shop. He further deposed that he along with his mother came on main road, where his scooter was parked. He also deposed that his mother made call to Naresh and his mother also called to the owner of the said shop Sh. Rajesh Kumar. This witness has correctly identified both the accused persons during his deposition in the court. In his cross-examination, he deposed that his statement was recorded in the police station and he did not remember if the police read over the statement to him, after recording it. He denied the suggestion that his mother did not make call to Naresh and Rajesh, on the day of incident. He denied the suggestion that he was deposing FIR No. 187/2015, PS: Kashmere Gate, Page No. 13 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
falsely or that he had not gone at the work place of his mother on the day of incident with her. He also denied the suggestion that he had not seen accused Naresh and Diwan Singh, on the day of incident.
14. PW-8 Sh. Ravi Kumar, deposed that he was working in the factory of Rajesh Kumar situated in the area of Anand Parbat for 10-12 years. He further deposed that his employer Rajesh was having a shop at Mori Gate in Ram Bazar Market where he used to sleep. He further deposed that accused persons Diwan and Naresh were also employees of Rajesh Kumar and there were other employees of Sh. Rajesh Kumar namely Guddu, Urmila Devi, Shashi and Hema. He further deposed that on 15.04.2016 he asked accused Diwan to take meal but accused Diwan told him to take food and he would have it later on. He further deposed that thereafter he slept and in the morning he asked Diwan to get up as it was time of arrival of Mrs. Urmila Devi. He further deposed that thereafter he left for Anand Parbat. He also deposed that at about 10:30 am, he received call of his employer Rajesh who told him that Guddu had been killed and thereafter he came to the shop of his employer where he saw dead body of Guddu lying inside the room, attached to the said shop. He also deposed that he did not know anything else. This witness was cross-examined by Ld. Addl. PP for the State in which he deposed that he did not remember the exact year of the incident and it may be 2015. He admitted that he came to know from the talks of Diwan, Guddu and Naresh that Hema and Diwan were FIR No. 187/2015, PS: Kashmere Gate, Page No. 14 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
having love affair. He also admitted that occasionally, Guddu was kidding with Diwan with respect to the love affair between him and Hema. He also deposed that he could not say, that on the issue of the kidding, hot altercation took place between Guddu and Diwan and that on those occasion, accused Naresh used to take side of Diwan. He also admitted that Guddu (since deceased) and accused Naresh were watching TV in another room, when he along with Diwan went to sleep. He admitted that on 15.04.2015, accused Naresh brought fish and rice from Mori Gate by saying that, he would organize a party and accused Diwan brought the beer for him and Guddu. He also admitted that while Diwan and Guddu were drinking beer, an altercation took place between both of them, on the issue of Hema and at that time, accused Naresh started speaking in favour of accused Diwan. He also admitted that when he left the place of residing, deceased Guddu and Naresh were sleeping. He denied the suggestion that he had seen a blood stained stone sil lying where he along with Diwan slept. He also denied the suggestion that he had not seen one cream colour shirt having blood stains in the room and that he told the police officials that the said shirt had worn by accused Diwan on 15.04.2015. This witness was confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-8/A. In his cross-examination, on behalf of accused persons, he deposed that he had been residing in the said shop, where incident took place for 8-10 years. He also deposed that during the period of incident, he was not having mobile phone. He also deposed that he had stated to the police in his statement FIR No. 187/2015, PS: Kashmere Gate, Page No. 15 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
that the telephonic call from the employer was received on the mobile phone of Shiv Kumar. He denied the suggestion that he was not residing at the shop situated at Mori Gate bearing no. 3141/20. He also denied the suggestion that accused Naresh did not use to sleep in the shop bearing no. 3141/20. He also deposed that he was detained in the PS for about 2-3 days and he was interrogated by the Police. He also denied the suggestion that he was let off by the police when they came to know that he was residing at Paharganj factory and not in the shop bearing no. 3141/20. This witness could not be further cross-examined on behalf of accused persons as he was not traceable.
15. PW-9 Sh. Sanjeet Kumar, was the uncle of deceased who identified the dead body of deceased Guddu vide his statement Ex. PW-9/A. He also proved dead body identification statement of Sh. Aas Narain as Ex. PW-9/B. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
16. PW-10 Sh. Aas Narain, was the brother of deceased who identified the dead body of deceased Guddu vide his statement Ex. PW-9/B. He also proved dead body identification statement of Sh. Sanjeet Kumar as Ex. PW-9/A. This witness was not cross- examined on behalf of accused persons despite opportunity given to them.
17. PW-11 Inspector Mahesh Kumar, was the Draftsman at Crime Branch, PHQ. He proved the scaled site plan Ex.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 16 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
PW-11/A. In his cross-examination, he denied the suggestion that one cannot see the door of room 'A' while standing at the iron gate at point 'B'. He admitted that in scaled site plan Ex. PW-11/A, he had not shown the place i.e. the other room, in which both Diwan and Ravi had slept. He also admitted that there was difference of more than two months in preparation of the scaled site plan from the date of incident. He denied the suggestion that he had prepared the scaled site plan without visiting the place of occurrence.
18. PW-12 SI Nagender Giri, was the In-charge Mobile Crime Team. He deposed about the proceedings conducted by him alongwith his staff ASI Jai Singh, finger print proficient and Ct. Sudesh, photographer. He proved his detailed report Ex. PW-12/A. In his cross-examination, he admitted that in the column of type of weapon/to used in crime of his report, Ex. PW-12/A, was shown as nil. He also admitted that he had not mentioned the name and address of the complainant in his report, Ex. PW-12/A. He denied the suggestion that he had prepared a false report, Ex. PW-12/A at instance of local police.
19. PW-13 Ct. Sudesh Kumar, was the Photographer at Mobile Crime Team. He proved the photographs (33 nos.), Ex. PW-13/1 to Ex. PW-13/33 of the spot of incident from different angles. He also proved negatives of aforesaid photographs as Ex. P-1 (colly). This witness was not cross-examined on behalf of accused persons despite opportunity given to them.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 17 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
20. PW-14 Ct. Kishan Lal, deposed that on 16.04.2015, at about 10:05 am, on receiving DD No. 15A, Ex. PW-1/X, regarding quarrel at 3141/20, Mori Gate, Delhi, he along with ASI Satbir Singh went to the spot of incident i.e. Shehnaz Building, 3141/20, Mori Gate, Delhi where complainant Sh. Rajesh Kumar met them. He further deposed that on entering into the shop, a dead body of male, aged about 22-23 years, was lying on the ground. He further deposed that the name of deceased was told as Guddu by complainant Sh. Rajesh Kumar and there were deep injury marks on the right cheek of the dead body and tongue was found out of the mouth and blood was scattered in the surrounding area of dead body. He further deposed that PCR Van was also present at the spot which flashed message to Control Room and thereafter Inspector Anil Kumar Panday reached at the spot of incident. He narrated about the proceedings conducted by Inspector Anil Kumar Pandey viz. inspection of spot of incident by Mobile Crime Team, preparation of site plan at instance of complainant, recording of statement of caller of 100 number/complainant Sh. Rajesh Kumar and preparation of rukka. He further deposed that Inspector Anil Kumar handed over rukka to him for registration of FIR. He also deposed that after registration of FIR, he handed over copy of FIR and rukka to IO. He also deposed that on direction of IO, he shifted the dead body to Mortuary, Subzi Mandi. In his cross-examination, he deposed that he reached at the spot at about 10:15 am and he had not signed any document pertaining to present case. He denied the suggestion that he had not visited to the spot and due FIR No. 187/2015, PS: Kashmere Gate, Page No. 18 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
to this reason there was no signature of him on any document.
