Delhi District Court
State vs Deepak @ Nat Bolt on 17 August, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-010625-2018
SC No. 799/2018
State Vs. Deepak @ Nat Bolt
FIR No. 320 /2018
PS: Nangloi
U/s 302 IPC
In the matter of:
State
Versus
Deepak @ Nat Bolt
S/o Sh. Rakesh
R/o D-425, JJ Colony Camp No.2,
Nangloi, New Delhi.
Date of institution of case : 24-11-2018
Date of reserving for Judgment : 04-07-2024
Date of pronouncement of judgment : 17-08-2024
Appearance:
For the State : Mr. Himanshu Garg, Ld. Additional
Public Prosecutor.
For accused : Sh. Rahul Arya, Sh. Mohd. Tayyab and Ms.
Neetu Singh, Ld. Counsel.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 1/40
JUDGMENT
1. The accused namely Deepak @ Nat Bolt faced a trial for the offence u/s 302 IPC. A chargesheet was filed against him by SHO PS Nangloi for the commission of offence u/s 302 IPC.
The case of the prosecution:
2. The facts of the prosecution case are that on 26.08.2018, on receipt of DD No. 37 A, an information regarding a person lying unconscious at Saheed Bhagat Singh Park, infront of house of Chhater Singh Rachhoya, Nangloi was received. Accordingly, SI Sunil Kumar alongwith ASI Bir Singh reached the spot from where they came to know that the injured had already been shifted to the hospital by CAT ambulance. On the spot, complainant Neeraj met the police who gave his statement to the effect that on 26.08.2018 at about 3.30 p.m, when he was going to market to purchase sweets and reached near the house of Chhater Singh Rachhoya, he saw that an altercation was going on inside Saheed Bhagat Singh park and people were gathered there. Complainant went inside the park and saw that Deepak @ Nat Bolt, whom he knew earlier, was beating one boy with legs and fists blows. Complainant also stated that when the said boy got unconscious due to beatings, Deepak @ Nat Bolt jumped with knees on the stomach of the said boy two times and thereafter fled away from the spot. The name of said boy was disclosed to the police as 'Jeetu'. On the basis of statement of complainant State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 2/40 Neeraj, investigation was ensued. Later on, information regarding death of injured Jeetu was also received and accordingly, FIR u/s 302 IPC was registered against accused Deepak @ Nat Bolt.
The Post-Mortem report and the Cause of Death:
3. The post-mortem on the dead body of the deceased was conducted by PW-9 Dr. Anurag Thapar and he proved his report i.e. post-mortem report no. 786/18 dated 27.08.2018 at about 2.30 p.m. In the post-mortem, he noted the following external injuries on the dead body of the deceased:-
1. Bilateral black eye present.
2. Bruise reddish, 3x2 cm, present on the right mandibular region
3. Bruise, reddish, 2x2 cm, present below the left eye.
4. Swelling present on the right temporal region.
5. Abrasion, reddish, 1x1 cm, present on the left wrist.
6. Fracture of the nasal bone present.
In the internal examination of the body of the deceased, he did not notice any injury in the neck. However, he noted the 6 th and 7th rib of the right side were fractured with blood extravasation in the surrounding tissue. The left lung of the deceased was also found lacerated. The heart was also found lacerated and approximately 400 ml blood was present in the paricardial sac. He also noted approximately 1 litre of liquid and clotted blood in peritoneal cavity. He also found the brain matter of the deceased as congested and oedematous.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 3/40 The time since death was opined to be consistent with the hospital records.
Cause of death:
4. The doctor who conducted the post mortem opined as "Cause of death is shock, subsequent to chest and abdominal injuries as a result of blunt force impact/blunt object impact, however, blood and viscera have been preserved to rule out any prior intoxication. All injuries were antemortem in nature and fresh in duration". It may be noted that the doctor conducting the postmortem did not opine the injuries on the person of the deceased to be sufficient to cause his death in the ordinary courts of nature.
The FSL result Ex.PW-20/A stated that the DNA profile could be generated from the samples i.e. blood on gauze jeans pant, wrist watch and metallic kadda, ring and band of deceased due to degradation / inhibition. FSL result Ex.PW-19/A could not found metallic poisons, ethyl and methyl, alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides in the stomach and piece of small intestine, liver spleen, kidney and blood sample of deceased.
5. In the course of investigation, at the instance of complainant Neeraj, accused Deepak @ Nat Bolt was apprehended, who admitted his guilt of giving severe beatings to the Jeetu (since deceased) and accordingly, he was arrested by the police. After completion of the investigation, IO filed chargesheet for the offence u/s 302 IPC against accused Deeapk @ Nat Bolt in the court.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 4/40
6. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
The charge against the accused:
7. The accused Deepak @ Nat Bolt did not plead guilty to the charge for the offence u/s 302 IPC and claimed trial.
The evidence by the prosecution:
8. To prove the afore-mentioned charges against the accused, the prosecution examined 21 witnesses. A brief description of testimonies of the prosecution witnesses including the oral as well as documentary evidence, in tabular form, is as under:-
(Oral evidence):
PW-1 Sh. Neeraj Complainant who deposed about the incident PW-2 Ct. Dharmender He joined the investigation with Inspector Devender Singh and prepared the scaled site plan PW-3 SI Jagdeep Singh Being the Crime Team Incharge, he inspected the spot and prepared the crime scene report.
