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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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, orFIR 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 ofFIR No. 187/2015, PS: Kashmere Gate, Page No. 31 of 68
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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
intentionWhen 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
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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.
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(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.
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(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:-
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(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
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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, inFIR 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 allegedFIR 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, noneFIR 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 uponFIR 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 theFIR 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.
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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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State Vs. Naresh Kumar @ Kalu & Anr.
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
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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.
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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
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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
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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.
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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:-
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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
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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 underFIR 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 courtFIR 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 VIRENDER
Announced 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.
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