21. PW-15 ASI Raj Kumar Chauhan, deposed that on 16.04.2015 he joined the investigation in the present case. He narrated on the lines of PW-6 ASI Satbir regarding proceedings conducted by the IO at the spot of incident and seizure of exhibits from the spot. He further deposed that on 17.04.2015 he again joined the investigation in the present case along with IO, Ct. Mehtab and complainant Sh. Rajesh and narrated about apprehension of accused Naresh from Mori Gate Gol Chakkar, near Tanga Stand, Madrasi Colony, on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-2/H to Ex. PW-2/K. In his cross-examination, he denied the suggestion that Urmila, Hema and Ravi were not present at the spot and hence their signatures were not obtained. He deposed that IO had called the neighbours to become witness at the time of seizure of articles but he did not remember the name and addresses of those persons. He also deposed that Inspector Anil Kumar Pandey himself prepared the recovery memos. He denied the suggestion that the fact of filling of FSL form was not mentioned in the seizure memos since no such FSL form was prepared at the time of seizure of articles from the spot. He denied the suggestion that he did not join the investigation at any point of time. He also deposed that accused Naresh was apprehended at about 07:30 pm on 17.04.2015 and his disclosure statement was also recorded after his arrest on the spot. He admitted that at the time of arrest of accused Naresh, no FIR No. 187/2015, PS: Kashmere Gate, Page No. 19 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
public person was asked to join the investigation.
22. PW-16 SI Raghunath Prasad, was the MHC(M). He proved the entries in register no. 19 & 21 made by him exhibited as Ex. PW-16/A & Ex. PW-16/C. He also proved acknowledgment of FSL, Ex. PW-16/B. In his cross-examination, he admitted that all the entries with respect to depositing the case property did not bear the signature of person who had deposited the case property in Malkhana. He also admitted that same was his reply to the question of sending the parcels of exhibits/case properties to FSL, the name of person who had taken the parcels to FSL had not signed register no. 19 at the time of taking the parcels to FSL. He also deposed that he could not explain the delay of seven months of sending the stone for subsequent opinion in the mortuary. He denied the suggestion that the entries in the register no. 19 were ante-dated and ante-time. He also denied the suggestion that he manipulated the entries in register no. 19, on the instruction of IO.
23. PW-17 Dr. Amar Pal Singh, Assistant Director (Chemistry) has proved his detailed chemical examination report as Ex. PW-17/A. He also deposed that 'on chemical Microscopic, TLC & GC-HS examination (i) exhibits '1A', '1B' and '1C' were found to contain Ethyl Alcohol. (ii) Ex. '1C' was found containing Ethyl Alcohol 0.6 mg/100 ml of blood. (iii) Metallic poison, ethyl alcohol, cyanide phosphide alkaloids, barbiturates tranquilizers and pesticides could not be detected in Ex. '2A' & '2B'. In his cross-examination, he admitted that he had not made FIR No. 187/2015, PS: Kashmere Gate, Page No. 20 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
the grouping the blood sample and he did not know the group of blood sample. He also admitted that he had not ascertained whether the blood sample was of human or an animal. Volunteered he deposed that as per postmortem report no. 716/15, the blood sample was of deceased Guddu. He also deposed that he had not noted down the date of manufacturing of Ex. 2A and 2B and their expiry in his report.
24. PW-18 ACP Anil Kumar Pandey was the Investigation Officer in the present case. He deposed that on 16.04.2015, he received information through Wireless regarding DD No. 15A, Ex. PW-1/X with respect to quarrel at 3141/20, Mori Gate and he proceeded to spot where ASI Satbir and Ct. Kishan Lal were already present. He further deposed that a dead body of male, aged about 22-23 years, was lying at the spot, whose name was revealed as Guddu. He further deposed that he got inspected the spot of incident through Mobile Crime Team and recorded the statement of caller of 100 number/complainant PW-2 Sh. Rajesh Kumar, Ex. PW-2/A, prepared rukka, Ex. PW-18/A and handed over the same to PW-14 Ct. Kishan Lal for registration of FIR at PS Kashmere Gate. He narrated about proceedings conducted by him at the spot of incident viz. preparation of site plan, Ex. PW-18/B at instance of complainant and seizure of exhibits i.e. one blood stained shirt of deceased, earth control, blood stained earth control, two empty beer bottles, blood stained mattress, two blankets, two empty plastic gunny bags, one blood stained empty jute bag, three blood stained stone pieces, two mobile phones FIR No. 187/2015, PS: Kashmere Gate, Page No. 21 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
from spot of incidents and proved their seizure memos as Ex. PW-2/B to Ex. PW-2/G. He also narrated about recording of statements of co-workers namely Ravi, Ex. PW-8/A, statement of Urmila, Ex. PW-3/A, statement of Hema, Ex. PW-5/A, recording of supplementary statement of complainant Sh. Rajesh Kumar, Ex. PW-18/C. He also narrated about apprehension of accused Naresh from Mori Gate Gol Chakkar, near Tanga Stand, Madrasi Colony, on the basis of secret information on 17.04.2015 and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-2/H to Ex. PW-2/K. He also narrated about identification of dead body by Sh. Sanjeet Kumar and Sh. Aas Narain and proved their statements in this regard as Ex. PW-9/A & Ex. PW-9/B. He also narrated about preparation of scaled site plan, obtaining of FSL result, Ex. PW-18/E and obtaining of subsequent opinion regarding weapon of offence. In his cross- examination, he denied the suggestion that he did not record statement of Urmila correctly. He also admitted that nothing was recovered at the instance of Naresh. He also deposed that he had not called any person from the said building to join the investigation in the present case. He admitted that he had not shown one silli which was shown to have been recovered from the place of deceased and he had shown the two stones which were lying in the nearby room, in the site plan. He also deposed that he had not recorded the statement of any other person available at the spot with respect to the shirt that belonged to accused Diwan. He denied the suggestion that he had not visited the place of occurrence or that he had not lifted the stones and FIR No. 187/2015, PS: Kashmere Gate, Page No. 22 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
shirt from spot. He also denied the suggestion that the same were planted by him upon the accused persons with connivance of the witnesses.
25. PW-19 Dr. Suminder Kaur, Senior Forensic/Chemical Examiner has proved her detailed serological and biological examination report as Ex. PW-18/E. In her cross-examination, she admitted that no DNA matching was done in the present case. She also admitted that discriminatory power (21% persons out of 100 were having blood group 'A') of serology is lower than the DNA report and it was un-certainable to differ amongst those 21% persons who were having blood group 'A' from the other persons in the same group. She also admitted that liquid blood sample should be kept in cold storage in minus temperature otherwise it would be destroyed. She denied the suggestion that her report Ex. PW-18/E was false and fabricated.
26. PW-20 Sh. Maninder Singh, Alternate Nodal Officer, Vodafone has proved CDRs, Cell ID charts and certificates under Sec. 65B of Indian Evidence Act of mobile phone numbers 8447961576, 9582745084 & 9654324369 as Ex. PW-20/A to Ex. PW-20/E. He also proved order of Ministry of Communication & Information Technology, Department of Telecom regarding destruction of CAF of above-said mobile phone numbers and details of subscribers of abovesaid mobile phone numbers as Ex. PW-20/A & Ex. PW-20/F to Ex. PW-20/H. In his cross- examination, he deposed that he could not tell that if the copy of CAF of abovesaid mobile phone numbers was provided to IO in FIR No. 187/2015, PS: Kashmere Gate, Page No. 23 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
response to the notice under Sec. 91 Cr.PC. He also deposed that he had not brought any other record which might shown the subscriber's of mobile no. 8447961576 was Urmila. He denied the suggestion that mobile phone numbers 9654324369 & 9582745084 were not in the name of Punit and Bharat respectively. He admitted that he also did not know as to what document of identification had been given by the subscriber at the time of activation of those SIMs.
27. PW-21 Sh. Rajiv Vashisht, Nodal Officer, Bharti Airtel Ltd has proved the CDR from the period of 15.04.2015 to 16.04.2015, certificate under Sec. 65B of the Indian Evidence Act regarding the aforesaid CDR, CAF and certificate under Sec. 65B of the Indian Evidence Act regarding CAF of mobile phone no. 9810243277 issued in the name of Sh. Rajesh Kumar as Ex. PW-21/A to Ex. PW-21/D. In his cross-examination, he admitted the original CAF was not available on record. He denied the suggestion that the subscriber of abovesaid mobile number was not Rajesh and the document Ex. PW-21/C was the forged and fabricated document.