PW-4 Shri Khoob Ram He identified the dead body of deceased in Sanjay Gandhi Hospital. PW-5 HC Jaswant The photographer in crime team, who took 10 photographs of the spot.
PW-6 Shri Jaganath Father of deceased, who deposed about the day of incident. He was also handed over the dead body of his son by the IO.
PW-7 ASI Srinivasa He deposed about registration of FIR
Rao on receipt of rukka sent by IO SI Sunil
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 5/40
Kumar
PW-8 Statement of HC He proved DD No. 37A dated
Rajul Tyagi 26.08.2018
PW-9 Dr. Anurag He conducted postmortem of deceased
Thapar and prepared his detailed report in this
regard
PW-10 Sh. Ravinder He deposed about the day of incident
PW-11 ASI Rajesh He joined the investigation with IO SI
Kumar Sunil Kumar on 26.08.2018 and
deposed about the investigation
conducted in his presence
PW-12 Umed Singh He proved PCR form and certificate u/s
65B IEA issued by him to the IO on
30.08.2018
PW-13 ASI Veer Singh He joined the investigation with SI Sunil on 26.08.2018 and deposed about the investigation.
PW-14 Dr. Gurdeep He proved MLC of patient Jeetu S/o Singh Arora Jagnath prepared by Dr. Numan Faruq PW-15 Ct. Satyawan On the directions of IO, he deposited four sealed pullands pertaining to the present case in the FSL PW-16 ASI Malkhan Being the MHC(M), he proved relevant Singh entries regarding the case property PW-17 Dr. Beena She proved MLC no. 13759 of patient Jeetu, death certificate prepared by Dr. Abhinav Rathi and death summary prepared by Dr. Piyush at SGM Hospital, Mangol Puri PW-18 Inspector He was handed over the further Devender Oberoi investigation on 28.08.2018 and deposed about the same PW-19 Dr. Subhash He proved FSL report prepared by him Chandra on 18.09.2018 PW-20 Ms. Seema She proved FSL report prepared by her on 18.09.2018 PW-21 SI Sunil On 26.08.2018, he alongwith ASI Veer Singh reached the spot on receipt of State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 6/40 DD No. 37 A and deposed about the investigation conducted on the spot.
(Documentary evidence):
Ex.PW-1/A Statement of complainant Neeraj
Ex.PW-1/B Arrest memo of accused Deepak @
Natbolt
Ex.PW-1/C Personal search memo of accused
Deepak @ Nat Bolt
Ex.PW-1/D Disclosure statement of accused Deepak
@ Natbolt
Ex.PW-1/E Pointing out memo at the instance of
accused Deepak @ Natbolt
Ex.PW-2/A Scaled site plan of the spot
Ex.PW-3/A Crime scene report
Ex.PW-4/A Dead body identification statement of
Sh. Khoob Ram
Ex.PW-5/A1 to The photographs of spot taken by crime
Ex.PW-5/A10 team
Ex.PW-5/B Certificate u/s 65B IEA in support of 10
photographs of the scene of crime.
Ex.PW-6/A Dead body identification statement of
Jagannath
Ex.PW-6/B Dead body handing over memo
Ex.PW-7/A Copy of DD No. 47A
Ex.PW-7/B Endorsement of ASI Srinivasa Rao on
rukka
Ex.PW-7/C Copy of FIR no. 320/2018
Ex.PW-7/D Certificate u/s 65 IEA in support of
computerized FIR
Ex.PW-7/E Copy of DD No. 54A dated 26.08.2028
PS Nangloi
Ex. PW-8/A DD No. 37A dated 26.08.2028 PS
Nangloi
Ex.PW-9/A Postmortem report no. 786/18
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 7/40
Mark PW-10/A Statement of Sh. Ravinder
Ex. PW-12/A PCR form
Ex.PW-12/B Certificate u/s 65 IEA
Ex.PW-14/A MLC of patient Jeetu prepared by Dr.
Numan Faruqe
Ex.PW-16/A Entry at sl. no. 2405 in register no. 19
Ex.PW-16/B & Ex.PW- Entries in register no. 21 regarding RC 16/C no. 112/21/18 and RC no. 113/21/18 Ex.PW-16/D Acknowledgement of case acceptance Ex.PW-17/A Notings of Dr. Abhinav Rathi on the MLC of patient Jeetu Ex. PW-17/B Death summary prepared by Dr. Piyush and counter signed by Dr. Abhinav Rathi Ex.PW-17/C Death certificate of deceased Jeetu prepared by Dr. Abhinav Rathi Ex.PW-19/A Detailed FSL report prepared by Dr. Subhash Chandra Ex.PW-20/A Detailed FSL report prepared by Dr. Seema Nain Ex.PW-21/A Rukka prepared by SI Sunil Kumar Ex.PW-21/B Site plan of the spot Ex.PW-21/C Inquest papers regarding deceased Jeetu Ex.PW-21/D&Ex.PW- Seizure memo of sealed Exhibits i.e. 21/E viscera box, cloth pullanda, blood gauze alongwith sample seals handed over by the doctor The statement of accused u/s 313 Cr.P.C:
9. The statement of the accused u/s 313 Cr.P.C was recorded. The incriminating circumstances appearing in evidence against the accused was brought to his notice and his explanation was sought. Accused wished to lead defence evidence.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 8/40 Defence evidence:
10. In his defence, accused got examined himself as witness and gave his statement u/s 315 Cr.P.C as DW-1 stating that he had been falsely implicated in the present case by Neeraj, who was working with the counselor of the area. The counselor wanted to demolish Sulabh Sauchalaya where accused used to work. Local people of the area had objection to the demolition of said Sulabh Sauchalaya and for that reason, on earlier occasion they pelted stones on the house of the counselor in respect of which an FIR was also lodged. Accused stated that since he had been working in the said Sulabh Sauchalaya, therefore, he was falsely framed in the present case by the complainant. He was cross examined by the Ld Prosecutor for the state.
Submissions by Ld. Prosecutor:
11. Ld. Prosecutor while relying upon the oral and documentary evidence on the record, argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt. Ld. Prosecutor further argued that the case of the prosecution is covered within the definition of 'Murder' as defined in section 302 IPC. He further submitted that PW-1 Neeraj is the reliable eye witness and his testimony inspires confidence and further that there is no motive on his part to falsely implicate the accused.
Submissions by Ld. Counsel for accused :
12. On the other hand, Ld counsel for the accused argued that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt while submitting that there State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 9/40 have been several infirmities in the case. Ld. Counsel further argued that PW-1 Neeraj is only a chance witness and he is not a reliable witness. He further argued that the presence of PW-1 at the spot is quite unnatural and thus, his testimony cannot be relied upon to record the guilt of the accused. He relied upon the judgment in the case of Rajesh Yadav Vs State of U.P, (2022) 12 SCC 200. He further argued that PW1 has a motive for the false implication of the accused. He vehemently contended that PW1 was a solitary witness and thus there being no corroboration to his testimony, it is unsafe to rely upon his testimony to bring the guilt of the accused home. He argued that the accused deserves to be acquitted.
Analysis:
13. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
14. For our good fortune, the said expression has been defined by the Hon'ble Supreme Court in the various judgments. In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 10/40 and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC
230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
15. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 11/40 guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)].
Vague hunches cannot take place of judicial evaluation.
"A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
16. At this stage it would be appropriate to discuss the testimonies of the important PWs in a detailed manner.
17. PW-1 Neeraj is the complainant and the eye witness of the case. He deposed that on 26.08.2018, at about 3.15 p.m while going to purchase the sweets, when he reached in front of office / home of one Chhatar Singh, he saw accused Deepak @ Natbolt was beating one person in Saheed Bhagat Singh park. He further deposed that a crowd had already gathered when the accused was beating the said person. The accused was hitting the face of that person with his legs and when the said person became slightly unconscious, the accused jumped over his abdomen twice with his knees. He rushed to save that person and the accused State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 12/40 managed to flee away from the spot. He came to know the name of the injured as 'Jeetu'. He made a call at 100 number. One ambulance came, which shifted Jeetu to the hospital. Jeetu was breathing with difficulty at that time. Police arrived at the spot and recorded his statement Ex.PW-1/A. He had shown the place of incident to the police and also told the name of the accused to the police.
He further deposed that he along with police went for the search of the accused and at about 7.30p.m when they reached at Sulabh Sauchalaya Complex near Ambedkar Bhawan, Nangloi where accused was found sleeping. At his instance, police apprehended the accused. The accused was arrested. He further deposed that the arrest memo Ex.PW-1/B, personal search memo Ex.PW-1/C and disclosure statement Ex.PW-1/D were prepared which he signed. The accused had also shown the place of incident to the police vide memo Ex.PW-1/E. He further deposed that on 30.08.2018, he again accompanied the police to the spot where the measurements were taken for the preparation of the site plan.