28. PW-22 HC Naveen Kumar, deposed that on 19.04.2015 he joined the investigation in the present case and on direction of IO, he collected three sealed parcels from Mortuary, after postmortem on the dead body of deceased Guddu and handed over the same to IO, which was seized by IO vide seizure memo Ex. PW-22/A. In his cross-examination, he denied the suggestion that he did not visit the hospital and collected the samples. He FIR No. 187/2015, PS: Kashmere Gate, Page No. 24 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
also denied the suggestion that samples were tempered in his presence.
29. PW-23 HC Dharmendra Kumar, deposed that on 06.05.2015, on direction of IO, he obtained eight sealed parcels along with sample seal from MHC(M) vide RC No. 36/21/15 & 37/21/15, Ex. PW-16/C and deposited the same at FSL. He also deposed that he handed over its acknowledgment, Ex. PW-7/B issued by FSL regarding deposit of exhibits to the MHC(M). In his cross-examination, he deposed that he did not remember how he carried the parcel from Malkhana to FSL. He denied the suggestion that the parcels were tempered as long as the same remained in his possession.
30. PW-24 HC Sandeep, deposed that on 16.04.2015, he delivered the copy of FIR to Ld. MM, Joint CP, DCP, Addl. DCP & ACP. In his cross-examination, he denied the suggestion that he did not take the FIR before the higher authorities as well as concerned MM.
31. PW-25 Inspector Bharat Ratan, deposed that on 19.04.2015, on the direction of IO, he went to Mortuary, Subzi Mandi and got conducted postmortem on the dead body of deceased vide application Ex. PW-25/A. He further deposed that on 08.05.2015 he again joined investigation in the present case along with IO and he narrated about apprehension of accused Diwan Singh on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement as FIR No. 187/2015, PS: Kashmere Gate, Page No. 25 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Ex. PW-2/L to Ex. PW-2/N. In his cross-examination, he deposed that some of the public persons were requested to join the investigation at the time of arrest of accused Diwan but none agreed. He also deposed that no notice was served to them by the IO in his presence. He also deposed that public persons were also present in the park and they were also requested to join the proceedings but they too refused to join the same. He denied the suggestion that accused Diwan Singh was not arrested in the manner as deposed by him in his examination. He also denied the suggestion that he did not join the investigation in the present case at any point of time.
32. PW-26 HC Rakesh Kumar, deposed that on 04.11.2015, on direction of IO, he obtained one sealed parcel vide RC No. 90/21/15 along with application and went Mortuary, Subzi Mandi for obtaining subsequent opinion. He also deposed that on the next day, he obtained subsequent opinion with respect to weapon of offence and deposited the same with MHC(M). In his cross- examination, he denied the suggestion that the parcels were tempered by him.
33. PW-27 HC Vikas, deposed that on 16.04.2015, he was patrolling in the area and duty officer informed him regarding murder of a person at shop no. 3141/20, Shehnaz Building and he reached there where ASI Satbir along with staff was already present. He further deposed that they entered the shop and found one male dead body was lying in pool of blood and many public persons had gathered outside the shop and one of them namely FIR No. 187/2015, PS: Kashmere Gate, Page No. 26 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Rajesh Kumar revealed the name of deceased as Guddu. He also deposed that dead body was removed to mortuary, Subzi Mandi. In his cross-examination, he deposed that he was directed by Inspector to control the crowd gathered inside the shop, hence he did not know if Inspector recorded statement of any public person there or not. He denied the suggestion that he was not on the patrolling duty on that day or that he was not informed by Duty Officer or that he did not go to spot or that no dead body of male was found there.
34. PW-28 ACP Jagminder Singh, deposed that on 08.05.2015 further investigation of the present case was entrusted to him. He narrated about proceedings conducted by him and deposed about apprehension of accused Diwan Singh on the basis of secret information and proved his arrest memo, personal search memo and disclosure statement as Ex. PW-2/L to Ex. PW-2/N. In his cross-examination, he deposed that he received secret information in the police station at around 05:30 pm. He also deposed that they had not asked any public person to join the investigation during the way to Agarsen Park. He also deposed that number of public persons were roaming in the park but none was asked to join the proceedings. He denied the suggestion that accused Diwan Singh was not arrested in the manner deposed by him.
35. After closing of prosecution evidence, separate statements of both the accused persons were recorded under Sec. 313 Cr.PC, wherein they denied all the charges against them. Accused FIR No. 187/2015, PS: Kashmere Gate, Page No. 27 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
persons stated that they had been falsely implicated in the present case and they had not committed any offence. They also stated that all the witnesses were interested witnesses.
36. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Rashid Hashmi, Ld. Counsel for accused Naresh @ Kalu and Sh. Sunil Tiwari, Ld. Counsel for accused Diwan Singh @ Darban Singh.
37. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-3 Smt. Urmila has specifically deposed that she had seen accused persons at the spot of incident and on her reaching at the spot of incident, accused Naresh @ Kalu told accused Diwan 'Aunty aa gayi, aunty aa gayi' and thereafter, they ran away from the spot. He further argued that the conduct of accused persons is relevant in the present case. He also argued that accused Diwan was having affair with co-worker Ms. Hema and deceased Guddu used to pass comments on their relationship and hence accused Diwan had the motive to commit the offence. He also argued that accused Naresh always favoured accused Diwan and both had shared common intention in the commission of offence. He also argued that accused persons have not taken any defence nor they have explained the circumstances in which death of deceased Guddu took place who was lastly seen alive in their company by PW-8 Sh. Ravi. He further argued FIR No. 187/2015, PS: Kashmere Gate, Page No. 28 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
that the IO as well as the other police officials have duly proved the proceedings conducted by them. He also argued that the chain of circumstances against the accused persons has been duly proved by the prosecution. He also argued that since the prosecution has proved its case against both the accused persons beyond reasonable doubt, both the accused persons should be convicted for the offence punishable under Sec. 302/34 IPC.
38. Per Contra Ld. Defence Counsels argued that the prosecution has miserably failed to prove its case against accused persons beyond reasonable doubt. To substantiate their points, they argued that the investigation in the present case has been conducted in an arbitrary manner. They further argued that both the accused persons have been falsely implicated in the present case. They further argued that the testimony of PW-2/complainant Sh. Rajesh is hearsay in nature and is not admissible. They also argued that PW-3 Smt. Urmila who allegedly had seen the accused persons at the spot of incident was present at the spot of incident but the FIR was register on the complainant of PW-2 Sh. Rajesh and it has not been explained as to why the FIR was not registered on the statement of PW-3 Smt. Urmila. They also argued that PW-3 Smt. Urmila has turned hostile with respect to the confession made by accused Naresh @ Kalu on phone. They also argued that PW-3 Smt. Urmila has denied the presence of Ravi at the spot of incident on the date of incident. They also argued that PW-5 Smt. Hema has denied her affair with accused Diwan Singh and hence motive has not been FIR No. 187/2015, PS: Kashmere Gate, Page No. 29 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
duly proved by the prosecution. They also argued that the deceased and accused persons were co-workers and there was no previous enmity between them. They also argued that accused persons were not present at the spot of incident on the date of incident. They also argued that the recovered blood stained shirt does not belong to accused Diwan Singh @ Darban Singh. They also argued that the testimonies of prosecution witnesses are suffering from material contradictions and hence cannot be relied upon. They also argued that the present case is based on circumstantial evidence and the prosecution has been failed to prove the chain of circumstances. They also argued that since the prosecution has failed to prove its case against the accused persons beyond the reasonable doubt, both the accused persons should be acquitted under Sec. 302/34 IPC.
39. In the present case, charge under Sec. 302/34 IPC has been framed against both the accused persons. These Sections have been defined as follows:-
Section 302 IPC provides punishment for the commission of offence of murder which has been defined U/s 300 IPC.
300 Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or FIR No. 187/2015, PS: Kashmere Gate, Page No. 30 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 When culpable homicide is not murder. Culpable homicide is not murder if the offendor, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person my mistake or accident.
The above exception is subject to the following provisos:-
First-That the provocation is not sought or voluntarily provoked by the offendor as an excuse for killing or doing harm to any person.
Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of the public servant.
Thirdly-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanations: Whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact.
Exception 2: Culpable homicide is not murder if the offendor, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of FIR No. 187/2015, PS: Kashmere Gate, Page No. 31 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
defence without premeditation, and without any intention of doing more harm then is necessary for the purpose of such defence.
Exception 3: Culpable homicide is not murder if the offendor, being a public servant or adding a public servant acting for the advancement of public justice, exceeds the power given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4: Culpable homicide is not murder if it is committed without pre meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offendor's having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5: Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his own consent.
34. Acts done by several persons in furtherance of common intention When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
40. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the FIR No. 187/2015, PS: Kashmere Gate, Page No. 32 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Ld. Addl. PP for the State as well as Ld. Counsels for accused persons.
41. The present case is based on circumstantial evidence. It is established principle of law that a witness may lie but not the circumstances. In the present case, there is no eye witness of the alleged incident of commission of murder of deceased Guddu.
42. The guilt of the accused can also be proved through the circumstantial evidence. The circumstantial evidence has to be appreciated as per the established principles of law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India. The standard of proof required for conviction in case of circumstantial evidence is that the circumstances relied upon in support of conviction must be fully established and the chain of evidence proved by the prosecution must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
43. Hon'ble Supreme Court of India in Judgment titled as 'Sharad Bridhichand Sarda Vs. State of Maharashtra cited as (1984) 4 SCC 116' has laid down the five golden priciples for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on circumstantial evidence. The said five golden principles are as follows:-
(i) The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 33 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
(2) The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty. (3) The circumstances should be of conclusive nature and tendency.
(4) They should exclude every possible hypotheses except the one to be proved.
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all probability the act must have been done by the accused.
Thus, before recording the conviction of accused the abovesaid five conditions must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden principles and to secure conviction of accused, the prosecution must fulfill the following requirements:-
(i) The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 34 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses except with the hypotheses pointing out towards the guilt of the accused.
44. Prosecution has relied upon the following circumstances which have been brought on record through the evidence:-
(i) Deceased Guddu was lastly seen alive in the company of accused persons.
(ii) Only accused persons were present with the dead body of deceased in the premises from where dead body of deceased Guddu was recovered.
(iii) Conduct of accused persons.
(iv) Motive for commission of offence.
45. The evidence led by prosecution through the abovesaid circumstances relied upon by the prosecution has been analyzed as follows:-
FIR No. 187/2015, PS: Kashmere Gate, Page No. 35 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
(i) Deceased Guddu was lastly seen alive in the company of accused persons.
(i)(a). The case of the prosecution is based on last seen theory.
The last seen together theory shifts the burden of proof on the accused requiring him to explain how the incident had occurred. If the accused is not in a position to explain as and when he parted with the deceased before his death an inference may be drawn against him. Failure on the part of accused to furnish any explanation in this regard, will give rise a strong presumption of commission of offence by him. The last seen together by itself is not a conclusive proof but that has to be supported by the connecting circumstances like relationship between the accused and deceased, enmity between them, recovery of any incriminating material from accused, previous history of any kind of hostility etc. The time gap between the last seen alive and the death of the deceased must be so small that the possibility of any person other than the accused being the author of crime become impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is long time gap and there is possibility of other persons meeting the deceased during the said long time gap.
(i)(b). Hon'ble Supreme Court of India in Judgment titled as 'Prithipal Singh & Ors. Vs. State of Punjab and Anrs. cited as (2012) 1 SCC 10' while confirming the conviction of appellant observed as under:-
"53. In 'State of West Bengal Vs. Mir Mohammad FIR No. 187/2015, PS: Kashmere Gate, Page No. 36 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Omar' this court held that if fact is especially in the knowledge of any person, then burden of proving the said fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of accused"
"79. Both the Courts below have found that the appellant accused had abducted Sh. Jaswant Singh Khalra. In such a situation, only the accused person could explain as to what happened to Sh. Khalra and if he had died, in FIR No. 187/2015, PS: Kashmere Gate, Page No. 37 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the appellants accused failed to explain any inculpating circumstance even in their statements u/s 313 Cr.P.C. Such a conduct also provides for an additional link in the chain of circumstances. The fact as to what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of accused persons, therefore they could have given some explanation. In such a fact situation, the Courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder".
Similarly, Hon'ble Supreme Court of India in Judgment titled as 'Ravirala Laxmaiah Vs. State of Andhra Pradesh cited as (2013) 9 SCC 283' has held that:-
"where the accused has been seen with the deceased victim, it become the duty of the accused to explain the circumstances under which the death of victim had occurred".
(i)(c). PW-2 complainant Sh. Rajesh Kumar deposed that deceased Guddu and accused persons namely Naresh @ Kalu and Diwan @ Darban Singh were working at his shop situated at 3141/20, Shahnaz Building, Mori Gate, Delhi where the alleged FIR No. 187/2015, PS: Kashmere Gate, Page No. 38 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
incident took place. He also deposed that his other employee namely Ravi who was working at his another factory situated at Anand Parbat, Delhi, deceased Guddu and accused Diwan used to sleep in the abovesaid shop while accused Naresh @ Kalu occasionally used to sleep there. PW-3 Smt. Urmila who was also working at the abovesaid shop deposed that all male members i.e. Ravi, Naresh, Diwan and Guddu used to live in the abovesaid shop and they used to sleep there. Similarly, PW-5 Ms. Hema has also deposed that Naresh, Guddu and Diwan used to sleep in the abovesaid shop. In her cross-examination, PW-5 Ms. Hema has specifically deposed that Ravi who was working in the factory of PW-2/complainant Sh. Rajesh situated at Anand Parbat also used to sleep in the abovesaid shop. PW-8 Sh. Ravi Kumar has also deposed that he along with Guddu, Naresh and Diwan used to sleep in the abovesaid shop. Accused persons in the cross- examination of prosecution witnesses have failed to create any doubt with respect to the testimonies of abovesaid witnesses with respect to the fact of residing/sleeping of deceased Guddu, PW-8 Sh. Ravi Kumar and accused persons namely Naresh @ Kalu and Diwan @ Darban Singh in the shop of complainant i.e. spot of incident. Thus, the prosecution has established the fact that deceased Guddu, PW-8 Sh. Ravi Kumar and accused persons were working at the factory of PW-2/complainant Sh. Rajesh situated at 3141/20, Shahnaz Building, Mori Gate, Delhi and they used to sleep there at night time.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 39 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
(i)(d). PW-8 Sh. Ravi Kumar deposed that on 15.04.2016 (admitted the year of incident to be 2015 in his cross- examination by the Ld. Addl. PP for the State), he cooked for himself and accused Diwan and while he was cooking food, accused Diwan was doing his job. He also deposed that at about 11:00 pm, he asked accused Diwan to take meal but accused Diwan asked him to take food and he would have it later on and thereafter he slept. He further deposed in the morning hour at about 08:15 am, when he woke up and after morning chores, he asked accused Diwan to get up as it was time of arrival of Mrs. Urmila Devi. He also deposed that he used to leave for his work to Anand Parbat factory at about 08:25/08:30 am. In his cross- examination, by Ld. Addl. PP for the State, PW-8 Sh. Ravi Kumar admitted that he along with Diwan slept in one room of the shop while deceased Guddu and accused Naresh who were watching TV in another room at that time. He also deposed that when he left the place of incident for his work, deceased Guddu and accused Naresh were sleeping. In his cross-examination, PW-8 Sh. Ravi Kumar specifically denied the suggestion that accused Naresh did not use to sleep in the shop bearing no. 3141/20 where the alleged incident took place. Accused persons have failed to put any dent on the testimony of PW-8 Sh. Ravi Kumar with respect to the fact that they were present at the spot of incident i.e. Shop No. 3141/20, Shahnaz Building, Mori Gate, Delhi along with deceased Guddu on 16.04.2015 at about 08:15 am and thereafter deceased was not seen alive. PW-3 Smt. Urmila reached the abovesaid shop on 16.04.2015 at around FIR No. 187/2015, PS: Kashmere Gate, Page No. 40 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
09:00/09:15 am and at that time deceased Guddu was found dead.