He was cross-examined extensively by the accused. The cross-examination stated that there was a crowd of 70-80 persons at the spot. He saw the accused beating Jeetu from the railing of the park. He denied the suggestion that he was the part of the aforesaid crowd. He also denied that accused had only abused Jeetu. He also denied the suggestion that he was accompanying deceased Jeetu at the time of incident. He stated that at the time of incident, some children / friends of the accused were calling the accused as Deepak @ Natbolt and thus, he came to know about his name. He made the call from his mobile no.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 13/40 8383927324. he denied the suggestion that he made the call then he left Jeetu at the spot and went away. He came to know that accused used to work at Sulabh Sauchalaya about 20 days back from the date of incident. He did not know the deceased. When the parents and sisters of the deceased came at the spot then the ambulance came. The mother and sister of deceased accompanied him to the hospital in the ambulance. The ambulance came at the spot within 3-4 minutes after he called the 100 number. The police arrived the spot after five minutes when the ambulance left the spot. He further stated that when the police came, the father of deceased was present at the spot. He further stated that his statement was recorded at PS Nangloi at 4- 4.30 p.m. He saw accused had hit the face of deceased with legs 4-5 times. He denied the suggestion that he alongwith Jeetu took one minor girl to the park where they were apprehended by the public persons and beaten. He denied the suggestion that accused only abused him and deceased Jeetu and thereafter he left the spot. He further denied the suggestion that he borrowed Rs. 13,000/- for three month from the accused one year back. He denied the suggestion on the matter of returning the money, a quarrel had taken place between him and the accused and his family members returned the money to accused. He further denied the suggestion that the parents of the minor girl and the people residing in the vicinity tried to make a complaint against them, but no complaint was registered.
18. PW-6 Jagannath is another important witness for the prosecution. He was the father of the deceased. He deposed that on 26.08.2018, at about 3.15 p.m his younger son Rahul State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 14/40 informed him that accused Nat bolt was beating his elder son Jeetu at Saheed Bhagat Singh park. After his information, he alongwith his wife and daughter Pooja reached there where he saw his son Jeetu lying inside the park. A PCR van reached there and an ambulance also came there which took his son to Sanjay Gandhi Hospital. He went to the PS Nangloi from the spot and from there to Sanjay Gandhi Hospital. In the hospital, his son was declared dead. On 27.08.20218, he identified the dead body of his son vide memo Ex.PW-6/A and after the postmortem vide memo Ex.PW-6/B, the dead body was handed over to him. He further deposed that he came to know that some public persons had given beatings to his son as he was drunk.
Ld. Prosecutor cross-examined him as he was resiling from his statement u/s 161 Cr.P.C. In the cross-examination by the Ld. Prosecutor, he denied that he stated to the IO that on 26.08.2018, when he reached at the spot, his son-in-law Ravinder and one of his neighbour Neeraj were already present there. He was confronted with his statement Mark PW-6/C. He admitted that he stated to the IO that accused Deepak @ Natbolt had killed his son Jeetu after beating mercilessly. However, in the voluntary, he stated that he told the same to the IO as he was informed by the public persons.
In the cross-examination by the accused, he stated that he did not know any person by name of Natbolt. He stated that the accused is not Natbolt. Thus the testimony of this witness is not helpful to the case of the prosecution.
19. PW-10 is Ravinder, who is the brother-in-law of deceased. However, his testimony shows that he did not support the prosecution case at all. He deposed that the incident took State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 15/40 place on 06.08.2018. On that day, at about 2 p.m he came to know that deceased Jeetu was being beaten near Saheed Bhagat Singh park. He went there and saw him lying on the ground and lots of public persons being gathered there. From there he was taken to the hospital in ambulance. Other family members went to the hospital alongwith him and he came back home.
He was cross-examined by the Ld. Prosecutor as he resiled from his statement u/s 161 Cr.P.C. He denied the suggestion that when he reached infront of Saheed Bhagat Singh park, he saw accused giving beatings and bodily blows to Jeetu and was sitting upon the body of deceased Jeetu. He further denied that PW-6 Neeraj was also present at the spot. He further denied that he parked his motorcycle and tried to save the deceased. He further denied that accused fled away from the spot when Neeraj and he were present. He admitted that his father-in- law Jagannath, wife Pooja and mother-in-law Anita reached at the spot. He did not identify the accused in the court. He denied the suggestion that he was won over by the accused.
He was not cross-examined by the accused at all.
20. The evidence led by the prosecution shows that PW-1 Neeraj and PW-10 Ravinder were the eye witnesses for the prosecution case. However, PW-10 Ravinder has not supported the case of the prosecution at all. PW-1 Neeraj though deposed in support of the prosecution case. The accused challenged his testimony on the ground that his presence on the spot at the time of alleged incident, is not trustworthy as he was a chance witness and thus, his testimony cannot be relied upon. A chance witness is the witness who is not expected to be in the place of incident, but who happens to be at the place of occurrence of an offence by State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 16/40 chance and not as a matter of course. Merely because a witness happens to be a chance witness, his testimony cannot be eschewed but is liable to be deal with care and caution with little more scrutiny. In the judgment of Rajesh Yadav & Anr. Vs State of U.P; (supra) the Hon'ble Supreme Court having discussed the previous precedents on the subject elaborated the law in the following terms:-.
"29. A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. We do not wish to reiterate the aforesaid position of law which has been clearly laid down by this Court in State of A.P. v. K. Srinivasulu Reddy [State of A.P. v. K. Srinivasulu Reddy, (2003) 12 SCC 660 : 2005 SCC (Cri) 817] : (SCC pp.
665-66, paras 12-13) "12. Criticism was levelled against the evidence of PWs 4 and 9 who are independent witnesses by labelling them as chance witnesses. The criticism about PWs 4 and 9 being chance witnesses is also without any foundation. They have clearly explained as to how they happened to be at the spot of occurrence and the trial court and the High Court have accepted the same.
13. Coming to the plea of the accused that PWs 4 and 9 were "chance witnesses" who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 17/40 "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
21. It was further held as under:-
30. The principle was reiterated by this Court in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] : (SCC p.
725, paras 21-23) "21. In Sachchey Lal Tiwari v. State of U.P. [Sachchey Lal Tiwari v. State of U.P., (2004) 11 SCC 410 : 2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passer-by had deposed that he had witnessed the incident, observed as under:
If the offence is committed in a street only a passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [Satbir v. Surat Singh, (1997) 4 SCC 192 : 1997 SCC (Cri) 538] , Harjinder Singh v. State of Punjab [Harjinder Singh v. State of Punjab, (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] , Acharaparambath Pradeepan v. State of Kerala [Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh [Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360 :
(2009) 1 SCC (Cri) 188] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] ).
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 18/40
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N. [Thangaiya v. State of T.N., (2005) 9 SCC 650 : 2005 SCC (Cri) 1284] ). Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned."
22. Now, in view of the aforesaid propositions of law, let us see if the presence of PW-1 Neeraj at the place of incident is doubtful or despite being a chance witness, his presence was natural. In his complaint Ex.PW-1/A, he stated that he was passing through the spot when he was going to purchase sweets for his sister. Though, in his examination in chief, he did not depose as to how come he was present at the spot, but in his cross-examination, even no question had been asked by the accused about his presence at the spot. Rather the accused had given him the suggestion that he along with the deceased took a minor girl to the public park where they were apprehended by the public persons who started beating them, but he ran away from the spot. Accused further suggested to him that he only abused him as well as deceased Jeetu and thereafter accused left the spot. Thus, from the aforesaid suggestions of the accused to PW-1, it becomes clear that accused has admitted the presence of not only PW-1, but the deceased as well as of himself. Hence the whole argument of the Ld. Counsel regarding PW-1 being a chance witness and his presence at the spot not trustworthy, has no State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 19/40 substance and therefore, the Ld. Counsel is misled in the said submission. His reliance on the judgment of Rajesh Yadav (supra) is not correct. Accordingly, same stands rejected.
23. The prosecution case hinges upon the testimony of PW1, who is the star witness for the prosecution. Ld Counsel has challenged his testimony being unreliable and untruthful. How the oral evidence in a case should be appreciated, has been considered by the Hon'ble Supreme Court in the case of Balu Sudam Khalde & Anr Vs The State of Maharashtra, CA No. 1910/2010 dated 29.03.2023. The relevant observations are reproduced hereasunder:-
APPRECIATION OF ORAL EVIDENCE "25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 20/40 credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 21/40 XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness." [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]"
24. If the testimony of PW 1 is judged in view of the aforesaid proposition as elaborated in the judgment of Balu Sudam (supra), is abundantly clear that PW1 is a reliable and truthful witness. The general tenor of his testimony inspires confidence. A careful perusal of complaint Ex.PW-1/A and deposition of PW-1 in the court would show that there is no major inconsistency in the version of PW-1. The Ld. Counsel argued that in the complaint Ex.PW-1/A, it was stated that the accused was beating the deceased on his face and head with the leg and fists blows and when the deceased became unconscious, the accused with full force jumped on the stomach of the deceased twice whereas in this deposition, he stated that with the deceased was slightly unconscious, the accused did the same. The Ld. Counsel is trying to create a mountain out of a molehill. It does not make any difference even if the submission of the Ld. Counsel in this regard is accepted. It is settled law that the court has to see the general tenor of the witness and minor variation in the version of the witness is acceptable due to time lapse and fading memory. His credit could not be impeached despite lengthy cross examination. This court is of the opinion that there is nothing on the record to show that the testimony of PW1 cannot be relied upon as he is found to be a truthful and the State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 22/40 reliable witness. Thus, the submission of the Ld. Counsel is not maintainable and same stands rejected.