(i)(e). Thus, as per version of PW-8 Sh. Ravi Kumar, deceased Guddu was alive till about 08:15 am and he was in company of accused persons namely Naresh @ Kalu and Diwan Singh @ Darban Singh at the abovesaid shop/premises and as per version of PW-3 Smt. Urmila, deceased Guddu was found dead at about 09:00/09:15 am. The time gap between last seen alive and the death of deceased Guddu is very small. Accused persons have not taken any defence that any other person visited the abovesaid shop and committed the offence. They have also not explained as to how the death of deceased Guddu took place. Accused persons have also failed to create any doubt with respect to their presence at the spot of incident at time of commission of offence. Thus, the accused persons have failed to discharge the burden under Sec. 106 of The Indian Evidence Act, 1872 with respect to the facts within their special knowledge and in these circumstances, it is impossible that any other person could have been the author of crime. Applying the law laid down by Hon'ble Supreme Court of India in 'Prithipal Singh & Ors. (supra)' & 'Ravirala Laxmaiah (supra)', this court is of considered opinion that the accused persons have committed the murder of deceased Guddu.
(ii) Only accused persons were present with the dead body of deceased in the premises from where dead body of deceased Guddu was recovered.
PW-3 Smt. Urmila deposed that on 16.04.2015 at about 09:00/09:15 am, when she reached at the shop (spot of incident), FIR No. 187/2015, PS: Kashmere Gate, Page No. 41 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
accused Naresh was standing at the door and he called up Diwan and uttered 'Diwan, aunty aa gayi, aunty aa gayi' and thereafter he ran away from the shop after opening the gate. She further deposed that when she entered the shop, she saw that accused Diwan was in process of keeping the stone in a side and after keeping the stone there, accused Diwan buttoned t-shirt and he too ran away from the spot. She also deposed that her son was accompanying her at that time. She further deposed that thereafter she saw that someone (deceased Guddu) was lying on the floor and a blanket was spread on him and blood was flowing from inside the blanket. The possession of stone by accused Diwan Singh @ Darban Singh and flowing of blood at the spot of incident shows that the incident had just taken place. PW-7 Sh. Amit (son of PW-3 Smt. Urmila) deposed that on 16.04.2015, he along with his mother reached at her workplace and when he was parking his scooter on the main road, his mother started going towards her workplace and he was behind his mother carrying a bag and at that time he saw that accused Naresh walking at fast pace and thereafter accused Diwan also walked at fast pace. He also deposed that thereafter they went inside the shop and noticed that blood was scattered on the wall and one person was lying under the blanket in adjoining room. Both the abovesaid witnesses have correctly identified the accused persons in the court. Thus, from the testimonies of PW-3 Smt. Urmila and PW-7 Sh. Amit, it has come on record that on 16.04.2015 at about 09:00/09:15 am, when they entered the shop, they saw accused persons present there and dead body of deceased Guddu was FIR No. 187/2015, PS: Kashmere Gate, Page No. 42 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
lying on the floor in pool of blood. No other person was found present inside the shop. Deceased Guddu was co-worker of accused persons but they did not take him to the hospital nor they told anything to PW-3 Smt. Urmila about the incident. In these circumstances, burden lies upon the accused persons under Sec. 106 of The Indian Evidence Act, 1872 to explain as to what had happened to deceased Guddu and since they have failed to explain the same in the cross-examination of prosecution witnesses and through any defence evidence, inference may be drawn that they had committed the murder of deceased Guddu.
(iii) Conduct of accused persons.
(iii)(a) The subsequent conduct of accused persons is relevant in the present case. Prosecution may corroborate its case from the conduct of accused also. The previous and subsequent conduct of accused is relevant under Sec. 8 of Indian Evidence Act. A fact can be proved by the conduct of accused and surrounding circumstances. The conduct of accused in absconding after the commission of offence, in destroying the evidence, behaving in an unnatural way etc are relevant under Sec. 8 of Indian Evidence Act. Hon'ble Supreme Court of India in judgment titled as Prithipal Singh & Ors. Vs. State of Punjab and Anrs. Cited as (2012) 1 SCC 10 while confirming the conviction of appellant observed as under:-
"78. Most of the appellants had taken alibi for screening themselves from the offences. However, none FIR No. 187/2015, PS: Kashmere Gate, Page No. 43 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
of them could establish the same. The Courts below have considered this issue elaborately as in order to avoid repetition, we do not want to re-examine the same. However, we would like to clarify that the conduct of accused subsequent to the commission of crime in such a case, may be very relevant. If there is sufficient evidence to screen/absolve himself from the offence, such circumstance may point towards his guilt. Such a view stands fortified by the judgment of this Court in Anant Chintaman Lagu Vs. State of Bombay."
(iii)(b). PW-3 Smt. Urmila has specifically deposed that on 16.04.2015 at about 09:00/09:15 am, when she reached at the shop (spot of incident), she saw that accused Naresh was standing at the door and called up Diwan and uttered 'Diwan, aunty aa gayi, aunty aa gayi'. Accused persons namely Naresh @ Kalu and Diwan Singh @ Darban Singh were co-workers of PW-3 Smt. Urmila and the act of altering accused Diwan by accused Naresh @ Kalu by saying 'aunty aa gayi, aunty aa gayi' shows that they wanted to conceal something from her or that they wanted not to be seen at the spot of incident with the dead body of deceased Guddu. PW-3 Smt. Urmila further deposed that Naresh ran away from the spot after opening the door and when she entered the shop, she saw that accused Diwan was in process of keeping the stone on a side. As per the case of prosecution, the deceased was killed by using stone. PW-3 Smt. Urmila further deposed that after keeping the stone there, accused Diwan FIR No. 187/2015, PS: Kashmere Gate, Page No. 44 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
buttoned t-shirt and he too ran away from the spot. Accused Diwan did not explain anything to PW-3 Smt. Urmila while running away from the spot of incident. PW-7 Sh. Amit has also corroborated the version of PW-3 Smt. Urmila by deposing that the accused persons walked from there with fast paces. PW-2/complainant Sh. Rajesh Kumar has specifically deposed that accused persons were his employees and they used to work at his shop i.e. the spot of incident. He further deposed that on receving information, when he reached at the spot of incident, he found that accused Naresh and Diwan were missing. PW-1 W/SI Saroj Devi has proved FIR, Ex. PW-1/A in which the factum of absconding of accused persons namely Naresh @ Kalu and Diwan Singh @ Darban Singh has been specifically mentioned. PW-18 IO/ACP Anil Kumar Pandey deposed that he along with Police Team went in search of accused persons. He further deposed that on 17.04.2015, accused Naresh @ Kalu was arrested on identification of complainant Sh. Rajesh Kumar vide arrest memo Ex. PW-2/H. PW-28 Inspector Jagminder Singh deposed that on 08.05.2015 on basis of secret information, he went to Agrasen Park, Mori Gate and arrested accused Diwan Singh vide arrest memo Ex. PW-2/L. Thus, through the testimonies of PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-7 Sh. Amit, PW-18 IO/ACP Anil Kumar Pandey and PW-28 Inspector Jagminder Singh, prosecution has proved the fact that after the incident, both the accused persons absconded from the spot of incident and they were concealing themselves and were arrested later on. Accused persons have not explained FIR No. 187/2015, PS: Kashmere Gate, Page No. 45 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
their conduct as to why they had absconded from the spot of incident leaving the deceased in pool of blood who had sustained 19 external injuries. Applying the law laid down by Hon'ble Supreme Court of India in judgment tilted as 'Prithipal Singh & Ors. (supra)', this court is of considered opinion that subsequent conduct of accused persons by absconding from the spot of incident and concealing themselves is a relevant fact under Sec. 8 of The Indian Evidence Act, 1872 and it indicates towards their guilt.
(iv) Motive for commission of offence.