25. The next argument of the Ld. Counsel was that PW-1 has a motive to implicate the accused in this case. But, the version of the accused in this regard is not consistent. In the cross- examination, the accused put a version to PW-1 that he along with deceased Jeetu brought a minor girl to the park and there were scolded by the accused. Further, the accused built up a case that PW-1 had been knowing the accused for the last ten years and one year before the incident, PW-1 borrowed a sum of Rs. 13,000/- from him for three months which he did not return upon which a quarrel took place and further that the family members of PW-1 returned the money the accused. Accused examined himself u/s 315 Cr.P.C. In his deposition as DW-1, he deposed that he was working as care taker at Sulabh Sauchalaya, behind Ambedkar Hall, Camp No.2 Nangloi. The counselor of the area wanted to demolish the Sulabh Sauchalaya and built a hospital against the wishes of local public. On the same issue, an incident of stone pelting took place which followed by an FIR. The complainant PW-1 Neeraj was working with the counselor and since the accused was working as care taker at Sulabh Sauchalaya, he was falsely implicated. Thus, the reason of false motive on the part of PW-1, as deposed by the accused, is not consistent and changed consistently at the different stages of the trial, which is discernible from the aforesaid discussions. Thus, the motive for his false implication as argued by the Ld. Counsel for the accused, finds no support from the record. The submission can only be rejected and hence rejected.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 23/40
26. The next argument advanced by the Ld. Counsel is that the PW-1 is the solitary eye witness and there is no corroboration to his testimony as PW-10 has not supported the prosecution case and turned hostile despite being the brother-in-law (Jija) of the deceased. He further argued that when PW-10 did not support the case of the prosecution, there is considerable doubt on the testimony of PW-1 and his testimony cannot be relied upon. While appreciating the oral evidence the same can be divided into three categories broadly, (I) wholly reliable (ii) wholly unreliable (iii) neither wholly reliable nor wholly unreliable. To understand this concept, the relevant observations can be found in the judgment of Vadivelu Thevar which has been relied upon by the Supreme Court in the case of Rajesh Yadav (supra), which are reproduced here as under:-
" 21. The aforesaid principle of law has been enunciated in the celebrated decision of this Court in Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981 : AIR 1957 SC 614] : (AIR p. 619, paras 11-12) "11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that 'no particular number of witnesses shall in any case, be required for the proof of any fact'. The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well- recognised maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 24/40 be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 25/40 precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
27. The truthfulness and reliability of the testimony of PW1 has already been discussed in the preceding paragraphs but at the cost of the repetition it can be stated that the testimony of PW1 is wholly reliable and trustworthy. Although PW-1 Neeraj is the solitary witness, but the general tenor of his testimony shows that it inspires confidence and further that he remained consistent in his deposition and there is not material change in his versions given in his deposition before the court and his complaint given to the police. Therefore, this court is of the opinion that PW-1 Neeraj despite being the solitary is wholly reliable witness. Accordingly, the submission of the Ld. Counsel stands rejected.
28. In view of the aforesaid discussions, this court is of the opinion that although PW-10 Ravinder has not deposed in favour of the prosecution, but the deposition of PW-1 complainant Neeraj inspires confidence and can be relied upon. The arguments of the Ld. Counsel for accused regarding PW-1 the complainant being a chance witness and being a solitary witness and not a trustworthy witness, have already been discussed and rejected. There is no hesitation in the mind of the court that it was accused Deepak@ Nat Bolt, who was present at the spot and he had beaten the deceased with fists and legs blows. The State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 26/40 accused himself has suggested PW-1 the complainant that accused, PW-1 and deceased were present in the park. The defence of the accused is diametrically opposite at different stages and thus, same is not believable. Moreover, the postmortem report Ex.PW-9/A has been proved by PW-1 Dheeraj wherein the concerned doctor Dr. Anurag Thapar has opined that the injuries are antemortem in nature and the cause of death was opined as shock subsequent to chest and abdominal injuries as a result of blunt force impact / blunt object impact. Thus, it is clear on the record that the deceased died due to the injuries received by him and the prosecution has been able to prove that it was accused who caused injuries to the deceased. Hence, it is held that the prosecution has been able to prove the guilt of the accused in the present case.
Whether offence is under section 302 IPC or 304 IPC:
29. The Ld. Counsel has also argued in the alternative that even if the case is proved against the accused, still the accused can be convicted with the offence u/s 304 IPC only as it is a case where the death was caused due to bodily blows and no deadly weapon was used by the accused. On the other hand, Ld. Prose- cutor argued that in view of the injuries sustained by the de- ceased, the intention of the accused to cause death is clearly demonstrated and thus, an offence u/s 302 IPC is made out against the accused.
30. Section 299 and 300 of the IPC define the terms 'culpable homicide' and 'murder' respectively. Section 299 provides that culpable homicide would be an act of causing death (i) with the intention of causing death or (ii) with the intention of causing State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 27/40 such bodily injury as is likely to cause death or (iii) with the knowledge that such an act is likely to cause death. On the other hand, section 300 IPC deals with the offence of murder. Although section 300 does not give any clear definition of the offence of murder. It is settled that culpable homicide is the genus and the murder is the species and all murders are culpable homicide but all culpable homicides are not murders
31. The following observations in the case of Anbazhagan Vs The State represented by The Inspector of Police, CA No. 2043 of 2023, arising out of S.L.P. (Criminal) No. 29289 of 2019 decided on 20.07.2023 are relevant to understand the con- cepts of culpable homicide and the murder in sections 299 and 300 IPC.
"31.The phraseology of Sections 299 and 300 respectively of the IPC leaves no manner of doubt that under these Sections when it is said that a particular act in order to be punishable be done with such intention, the requisite in- tention must be proved by the prosecution. It must be proved that the accused aimed or desired that his act should lead to such and such consequences. For example, when under Section 299 it is said "whoever causes death by doing an act with the intention of causing death" it must be proved that the accused by doing the act, in- tended to bring about the particular consequence, that is, causing of death. Similarly, when it is said that "whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death" it must be proved that the accused had the aim of causing such bod- ily injury as was likely to cause death.
32. Thus, in order that the requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the two specific intentions must be proved. But, even when such intention is not proved, the offence will be culpable homicide if the doer of the act causes the death with the knowledge that he is likely by his such act to cause death, that is, with the knowledge that the result of his doing his act may be such as may result in death.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 28/40
32. In order to appreciate the following comparative table will be helpful in appreciating the points of distinction between culpa- ble homicide and murder:-
SECTIONS 299 AND 300 OF THE IPC Section 299 Section 300 A person commits Subject to certain exceptions culpable homicide is culpable homicide if murder if the act by which the death is caused is the act by which the done-
death is caused is done-
INTENTION
(a) with the intention (1) with the intention of causing death; or of causing death; or (2) with the intention of causing such bodily injury
(b) with the intention as the offender knows to be likely to cause the of causing such bod- death of the person to whom the harm is caused; or ily injury as is likely (3) with the intention of causing bodily injury to to cause death; or any person and the bodily injury intended to be in-
flicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE
(c) with the knowl- (4) with the knowledge that the act is so imminently edge that the act is dangerous that it must in all probability cause likely to cause death 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 is mentioned above.
33. There cannot be any meaningful discussion on the concept of culpable homicide not amounting to murder and culpable homicide amounting to murder as provided by section 299 and 300 IPC respectively, without adverting to the landmark judg- ment of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC
382. The relevant paragraphs in the said judgment for the sake of guidance can be reproduced here as under:-
"12. In the scheme of the Penal Code, "culpable homi- cide" is genus and "murder" its specie. All "murder" is State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 29/40 "culpable homicide" but not vice-versa. Speaking gener- ally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, propor- tionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homi- cide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder".
The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homi- cide and the punishment provided for it is, also, the low- est among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
"13. The academic distinction between "murder" and "culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and mean- ing of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and ap- plication of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300..."
"14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, not-
withstanding the fact that such harm would not in the or- dinary way of nature be sufficient to cause death of a per- son in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential require- ment of clause (2). Only the intention of causing the bod- ily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particu- lar victim, is sufficient to bring the killing within the am- bit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 30/40 given knowing that the victim is suffering from an en- larged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
"16. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the or- dinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probabil- ity of death which determines whether a culpable homi- cide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of "probable" as distinguished from a mere possi- bility. The words "bodily injury ... sufficient in the ordi- nary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature."
''17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of na- ture. Rajwant v. State of Kerala [AIR 1966 SC 1874 :
1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illus- tration of this point."
"18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause (3), thus (at p. 1500):
"The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved.
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 31/40 These are purely objective investigations. It must be proved that there was an intention to inflict that particu- lar injury, that is to say, that it was not accidental or un- intentional or that some other kind of injury was in- tended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
"19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be "mur- der". Illustration (c) appended to Section 300 clearly brings out this point."
"20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these cor- responding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowl-
edge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his im- minently dangerous act, approximates to a practical cer- tainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid."
"21. From the above conspectus, it emerges that when- ever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The ques- tion to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connec- tion between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the op- eration of Section 300 of the Penal Code, is reached. This State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 32/40 is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpa- ble homicide not amounting to murder", punishable un- der the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punish- able under the first part of Section 304, of the Penal Code."