(iv)(a). Ld. Defence counsels for accused persons have argued that prosecution has failed to prove the motive of commission of offence and the benefit of same should be given to accused persons. Per contra, Ld. Addl. PP for the State has argued that PW-3 Smt. Urmila, PW-5 Ms. Hema and PW-8 Sh. Ravi Kumar have explained the motive of commission of offence and hence motive for commission of offence has been duly proved by the prosecution.
(iv)(b). Motive is relevant under Sec. 8 of Indian Evidence Act. Motive is the force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The mere existence of motive is by itself is not an incriminating circumstance. Motive cannot be a substitute of proof, however, it is an FIR No. 187/2015, PS: Kashmere Gate, Page No. 46 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
corroborating factor in proving the case of the prosecution. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
(iv)(c). Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under:-
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon FIR No. 187/2015, PS: Kashmere Gate, Page No. 47 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
(iv)(d). Hon'ble Supreme Court of India in Judgment tilted as Raghubir Singh Vs. State of Punjab cited as (1996) 9 SCC 233 observed as under:-
"7.... The motives may be minor but nonetheless they did provide occasion for attack on the deceased by the appellants. That apart, even in absence of motive, the guilt of culprit can be established in a given case if the other evidence on record is trustworthy in the absence of proof of motive has never been considered as fatal to the FIR No. 187/2015, PS: Kashmere Gate, Page No. 48 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
prosecution case where the ocular evidence is found reliable".
(iv)(e). As per the case of the prosecution, accused Diwan Singh @ Darban Singh and PW-5 Ms. Hema were having love affair and deceased Guddu jokingly used to call Hema as bhabi and accused Diwan Singh did not like the same. PW-3 Smt. Urmila has specifically deposed that there was love affair between Hema and accused Diwan and they used to sit together and talked each other in the shop and godown and all the workers in the shop knew about their love affair. She also deposed that Guddu jokingly used to call Hema as bhabhi and accused Diwan Singh did not like it. She also deposed that whenever accused Diwan Singh used to see Guddu having fun with Hema on their relationship, he did not like it and used to say that he will see Guddu and she used to pacify them. Though, PW-5 Ms. Hema had denied her love affair with accused Diwan Singh but she has admitted that Guddu used to call her bhabhi as Diwan Singh was already married and he did not like the same. She also deposed that on this issue many time altercation had taken place between accused Diwan and deceased Guddu and whenever there used to be an altercation between Diwan and Guddu, accused Naresh used to take the side of accused Diwan. Similarly, PW-8 Sh. Ravi Kumar deposed that he came to know from talks of Diwan and Naresh that Hema and Diwan were having love affair and occasionally Guddu used to do kidding with accused Diwan with respect to love affair between him and Hema. He also deposed that when accused Diwan and Guddu were drinking beer (on the FIR No. 187/2015, PS: Kashmere Gate, Page No. 49 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
intervening night of 15/16.04.2015), an altercation took place between both of them on issue of Hema and accused Naresh started speaking in favour of accused Diwan and he had pacified the matter and he had made understand Guddu and Diwan. Thus, from the testimonies of PW-3 Smt. Urmila, PW-5 Ms. Hema and PW-8 Sh. Ravi Kumar, it has been brought on record that there was love affair/friendship/some kind of relationship between accused Diwan Singh @ Darban Singh and PW-5 Ms. Hema and deceased Guddu used to call Hema as bhabhi jokingly and accused Diwan Singh did not like it and on previous occasions as well as on the previous night of date of incident, altercation had been taken place between deceased Guddu and accused Diwan Singh @ Darban Singh on this issue. It has also come on record that accused Naresh @ Kalu used to take side of accused Diwan Singh @ Darban Singh in the altercation between accused Diwan Singh @ Darban Singh and deceased Guddu on the issue of PW-5 Hema. Applying the law laid down by the Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh (supra) and Raghubir Singh (supra), this court is of considered opinion that there was dispute/enmity between deceased Guddu and accused Diwan Singh @ Darban Singh on the issue of Hema and accused Naresh @ Kalu used to favour accused Diwan Singh on the said issue and altercation had taken place between accused Diwan Singh and deceased Guddu on the said issue on previous occasions as well as just few hours before the commission of offence and hence the prosecution has successfully proved the motive of commission of offence.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 50 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
45. Ld. Addl. PP for the State has argued that both the accused persons were sharing common intention for the commission of offence of murder of deceased Guddu. Section 34 IPC is based on the principle of joint liability. It deals with the doing of separate acts by different persons which may be similar or adverse which are done by them in furtherance of their common intention. In such a situation each person will be liable for the end result of that act if the act was done in furtherance of their common intention.
46. Hon'ble Supreme Court of India in judgment titled as 'Lallan Rai & Ors. Vs. State of Bihar, cited as AIR 2003 SC 333' has observed as under:-
" 20. A plain look at the statue reveals that the essence of Sec. 34 is simultaneous consensus of the mind of person participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot.
The observations above obtain spot from the decision of this court in 'Ramaswami Ayyangar & Ors. Vs. State of Tamil Nadu, 1976 Crl. L.J. 1563'.
47. In the similar vain, the privy council in (Barendra Kumar Ghose Vs. King Emperor) AIR 1925: 26 Crl. L.J. 431) stated the true purport of Sec. 34 as below:-
"the words of Sec. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By Sec.
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33 a criminal act in Sec. 34 includes a series of acts and, further, 'act' includes omission to act, for example an omission to interfere in order to prevent a murder being done before one's very eyes. By Sec. 37 when the offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait' ."
48. In the present case, the common intention is to be inferred from the facts and circumstances of the case. It has been brought on record by the prosecution that whenever any altercation took place between deceased Guddu and accused Diwan Singh @ Darban Singh, accused Naresh Kumar @ Kalu always favoured accused Diwan Singh @ Darban Singh. When PW-3 Smt. Urmila came to the spot of incident, accused Naresh Kumar @ Kalu alterted accused Diwan Singh @ Darban Singh by uttering 'Diwan, aunty aa gayi, aunty aa gayi' which clearly shows that they were sharing common intention. After the commission of offence, both the accused persons ran away from the spot of incident without telling anything to PW-3 Smt. Urmila which clearly shows that they were sharing common intention for the commission of offence. Thus, applying the law laid down by the Hon'ble Supreme Court of India in judgments titled as 'Lallan FIR No. 187/2015, PS: Kashmere Gate, Page No. 52 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Rai & Ors. (supra)' & 'Ramaswami Ayyangar & Ors (supra)' this court is of considered opinion that prosecution has successfully proved that both the accused persons were sharing common intention at the time of commission of offence.
49. PW-18 IO/ACP Anil Kumar Pandey deposed that he found one blood stained shirt at the spot of incident which was seized by him vide seizure memo Ex. PW-2/B and said shirt was handed over to him by PW-8 Sh. Ravi Kumar who told him that said shirt belonged to accused Diwan Singh. Similarly, PW-2 complainant Sh. Rajesh Kumar while identifying the bloodstained shirt in the court, exhibited as Ex. P-3 has deposed that the said shirt Ex. P-3 was handed over to the IO by PW-8 Sh. Ravi Kumar. PW-8 Sh. Ravi Kumar has turned hostile on this point and had deposed that he had not seen one cream colour shirt having blood stained in the room or he told the police officials that the said shirt was worn by accused Diwan on 15.04.2015. However, on the perusal of seizure memo of blood stained shirt, Ex. PW-2/B, it is revealed that the name of the person who handed over the said shirt has been mentioned as Ravi and it also bears signature of PW-8 Sh. Ravi Kumar at point 'B' but since the said seizure memo was not put to PW-8 Sh. Ravi Kumar, it is not established that the said bloodstained shirt was handed over to the IO by PW-8 Sh. Ravi Kumar. However, PW-3 Smt. Urmila has specifically deposed that accused Diwan buttoned t-shirt and ran away from the shop. She also deposed that accused Diwan was wearing a shirt having blood on it and he FIR No. 187/2015, PS: Kashmere Gate, Page No. 53 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
started changing it in the other room and she had noticed red colour spot on the sleev of his shirt but as she was not wearing spectacles, she had asked accused Diwan as to what was the red colour substance at his shirt but he did not reply and after changing the shirt, he went away. The deceased was wearing the clothes which were taken off by the doctor in the Mortuary and were handed over to the IO and IO had seized the same vide seizure memo Ex. PW-22/A. Thus, the shirt Ex. P-3 does not belong to deceased. Only accused persons and deceased were present at the spot of incident and hence prima-facie the said shirt belongs one of the accused though this fact has not been proved by the prosecution beyond reasonable doubt.
50. PW-3 Smt. Urmila deposed that after running away of accused persons from the spot, she made a phone call to accused Diwan but it did not get connected and thereafter she made a call to accused Naresh who narrated her about the incident. She also deposed that thereafter she made phone call to PW-2/complainant Sh. Rajesh Kumar. The CDR of mobile phone no. 8447961576 of PW-3 Smt. Urmila along with Cell ID chart, certificate under Sec. 65B of The Indian Evidence Act and subscriber's proof a has been duly proved by PW-20 Sh. Maninder Singh, Alternate Nodal Officer, Vodafone Idea Ltd., Ex. PW-20/A, Ex. PW-20/B, Ex. PW-20/C & Ex. PW-20/H. Similarly, PW-21 Sh. Rajeev Vashisth, Nodal Officer, Bharti Airtel Ltd. has proved the CDR, certificate under Sec. 65B of Evidence Act, CAF of mobile phone no. 9810243277 of PW-2/complainant Sh. Rajesh Kumar.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 54 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
PW-20 has also proved the CDR, Cell ID chart, certificate under Sec. 65B of the Evidence Act and subscriber's proof of mobile phone no. 9582745084 and 9654324369 issued in name of Bharat and Puneet. However, the subscribers of abovesaid mobile phone numbers namely Bharat and Puneet have not been examined to prove as to who was using their abovesaid mobile phone numbers at the time of incident. None of the IOs, PW-18 ACP Anil Kumar Pandey, PW-25 Inspector Bharat Ratan and PW-28 ACP Jagminder Singh have explained as to by whom the abovesaid two mobile phone numbers issued in name of Sh. Bharat and Sh. Puneet were being used. Thus, in these circumstances, the prosecution has failed to prove that PW-3 Smt. Urmila had made call to accused Naresh @ Kalu by using her mobile phone number 8447653231. PW-2 Sh. Rajesh Kumar has specifically deposed that he had received the phone call from PW-3 Smt. Urmila regarding the incident and PW-3 Smt. Urmila has also deposed that she had informed PW-2 Sh. Rajesh Kumar with respect to the incident. Prosecution has successfully proved that on 16.04.2015 at about 09:27:39, a phone call was made by PW-3 Smt. Urmila by using her mobile phone no. 8447653231 on mobile phone no. 9810243277 of PW-2 Sh. Rajesh Kumar and same is reflected in the CDR, Ex. PW-20/A. As per the location chart, PW-3 Smt. Urmila was present near the mobile tower showing address as 'Raj Kumar Dhingra, 71/72 Gokhle Market, opposite Tis Hazari Court'. The spot of incident is situated near the said spot. PW-2/complainant Sh. Rajesh Kumar had made call at 100 number on the basis of information received FIR No. 187/2015, PS: Kashmere Gate, Page No. 55 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
by him from PW-3 Smt. Urmila and DD No. 15A, Ex. PW-1/X was registered at PS Kashmere Gate. PW-2/complainant Sh. Rajesh Kumar and PW-3 Smt. Urmila have corroborated each other's version.
51. PW-4 Dr. Akash Jhanji, has proved the postmortem report of deceased Guddu, Ex. PW-4/A. PW-4 Dr. Akash Jhanji has specifically deposed that there were 19 external injuries on the dead body of deceased which shows that the deceased was hit repeatedly with the weapon of offence i.e. stone. He also deposed that the cause of death in this case was 'crenio cerebral damage as a result of blunt force impact to the head which was sufficient to cause death in ordinary court of nature'. PW-4 Dr. Akash Jhanji also examined the weapon of offence i.e. two pieces of stones and opined that the injuries mentioned in postmortem report, Ex. PW-4/A and the crenio cerebral damage was possible by the examined weapon/article or similar to that. In the cross- examination, PW-4 Dr. Akash Jhangi has specifically deposed that such type of injury is not possible by simple falling. Thus, the prosecution has successfully proved that the cause of death in the present case was crenio cerebral damage and same was possible by the use of stone, Ex. P-1 which was correctly identified by PW-3 Smt. Urmila. Since PW-4 Dr. Akash Jhanji has proved that there were 19 external injuries on the body of deceased and cause of death was crenio cerebral damage as a result of blunt force impact to the head and same was sufficient to cause death in ordinary course of nature, the case of FIR No. 187/2015, PS: Kashmere Gate, Page No. 56 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
prosecution squarely falls within the purview of Clause firstly and Clause thirdly of Sec. 300 IPC.
52. PW-18 IO/ACP Anil Kumar Pandey deposed that two empty beer bottles were found at the spot of incident which were seized by him vide seizure memo Ex. PW-2/C. PW-2/complainant Sh. Rajesh Kumar has also deposed that IO lifted two empty beer bottles from the spot of incident and seized the same vide seizure memo Ex. PW-2/C. PW-8 Sh. Ravi Kumar has deposed that accused Diwan had brought beer for him and deceased Guddu and they had consumed the beer. PW-17 Dr. Amarpal Singh has proved the viscera report of deceased Ex. PW-17/A. As per the report, exhibits '1A', '1B' and '1C' were found to contain Ethyl Alcohol, Ex. '1C' was found containing Ethyl Alcohol 0.6 mg/100 ml of blood. Thus, it has come on record that deceased Guddu was drunk at the time of incident. Thus, the version of PW-8 Sh. Ravi Kumar has been corroborated by PW-17 Dr. Amarpal Singh through his report, Ex. PW-17/A that deceased had consumed beer before his death. PW-19 Dr. Suminder Kaur has proved the FSL report, Ex. PW-18/E. As per the report, Ex. PW-18/E, blood was found on the exhibits 1, 2, 3, 4a, 4b, 4c, 4d, 4e, 6, 8a & 8b i.e. cotton wool swap having dirty brown stains, one big flat red stone along with one small piece having dirty stains, one dirty cream full sleev shirt, one dirty brown sack, two dirty plastic katta, one pista colour dirty jaipuri rajai, one brownish colour dirty jaipuri rajai, blood gauze piece of deceased, one extremely foul smelling wet FIR No. 187/2015, PS: Kashmere Gate, Page No. 57 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
underwear having dirty stain and one extremely foul smelling baniyan having dirty stains and it was human blood and its group was 'A' and said blood was deceased Guddu. Since blood of deceased Guddu was found on the weapon of offence i.e. stone, Ex. P-1 and PW-3 Smt. Urmila had seen the said stone in the hands of accused Diwan Singh, it has been proved that deceased was hit by the said stone by the accused persons.
53. Ld. Defence counsels for accused persons have argued that there are material contradictions in the testimonies of PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-5 Ms. Hema, PW-7 Sh. Amit and PW-8 Sh. Ravi Kumar regarding the seizure of articles from the spot of incident and making of phone call by PW-3 Smt. Urmila to accused Naresh @ Kalu and hence the benefit of doubt must be given to the accused persons. Ld. Addl. PP for the State has argued that some minor omissions/contradictions with respect to the facts/proceedings are bound to happen in any case and these cannot be considered fatal to the case of the prosecution as per the law laid down by the Hon'ble Supreme Court of India.
54. In Hon'ble Supreme Court of India in Judgement titled as Rammi @ Rameshwar Vs. State of Madhya Pradesh cited as (1999) 8 SCC 649 observed as under:-
" 24. When an eye witness is examined at length, it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail.