34. In the case of Anbazhagan (supra) the Supreme Court ex- tensively discussed the law of culpable homicide and the murder including the judgment of Punnayya and Virsa Singh. Speaking through Hon'ble Mr. Justice J.B. Pardiwala, the Court culled out the legal principles in this regard. The paragraph no. 60 of the judgment summed up the discussion in the judgment. The said paragraph no. 60 is reproduced here in below for the sake of the benefit for all: -
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: --
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Sec-
tion 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instan- taneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Sec- tion 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 33/40 cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Sec- tion 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enu- merated in that section. In the event of the case falling within any of those exceptions, the offence would be cul- pable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the ac- cused is such as to fall within Clauses (1) to (3) of Sec- tion 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowl- edge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused per- son falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is pun- ishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty in- tention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular in- jury was intended, and objectively that injury was suffi- cient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 34/40 covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Sec- tion 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distin- guished from more 'possibly'. When chances of happen- ing are even or greater than it is not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homi- cide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be re- quired under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Sec- tion 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as de- scribed under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by di-
State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 35/40 rect evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the in- jury, degree of force used in causing the injury, the man- ner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general prin- ciple, can be drawn that the accused did not have the in- tention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is suffi- cient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sud- den fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
35. To decide whether the case falls under section 302 IPC or 304 IPC, one can take into consideration the certain circum- stances. In the case of Anbazhagan (supra), the Hon'ble Supreme Court referred to the judgment of Pulicherla Na- garaju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 36/40 500, the Hon'ble Supreme Court elucidated the circumstances rel- evant to finding our whet her there was an intention to cause death or not. The relevant observation in Anbazhagan (supra) are reproduced hereasunder:-
65. We may lastly refer to the decision of this Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, wherein this Court enu-
merated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. This Court observed : (SCC pp. 457-58, para 29) "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or in- significant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual mo- tives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused at- tempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not con- verted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section
302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was car- ried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sud- den quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sud- den provocation, and if so, the cause for such provo- cation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken un- State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 37/40 due advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of inten-
tion." (Emphasis supplied)
36. In view of the aforesaid propositions of law, let us appreciate the evidence led by the prosecution. Admittedly, in this case the accused has not used any deadly weapon like knife, sword or firearm and the death was caused by the bodily blows given by the accused to the deceased. The postmortem report Ex. PW-9/A does not prove that the injuries given to the deceased by the accused were sufficient to cause death of deceased in the ordinary course of nature. The prosecution has also not been able to prove the same as well through the oral testimony of PW-9 Dr. Anurag Thapar, who conducted the postmortem of deceased. He has not deposed that the injuries were sufficient to cause death in the ordinary course of nature as well. During the course of arguments, The Ld. Prosecutor argued that when the deceased was becoming unconscious, still the accused had jumped upon the deceased with full force and hit on the chest of the deceased twice through his knees which clearly shows that accused had intention to cause death of deceased. However, this court finds itself unable to be in tandem with the submissions of the Ld. Prosecutor as by no stretch of imagination, the bodily blows specially the act of the accused that he jumped over the deceased with full force and hit the chest of the deceased by his knees can be said to demonstrate the intention of accused to cause death. It cannot be said that the accused by giving bodily blows and jumping over the chest of the deceased intended or desired that State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 38/40 his act would lead to death of deceased. Therefore, the act of deceased does not bring the case of accused within the definition of murder as provided u/s 300 (1) or (3) IPC. Similarly, the act of accused also does not fall within the definition of section 299 (b) IPC as it cannot be said that it has been proved by the prosecution that accused had aim of causing such bodily injury to the deceased which was likely to cause death of the deceased. When the deceased was becoming unconscious and had the intention of the accused to cause the death of the deceased, he would have strangulated the deceased or he would have hit the head of the deceased against the ground or he would have hit the head of the deceased with a big stone, which is not the case herein. Accordingly, in the considered opinion of this court, the accused cannot be said to have intention to cause the death of deceased or to cause such bodily injury as was likely to cause death of the deceased. Hence, the case falls outside the purview of Section 299 (a) & (b) IPC. However, considering the injuries on the deceased it can be said that the accused had the knowledge that by his act the death of the deceased could have been caused. In the internal examination of the body of the deceased, the 6 th and 7th rib of the right side were found to be fractured with blood extravasation in the surrounding tissue. The left lung of the deceased was also found lacerated. The heart was also found lacerated and approximately 400 ml blood was present in the paricardial sac. Approximately 1 litre of liquid and clotted blood was found in peritoneal cavity. Moreover, brain matter of the deceased was also found as congested and oedematous. The cause of death was opined as "Cause of death is shock, subsequent to chest and abdominal injuries as a result of blunt State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 39/40 force impact/blunt object impact, however, blood and viscera have been preserved to rule out any prior intoxication. Thus, the injuries on the deceased clearly show that accused had the knowledge that by his act the death of the deceased would have been caused.
Conclusion:
37. Thus, in conclusion, it is held that the prosecution has failed to prove the charges against the accused u/s 302 IPC as the act of the accused due to which the deceased lost his life does not fall in any of the clauses u/s 302 IPC. The prosecution has also failed to prove that the act of the accused also fell under 299
(b) IPC as the act of accused was not as such that he had the intention to cause such injury as it was likely to cause death. However, the prosecution has been able to prove that the act of the accused fell under third part of section 299 IPC as he had the knowledge that by his act he was likely to cause death of the deceased making his act punishable under second part of section 304 IPC.
38. Thus, accused stands convicted for the offence u/s 304 Part II IPC.
39. Let the convict be heard on the point of sentence.
Digitally signedHEM by HEM RAJ Date: 2024.08.17 RAJ 16:33:36 Pronounced in the open +0530 Court on 17-08-2024. (HEM RAJ) Addl. Sessions Judge-08 (West) Tis Hazari Courts Delhi State Vs Deepak @ Nat Bolt SC No.799/2018 FIR No.320/2018 40/40