FIR No. 187/2015, PS: Kashmere Gate, Page No. 58 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
Perhaps an untrue witness who is well tutored can successfully make his testimony totally non- discrepant. But Court should bear in mind that it is only when the discrepancy in the evidence of witness are so incompatible with the credibility of version that the Court is justify in Jettisoning his evidence. But true serious view to be adopted on mere variations falling in the narration of any incident (either as within the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
25. It is common practice in the Trial Courts to make out contradictions from a previous statement of a witness for confronting him during cross-
examination. Merely because there is inconsistency in the evidence, it is not sufficient to impair the credit of the witness. No doubt Section 155 of Evidence Act provides for impeaching the credit of evidence by proof of an inconsistent former statement. But a reading of Section would indicate that all inconsistent statements are not sufficient to impeach the credit of witness."
55. Similarly Hon'ble Supreme Court of India in Judgement FIR No. 187/2015, PS: Kashmere Gate, Page No. 59 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
titled as Achara Parambath Pradeepan and Ors. Vs. State of Kerala 2007 (1) Crimes 54 SC has held that "it would be too much to expect to any person to say anything in his statement before the police. To see a person by face is one thing but to know him by name is a different. Some improvements in the testimony of witness could not lead to rejection thereof in its entity".
56. Similary Hon'ble Supreme Court of India in Judgement titled as Waman Vs. State of Maharashtra 2011 Cr.L.J 4827 (SC) has held that "the testimony of the witness cannot be disbelieved merely because of some omission in the statement u/s 161 Cr.P.C and the evidence before the Court".
57. In the present case, there are no material contradictions in the testimonies of prosecution witnesses i.e. PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-5 Ms. Hema, PW-7 Sh. Amit and PW-8 Sh. Ravi Kumar regarding the alleged incident. There are only minor omissions/contradictions in their testimonies which cannot be considered as material. Applying the law laid down by Hon'ble Supreme Court of India to the facts of this case in judgments titled as 'Rammi @ Rameshwar (Supra), Achara Parambath Pradeepan and Ors. (Supra) & Waman (Supra)', this court is of considered opinion that such minor FIR No. 187/2015, PS: Kashmere Gate, Page No. 60 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
contradictions as argued by the Ld. Defence counsels are bound to happen in a criminal trial and hence such minor contradictions do not affect the case of the prosecution.
58. Accused persons have not taken specific defences, though, accused Naresh @ Kalu has taken the defence that he was not residing at the spot of incident and he was residing somewhere else and he has taken the plea of alibi under Sec. 11 of Indian Evidence Act. The plea of alibi is to proved by the accused in the same manner in which the prosecution has to prove its case beyond reasonable doubt. PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-5 Ms. Hema and PW-8 Sh. Ravi Kumar have specifically deposed that the both the accused persons were residing in the shop of PW-2/complainant Sh. Rajesh Kumar i.e. at the spot of incident. It has also been proved that on the date of incident also both the accused persons were at the spot of incident. Accused persons have not produced any defence evidence to prove the plea of alibi.
59. The basic purpose of recording of statement of accused under Sec. 313 Cr.P.C is to put in the incriminating evidence brought on record against him by the prosecution and to accord him an opportunity to explain the circumstances appearing against him.
60. Hon'ble Supreme Court of India in Judgment titled as 'Neel Kumar Vs. State of Haryana cited as (2012) 5 SCC 766' has held that:-
FIR No. 187/2015, PS: Kashmere Gate, Page No. 61 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
it was the duty of the accused to explain incriminating circumstances proved against him while making statement u/s 313 Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance was an additional link in chain of circumstances to sustain charges against you.
61. Similary Hon'ble Supreme Court of India in Judgment titled as Phula Singh Vs. State of Himachal Pradesh AIR 2014 SC 1256 has held that:-
if the accused remains silent or in complete denial, the Court can take adverse intense against you.
62. Hon'ble Supreme Court of India in judgment titled as Sidhartha Vashisht Vs. State (NCT of Delhi) cited as (2010) 6 SCC 1 while convicting the accused and taking adverse inference against him with respect to the false answers given by him u/s 313 Cr.P.C observed as under:-
"130. This Court has time and again held that where an accused furnishes false answers as regards proved facts, the Court ought to draw an adverse inference qua him and such an inference shall become an additional circumstance to prove the guilt of the accused in the present case, the appellant Manu Sharma has inter alia has taken false pleas in reply to question no. 50, 54, 55, 56,57,64, 65,67,72,75 and 201 put to him under Section 313 of the Code."
FIR No. 187/2015, PS: Kashmere Gate, Page No. 62 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
63. In the present case, the statements of accused persons under Sec. 313 Cr.PC were recorded and in reply to the most of the questions put to them they have stated either 'I do not know' or 'It is incorrect'. In answers, they have also stated that they have been falsely implicated in the present case. Accused persons have not taken any specific defence either in the cross examination of prosecution witnesses or in their statements recorded under Sec. 313 Cr.PC and the defence of alibi taken by them has not been proved by them, as per established principles of law. The answers given by the accused persons are evasive in nature and they have not explained as to why, the prosecution witnesses have deposed against them or what had happened to deceased Guddu in their presence or how they were present with the dead body of deceased or why they were absconding. In these circumstances, applying the law laid down by Hon'ble Supreme Court of India in 'Neel Kumar (supra), Phula Singh (Supra and Sidharth Vashisth (supra)' this court is of considred opinion that accused persons have not furnished any explanations for these circumstances hence these circumstances are additional link in the chain of circumstancial evidence against them.
64. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond FIR No. 187/2015, PS: Kashmere Gate, Page No. 63 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
65. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under FIR No. 187/2015, PS: Kashmere Gate, Page No. 64 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court FIR No. 187/2015, PS: Kashmere Gate, Page No. 65 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
66. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
67. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
68. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-7 Sh. Amit & PW-8 Sh. Ravi Kumar are FIR No. 187/2015, PS: Kashmere Gate, Page No. 66 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of PW-2/complainant Sh. Rajesh Kumar, PW-3 Smt. Urmila, PW-7 Sh. Amit & PW-8 Sh. Ravi Kumar are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, medical & scientific evidence on record and the circumstances.
69. On the appreciation of entire evidence led by the prosecution and applying the law laid down by the Hon'ble Supreme Court of India in 'Sharad Birdichand Sharda (supra)', this court has reached on the following conclusions:-
(i). Through the testimonies of PW-3 Smt. Urmila, PW-7 Sh. Amit, PW-8 Sh. Ravi Kumar, medical and scientific evidence on record and the circumstances, the prosecution has firmly established that both the accused persons in furtherance of their common intention have committed murder of deceased Guddu.
(ii) The circumstances established by the prosecution are of definite tendency and have pointed out towards the guilt of accused persons.
(iii) The chain of circumstances proved the prosecution is complete and there is no snap in the chain of circumstances.
(iv) The chain of circumstances proved by the prosecution FIR No. 187/2015, PS: Kashmere Gate, Page No. 67 of 68 State Vs. Naresh Kumar @ Kalu & Anr.
is of such a nature that any other hypotheses other than the guilt of accused persons is not possible and same is not inconsistent with the innocence of the accused and it has excluded every other possible hypotheses except with the hypotheses pointing out towards the guilt of accused persons.
70. In the light of abovesaid discussions, this court is of considered opinion that on 16.04.2015 between 08:45 am to 09:30 am, at Shop No. 3141/20, Shahnaz Building, Mori Gate, Delhi, both the accused persons in furtherance of their common intention had committed murder of deceased Guddu. Thus, prosecution has proved its case under Sec. 302/34 IPC against both the accused persons beyond reasonable doubt.
71. Accordingly, accused persons namely Naresh Kumar @ Kalu and Diwan Singh @ Darban Singh are hereby convicted for the offence punishable under Sec. 302/34 IPC.
Digitally signed by VIRENDERAnnounced in the open court VIRENDER KUMAR
KUMAR KHARTA
Date:
KHARTA
on 9th day of May, 2025 2025.05.09
15:13:30 +0530
(Virender Kumar Kharta)
ASJ/FTC-02(CENTRAL)
TIS HAZARI COURTS:DELHI:09.05.2025
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State Vs. Naresh Kumar @ Kalu & Anr.